'An unfortunate coincidence': Jews and jewishness in twentieth-century english judicial discourse

Journal of Law and Society

Volumn 33, Issue 2, 2006, Pages 277-301

  Herman, Didi ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

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EID: 33646744980     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2006.00358.x     Document Type: Article

References (225)

1. Lord Denning, Mandla v. Dowell Lee [1982] 3 All E.R. 1108, at 1113 (CA).
2. Mandla and another v. Dowell Lee and another [1983] 1 All E.R. 1062.
3. King-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),
6. 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.
7. D. Cooper and D. Herman, 'Jews and other uncertainties: Race, faith and English law' (1999) 19 Legal Studies 339-66;
8. 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.
9. 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.
10. See G. Godfrey, 'The judges and the Jews' (2003) Ecclesiastical Law J. 50-61, although this piece is not a scholarly critique.
11. David Eraser's important contributions, The Jews of the Channel Islands and the Rule of Law, 1940-1945 (2000),
12. 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:
13. see L. London, Whitehall and the Jews, 1933-1948: British Immigration Policy, Jewish Refugees and the Holocaust (2003).
14. In this paper, I use the words 'race", 'racialization', and 'racial representation" not as terms of art, but to signify ways of thinking about persons perceived as 'alien' to the environment, and the material practices that attend such understandings. I am conscious that there is much debate about appropriate terminology; however, it is not a debate to which 1 contribute here.
15. See, for example, R. Delgado, J. Stefanie, A. Harris (eds.), Critical Race Theory (2001);
16. K. Crenshaw, N. Gotanda, G. Peller, K. Thomas (eds.), Critical Race Theory: The Key Writings That Formed the Movement (1996);
17. A. Wing, R. Delgado, D. Bell (eds.), Critical Race Feminism: A Reader (2003).
18. But see J.W. St.G. Walker, 'Race', Rights and the Law in the Supreme Court of Canada (1997).
19. See Q. Mirza, 'Critical race feminism: The Anglo-American experience', paper presented at the Annual Meeting of the Law & Society Association, Chicago, May 2004.
20. Also, P. Goodrich and L. Mills, 'The law of white spaces: Race, culture, and legal education' (2001) 51 J. of Legal Education 15-38.
21. Although, see D. Fraser, 'To belong or not to belong: the Roma, state violence and the new Europe in the House of Lords' (2001) 21 Legal Studies 569-93;
22. P. Fitzpatrick, 'Racism and the innocence of law' (1987) 14 J. of Law and Society 119
23. and The Mythology of Modern Law (1992);
24. R. Sandland, 'The Real, the Simulacrum, and the Construction of "Gypsy" in Law' (1996) 23 J. of Law and Society 383-405;
25. P. Tuitt, Race, Law, Resistance (2004).
26. There is a small literature in the field of law and religion considering the treatment of the Jewish faith in British law; however, these texts are not concerned with the rhetorics and processes of racialization vis-à-vis 'the Jew'. See, for example, A. Bradney, Religions, Rights and Laws (2003);
27. M. Freeman, 'Is the Jewish get any business of the state?' in Law and Religion, eds. R. O'Dair and A. Lewis (2001);
28. St. J.A. Robillard, Religion and the Law (1984):
29. S. Poulter, English Law and Minority Customs (1986)
30. and Ethnicity, Law and Human Rights (1999).
31. See, for example, M. Banton, Racial Theories (1998);
32. J. Solomos, Race and Racism in Britain (2003, 3rd edn.).
33. Compare R. Miles, Racism After 'Race Relations' (1993).
34. This is also true for early modern studies of race: for example, Kim Hall's otherwise fascinating account of race and gender underplays the racial and religious role of 'the Jew' in shaping the categories she explores, see K.F. Hall, Things of Darkness: Economies of Race and Gender in Early Modern England (1995).
35. See, also, Kushner's critique of some of this literature: T. Kushner, 'Remembering to forget: Racism and anti-racism in postwar Britain' in Modernity, Culture and 'the Jew', eds. B. Cheyette and L. Marcus (1998) 226-41.
