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Hassan Jabareen, Can the Court normalize the exception in non-emergency cases? Palestinian cases before the Israeli Supreme Court, International Journal of Constitutional Law, Volume 18, Issue 3, October 2020, Pages 788–803, https://doi.org/10.1093/icon/moaa059
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Abstract
The leading legal literature published after 9/11 recognizes the exception only in emergency. These writings follow the concept that “necessity knows no law” and, as Manin puts it, “security is the only acceptable principle” which justifies arbitrary coercion in liberal theory. Although Carl Schmitt criticized such liberal legal writing, including Hobbes’s sovereign, in that it does not recognize the power of the political identity, Schmitt’s sovereign also appears to decide on the exception only in “extreme emergency.” Accordingly, the judiciary’s political role is marginalized as the court always arrives too late, due to the urgent need to respond immediately. Based on this literature, court decisions always fall within the realm of legality, especially in non-emergency cases. In this article, I argue that the exception also appears in non-emergency cases and that the judiciary plays a serious role in normalizing the exception when the government acts without any legislative authorization. I further argue that these judicial decisions tell us about the very essence of the state’s political identity as it is linked to the authorities’ understanding of the state’s sovereignty. The case study that I examine is Israeli Supreme Court decisions that deal with cases brought by Palestinian citizens of Israel concerning territoriality claims, such as the right of property and the right to live in specific places with basic services. These cases were decided after the enactment of the Basic Law: Human Dignity and Liberty in 1992, which is considered to be part of the “constitutional revolution” in Israeli legal discourse.
1. Introduction
The leading legal literature recognizes the exception only in emergency cases.1 These writings follow the concept that “necessity knows no law,” and as Manin puts it, “security is the only acceptable principle” that justifies arbitrary coercion in liberal theory.2 Although Carl Schmitt criticized such liberal legal writing, including Hobbes’s sovereign, in that it does not recognize the power of the political people’s identity, his sovereign also appears to decide on the exception only in “extreme emergency.”3 Accordingly, the judiciary’s political role is marginalized as the court always arrives too late, due to the need of the executive branch to respond immediately. Based on this literature, court decisions always fall within the realm of legality, especially in non-emergency cases.4
I argue that the exception also appears in non-emergency cases to defend the state’s political identity and that the judiciary plays a substantial role in normalizing the exception when the government acts without any legislative authorization. I further argue that these judicial decisions tell us about the very essence of the state’s political identity as it is linked to the authorities’ understanding of the state’s sovereignty.
The case study that I examine is Israeli Supreme Court decisions dealing with land- related claims cases brought by Palestinian citizens of Israel decided after the enactment of the Basic Law: Human Dignity and Liberty in 1992, which is considered to be a part of the “constitutional revolution” in Israeli legal discourse.5 Following this “revolution,” the Court, led by Justice Aharon Barak, delivered a few landmark cases regarding the rule of law in emergency-type cases, such as prohibiting torture, the detention of Lebanese hostages as bargaining chips, and the use of Palestinian civilians from the West Bank as human shields during military operations.6
However, the case that Justice Barak portrayed as the most difficult in his career was not about emergency, but rather about the state’s political identity. An Arab family sought to purchase a house in a new Israeli town but their application was rejected because they were Arab.7 The authorities contended that the state itself built the town together with the Jewish Agency, which works solely for the benefit of the Jewish people. The Ka’adan family argued that the land is defined legally as “state land,” and thus they must be treated equally as citizens.8 The authorities explained that since the state’s establishment, the policy of Hityashvoot (building and developing Jewish settlement) aimed to establish the Jewish state by, inter alia, controlling the land and building in Arab areas to Judaize the space by excluding the Arabs and thus “accepting the petition would put end to the Hityashvoot project.”9 In other words, the authorities argued that if there is no Hityashvoot, there is no Zionism, no security, and no Jewish state. In other words, colonizing Palestinian areas is the very essence of the state as a Jewish state. In 2000, the Court accepted the petition by a majority of 4:1. Justice Barak explained that “the very essence of Israel as a Jewish state” entails the right to immigrate to Israel for Jewish people only; that the Jewish people constitute the majority of the state’s population; and that the state keeps the dominance of Jewish-Hebrew culture. However, he also emphasized that the state’s very essence as “Jewish and democratic” does not suggest “that the state will discriminate between its citizens.”10 While Justice Barak praised the history of Hityashvoot for building the Jewish state, he further wrote, “it is always important to know not only from where we came, but also where we are heading.”11 This case could be read as suggesting that the state should enter a new beginning of decolonization by starting to treat its Palestinian Arab citizens equally.
