All posts by Kelsey Salvesen

Birthright Citizens: A History of Race and Rights in Antebellum America

Martha S. Jones. Cambridge University Press, June 2018. Available  via Amazon and Cambridge University Press.

Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.


“Beautifully written and deeply researched, Birthright Citizens transforms our understanding of the evolution of citizenship in nineteenth-century America.  Martha Jones demonstrates how the constitutional revolution of Reconstruction had roots not simply in legal treatises and court decisions but in the day to day struggles of  pre-Civil War African-Americans for equal rights as members of the national community.”
–Eric Foner, Columbia University

“Martha Jones’s ‘history of race and rights’ utterly upends our understanding of the genealogy of citizenship. By showcasing ordinary people acting on their understanding of law’s potentialities, Jones demonstrates the vibrancy of antebellum black ideas of birthright citizenship and their impact on black political and intellectual life. Written with verve, and pulling back the curtain on the scholar’s craft, Birthright Citizens makes an important contribution to both African American and socio-legal history.” 
–Dylan Penningroth, University of California, Berkeley

Birthright Citizens gives new life to a long trajectory of African Americans’ efforts to contest the meaning of citizenship through law and legal action.  They claimed citizenship rights in the courts of Baltimore, decades before the concept was codified in the federal constitution – ordinary people, even the formally disfranchised, actively engaged in shaping what citizenship meant for everyone. Martha Jones takes a novel approach that scholars and legal practitioners will need to reckon with to understand history and our own times.”
–Tera Hunter, Princeton University

Birthright Citizens is a brilliant and richly researched work that could not be more timely. Who is inside and who is outside the American circle of citizenship has been a fraught question from the Republic’s very beginnings. With great clarity and insight, Jones mines available records to show how one group–black Americans in pre-Civil War Baltimore– sought to claim rights of citizenship in a place where they had lived and labored. This is a must-read for all who are interested in what it means to be an American.”
–Annette Gordon-Reed, Harvard University

“In this exacting study, legal historian Martha Jones reinterprets the Dred Scott decision through a fresh and utterly revealing lens, reframing this key case as just one moment in a long and difficult contest over race and rights. Jones mines Baltimore court records to uncover a textured legal landscape in which free black men and women knew and used the law to push for and act on rights not clearly guaranteed to them. Her sensitive and brilliant analysis transforms how we view the status of free blacks under the law, even as her vivid writing brings Baltimore vibrantly alive, revealing the import of local domains and institutions – states, cities, courthouses, churches, and even ships – to the larger national drama of African American history. Part meditation on a great nineteenth-century city, part implicit reflection on contemporary immigration politics, and part historical-legal thriller, Birthright Citizens is an astonishing revelation of the intricacies and vagaries of black struggles for the rights of citizenship.”
–Tiya Miles, author of The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits

In the News:

  • Jones discussed birthright citizenship and the fourteenth amendment in Time, the Atlantic, and NPR in October 2018.
  • Jones sat down with the Johns Hopkins Hub to discuss her book (August 2018)
  • KPFA radio aired an interview with Jones, “The American Circle of Citizenship: Who is Inside and Who is Outside?” (August 2018).
  • Jones’ Birthright Citizens declared a “must read” race and culture book of the summer by Colorlines.
  • Lapham Quarterly excerpted Birthright Citizens in July 2018.
  • published an interview with Jones about Birthright Citizens.
  • Professor Jones discussed Birthright Citizens in an interview with WYPR in July 2018.

About the Author:

Professor Martha S. Jones is a legal and cultural historian whose interests include the study of race, law, citizenship, slavery, and the rights of women. She holds a Ph.D. in history from Columbia University and a J.D. from the CUNY School of Law. Professor Jones joined the Johns Hopkins University Krieger School of Arts and Sciences Department of History in June 2017 as the Society of Black Alumni Presidential Professor and Professor of History. She came from the University of Michigan College of Literature, Science, and the Arts the University of Michigan where she was a Presidential Bicentennial Professor, Professor of history and Afroamerican and African Studies. She was a founding director of the Michigan Law School Program in Race, Law & History and a senior fellow in the Michigan Society of Fellows. Prior to joining the Michigan faculty, she was a public interest litigator in New York City and a Charles H. Revson Fellow on the Future of the City of New York at Columbia University.