36. A similar critique has been made by Hickman in relation to the absence of 'the Irish' in scholarship on race and ethnicity: M. Hickman, 'Reconstructing deconstructing "race": British political discourses about the Irish in Britain' (1998) 21 Ethnic and Racial Studies 288-307.
37. The other side of the coin here is the tendency amongst some postmodern theorists to use 'the Jew' as a 'figure (or trope) employed to define a new universalism, the reified marker of all resistance to rootedness, fixity and closure - the nomad par excellence' (M. Silverman, 'Refiguring "the Jew" in France' in Modernity, Culture and 'the Jew' eds, B. Cheyette and L. Marcus (1998) 201).
38. See, for example, F. Anthias's otherwise useful analysis of this field, 'Evaluating "diaspora": Beyond ethnicity' (1998) 32 Sociology 557-80.
39. There are numerous historical sources for my necessarily cursory remarks here, including: C. Roth, A History of the Jews in England (1949);
40. G. Alderman, Modern British Jewry (1992);
41. W.D. Rubenstein, A History of the Jews in the English-Speaking World (1996);
42. T. Kushner (ed.), The Jewish Heritage in British History (1992).
43. For example, P. Gilroy, After Empire: Melancholia or Convivial Culture? (2004);
44. C. Hall, K. McCelland, and J. Rendall, Defining the Victorian Nation: Class, Race, Gender, and the Reform Act of 1867 (2000).
45. In his earlier work, Gilroy argued eloquently for analyses attentive to the similarities between Jewish and Black experience, see P. Gilroy, The Black Atlantic: Modernity and Double Consciousness (1993) ch. 6. Robert Young's work is one obvious example of the failure to understand this history, indeed, his Colonial Desire (1995) arguably rewrites the English history of racialization to entirely erase Jews (except as an example of English 'acceptance' of those racially classified as 'Caucasian', see pp. 84-5). Even Goldberg, in a text that otherwise takes significant account of the racialization of Jews, suggests that the racialization of 'the urban' is a postcolonial phenomenon:
46. D.T. Goldberg, Racist Culture (1993) ch. 8.
47. See, also, Miles's critique of an approach to racism focusing solely on processes of colonialization: Miles, Racist Culture, op. cit., n. 14, ch. 3. While McClintock's Imperial Leather is a far more nuanced account than Young's, and she refers to the racialization of Jews several times, her 'imperial' framework prevents 'the Jew' froin making more than a cursory appearance
48. (A. McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (1995)). I am not suggesting that these scholars ought to have centred 'the Jew' in their analysis, only that their sometimes grand theoretical claims need to be assessed with the history of 'the Jew' in mind.
49. B. Cheyette, Constructions of 'The Jew' in English Literature and Society (1993) 4;
50. also B. Cheyette (ed.), Between 'Race' and Culture: Representations of 'The Jew' in English and American Literature (1996);
51. see, also, M. Ragussis, Figures of Conversion: "The Jewish Question' and English National Identity (1995);
52. J. Shapiro, Shakespeare and the Jews (1996);
53. J. Steyn, The Jew: Assumptions of Identity (1999).
54. See, also, Paul Gilroy's call for us to understand thinking on race as being 'in the core rather than at the fringes of English political life': id. (1993), p. 12.
55. For example, D. Boyarin and J. Boyarin, Jews and other Differences: The New Jewish Cultural Studies (1997);
56. Cheyette and Marcus, Jews and other Differences: The New Jewish Cultural Studies, op. cit., n. 14;
57. D. Boyarin, D. Itzkovits, and A. Pellegrini (eds.), Queer Theory and the Jewish Question (2003);
58. D. Cohen and D. Heller, Jewish Presences in English Literature (1990).
59. See D. Cesarani (ed.), The Making of Modern Anglo-Jewry (1990);
60. T. Endelman, The Jews of Britain, 1656 to 2000 (2002);
61. D. Feldman, Englishmen and Jews: Social Relations and Political Culture 1840-1914 (1994);
62. C. Holmes, Anti-Semitism in British Society 1876-1939 (1979);
63. T. Kushner, The Persistence of Prejudice: Antisemitism in British Society during the Second World War (1989);
64. London, The Persistence of Prejudice: Antisemitism in British Society during the Second World War, op. cit., n. 7.
65. I am not suggesting that 'the Jew' is unique in this respect, only that its role is underappreciated in legal studies. On the relationship between sexuality and nation, for example, see C. Stychin, A Nation by Rights: National Culture, Sexual Identity Politics, and the Discourse of Rights (1998).