Ka’adan opened a deep debate between Zionist liberals and Palestinian intellectuals about the justification of the values of a “Jewish and democratic state.” Zionist liberals perceive that these values, as put by Justice Barak, more or less conform to principles of “liberal democratic” regimes. On the collective level, including immigration, Jews enjoy special rights that do not apply to the Palestinian citizens, as a matter of self-determination like any national group in a nation-state. In terms of individual rights, as in every liberal democratic state, all citizens should be treated equally. Palestinians and Jewish non-Zionist liberals responded that these values position Palestinian citizens, who are a native group, as second-class citizens, and thus Israel cannot be a democratic state since it negates the principle of equality in citizenship and group rights.12
I wish to move away from the normative discussion about the state’s values to its existential core. Instead of asking why the values of “Jewish and democratic” state are justified (or not), I will discuss how these values are decided by the Court. For this purpose, I will examine the judicial exception as the best way to reach the very essence of the state. The land-related claims cases are just examples that question or challenge the core identity of the state as a Jewish state. The case study presented in Section 3 shows that the Court suspended the applicability of constitutional protections in Palestinian cases, and that these decisions were delivered by all justices, liberals and conservatives, men and women, sitting on different judicial panels. This choice of suspension was initiated by the Court and not by the state’s attorneys, and by this, the Court avoided any judicial constitutional interpretation that may damage or corrupt the new constitutional project. While in the early 1950s, the state colonized Arab citizens’ land based on Emergency Regulations,13 after the “constitutional revolution” this colonization project continued but this time it did so “outside” of any legislation or regulations and through the Court’s suspension of constitutional protections. Thus neither the “constitutional revolution” or Ka’adan brought a new beginning. Although the case study focuses on land cases, this article covers Palestinian citizenship in the Jewish state and it concludes that colonialism is the relevant framework for the discussion.
Since the concept of judicial exception in non-emergency cases has not been articulated in the literature, before I discuss the relevant Court decisions, I will examine in Section 2 the theoretical aspects underlying this theme. In Section 3, I discuss the case-study. Section 4 is the summary and the conclusion.
2. Judicial suspension and sovereignty
Although Schmitt marginalized the political role played by the court as a body that may suspend constitutional protections, his theory is a good basis for illustrating the judiciary’s ability to do so. Schmitt argued that the internal struggle does not end with the beginning of Hobbes’s state, as for him “the concept of the state presupposes the concept of the political.”14 The state rests on the political identity where its substance is the political grouping: the ability to sacrifice and to distinguish between enemy and friend. Without the political, there is no existence, no state, and no legality. The Constitution is distinguished from constitutional law: it expresses the quality of the people’s founding decision that is based on their homogeneity, and its core is the political. As the state presupposes the people’s identity, the Constitution precedes constitutional law, which simply expresses regular legality based on normal politics.15 Here the concept of “necessity” is not limited to an emergency but also comes to defend the political identity. Schmitt’s decisionism thesis claims that there is a gap between the norm and its applicability: the decision determines the content of the norm and not the opposite. When it is needed, the decision suspends legality and “the sovereign is he who decides on the exception.” Based on this, the court as a sovereign power may suspend the constitutional applicability in individual cases to defend the Constitution.
Schmitt’s obsession with the question of “who decides,” however, rather than with what the decision signifies, leads him to deny the court’s political role. For him, the judge is “bound to statute” and “normatively determined.”16 Later, Schmitt argued in “The Guardian of the Constitution” that constitutional cases should be taken away from the court, as it is an irrelevant forum for political disputes. Similarly, many contemporary theorists who focus on “who decides” in the name of the people (the popular constitutionalism scholars) advocate for taking the “Constitution” away from the Court or argue against judicial review in the name of people’s right of participation.17
Hans Kelsen responded to Schmitt, arguing that if decisionism is correct, the court’s judgment is also decisionist.18 For him, the court’s decision “contains an element of an exercise of power,” and politics may start at the level of the legislator but its continuation is by the court, which decides on how to execute laws, as there is “no qualitative difference between legislation and judicial decision,” and it is wrong to think that “legislation alone is a productive creation and adjudication nothing but reproductive application of the law.”19 Paul Kahn resolves Schmitt’s contradictions by dismissing the focus on “who decides,” and argues that any sovereign power could be decisionist including the court on constitutional interpretation.20
I extend the critiques of Kelsen and Kahn and argue that the court is also able to normalize the exception. There are moments of “national unity” where the court normalizes the exception in order to defend the political identity. My case study shows that this unity is also expressed through the harmonious decisions of all the justices—liberals and conservatives, men and women—where all of them yield to the exception. For Foucault, Schmitt, and Agamben, the moment of exception expresses the state’s understanding of its sovereignty, which tells us about the very essence of the polity. As Foucault explained, the “raison d’état is the very essence of the state” and “by its nature [it] does not have to abide by laws” as all the institutions must yield to, including judges.21 For Schmitt, “the exception reveals most clearly the essence of the state’s authority,” as sovereignty asserts itself and trumps legality.22 For Agamben, the main concern of sovereignty is the biological life and its raison d’être is the “bare life,” and the sovereign proves its existence not through the law but through its suspension.23
Based on this, I contend that the Israeli Supreme Court decisions that normalize the exception tell us about the very essence of the polity as a Jewish state. Although Israel has been in a declared state of emergency since 1948 based on emergency regulations, these judicial decisions asserted the state’s sovereignty outside of these regulations.