In addition to Birthright Citizens (Cambridge University Press, 2018), Professor Jones is the author of All Bound Up Together: The Woman Question in African American Public Culture 1830-1900 (University of North Carolina Press, 2007) and a coeditor of Toward an Intellectual History of Black Women (University of North Carolina Press, 2015), together with many important articles and essays. Her work includes the curatorship of museum exhibitions, including “Reframing the Color Line” and “Proclaiming Emancipation” in conjunction with the William L. Clements Library. Professor Jones’s essays and commentary have appeared in the Washington Post, the Chronicle of Higher Education, CNN, and the Detroit Free Press, among other news outlets.

Her work has been supported by the American Council of Learned Societies, the National Humanities Center, the National Constitution Center, and the Gilder-Lehrman Institute of American History. Today, Professor Jones serves as Co-President of the Berkshire Conference of Women Historians, and was recently elected to the Organization of American Historians Executive Board. She lives in Baltimore, Maryland and Paris, France with her husband, historian Jean Hébrard.

Professor Jones also maintains a personal website where you can read more about her scholarship and upcoming talks/appearances at

Jones on Protesting NFL Players

Martha S. Jones, professor of history at Johns Hopkins University and SLH author, recently penned an op-ed in the Washington Post titled “Trump said protesting NFL players ‘shouldn’t be in this country.’ We should take him seriously.” In the piece, Professor Jones responds to President Trump’s remarks regarding protesting NFL players and considers the  historical context for his actions.  Jones is the author of Birthright Citizens: A History of Race and Rights in Antebellum America (forthcoming from Cambridge University Press, Summer 2018). You can read the full op-ed here, on the Washington Post website.

Kolla on the Writing Process and Links Between Projects

Professor Edward Kolla of Georgetown University Qatar discusses the inspiration for his next project and its ties to his recently published book (Sovereignty, International Law, and the French Revolution) in this third segment of our interview series. You can watch the interview in the video clip below and follow along with the lightly edited transcript that follows. Want to learn more about Professor Kolla’s work? Check out  interview installments one and two in the Studies in Legal History video series.

So, I would say the writing process for the book was challenging; it was the first time I’ve done anything like this and so it was a lot of work (but I enjoyed it, obviously). I’m now straight into my next project, which is a similar project in terms of the history of international law. It’s about the history of the passport.

This project is born of my love of travel. I’ve always loved to travel; I’m sure I was standing in a lineup somewhere, staring down at my passport, waiting to go through immigration and thought, you know, “what is the history behind this document? I should probably know the history behind this document.” It’s actually quite an elusive history. In that way, it’s similar to my first book because the way that popular sovereignty enters discourse about international law is not something that is proactively decided by states. The principle of popular sovereignty does not become a principle of international law because all countries get together and agree on it; revolutionaries start embracing these ideas, they apply them in certain diplomatic situations, and slowly over time it becomes a principle of international law. The history of the passport is also one of legal happenstance. All states never got together and agreed they needed passports and that passports needed to look a certain way. It’s, again, a story of historical development, so in that way the projects are very similar.

The other overlap between the projects is that the French Revolution was an important moment in the history of the passport. Up until the French Revolution, it was taken for granted that if you were carrying some kind of identity document when you’re traveling, the person carrying that document is the person for whom it was intended. It was only at the time of the French Revolution that Revolutionaries started thinking, “Oh no! People could be smuggling, or émigrés could be escaping from France.” So they actually started to write the description of the bearer of these documents on the documents themselves. So, not just hair color or eye color, but shape of nose, and size of forehead. That was really the first moment that these documents started to include information about who the bearer was and this is obviously the precursor to the photographs and biometric data that are used in passports today.

Call for Applications: Johnson Program for First Book Authors

The American Society for Legal History (ASLH) announces a new program designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will develop and revise book proposals and sample chapters, and they will meet with guest editors to learn about approaching and working with publishers.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are students who may not (yet) identify as legal historians.