66. Miles, A Nation by Rights: National Culture, Sexual Identity Politics, and the Discourse of Rights, op. cit., n. 14, ch. 3.
67. I use the phrase 'racial knowledge' following Goldberg's development of the concept (A Nation by Rights: National Culture, Sexual Identity Politics, and the Discourse of Rights, op. cit., n. 17).
68. See, also, Hall, McClelland, and Rendall's analysis of the Reform Act 1867 in A Nation by Rights: National Culture, Sexual Identity Politics, and the Discourse of Rights, op. cit., n. 17.
69. See Sara Ahmed's development of 'stranger fetishism' in S. Ahmed, Strange Encounters: Embodied Others in Post-Coloniality (2000).
70. On popular expressions of antisemitism in Britain, see sources in n. 20 above. For a theoretical account of working-class racism and the investment in 'whiteness' in the United States of America, see D. Roediger, The Wages Of Whiteness: Race and the Making of the American Working Class (1991, rev. edn.).
71. Many other themes present themselves from a study of this material (see concluding remarks).
72. McClintock, The Wages Of Whiteness: Race and the Making of the American Working Class, op. cit., n. 17, p. 5.
73. See, also, Sandland's discussion, The Wages Of Whiteness: Race and the Making of the American Working Class, op. cit., n. 12. Note that I use the word 'English' intentionally. While the nation-state in question is jurisdictionally defined as the United Kingdom, and the nationality of its citizenry as 'British', 1 am interested in how the articulation of race, nation, and character is predicated on an imagined 'Englishness". Furthermore, the cases I consider are from the English not Scottish courts, and the judges I consider, for the most part, are 'English' in this sense.
74. For a thorough review of the history of religious discrimination in England, see J. Bush, '"Include me out": Some lessons of religious toleration in Britain' (1991) 12 Cardozo Law Rev. 881-923.
75. See J. Young's discussion in the Introduction to his The Texture of Memory (1993).
76. This has been my focus elsewhere, see Cooper and Herman, The Texture of Memory, op. cit., n. 6.
77. See Freeman, The Texture of Memory, op. cit., n. 13; this is something I intend to pursue in future work.
78. See, generally, amongst many others, Goldberg, The Texture of Memory, op. cit., n. 17, ch. 4;
79. Hall, The Texture of Memory, op. cit., n. 14;
80. Hall, McClelland, and Rendell, The Texture of Memory, op. cit., n. 17. I use the word 'race' deliberately here despite the debate over when 'race' as a concept took hold. Goldberg argues that what is 'modern' about 'race' is its incorporation by the state into state 'racial projects':
81. D. Goldberg, The Racial State (2001) 161.
82. Goldberg, id. (1993), ch. 8;
83. N. Stepan, The Idea of Race in Science: Great Britain 1800-1960 (1982);
84. Banton, The Idea of Race in Science: Great Britain 1800-1960, op. cit., n. 14.
85. Ahmed, The Idea of Race in Science: Great Britain 1800-1960, op. cit., n. 24, p. 99, italics in the original.
86. See, also, Ragussis, The Idea of Race in Science: Great Britain 1800-1960, op. cit., n. 18.
87. Z. Barany, The East European Gypsies: Regime change, marginality, and ethnopolitics (2002);
88. also D. Fraser, 'To belong or not to belong: the Roma, state violence and the new Europe in the House of Lords' (2001) 21(4) Legal Studies 569-93.
89. Z. Bauman, Modernity and Ambivalence (1991) 85. I am not suggesting that the paradox of a non-national nation is peculiar to Jews
90. (see Gilroy's critique of Bauman in, Modernity and Ambivalence, op. cit., n. 17, pp. 213-14), only that 'the Jews' represent one of the earliest peoples embodying this incongruity in Europe.