I wish to clarify the characteristics of the judicial decisions on the exception. First, I identify these court decisions as cases that relate to the suspension of the applicability of constitutional protections and which also lead to the derogation from specific relevant legislation.24 Second, these decisions lack any legal authorization. I rely on both the Lockean and the neo-Roman models on emergency to clarify this point. These models are dualistic, as they keep one legal order for emergency cases and another legal order for normal circumstances as ‘clean’ from any emergency-type legislation.25 The Lockeans advocate that the executive branch should enjoy prerogative power in times of emergency and that the people should examine ex-post whether the executive’s use of this power was for good purposes. The neo-Roman model grants the parliament the power to confirm the executive’s declaration of such emergency power.26 Both models require justification for the exception. My case study shows that the court can normalize the prerogative power/exception/extralegality, and play a similar role, like the people in the Lockean model, by confirming the executive’s actions ex-ante (and not ex-post) or by playing a similar role to the Senate/legislator of the neo-Roman model, but on a case-by-case basis.27 Third, the court initiates this suspension. In my case study, the state’s attorneys did not explicitly contend that constitutional protections do not apply, but rather their arguments came close to what Jack Goldsmith calls the “auto-interpretation.”28 This case study shows that suspension of constitutional protections by the court avoided the burden of interpreting constitutional rights, which may create damage to the new project of the “constitutional revolution,” and by this the legal order was kept “clean.”
3. The case study
3.1. The Israeli Supreme Court’s decisions in land cases
The exception must assume the existence of a general norm such as a constitutional protection and/or specific legislation. So before discussing the Palestinian cases, I will review the relevant constitutional norms developed after the “constitutional revolution.”
A year after Ka’adan, an expanded panel of the Israeli Supreme Court delivered its landmark judgment in Kirasik.29 This case concerned the Israeli authorities’ confiscation of land belonging to a Jewish family in the 1950s, pursuant to a 1943 law. In Kirasik, the Court declared a “new legal rule”: If the original public purpose of the confiscation ceases, the confiscation itself will no longer be valid. As Justice Cheshin wrote:
The Basic Law . . . creates a substantial change in the status of the right of property and transfers it not only to a fundamental right, but also to a constitutional one. The consequence is that the power of confiscation should be interpreted today . . . in a way to strengthen this right, which was weak in the Land Ordinance. The interpretation should be that the power to confiscate is a power that is linked to its purpose. Therefore, the confiscation is valid as long as the public purpose exists, but if this purpose ceases, the confiscation will not be valid any more.30
Kirasik with its celebratory judicial rhetoric, and Ka’adan with its promise for a new beginning, should have become revolutionary decisions for Palestinian citizens, since they comprise the main group, historically, whose land was massively confiscated. One of numerous laws enacted to confiscate Palestinian land is the Land Acquisition Law (Validation of Acts and Compensation) (1953) (the “Validation Law”),31 which allowed the authorities to seize land for development, settlement, or security needs.
Two years after Kirasik, the Court ruled on a case in which internally displaced Palestinian citizens asked to return to their village, Iqrith. As the Court later explained, Iqrith “was occupied during the War for Independence . . . and the population was ordered to be evacuated for a short time until the security situation will allow their return.”32 Based on Kirasik, the Iqrith villagers argued that they should be allowed to return as most of the village’s land was not used for any public purpose and there are no security reasons that justify the prohibition of their return. The Court decided that there are no security barriers: “Today, there is no dispute that these reasons do not exist anymore.”33 However, it held that the government’s decision is reasonable:
[s]ince the Palestinian people are raising again their claim for the right of return, and returning the uprooted villagers may create a precedent which will damage the high interests of the State. This subject refers to diplomatic matters, where the government enjoys very wide discretion.34
With this move, the Court transferred the citizens’ civil rights claims to a matter of foreign policy based on governmental prerogative power. Without any reference to the constitutional right of property or the Basic Law, the Court summarily rejected the claimants’ argument that Kirasik applied to their case.
This case shows that political-diplomatic reasons have no less power than the state of emergency vis-à-vis the exception. During the foundation era, security reasons would have justified the village’s evacuation under the Emergency Regulations. Fifty-five years later, despite the “constitutional revolution” and Ka’adan’s promise for equal rights, the Iqrith village decision accepts the government’s prerogative power. In fact, Justice Dorner’s reasoning explains that the remedy depends solely on high politics: “My conclusion is . . . to dismiss the petition. For now.”35 Then she notes that the state’s promises to return given to the petitioners, “who are loyal citizens to the state of Israel”, are still valid and “if the diplomatic situation will change, to reconsider another solution that allows the petitioners to re-settle in the area.”36
In later judgments, the Court made abundantly clear that the Basic Law’s right to property does not apply to the Validation Law. In 2010, other uprooted villagers asked, based on Kirasik, to return 600 dunams that were unused since 1953 when the state confiscated their 34,600 dunams.37 The Court cited the Iqrith Village Case, and decided that “based on a previous Court ruling, it seems that there is no place to apply the Kirasik ruling to confiscation based on the Validation Law.”38 Most importantly, the Court clearly stated the “influence of the Basic Law: Human Dignity and Freedom in this case, if it does exist, is minimal.”39 The Court did not interpret the Basic Law but simply decided that it does not apply.40 The decision signals out the Validation Law, although the Kirasik ruling applies to every sort of confiscation regardless of the nature of the legislation.41
Palestinian citizens started to base their land claims on other confiscation laws. Although the Court dismissed all of these petitions, the cases led to inconsistencies in the Court’s decisions.42 Later, in 2010, the executive branch advanced legislation to ease the pressure on the Court. This new legislation provided that even twenty-five years after land confiscation, the state is allowed to declare a new purpose. While this legislation was pending, the Court started dismissing cases simply based on the bill’s existence.43 The new legislation put an end to Palestinian citizens’ legal claims of the applicability of constitutional protections in historical land confiscation cases.