The Johnson Program will begin in November, 2018 at the ASLH Annual Meeting in Houston and will include two in-person workshops and one remote consultation on work-in-progress:

  • November 8, 2018: One-day workshop at the ASLH Annual Meeting (Houston, TX), introduction to book publishing and prospectus writing;
  • Spring 2019 (date TBD): Remote meeting, peer and senior scholar feedback on draft prospectus; and
  • Summer 2019 (July 26-27): Two-day workshop on draft chapters, University of Pennsylvania Law School.

The 2018-19 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians. Participants must commit to participation in all three meetings. The program will include up to 5 Fellows and will provide substantial funding for travel and accommodation.

Application Guidelines:

The application deadline is June 30, 2018. Applicants should submit (as a single document, Times New Roman, 12 point font):

  • cover letter (single spaced, not exceeding two pages) describing the applicant’s professional trajectory to date and reasons for interest in the Johnson Program;
  • curriculum vitae (including contact information);
  • project abstract (single spaced; up to 100 words)
  • project description (single spaced; not exceeding 750 words) organized with the following sections and headings: Introduction, Significance, Design and Methodology, Chapter Outline, Plans for Revision, and Progress to Date.
  • two letters of recommendation from faculty members, at least one of whom should have been a major advisor of the project (sent separately from the other materials).

All materials should be submitted to Barbara Welke (, Chair, University of Minnesota by June 30, 2018.

The 2018 Johnson Program for First Book Authors Committee:

Barbara Young Welke, Chair, University of Minnesota,
Lauren Benton, Vanderbilt University,
Sam Erman, USC Gould School of Law,
Kurt Graham, NARA,

Reuel Schiller, UC Hastings College of Law,
Rayman Solomon, University of Rutgers-Camden School of Law,
Matthew Sommer, Stanford University,


Applicants will be notified by July 30, 2018. Please direct any questions to Barbara Welke.

Kolla on Sources

Professor Edward Kolla of Georgetown University Qatar discusses the source base for his recent book, Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017), and the importance of one source in particular–diplomatic communiques. A lightly edited transcript follows. You can also check out further conversations with Professor Kolla about his work here.




The source base for the book was very diverse. I looked at materials from a number of different of archives in France (the National Archives and National Library in Paris), but also regional archives in a number of the areas that I study in the book (I did research in Alsace, Corsica, Avignon). Probably the most important source for the book were diplomatic communiqués housed in the French Foreign Ministry Archives (which used to be a great place to do research; it was in the old Foreign Ministry at the Quai d’Orsay. The archives have since been moved out, but you used to walk past the Minister’s Office to get to the reading room). And like I say, those diplomatic communiqués were probably the most important source for my book because one thing I really wanted to examine was the way the law operated in practice. That is, the way diplomats—and French officials and everyday people in popular pamphlet literature, etc., but especially diplomats—were thinking about the law and how they saw the law as applying to actual diplomatic problems and issues of importance in the day that needed to be dealt with. So it’s not just a book about international law as theory or international law as doctrine but really about how people—like I said, diplomats, but also just average people in the streets in France—thought about the law and how it could impact their lives.

Kolla on Popular Sovereignty and the French Revolution

Professor Edward Kolla of Georgetown University Qatar delves into the history of the idea of popular sovereignty, its roots in the French Revolution, and its relevance to territorial claims in more modern times. Professor Kolla is the author of Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017). A lightly edited transcript of the video follows.



The central idea of my book, as the title probably indicates, is the impact and effect of the French Revolution for the history of international law. More specifically, I was looking at how the idea of popular sovereignty began to have an effect in international law, which was something that French revolutionaries hadn’t originally envisaged. Popular sovereignty is probably the central idea of the Revolution, both domestically, but also for international law. It’s the idea that the people have control of the government. And, like I said, initially French revolutionaries didn’t envisage this idea applying to all peoples. But, soon, through a series of diplomatic incidents, people–first on the margins of France–started to take up this idea of popular sovereignty and claim a role for themselves in making territorial claims in international law.