91. See, also, Feldman's critique of Bauman's 'totalising' approach to 'the Jews and modernity': D. Feldman, 'Was modernity good for the Jews?' in Cheyette and Marcus, Modernity and Ambivalence, op. cit., n. 19, pp. 171-87.
92. Mandla (CA), Modernity and Ambivalence, op. cit., n. 1, p. 1112.
93. Anxieties over similarities between 'the English' and 'the Jews' is a separate theme I am not able to pursue here, but see D. Cohen's fascinating study, 'Who was who? Race and Jews in turn-of-the-century Britain' (2002) 41 J. of Brit. Studies 460-83. The case Cohen analyses is usually mentioned in criminal law textbooks as a famous example of miscarriage of justice - the fact that it revolved around an 'Englishman' taken for a 'Jew', along with the pervasive race discourse of the case, is not discussed.
94. Of course, as Feldman notes, the most famous English example is Disraeli (a convert to Christianity) who was 'identified as a Jew by friends and enemies alike', in Cheyette and Marcus, J. of Brit. Studies, op. cit., n. 19, p. 178.
95. Perhaps tellingly, Disraeli is also identified as a Jew by postcolonial critic, R. Young, Colonial Desire: Hybridity in Theory, Culture and Race (1995) 84.
96. Young uses Disraeli's political career as evidence of 'the tolerant and even positive attitude towards the Jews that could be found in nineteenth-centuiy Britain' (p. 84). Young cites Cheyette, Colonial Desire: Hybridity in Theory, Culture and Race, op. cit. (1993), n. 18 for this point: however, Cheyette's book, in my understanding, makes a point quite the opposite.
97. Note that this understanding of Jewishness is medieval in its origins.
98. Miles, Colonial Desire: Hybridity in Theory, Culture and Race, op. cit., n. 17.
99. See, also, Ragussis, Colonial Desire: Hybridity in Theory, Culture and Race, op. cit., n. 18 regarding 'the conversion of the Jews' being central to English national identity, and
100. J. Adelman, 'Her father's blood: Race, conversion, and nation in The Merchant of Venice ' (2003) 81 Representations 4-30.
101. See, also, his colourful language in Re Weston's Settlements [1968] 3 All E.R. 338, where his distaste for a Jewish tax evader leads him to the image of the wandering Jew'. Thanks to Anne Bottomley for bringing this case to my attention.
102. Mandla, Re Weston's Settlements, op. cit., n. 1, p. 1112. On how dictionaries construct racial knowledge of the Jew",
103. see G. Sarfati, 'Cultural study, doxa, dictionaries: The case of Jewish identity' (2002) 23 Poetics Today 489-91.
104. Note Denning complains about the 1972 revision of the Oxford English Dictionary; the OED revision of the 'Jew" entry is a fascinating study in its own right. There can also be little doubt that the trope of 'the Jew' in English literature must have been equally influential in his - and other judges' understandings. Denning was a great admirer, for example, of Kipling, an author very keen on such 'Hebraic' images of the Jew': see Cheyette, Poetics Today, op. cit. (1993), n. 18, ch. 3;
105. J. Nyman, 'Re-reading Rudyard Kipling's "English" heroism: Narrating nation in The Jungle Book' (2001) 56 Orbis Litterarum 205-20. The influence of English literature on judicial representations of 'the Jew' is a topic I am not able to pursue here in any depth; however, I do return to this theme briefly later in the paper .
106. Cooper and Herman, Orbis Litterarum, op. cit., n. 6.
107. See Stepan, Orbis Litterarum, op. cit., n. 34 and
108. Banton, Orbis Litterarum, op. cit., n. 14 for the development of the race sciences.
109. See, also, K. Wilson, The Island Race: Empire and Gender in the Eighteenth Century (2002) 6-8.
110. See, also, Cheyette, The Island Race: Empire and Gender in the Eighteenth Century, op. cit. (1993), n. 18, p. 5.
111. A different example is this quote from a 1891 edition of the Manchester Guardian, cited in J.A. Garrard, The English and Immigration 1880-1910 (1971) 86: Christians have reason to walk humbly in the presence of a Jew, for, if they associate themselves at all with the deeds of their ancestors, or take upon themselves the historical reputation of the faith they possess, they have a debt to bear which can never be discharged.
