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New Texts Out Now: Mazen Masri, The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State

Mazen Masri, The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State. London: Bloomsbury Professional, 2017.

Jadaliyya (J): What made you write this book?

Mazen Masri (MM): The question of the book–Israel’s definition as a Jewish and democratic state–is one that I have been preoccupied with since I took the constitutional law course in the first year of my law degree at the Hebrew University. I was struck by how this contradiction is explained away using liberal language. The arguments and the explanations presented a picture that did not match the lived experience of many people, myself included. My interest in this question became even more significant when I was in legal practice in Jerusalem, and even more when I worked as a legal advisor on the question of Palestinian refugees. The argument that the Palestinian refugees (or even some of them) should not be allowed to return because return means that Israel will lose its Jewish majority and will no longer be a “Jewish state” was uncritically accepted by many despite its racist underlying assumptions. In many ways, the question of the meaning of the Jewish state goes beyond questions of internal constitutional law. It encapsulates and distills many legal and political dimensions of the Israeli-Palestinian conflict with local, regional, and international implications.

After studying and then practicing law in the Israeli legal system and my different encounters with the “Jewish and democratic” formulation, I decided to take the time to systematically study this formulation, how it is justified and defended, and how it is used throughout the legal system. I was interested in something that goes beyond the classic argument that there is contradiction between the two terms. I wanted to explore the definition not just as a legal text, but also as an idea that is the product of the intimate relationship between law and politics: to explore the definition not just as a textual expression in basic laws, legislation, and court decisions, but also as the embodiment and representation of an ideology that informs the mind-set, policies, and practices in the laws and institutions of the state.

J:  What particular topics, issues, and literatures does the book address?

MM: The book explores the meaning of the “Jewish and democratic” definition focusing on two themes. The first theme is constitutional theory, more specifically, the idea of “the people.” I explore how constitutional theory (or theories) help us understand the definition and expose the weakness of the mainstream justifications. Based on constitutional theories that ground the democratic legitimacy of a constitutional order on the idea that “the people” governs itself through the exercise of popular sovereignty, this book examines Israel’s constitutional order and democracy by addressing the question “who is the people in Israel?” The people in this context is the “self” in the exercise of self-governance, which is one of the most basic ideas in democracy. I examine who is included in “the people” through the prism of the existing constitutional order. An examination of the different facets of the constitutional regime focusing on how political power is generated and exercised by the state and its organs can help identify the source of ultimate political power that exercises sovereignty and holds constituent power, and thus who “the people” is.

The second theme of the book is settler colonialism and its relationship with law. Israel is the product of the Zionist movement, and the state adopts many policies that could be described as settler colonial: where the state acts as the tool of a settler society in conflict with an indigenous population. Despite arguments to the contrary, it is clear that what happened in historic Palestine in the past hundred years fits the definition of settler colonialism. Given that settler colonialism is best understood as a structure–that is, not just a passing event but rather a founding principle or a way of ordering state and society–the logic of settler colonialism is carried on into the settler state even if it operates and manifests itself in varying ways. In the book, I focus on the relationship between settler colonialism and the law: how settler colonialism shapes the development of Israeli constitutional law, and how law, in turn, operates to give effect to the logic of settler colonialism in the form of establishing and reinforcing the settler nation and dissolving the native population. Here I rely on the work of Patrick Wolfe on settler colonialism, and I apply some insights from Third World Approaches to International Law (TWAIL). I mainly rely on Anthony Anghie’s work, which situates colonialism and the “civilizing mission” at the center of the development of international law. The “civilizing mission” highlights the differences between the European and the non-European peoples and casts the latter as uncivilized and backwards and justifies the use of law to bridge this gap. In the book, I identify how similar dynamics could be identified in Israeli constitutional law.