The book charts how these ideas spread, first from the margins of France, but then how the revolutionaries themselves started taking up the ideas and using them later, once revolutionary wars break out, to start making territorial claims of their own. This is something that goes against the historiography of the Revolution in a couple of ways. First of all, the Revolution isn’t really examined much in the history of international law. But, with respect to the Revolution itself, people tend to think about revolutionaries making these claims to try and change the international system—to try and change the world. Whereas, initially, this impact of popular sovereignty outside of France’s borders was something that revolutionaries were actually quite timid about applying. So it is actually a story of revolutionaries kind of being caught between a rock and a hard place; they wanted to stay true to these ideas of popular sovereignty when peoples outside of France were starting to take them up (in places like Corsica and in places like Avignon, which had been controlled by the Pope). But, over time, the revolutionaries saw that these ideas were fundamental principles that they held dear, but also could be quite useful—like I said, in that later period of revolution, when they started using them to make territorial claims.

Overall, the book is kind of an origin story of a principle that by the twentieth century comes to be called national self-determination; again, the idea that peoples themselves get to choose the status of their territory. We see that idea in the news all over the world today. Just last year, there were plebiscites in Catalonia for independence from Spain and in Iraqi Kurdistan for independence from that country. So, you see this principle of peoples making claims that their status—the status of their territory—could change in international law based solely on the people’s choice. This is a very important principle in the world today, and it dates back to the time of the French Revolution.

Martha Jones on Birthright Citizens

In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.


I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.

So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.

It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves. 

Binyamin Blum Reviews Likhovski for Jotwell

In January 2018, Binyamin Blum reviewed Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017) for Jotwell. The review can be found on the Jotwell website and is also reproduced below. You can learn more about the book by watching the series of short clips Professor Likhovski recorded for SLH concerning his project. 

On Fiscal History: A Cultural History of Tax Law
Binyamin Blum

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.”During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,1 which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

  1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). []

Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)),

Nicoletti on the Treason Prosecution of Jefferson Davis

Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.

I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.

There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.

It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.


Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to

Likhovski on His Writing Process

Sometimes the book you set out to write isn’t the book you end up with. Listen as SLH series author Professor Assaf Likhovski of Tel Aviv University discusses the process of writing his latest book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). A lightly edited transcription follows. If you missed the first or second clips in this interview series, you can catch up on the SLH website.

It took me more than a decade to write this book, unfortunately, and I must say that I didn’t intend to write the type of book that ultimately was published. When I began thinking about this book, I was thinking it was something completely different; I’m a legal historian, but I also teach the basic tax course at my home institution, Tel Aviv University. When I was teaching tax cases, I felt very frustrated because I could tell my students about the doctrinal aspects of the cases, but I didn’t know anything about the political, cultural, or economic context.

There were all these cases that I really wanted to know more about, among them an important tax-avoidance case called Mefi that was decided by the Israeli Supreme Court in 1967, and there was nothing about the historical context of this case. But, there was a model that I could use; there was a legal historian Robert B. Stevens, who wrote a book in the 1970s about the British House of Lords. It’s called Law and Politics: the House of Lords as a Judicial Body. It examines all sorts of cases, among them tax cases, placing them in the political, economic, and cultural context of their time. And I thought that I could use the approach that Stevens’ book advocates in analyzing cases such as Mefi.

And that is what I did; actually, the last chapter of the book—chapter 6—was the first chapter that I actually wrote. It’s an analysis of the history of this specific tax-avoidance case and its role in Israeli tax law in the transition from a pro-taxpayer, to a pro-government approach to tax-avoidance. After I wrote an article about the Murphy case, I also wrote an article about British tax avoidance cases in the 1930s and another article about American tax avoidance cases in the 1930s; my idea was to write a comparative legal history of tax avoidance cases in Israel, the UK, and the United States. But, when I started enlarging the Israeli part of the book, looking more deeply into the history of tax avoidance, tax evasion, and economic and social and cultural history, I found so many materials that ultimately I ended up with a book which is only focused on the Israeli case. So, it didn’t come out as a comparative or transnational book; it’s merely focused on one specific tax jurisdiction, although I think that the story that I tell is relevant to other jurisdictions too.