112. See, also, Kushner, The English and Immigration 1880-1910, op. cit., n. 20, p. 106. Occasionally, this form of philosemitism is found in other areas, for example, family law: the community of which these are members [the Jewish community] is a great community and their marriage is an exceptional system of marriage.
113. (Spivack v. Spivack [1930 All E.R. Rep 133] per Lord Merrivale.)
114. See, also, Staves's exploration of the relationship between nationality, property and 'Englishness' in S. Staves, 'Chattel Property Rules and the Construction of Englishness' (1994) 12 Law and History Rev. 123-53. There is also much evidence that many English judges respected Jewish law, and its familial and property relations.
115. J. Goldstein, 'The wandering Jew and the problem of psychiatric anti-semitism in fin-de-siécle France' (1985) 20 J. of Contemporary History 521-52.
116. Horne v. Poland [1922] 10 Ll.L.Rep. 275 K.B.D.
117. id.
118. id.
119. id.
120. But not their Jewishness, see Cooper and Herman, J. of Contemporary History, op. cit., n. 6.
121. Ahmed, J. of Contemporary History, op. cit., n. 24, p. 99.
122. Glicksman v. Lancashire & General Assurance Co. Ltd. [1926] 26 Ll.L.Rep.69 H.L.
123. id. Note again the literary reference. See, also, M. Metzger, ' "Now by My Hood, a Gentle and No Jew": Jessica, The Merchant of Venice, and the discourse of early modern English identity' (1998) 113 PMLA 52-62 on race and manners in The Merchant of Venice. I am conscious that Dunedin is Scottish, not English; however, his elite background and education have clearly shaped his understandings of Jews and Jewishness in similar ways.
124. S. Gilman, The Jew's Body (1991) 12, 34.
125. See also Hyams v. Paragon Insurance Co. [1927] 27 Ll.L.Rep. 448 where Salter J, despite finding for the Jewish plaintiff, reads much into the fact that he is 'a Polish Jew, a very poor scholar and an illiterate person'.
126. id., p. 160.
127. It should also be noted that the use of ostensibly feminized signifiers in relation to Jewish men is not always a product of racist discourse. One of the first radical Yiddish newspapers was called Der Polylisher Yidl - the Little Polish Jew (Endelman, The Jew's Body, op. cit., n. 20, p. 139).
128. D. Boyarin, in Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (1997), makes the argument that Jewish masculinity historically developed in a more 'feminized' way.
129. At the same time, the 'feminization' of the Jewish man in English culture generally should not be over-emphasized; just as importantly, Jewish men were often perceived to embody an aggressive, predatory masculinity. Note also that the relation between Jewishness and masculinity will be understood differently in different national contexts: for example, see D. Itzkovits, 'Secret temples' in Boyarin and Boyarin, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man, op. cit., n. 19, pp. 176-202, regarding the United States.
130. For one readable account, see C. Bermant, The Cousinhaod: The Anglo-Jewish Gentry (1971). For a recent, comprehensive history of the diverse Jewish communities of this period,
131. see Endelman, The Cousinhaod: The Anglo-Jewish Gentry, op. cit., n. 20, chs. 1-3.
132. For a poignant and fictional account of these dynamics, see Amy Levy's controversial novel Reuben Sachs (1888).
133. B. Williams, ' "East and West": Class and Community in Manchester Jewry, 1850-1914' in Cesarani, Reuben Sachs, op. cit., n. 20, p. 20.
134. See, amongst many others, Endelman, Reuben Sachs, op. cit., n. 20, ch. 4;
135. Feldman, Reuben Sachs, op. cit., n. 20, ch. 11;
136. also, more generally. Miles, Reuben Sachs, op. cit., n. 14, ch. 5. Also Helena Wray's piece in this volume, pp. 302-23.
137. For one thorough account of parliamentary and press debates, see Garrard, Reuben Sachs, op. cit., n. 50,
138. and B. Gainer, The Alien Invasion: The Origins of the Aliens Act of 1905 (1972).
139. See, also, Miles's argument that the racism of the Aliens Act 1905 was masked by the economic framework within which these exclusions played out (The Alien Invasion: The Origins of the Aliens Act of 1905, op. cit., n. 14, pp. 143-8).