In the above-mentioned cases, the Court played a similar role to the senate/legislator in the neo-Roman model and to the role of the people in the Lockean model, as it confirms the extralegal acts of the executive branch without dealing with constitutional interpretation of protected rights. It was the Court, and not the state, that declared clearly that the Basic Law did not apply. The state attorneys’ position was close to what Jack Goldsmith calls the “auto-interpretation.”44
The Court provided its justification for the suspension. Few Jewish families owned land in partnership with Palestinians prior to 1948, and their land was also confiscated based on the Validation Law. They also claimed the return of their land.45 This time, Chief Justice Beinisch explained straightforwardly why this law is not a matter of constitutionalism:
This law aimed to legalize retroactively the acquisition of lands by the state which seems to have been done (at least partially) without legal authorization . . the harshness of the law’s provisions and the lack of using other land confiscation laws might be understood based on the unique circumstances of the first days of the state, based on the needs of that period when the lands were abandoned by its owners [the Palestinians: HJ] as a result of the war. These historical circumstances led to the legislation of this law, the provisions of which seriously violate the right of property and no doubt that if this law will be enacted today, it would not comply with the constitutional tests.46
According to the Court, this law came to regulate the exception. It aimed to regulate decisions that were taken by the state, since its establishment, without statutory authorization to confiscate the property of Palestinians as “enemy property” during the Foundation War era. Despite the fact that the people of Iqrith are citizens and that, following Ka’adan, they should be treated equally and that the Court portrayed them as “loyal citizens,” they are treated as enemy-aliens. In the state of exception, there is no legitimate law, as it denies both the national constitutionalism and the laws of war.47 Indeed, the cases show that the court’s decisions suspend the national law, and cannot even stand based on international humanitarian law standards, as there are no military reasons to justify these decisions.48
Here we reach the Constitution of the state in its Schmittian sense. For the court, decisions taken by the government during the Foundation War era are not a matter of legality; the political that was created during the foundation era still trumps constitutional law. Israel is Israel because of its decisionism during the foundation era. Israel became a Jewish state because it denied Palestinians’ claims for return, and this political value today also denies the land claims of the Palestinian citizens. Indeed, Ka’adan made it clear that the history of the foundation that made Israel a Jewish state is not a matter of any challenge. As Justice Barak stated:
The petitioners do not discount the Jewish foundations of the state of Israel’s identity, nor the history of Hityashvoot in Israel. Their petition is future-oriented. In their opinion, the Jewish foundations of the state’s identity are of decisive weight only in matters involving the very essence of the Jewish nature of the state—such as the Law of Return, 1950.49
Does the Political also control the sphere of equal citizenship in cases that do not involve historical land confiscation? This question is the subject of the next section.
3.2. Zones of exception
The Court decisions examined in this section involve cases of Palestinian Bedouins residing in the “unrecognized villages.” While some of these villages predate the establishment of Israel, the state does not provide them with any basic services. They are not included in the national plan, and thus they do not belong to local councils. Successive governments have sought to evacuate these villages, and to relocate their residents—who are citizens of Israel—to other government-planned towns for the Bedouin. The village residents have struggled for decades to be included under state national planning; their claim is that the state discriminates against them solely to control the land.50 With the rise of constitutional rhetoric following the enactment of the Basic Law: Human Dignity and Liberty and the Ka’adan ruling, the villagers started to petition the Court and demand basic social services guaranteed by law to all citizens such as education, health, water, etc.
One of the first such petitions, the Abu Guda case, asked the state to provide kindergartens.51 In a 2004 decision, Justice Barak emphasized that, “expanding compulsory education to children aged three to four years in the Compulsory Education Law aims to answer the needs of low socio-economic Israeli groups including the Bedouin sector.”52 However, the governmental policy to move these villagers to towns expresses an “important public interest.”53 Justice Barak dismissed the petition, as it is illegal to compel the state to build schools without urban planning. Nevertheless, Justice Barak acknowledged that since the dispute between the government and the Bedouin has been ongoing for decades with no resolution in sight, it would be unfair not to find a solution. He suggested that if the petitioners asked for public transport in the future in order to access existing schools, the state should take it into serious consideration.