Based on these two themes, I examine certain areas of constitutional law in Israel. I start with the Declaration of Establishment of the State of Israel, and discuss its legal significance and the settler-colonial narrative it provides. I then move on to discuss the immigration and citizenship laws and policies and their role in shaping “the people.” I also highlight their significance as one of the main areas where law complements violence in the process of eliminating the native population. Here I discuss laws such as the Law of Return and the Citizenship Law and the obsession with demography. The focus then turns to the idea of political representation. Representation is important in shaping the relationship between the governors and the governed. The power of the government (the state writ large) is legitimated through representation. The discussion here focuses on Basic Law: The Knesset and other associated statutes which set recognition of the Jewish and democratic definition of the state as a condition for participation in parliamentary and local elections, and registration of political parties. Finally, I examine the constitution in action by highlighting the ways the constitution is shaped and amended, and how legislation is enacted, interpreted, and reviewed by courts, and the role that the “Jewish and democratic” definition plays in each of these areas.   

J: Who do you hope will read this book, and what sort of impact would you like it to have?

MM: The book is relevant for a number of audiences, both academic and more generally. As a book on constitutional law it is relevant for the work of comparative constitutionalists and political scientists. In addition, the book is of interest to students of constitutional law and theory who are interested in questions of identity and constitutionalism elsewhere. Here I hope that the book will broaden the scope of the engagement with Israeli constitutional law, which has been hitherto dominated by models that highlight majority-minority relations or the “nation-state model.” This approach fails to take account of or explain historical events and many of the state policies. For example, it does not take account of the process by which the majority became a majority and the minority became a minority. Nor does it take into account the fact that the majority is comprised of recent immigrants compared to the indigenous minority. It also fails to explain many of the policies that are related to land control and expropriation, political representation, and population control. Adding the settler-colonial lens and the relationship between law and colonialism provides a better framework for understanding the evolution and shaping of the law.

Scholars of settler colonialism will find the book interesting for their work, as it explores the relationship between law and settler colonialism and how both regenerate and reinforce each other. I hope that it will enhance our understanding of how law in settler-colonial contexts plays an instrumental role is regenerating settler colonialism and gives it the liberal language and cover.

The book will also be an essential resource for academic and policy researchers, diplomats, and journalists who deal with the various aspects of the Israeli-Palestinian conflict and wish to learn more about the “Jewish and democratic” definition and its implications.

While writing the book, I tried to avoid formal legal language as much as possible, and used language that is accessible to the informed reader. While some of the technical points will inevitably require some prior knowledge of some terms and concept, the bulk of the book was written with a wide audience in mind. Readers with (slightly) above threshold knowledge of the Middle East and the Israeli-Arab conflict will find it accessible. It will be especially relevant to those engaged in political solidarity struggles.

J: What other projects are you working on now?

MM: I am currently working on a new project that continues some of the themes of this book, but broadens them to other areas. Given how closely intertwined settler colonialism and law are, I decided to study how this relationship shapes constitutional law in a comparative perspective. I am currently looking at how this relationship manifests itself in different settler-colonial state and how it still shapes the operation of public law today.

Excerpts from the introduction: 

Atir-Um Al-Heiran is a village in the Naqab (Negev) in the south of Israel. It is home to 1,000 members of the Abu Al-Qi’an Bedouin tribe. It has been so since the Israeli Military Governor ordered them to move to that area in 1957 after they were expelled from their original village in 1948/1949. Atir-Um Al-Heiran is an ‘unrecognised village’—a village that exists, where people live, but whose existence the state does not acknowledge. The village does not appear on any official map, and no road signs announce the dirt side-road that leads to it. It is not connected to the electric grid, the water supply system or a sewage system. Healthcare and education services are a bare minimum. The only official recognition the village receives is on planning maps as ‘the area designated for demolition’ to make room for what will be the town of Hiran, which is officially designated as a Jewish town to be built on the current location of Atir-Um Al-Heiran.   The rest of the area is designated for forestation. A few kilometres away stands another ‘unrecognised’ village, Al-Araqeeb, with a population of 300. In 2010, this village was destroyed, all 45 structures were demolished, and 4,500 olive trees were uprooted. The area was officially designated for forestation to be carried out by the Jewish National Fund.  The residents of the village rebuilt some tents, huts and ramshackle dwellings, which were subsequently destroyed. As of June 2016, the Ministry of Interior has demolished Al-Araqeeb 99 times.  The residents of both of these villages are Israeli citizens.