140. Feldman, The Alien Invasion: The Origins of the Aliens Act of 1905, op. cit., n. 20, pp. 371-2.
141. Garrard, The Alien Invasion: The Origins of the Aliens Act of 1905, op. cit., n. 50, p. 45.
142. As London, The Alien Invasion: The Origins of the Aliens Act of 1905, op. cit., n. 7, and others have demonstrated, twenty years later the United Kingdom government's continued preoccupation with 'alien immigration' resulted in both a failure to save lives and the internment of many of those that did manage to escape, an approach that continues to this day in relation to contemporary refugee communities.
143. Cesarani, The Alien Invasion: The Origins of the Aliens Act of 1905, op. cit., n. 20, p. 471.
144. R. Lewis, Gendering Orientalism: Race, Femininity and Representation (1996) 222. I am not suggesting 'the judges' always characterized 'the Jews' in this way, rather, that these qualities were seen to be characteristic of eastern Jews in English culture generally during this period:
145. see, for example, Garrard's review of the evidence before the Royal Commission at the time, Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 50, ch. 4,
146. and also Steyn, Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 18, ch. 4.
147. Metzger, Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 60;
148. Wilson, Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 48, p. 10.
149. Bauman, Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 38, ch. 2.
150. As Gilman has shown, the 'eastern Jew' also played an important spectral role in the 'Jack the Ripper" episode (Gendering Orientalism: Race, Femininity and Representation, op. cit., n. 61, ch. 4). For an interesting account of Anglo-Jews' attempts to 'naturalize' East-End easterners,
151. see R. Voeltz, '"A good Jew and a good Englishman": The Jewish Lad's Brigade, 1894-1922' (1988) 23 J. of Contemporary History 119-27.
152. Weinstein v. Tlie Army, Navy and General Assurance Association [1922] 10 Ll.L.Rep. 558 K.B.D. In another, similar case, a judge describes Lloyds, on the other hand, as 'almost a national institution", Silver v. Mountain [1922] 10 Ll.L.Rep. 431. See, also, the finding of fraud against a 'Russian Jew' in Shoot v. Hill [1936] 55 Ll.L.Rep. 29.
153. See, for example, R. Griffiths, 'The reception of Bryant's Unfinished Victory: insights into British public opinion in early 1940' (2004) 38 Patterns of Prejudice 18-36;
154. Kushner, Patterns of Prejudice, op. cit., n. 20;
155. G. Macklin, '"A quite natural and moderate defensive feeling"?: The 1945 Hampstead "anti-alien" petition' (2003) 37 Patterns of Prejudice 277-300;
156. London, Patterns of Prejudice, op. cit., n. 7;
157. Fraser, Patterns of Prejudice, op. cit., n. 7.
158. T. Kushner, The Holocaust and the Liberal Imagination (1994).
159. Kushner, The Holocaust and the Liberal Imagination, op. cit., n. 20, ch. 5.
160. London, The Holocaust and the Liberal Imagination, op. cit., n. 7.
161. Kushner, The Holocaust and the Liberal Imagination, op. cit., n. 14,
162. as it did also, for example, in Canada, see Walker, The Holocaust and the Liberal Imagination, op. cit., n. 10.
163. Hatton v. Millburn Garage Co. [1951] 1 Lloyds Rep. 379. per Cassels J.
164. id.
165. Lewis v. Lewis. Lewis v. Ryder [1953] Ch. 423.
166. Note that there was a popular campaign against the naturalization of Jewish refugees in the post-war period, see Macklin, The Holocaust and the Liberal Imagination, op. cit., n. 75, p. 299. Ryder was one of the lucky ones to have been naturalized in 1947 at all.
167. See, also, A. Pellegrini, 'White face performances: "Race", Gender, and Jewish bodies' in Boyarin and Boyarin, The Holocaust and the Liberal Imagination, op. cit., n. 19, p. 112.
168. One could argue that a distinction drawn between social and legal naturalization is now a mark of 'the Jew' and certain others.