A year later, in 2005, the same petitioners returned to the Court in the Ala’moor case and asked for public transportation. However, the Court dismissed their petition, stating that because the state does not provide transport to other children, there is no violation of the right to equality before the law.54 Here, the Court ignored the fact that the state does not supply transport for others because there is no such compelling need, as Justice Barak noted a year before.55
In the next stage, the Court decided that equal constitutional protections do not apply to these villages. When the villagers demanded access to drinking water, the Court decided for the first time that the right to drinking water is a constitutional right which applies to every person regardless of where and how one lives.56 Unlike the Abu Guda case, where land planning was a barrier to building schools, here land planning was not an obstacle as the right to drinking water derives from protecting “human dignity.” Despite that, Justice Proccacia fully justified the government’s narrative and policy and described all the unrecognized villagers as trespassers. She ruled that constitutional rights cannot apply equally to the residents of the unrecognized villages, as this would provide a “disincentive to the illegal residents to move.”57 Access to drinking water will be provided only “at the minimum level,” when there is a “special humanitarian need.”58 Here, the court seemingly decided to apply constitutional protection with less force, but in fact the exceptional case here is the exception itself. Legally, there is nothing that can define the criteria of the “humanitarian” as a legal right; it exists only in the absence of rights. Effectively, the reasoning of this case seeks to explain why constitutional protections do not apply to citizens living in the unrecognized villages.59
A new Israeli Supreme Court decision delivered in 2015, the Umm al-Hiran case, turns the unrecognized villages into the closest example of Agamben’s “zone of exception.”60 In the state’s early years, the military ordered Bedouins to move from their historical village to another area which is called Umm al-Hiran. Over fifty years later, the state issued orders for their eviction in order to build a Jewish town—Hiran—in its place. The Court decided that residents of Umm al-Hiran are not trespassers, as they have been living in the village with the state’s permission for decades. The fact that Umm al-Hiran is an “illegal village” is neutralized, as the village is already in a planning process for building Hiran. Despite that, the villagers still have no constitutional rights, as Justice Rubenstein ruled that, “the right for property of the person is protected directly in the Basic Law: Human Dignity and Liberty, but it is not in this case.”61
The Schmittian concept of ethnic homogeneity comes into evidence. While the main idea in the Ka’adan case is that citizens should be treated equally because the land is defined as state land, in Umm al-Hiran, the Court ruled that because it is state land, there is no constitutional rights protection.62 State ownership does not mean that the citizens are the sovereign and should be treated equally. Sovereignty here is based on “We, the Jewish people,” which justifies Hiran, and not “We, the Israeli citizens,” which legitimizes the existence of Umm al-Hiran. Similarly, the villagers in the Drinking Water Case are not entitled to equality before the law because they invaded state land, which is like foreigners attacking the state’s sovereignty.
The Umm al-Hiran decision was met with strong condemnation locally and internationally. Dagan and Kreminitzer criticized it as an odd decision that contradicts all of the Israeli property laws and caselaw.63 Barak Medina argued that it ignores previous landmark cases about the right of property as a constitutional right. He referred to the Disengagement Case in which the Court ruled that the property rights of Israeli-Jewish settlers “displaced” from Gaza in 2005 by Israel’s “disengagement” should be protected, despite the fact that they lived outside of the Green Line and not on their private land.64
While the first two cases examined above—Abu Guda and Ala’moor—are about the applicability of the law, the last two cases—the Drinking Water Case and Umm al-Hiran—are about suspending the law. Although children have the right to education, in the eyes of the Court a legal barrier to building kindergartens existed. In Ala’moor, the Court denied transportation to kindergartens by interpreting the applicability of equality without deciding that equality, as such, is not applied. The Drinking Water Case and Umm al-Hiran differ from the former cases in that they are not about interpretation of constitutional rights but about suspending constitutional applicability. The state attorneys in these latter cases did not argue that the Basic Laws do not apply; they relied mainly on the governmental policy, which is based on the idea that Bedouins should live with Bedouins in concentrated towns. By suspending constitutional protections, including statutory provisions, the Court succeeds in leaving the legal order “clean” from any racial legislation, as sought by the Lockeans and the neo-Romans. All the justices easily accepted the logic of the government’s policy of forced racial segregation.65 Recall that the respondents in Ka’adan argued that Arab and Jewish citizens should live in towns separately but Justice Barak rejected this principle, referring to the US Supreme Court case of Brown v. Board of Education that struck down the principle of segregation upheld previously in Plessy v. Ferguson.66 There is a main difference, however, between these Israeli court decisions and the principle of “separate but equal,” as articulated in Plessy, which was based on state legislation, whereas the Israeli governmental policy is not.
