Minorities and the Law: Alexander Pekelis and Jewish Legal Realist Tradition

Yosef Malka (Yale University) and James Loeffler (Johns Hopkins University) discuss their work in progress on the jurist Alexander Pekelis. Discussants: Umberto Gentiloni (University of Rome La Sapienza), Mauro Grondona University of Genoa), Ilaria Pavan (IMT – Scuola Alti Studi Lucca).

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Alexander Pekelis (1902-1946) is scarcely remembered today in the histories of European or American law, and yet at the time of his death, he was widely regarded as a singular force in American Jewish politics and a visionary legal theorist. Much of that reputation he earned through his consistent engagement with the question of law’s response to antisemitism. Born in Odessa and trained in Vienna, Leipzig, Florence, and London, he pioneered the legal analysis of fascism in interwar Italy. During World War II, he fled with his family to the United States, where he retrained in American law and immediately began to reshape the legal strategies of the civil rights movement.

In his all-too-brief American period, Pekelis proposed an influential set of legal remedies and constitutional arguments for dealing with hate speech, public and private discrimination, and the law’s capacity to promote equality and protect minority group identity. These ideas were a product of his own diverse experiences transiting the worlds of revolutionary Eastern Europe, interwar Western Europe, the wartime United States, and postwar Palestine. Out of his encounters with these different legal cultures, Pekelis fashioned a distinctively Jewish strain of legal realism that tested the boundaries of liberal principles in order to defend pluralism during a moment of crisis. Retracing that biography highlights a forgotten transnational story of law’s struggle with antisemitism; retrieving those ideas may yet yield new resources for the contemporary path forward.

Yosef Malka is an incoming JD/PhD (history) student at Yale researching twentieth-century Jewish politics, the history of legal and political thought, and anti-discrimination law. He wrote his undergraduate thesis on Alexander Pekelis.