Assaf Likhovski, Professor of Law and Legal History at Tel Aviv University, was kind enough to sit down recently to discuss his recent book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). In this clip, he gives a short overview of the book and its importance both to the history of tax compliance and to contemporary events. An edited transcription follows. You can view the second and third parts of this video interview series on the SLH website.
My book, Tax Law and Social Norms in Mandatory Palestine and Israel, tells the story of what I call the intimate fiscal state. This is a type of state that attempted to use social norms, rather than legal ones, to induce compliance. In my book I show how this type of state rose, and later declined, in one specific location: mandatory Palestine and the state of Israel in the middle decades of the twentieth century. My story is focused on Israel, but I think it actually tells a story which is applicable to other tax jurisdictions in the middle decades of the twentieth century. Now, the story that I tell is obviously of interest to tax historians and to legal historians, but I think it also has some contemporary relevance to people interested in the current global crisis that we are witnessing these very days. A large factor in this crisis is a decline of tax compliance by wealthy individuals and by corporations, for example due to the proliferation of offshore tax havens. This fiscal crisis leads to a political crisis because it undermines the trust that ordinary citizens have in the state and in their fellow taxpayers, and it leads to political movements, such as populist nationalism, that arise out of this crisis. So I think going back to the past and looking at the way in which states in the past have tried to induce compliance is actually relevant to people interested, not in history, but in contemporary politics. Israeli tax compliance is far from perfect, but I think the story of how the Israeli state attempted to induce tax compliance in the mid-twentieth century is actually very relevant even for people interested in the present and not in the past.
Professor Michelle McKinley, the Bernard B. Kliks Associate Professor of Law at the University of Oregon School of Law, discusses her forthcoming book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, September 2016). The book explores slavery and what Professor McKinley terms “fractional freedoms” in the context of colonial Peru.
Professor Robert W. Gordon of Stanford Law School discusses his book, a collection of essays entitled Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017). The essays examine the ways in which lawyers make use of history and attempt to “tame” it to their own purposes. In the video clips below, Professor Gordon discusses Taming the Past and his inspiration for writing it.
Professor Gordon on his forthcoming book and why he titled it Taming the Past:
This book is a collection of essays and lectures that I’ve written over a period of about forty years; the first essay in the collection was written in 1975, and the last one was written last year, in 2015. And they’re all around the same theme and variations on the theme, which is how lawyers use history. And lawyers use history in a variety of ways. The most common use, obviously, is as authority. When we cite precedent, we’re saying that because we did something one way in the past, we should continue to do it today. Sometimes they use historical periods as a source of inspiration, like our founding, the golden age of American politics. And sometimes history is used as a series of examples of what we should be moving away from. At the founding of the Republic, these were autocratic monarchy, ecclesiastical tyranny, and feudalism. In our day these are things like slavery, the remnants of Jim Crow, and past invidious discrimination and so forth.
So history, as used by lawyers, has a lot of different modes. Lawyers are, among other things, historians; they write stories about the past. And this book is partly a kind of analysis of the way lawyers use history and the past and it’s also partly a history of the histories that lawyers write about the past. And my focus is basically on lawyers’ uses of history from the seventeenth century onward. And then it’s a critical analysis of the various uses that lawyers make of history. Lawyers obviously are using history for present purposes; it’s very motivated history, which generally means that it’s rather distorted and one-sided history. It’s history put together by advocates for a particular legal position. So one of the things that I’m trying to get at in this book is the various ways in which lawyers obscure or soften or modify aspects of the past that they think are dangerous to present projects. The title of this book is Law in History, History in Law: Taming the Past. And the “taming” part of the title refers to the ways in which lawyers try to make the past manageable–try to obscure, or soften, or modify the frightening, unruly, disruptive, subversive aspects of the past.
Professor Gordon on what inspired him to write Taming the Past:
We’re living in a period in which lawyers are very intensively once again resorting to history. And a lot of the ways that history is used nowadays is by relatively conservative lawyers who are trying to use the past to reproach the present. That is, to say that there was an earlier, freer, happier, more communitarian, more solidary, more religious time before our present disorders. And they date the disorders to the New Deal and the welfare state and the sexual revolution—all of the sort of discomforting aspects of modernity. So there’s a strong urge in conservative legal history to return to what they think is a sturdier and sweeter and more golden period. So I think we’re living at a kind of high point of sort of nostalgic history. Liberals, on the other hand, are much more inclined to represent the past as full of things that we should be moving away from—things that we should be leaving behind with the march of progress. And the book that I’m writing really is trying to see the best in both of these approaches. Both to understand the past as full of episodes and tendencies and views and conditions that we would not want to return to, but also as a source of inspiration for the present.