Like the historical land confiscation cases, the exception in the unrecognized villages’ cases shows that political identity is not less powerful than the emergency case. The political values of the Hityashvoot, as linked to building the Jewish state, are not only a matter of historical confiscation. Recall the state’s argument in Ka’adan: if there is no Hityashvoot, there is no Zionism, no security, and no Jewish state. Now we can see Ka’adan as a case about a purchase of a home by a family that did not seek to change the town’s character as Jewish-Hebrew, and did not challenge the essence of the Hityashvoot policy. The residents of Umm al-Hiran (like those from Iqrith Village Case) were evacuated from their original village in the 1950s based on Emergency Regulations, but after the “constitutional revolution” they are forced to be evacuated for racial reasons by the Court’s suspension of constitutional protections. While in the emergency cases, the Court banned torture, the detention of Lebanese hostages, and the use of human shields, finding the lack of any legislative authorization, it denied fundamental civil rights in non-emergency cases in the name of racial governmental policy, which itself lacks any legal authorization. To use Agamben’s terminology, this denial made the life of the people “bare life.”67
4. Summary and conclusion
The unwritten Israeli Constitution (in its Schmittian sense) that was created during the foundation still controls the law to the degree that it enables the judiciary to suspend the law in non-emergency cases. The moment of “ethnic unity” appears through the deep mutuality between all branches, as well as the harmony between all the justices. The model of a “Jewish and democratic” state as described in Ka’adan does not reach the very essence of the polity, as it fails to acknowledge the state’s domination of the Palestinian citizens in daily life as a fundamental value of the state’s very essence. Contrary to the Zionist liberals’ arguments, the exception is very dominant in individual rights and the very essence of the state is not only a matter of collective rights (which is problematic by itself). The rule of law, as applied to Palestinian citizens, is very situational in individual rights cases to such a high degree that equality before the law is also significantly situational. This state of exception makes it impossible to conceptualize the principle of anti-discrimination.68
The judicial exception also challenges the model of “ethnic democracy.”69 According to this model, the Israeli regime has two aspects: one is that it dominates Palestinians’ lives in almost all fields, and the other is democratic in that it allows them freedom of expression and the right to participate in national elections. The exception occurs despite the enactment of legislation in some instances. Thus, arguably, it does not matter whether the Palestinians sit in the Knesset or not, as decisionism has become part of the legal culture.70Decisionism in crucial daily life matters occurs through the mutuality between the executive branch and the Court regardless of the laws of the elected Parliament. The Schmittian concept of ethnic homogeneity is crucial, rather than the rule of law based on separation of powers.
The Jewish state is still pursuing its colonization project. The main characterization of colonialism is controlling the natives’ land by applying differentiated citizenship protections to groups living in the same territorial legal regime.71 The unrecognized villages’ cases and the Iqrith Village Case resemble US colonial policy toward the Native Americans in the nineteenth century, where the US Supreme Court recognized their status as a distinct people but, due to that, also decided that they were subject to the prerogative power like foreigners.72 The Israeli Supreme Court decisions could be perceived as recognizing the residents of Umm al-Hiran as Bedouins, not as equal citizens, and ruling that they must live with Bedouins as a distinct people, and as recognizing the uprooted villagers as Palestinians without citizenship and thus their case is linked to that of the Palestinian refugees as a matter of foreign policy. Like the legal regime of the Empire, the distinction between “outsiders” and “insiders” is based on the political and not on equal territorial citizenship.73 As shown above, while constitutional protections do not apply in land cases of Palestinian citizens, they do apply to Israeli Jewish settlers who live outside the territory in occupied territory. Under the colonization project, the political is tied to ethnic homogeneity and the exception appears regardless of whether or not there is a security threat.74
On the general theoretical level, this case study illustrates the kind of legal culture created by the dualist models. David Dyzenhaus argues that these dualistic models (neo-Roman and Lockean) might create a “dual state,” as described by Ernst Fraenkel, where one group lives under the rule of law and the other group lives subject to prerogative power.75 The rule of law cannot limit the arbitrariness of such a culture. The Court normalized the exception and kept the legal order “clean,” as these models posit, but the regime itself became decisionist in many fields, which even reaches the right to drinking water.
Contrary to theorists who ignore the political role of the court or challenge such a role in the name of legitimacy, a few men and women with black robes possess the power to decide on fundamental and essential matters through decisionism. The critique I draw above targeting “ethnic democracy” may reveal the weakness of the analysis of scholars such as Jeremy Waldron and popular constitutionalism theorists who rely on the people’s right of political participation.76 The court plays the role of the people (of the Lockean model) and the role of the legislator (of the neo-Roman model) without creating any political crisis between the branches.
There is no academic work on judicial decisionism, but it does not mean that there are no such judicial decisions, to different scales and degrees, in other countries. These questions have simply never been raised. Richard Pildes commented that “the Court’s own decisions are more inherently self-legitimating,” and “our perception is that the court is a source of legality” and thus it gains “more freedom of action to depart from the law without sanctions.”77 This fact may explain why normalizing the exception by the judiciary has not reached the legal discussion to date.