169. See, for example, Kushner, The Holocaust and the Liberal Imagination, op. cit., n. 76.
170. Further, on the American example, see Itzkovits, The Holocaust and the Liberal Imagination, op. cit., n. 63. Arguably, Jews in America were active in constructing 'Americanness" (most notably in popular culture) in a way that could never have been the case in the United Kingdom. Many qualities associated with the United States, brashness, loudness, and so on, are also associated with 'the Jew'.
171. As far as I can gather from preliminary research in this area, the first case to contain any real acknowledgement of the Holocaust is the combined action of Oppenheimer v. Cattermole/Nothman v. Cooper [1976] A.C. 249 at the House of Lords, the most detailed depiction being given by a Jewish judge, Lord Salmon. As Kushner has demonstrated, Britain was one of the last liberal states to recognize the Holocaust (The Holocaust and the Liberal Imagination, op. cit., n. 76).
172. One exception is Lord Merrivale in Spivack v. Spivack, The Holocaust and the Liberal Imagination, op. cit., n. 50.
173. Though see E. Barkan, The Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States Between the World Wars (1992), who argues that British scientists were themselves rejecting race science prior to the war and that this movement would have continued anyway.
174. See C. Classer, 'Radicals and Refugees: The Foundation of the Modern Law Review and English Legal Scholarship' (1987) 50 Modern Law Rev. 688-708.
175. See, for example, these cases about whether Jewishness constituted a 'special educational need': R v. Sec. St. Education, exporte E [1996] E.L.R. 312 Q.B.; G v. LB Barnet and SENT [1998] E.L.R. 480; A v. (1) SENT (2) Barnet LB (Lawtel summary) 19/11/2003 (Q.B.D.). This focus on 'ethnicity' occurred despite the fact that neither 'Jewish", nor 'Irish', another designation with a long history of English racist discrimination, are official 'ethnicities' for the purposes of state data collection.
176. Seide v. Gillette Industries Ltd. [1980] 1 RLR 427, per Slynn J.
177. Tribunal judgment quoted by Slynn J., id.
178. id.
179. id.
180. See Goodrich and Mills's discussion of the Quereshi case - they argue Quereshi's refusal to accept the status quo was constructed as a kind of madness (Modern Law Rev. op. cit., n. 11).
181. Seide, Modern Law Rev. op. cit., n. 92.
182. For further discussion of 'character' and English masculinity, see J.S. Duncan, 'The struggle to be temperate: Climate and "moral masculinity" in mid-nineteenth century Ceylon' (2000) 21 Singapore J. of Tropical Geography 34-47;
183. M. Sinha, Colonial Masculinity: The 'Manly Englishman ' and the 'Effeminate Bengali' in the Late Nineteenth Century (1995): and on law and English masculinity,
184. A.M. Liddle, 'State, masculinities and law' (1996) 36 Brit J. of Criminology 361-80.
185. Garnel v. Brighton Branch of the Musician's Union EAT 682/82 (1983).
186. Tribunal judgment quoted by Browne-Wilkinson J., id. On 'Englishness' and 'intemperacy', see Duncan, Brit J. of Criminology, op. cit., n. 97;
187. also D. Herman and D. Cooper, 'Anarchic armadas, Brussels bureaucrats, and the valiant Maple Leaf: Sexuality, governance, and the construction of British nationhood through the Canada-Spain fish war' (1997) 17 Legal Studies 415-33, at 424. Judith Butler, in commenting on the reception of her own 'Jewish lesbian body' in Germany, writes: 'this southern, darker, more emotional, gesticulating, excessive, sexually confusing Other becomes a site for an anxiety over the loss of both gendered and racial boundaries',
188. see J. Butler, 'Reflections on Germany' in Boyarin, Itzkovitz, and Pellegrini, Legal Studies, op. cit., n. 19, p. 402.
189. id.
190. id.
191. id.
192. See Kushner's citation of a Home Office memo re Jews being too 'assertive' and 'gregarious" to be given asylum in 1944, Legal Studies, op. cit., n. 16, p. 206.
193. Of course a dominant discourse in 1930s England was that the continental Jews had brought persecution on themselves by virtue of their unassimiliable Jewishness. See, also, Brookner v. Cranbrook Trains (EAT) EAT/753/93, EAT/20/94, 4 October 1994, Mummery J., where the Jewish claimant is again constructed as 'the instigator of the abuse'.