Not far away from these villages are ‘individual settlements’ or ‘single family settlements’. These large tracts of land, usually hundreds or thousands of acres, are allocated by the state to an individual or a single family for the stated purpose of the development of agriculture and tourism. In reality the main objective is to ‘protect’ state land from use by the Arab population.  These tracts have been allocated to Jewish citizens only, and are connected to the water and electricity networks despite the fact that most of them were built in breach of planning laws.  Some of the legal defects were retroactively rectified by legislation enacted in 2010.  Like the ‘unrecognised villages’, the residents of these settlements (or ranches) are also Israeli citizens.

The Israeli state acts, using law and through legal channels that include planning authorities, courts and enforcement bodies, to demolish villages and replace them with other (Jewish) towns. At the same time, the state enacts law that is used by the same planning bodies, courts and enforcement bodies to justify and legitimise the grant of vast tracts of lands to other citizens. This takes place despite numerous decisions by the Supreme Court declaring that in Israel all citizens are ostensibly equal. ‘The State of Israel’, former Chief Justice Aharon Barak stressed in the Ka’dan ruling, ‘is a Jewish state in which minorities live, including the Arab minority. Everyone who belongs to these minorities enjoys full equal rights.’  He further added that ‘equality of rights between humans in Israel, whatever their religion or national belonging is, is derived from the values of the state as a Jewish and democratic state’.  How can this stated commitment to equality be reconciled with the situations described above? How can the law and the institutions that make, adjudicate and enforce it, displace one group of people, grant favourable land rights to others, and still be seen as neutral and impartial and fulfilling the requirements of equality among citizens which is at the heart of democracy?

This quandary is only one example in the curious case of the Israeli constitutional system in which the state is defined as ‘Jewish and democratic’. The state, loyal to the ‘democratic’ part of the definition, has the main markers of democracy. It has a government that is drawn from an elected parliament, and most civil and political rights are guaranteed by basic laws and other instruments such as Israeli ‘common law’. Election results have always been respected. The legislative branch supervises the actions of the executive branch, and the judiciary has the power to review the actions of the other two branches. Equality is officially a constitutional right, as expressed in the quote by Barak. External bodies also seem to view these markers favourably. In 2015, Freedom House classified the country as ‘free’, and gave it the score of 1.5 for freedom, 2 for civil liberties, and 1—the highest score available—for political rights.  In 2010, Israel joined the Organization for Economic Cooperation and Development (OECD), an exclusive club of states that are, according to its convention, committed to democracy.

At the same time, the state adopts many policies that could be described as settler-colonial: where the state acts as the tool of a settler society in conflict with an indigenous population. Moreover, the definition as a Jewish state means, among other things, that the state promotes Jewish immigration, Jewish nationalism, Jewish culture and heritage, Jewish settlement, and a special role for the Jewish organisations such as the Jewish Agency and the Jewish National Fund.  The Supreme Court further asserts that this definition means that there should be a Jewish majority in Israel, and that Israel must preserve a Jewish majority so as to remain a Jewish state. Discrimination, in many cases as a matter of law and policy, can be identified in almost all aspects of life in Israel. Adalah, a human rights organisation dedicated to achieving equal individual and collective rights for Palestinians in Israel,  counts more than 50 Israeli laws that discriminate against the Palestinian citizens of Israel.  The number of statutes on this list seems to be constantly on the rise. This legal discrimination permeates the social, economic and political spheres. In almost all conceivable areas including health, education, income, employment, budget allocation, social welfare and development, Israel’s Palestinian citizens fare worse, and in some cases, much worse than the Jewish citizens.  Palestinians, who are almost 20% of the population,  are significantly underrepresented in all branches of government, the civil service and public sector,  despite legislation that mandates ‘appropriate representation’ in the civil service and legislation that protects equality in employment in general.

 

Does the fact that the state is defined as a ‘Jewish and democratic’ state have anything to do with this outcome? What does this definition mean? How is it used to justify certain features of constitutional law in Israel and the constitutional order in general? What does it say about the nature of the regime in Israel? This book seeks to tackle these questions and examine the meaning and implications of Israel’s definition by focusing on its relationship with certain aspects of the constitutional regime such as sovereignty, constituent power and the idea of the People. 

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