In July 2018, the Knesset enacted the Basic Law: Israel—The Nation State of the Jewish People, which was condemned locally and internationally as anti-democratic, racist, and colonial, and as laying the basis for an apartheid regime. Article 1 of the law provides that the “Land of Israel” (Palestine) is the historical homeland for the Jewish People and that the realization of self-determination in the State of Israel is exclusively for the Jewish people. Article 7 provides that, “The state views the Jewish Hityashvoot as a national value, and will act to encourage, promote and consolidate its establishment.” The other articles provide that immigration to Israel is exclusive to Jews; Jerusalem is the capital of Israel; and the Hebrew-Jewish holidays and symbols are the only commemorative days officially recognized.78
This Basic Law made the Israeli unwritten Schmittian Constitution analyzed in the present article into a written one. Although this law is the first in which Articles 1 and 7 appear in the law books, this article shows that the judiciary has already defended its values, even against the rule of law, as they constitute the very essence of the Jewish state. I show here that the political identity does not need laws to ensure it. Simply, it is a matter of political imagination and the exception proves its existence.
I wish to thank Barak Medina and Paul Kahn for their challenges, suggestions, and comments on the first draft, and my colleague Suhad Bishara for her remarks.
Footnotes
The emergency refers to cases of existential and immediate threat to the national security, natural disasters, and economic crises. See generally W. E. Sheuerman, Survey Article: Emergency Powers and the Rule of Law after 9/11, 14(1) J. Pol. Phil. 61 (2006).
Bernard Manin, On Legitimacy and Political Deliberation,15 Pol. Theory 338, 338 (1987).
Carl Schmitt’s leading work in this regard is his book Political Theology, where the word “people” appears twice with no connection to the sovereign in the first two chapters, which are about the characteristics of the sovereign as well as the state of exception. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 9 (George Schwab, trans., U. Chi. Press, 1985). In addition, contemporary leading critics of liberalism and postcolonial studies also end with the same concept. For example, when Paul Kahn reaches the exception, he ends with Hobbes (on war) and with Locke (on property). Externally, the state’s territory is national and the sovereign is its defender from any enemies; but internally, the private “property moves according to law” knowing no exception. See Paul Kahn, Imagining Warfare, 24(1) Eur. J. Int’l L. 199, 205, 208 (2013). Nasser Hussain, who wrote a leading book in legal postcolonial studies, explains that the source of Western legal thought on the exception is the colony. His examples, about the exception in India, also end with the same current concept of emergency. See Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (2003).
An exceptional work is that of N. W. Baraber and Adrian Vermeule. They survey cases in which the court is a “constitutional decisionist” and it decides beyond the existing legal order in non-emergency cases, but their scope is very limited to ‘rare cases’ like those after a peaceful political transition. See N. W. Baraber & Adrian Vermeule, The Exceptional Role of the Courts in the Constitutional Order, 92 Notre Dame L. Rev 817, 818 (2016).
Basic Law: Human Dignity and Liberty, 1992, S.H. No. 150.
See HCJ 5100/94, Public Committee Against Torture in Israel v. The State of Israel (Sept. 6, 1999); Crim. 7048/97, John Does v. Ministry of Defense (Apr. 12, 2000); HCJ 3799/02, Adalah et al. v. GOC Central Command IDF et al. (Oct. 6, 2005).
HCJ 6698/95, Ka’adan v. Israel Land Administration, 54(1) PD 258 (2000).
The term “state land” refers to 93% of the land in Israel. Much of this land was designated for the public in pre-1948 Palestine, or was land belonging to Palestinian refugees and Palestinian citizens, which Israel confiscated after 1948. For more details about the scope of Israel’s land policy toward the Palestinians, see Oren Yiftachel, Ethnocracy: Land and Identity Politics in Israel/Palestine (2006).
HCJ 6698/95, Ka’adan, ¶ 10.
Id. ¶ 31.
Id. ¶ 37.
See Hassan Jabareen, The Future of Arab Citizenship in Israel: Jewish-Zionist Time in a Place With No Palestinian Memory, in Challenging Ethnic Citizenship 196 (Daniel Levy & Yfaat Weiss eds., 2002).
The (Emergency) Defense Regulations, 1945 (Isr.).
Carl Schmitt, The Concept of the Political (George Schwab, trans., U. Chi. Press, 2007).
Carl Schmitt, Constitutional Theory 125–35 (Jeffrey Seitzer, trans., Duke U. Press, 2008).
Id. at 299.
Eric Posner and Adrian Vermeule argue that the separation of powers doctrine is irrelevant today; however, they marginalize the court’s role like Schmitt. Also similar to Schmitt, Larry Kramer makes a distinction between the constitution as ordinary law and Constitution as political-legal. He advocates against judicial supremacy and sees the people themselves as the ones who should decide the last word. Jeremy Waldron advocates against judicial review over legislation; for him, disagreement is the raison d’être of politics, and the people, rather than the court, should decide the scope of rights through the legislator. Similarly, Mark Tushnet advocates against such judicial review over legislation. See Eric Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Jeremy Waldron, Law and Disagreement (1999); Mark Tushnet, Taking the Constitution Away from the Courts (1999).
Kelsen’s response is translated into English and appears in Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (2015).
Hans Kelsen, quoted in id. at 184–5, 190.
Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty 39 (2011).
Michel Foucault, Security, Territoriality, Population 257, 262 (Graham Burchell trans., Picador, 2007).