194. See Feldman, Legal Studies, op. cit., n. 20, pp.;
195. also D. Hirsch, 'Dickens's queer "Jew" and Anglo-Christian identity politics: The contradictions of Victorian family values' in Boyarin, Itzkovitz, Pellegrini, Legal Studies, op. cit., n. 19, pp. 311-33.
196. Gilman, Legal Studies, op. cit., n. 61, p. 19.
197. id., ch. 1.
198. The opposition between the irrationality of the Jew, and the measured impartialities of the state, is again posed, and more recently, in R (Gibbs) v. Sec of State for Social Security, [2001] EWHC Admin 742. CO/4292/2000 Q.B.D.
199. See, also, J. Harrington and A. Manji's discussion of Denning's representations of English law in the African context, ' "Mind with mind and spirit with spirit": Lord Denning and African legal education' (2003) 30 J. of Law and Society 376-99. Qudsia Mirza has also pointed out to me how Muslim opposition to Rushdie's Satanic Verses was represented as being outside the values of 'English law'.
200. Simon v. Brimham Associates (1987) AC1257850.
201. Rv. Elias (15 December 1998) (CA).
202. id.
203. Note the similarity of language with Simon above. The very assumptions of 'racelessness', for example, that it is impermissible to 'tell' a person's race from how they look, allows the racism to go unchecked.
204. Elias, op. cit., n. 108.
205. See also P. Tuitt's development, in Race, Law, Resistance (2004), of how the deployment of 'reasonableness" through racial knowledge results in institutional racism and,
206. also, G. Dench's elaboration of a discriminatory imperative on the part of liberal states, in Minorities in the Open Society (1986). Note, also, that antiimmigration agitation at the turn of the twentieth century was also, purportedly at the time, 'not about' Jews but about 'aliens',
207. see Garrard, Minorities in the Open Society, op. cit., n. 50, ch. 5.
208. See, also, Hickman, Minorities in the Open Society, op. cit., n. 14 on contemporary racializations of 'the Irish'.
209. Hirsch, Minorities in the Open Society, op. cit., n. 104;
210. Steyn, Minorities in the Open Society, op. cit., n. 18, p. 46.
211. Goldberg, Minorities in the Open Society, op. cit., n. 33, p. 236.
212. A similar understanding is developed by Goodrich and Mills in their 'law of white spaces", Minorities in the Open Society, op. cit., n. 11; however, their analysis is overly dependent on understanding 'race' through the prism of skin colour only.
213. These are the remarks of a witness not the judge; however they are read into the record by the judge without comment, see Caton v. Security Pacific Finance (1995) (CA), per Hirst LJ.
214. Re G (a minor) [1990] FCR 881, per Purchase LJ. In this case, the court took seriously arguments that it might be against a 'blond' child's interests to be raised in a 'darker' Jewish family.
215. See, also, K. Brodkin, How Jews Became White Folks & What That Says About Race in America (1998).
216. Bauman, How Jews Became White Folks & What That Says About Race in America, op. cit., n. 38, p. 71.
217. On Howard's own ambivalent relationship with his background, see A. Roth, 'Michael Howard the first Jewish Prime Minister?' (2004) Political Q. 362-6.
218. On the paradoxes of Jewish assimilation in England see, also, L. Rozmovits, ' "Now you see 'em, now you don't": Jewish visibility and the problem of citizenship in the British Telecom "Beattie" campaign" (2000) 22 Media, Culture & Society 707-22.
219. Kushner, Media, Culture & Society, op. cit., n. 14.
220. This is not to say that 'easterness' no longer operates as a racial mark in the case of others, for example, the Roma.
221. The use of man' here is intentional.
222. Particularly Irish, Romany, and more recently Muslims.
223. I have discussed this theological element in other work, see D. Herman, The Antigay Agenda: Orthodox Vision and the Christian Right (1997) 19-24;
224. D. Buss and D. Herman, Globalizing family values: The Christian Right in International Politics (2003) 9-17.
225. In terms of this last aspect, some of the most interesting cases here involve refugee and (like Mandla) race relations claims.