Professor Sophia Lee on her experiences in the archives:
So I’ve worked in a range of different archives, I work all over the country, but some of the best stuff I’ve found was really happenstance. There were a few happenstance discoveries that I made in the archives that I feel like I really couldn’t have written the book without and they were flukes that I found them, to some extent. One of them came from being at the National Archives and just asking for more, and more, and more records and all of them had to be cleared by somebody in the back. This guy wasn’t even really an archivist but eventually he came out and he said,
“okay, you seem to be really interested in all these things. We don’t really have any of these things, but I do have this random, single microfilm roll from some moment when JFK said all agencies should microfilm all their records for some kind of record preservation. And it was kind of a partial undertaking—some agencies did it, some didn’t, none did it completely, but the Department of Justice has this one microfilm reel—and you’re welcome to look at it.”
And I found things in there that were kind of the lynchpin of the book, and I never would have been able to write it otherwise. I think you really have to, when you’re going out to the archives, befriend archivists, talk to people, and chat them up about your project. And be persistent, because sometimes the things you are going to most value are not going to be things you’re ever going to see listed in a finding aid.
I am already working on my next project and it doesn’t necessarily tie directly in, but in many ways the second book is inspired by something I found in the archives when I was working on the first book that just rung a little bell for me and set off a series of questions that have kind of tickled at my brain ever since. And so I just sort of set it aside; oh maybe that will be…at first I thought maybe just an article or something that would follow on and once I started digging deeper it has grown in to what I think will be a whole book project. So the intellectual roots [of the second book project] are certainly in the first one even if the subject matter is not entirely the same.
Professor Michelle McKinley on her experiences in the archives:
Right at the time that I’m finishing writing—I’m on sabbatical, and I’m finishing my book, I have all my evidence gathered from the past ten years and I’m sitting down to write—the archivist says to me “you know, there’s a box. And we’ve never catalogued it; we’ve just never have had the time. Maybe it’s of interest to you?” So, I said (I’m always interested), so I’m like, “sure, I’ll look at it!” And then they bring me this box and it’s literally, you know, I want to say, sheaves of paper that are tied up with string. So what happens is that when you open the string…so, imagine opening a Christmas present that is sort of just, you know, not in a box the way that we have them now, but you open it and you just see hundreds of pieces of loose paper. And I look at it and I’m looking and it’s handwritten and it is…they’re called censuras.
It’s a huge find for me, and it comes at exactly the wrong time. Because I am finishing my book, and here I have this find that nobody has ever looked at. And it’s not that people are negligent in the archive, they just have so much material. And I have a feeling that this was a box that was just sitting there, waiting, because it was going to be so tedious to go through each piece of paper, figure out how to catalogue it, and where it went to. So here I am and I’m looking at…so, censuras are what I call spiritual subpoenas in which a litigant gets the priest at high mass to urge people to come forward with any information that he or she might have about a proceeding. And it can only take place, it can only be issued by the priest.
Then I started to get really really interested in it and so I go back and I look at all of these ecclesiastical manuals, and it tells the priest that they’re to cover the Bible in black cloth and have a candle burning and this is the prayer: it says “if you don’t come forth, you will be condemned to Hell, your wives will be widows, your children will be orphans, they’ll go begging from door to door and nobody will receive them. Sodom and Gomorrah, the fate of Sodom and Gomorrah, and everything will happen to you.” So it’s actually pretty scary. It’s this way that they’re using the pulpit and the power of God to say “you need to come forth with any information that you have.” It turned out to be a very effective way of getting people to talk about what they knew or what they might have witnessed. So what I ended up doing, because I can’t dig into the whole box (there’s like 9,000 pieces of paper), what I ended up doing was looking at—because I was writing a chapter on baptism—children whose mothers, or children who then grew up later, using this process to get people who knew that they were freed as children to come into the court. So I focused on that and you know I really want to go back and just spend more time with it.