Schmitt, supra note 3, at 13.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life 183 (Daniel Heller-Roazen trans., Stan. U. Press, 1998).
I follow the common definition that appears in the literature for the exception/suspension/extralegality raised by John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, 2(2) Int’l J. Const. L. 210, 222 (2004).
Id.
A leading example is Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1044 (2004).
Although the source of power for the Lockean model is a political one and for the neo-Roman model, a written constitution, I use the two models as relevant only to the function of the branches. When I state that the court replaces the role of the parliament of the neo-Romans, I mean that it does so without any legal authorization.
Goldsmith characterizes this interpretation as one that justifies the executive authorities’ aggressive and erroneous interpretation of existing laws (like the “Torture Memos”), which is different from the prerogative power that declares clearly the extralegality of the measure. See Jack Goldsmith, The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation, in Extra-Legal Power and Legitimacy 214 (Clement Fatovic & Benjamin Kleinerman eds., 2013).
HCJ 2390/96, Kirasik v. The State of Israel 55(2) PD 625 (2001). On the significance of this case, see Haim Sandberg, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case, 11 Int’l J. Const. L. 751 (2013).
HCJ 2390/96, Kirasik at 701–2.
The Land Acquisition (Validation of Acts and Compensation) Law, 5713–1953.
HCJ 840/97, Awni Sbeit, et al. v. The State of Israel et al. (June 26, 2003) [hereinafter the “Iqrith Village Case”]. The internally displaced persons like the people of Iqrith constitute about 20% to 25% of Palestinian citizens of Israel.
Id. ¶ 4.
Id. ¶ 6.
Id. ¶ 8.
Id.
CA 4067/07 Jabareen et al. v. The State of Israel (Jan. 3, 2010).
Id. ¶ 35.
Id.
Notably, the Court did not rely on Article 10 of the Basic Law, which provides that laws enacted before the Basic Laws will continue to be valid. This article is irrelevant here since the case does not attack the constitutionality of any law but refers to constitutional principles.
As Justice Barak stated in Kirasik: “It is a constitutional revolution . . . . It is impossible after the enactment of the basic laws on human rights to think about the general aim of legislation in the same way that we thought about it before the enactment of the basic laws.” HCJ 2390/96, Kirasik v. The State of Israel 55(2) PD 625, 711–12 (2001).
The Court once explained that if more than thirty years have passed without the state’s using the land for the original purpose justifying the confiscation, it does not follow that land should be returned to its owners. On another occasion, the Court explained that the passage of thirty years is an unjustifiably long time, but that the new purpose claimed by the state is of public importance. See, e.g., HCJ 3421/05 Makhoul v. Minister of Finance (June 18, 2009).
See, e.g., HCJ 5902/08 Hamdan et al. v. Finance Ministry et al. (withdrawn 2008); HCJ 6288/98 Fadwa Khalil v. The Development Authority (Aug. 11, 2011).
Goldsmith, supra note 28, at 215.
HCJ 3534/04, Denar et al. v. The State of Israel (Apr. 27, 2006).
See id. ¶¶ 6–7.
Giorgio Agamben, State of Exception 3 (Kevin Attell trans., U. Chi. Press, 2005).
In February 2017, the Knesset enacted a similar law entitled the Law for the Regularization of Settlement in Judea and Samaria, 5777–2017 that applies in the West Bank. The law aims to seize Palestinian private land that was taken illegally by Israeli settlements, and to retroactively regulate and legalize it. The Attorney General refused to defend the law in court on the state’s behalf, arguing that it violates international humanitarian law. See Yotam Berger, Israeli Attorney General Asks High Court to Strike Down Land Expropriation Law, Ha’aretz (Nov. 22, 2017), https://bit.ly/39QQj0d.
HCJ 6698/95, Ka’adan v. Israel Land Administration, 54(1) PD 258 (2000) ¶ 7.
See, e.g., Indigenous (In)Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev (Ahmad Amara, Ismael Abu-Saad & Oren Yiftachel eds., 2013).
HCJ 5108/04, Abu Guda et al. v. Minister of Education et al. (petition dismissed Sept. 9, 2004).
Id. ¶ 5.
Id. ¶ 7.
HCJ 10030/05, Ala’moor v. The Ministry of Education (petition dismissed Apr. 26, 2006).
This decision contradicts Justice Barak’s remarks in Abu Guda, where he explained that, “the fact that the Educational Ministry does not finance the transportation of children to access public schools, is not a sufficient argument in order not to provide it for children who live in unrecognized places. The special difficulties of these children to educational access may justify a special policy for them.” See HCJ 5108/04, Abu Guda at ¶ 10.
CA 9535/06, Abdullah Abu Musa’ed et al. v. The Water Commissioner and the Israel Lands Administration (June 5, 2011) [hereinafter the “Drinking Water Case”].
Id. ¶ 75.
Id. ¶ 81.
Hannah Arendt, The Origins of Totalitarianism 269–302 (1961), provides one of the most powerful analyses of the transition of status from being a citizen, where one enjoys legal rights, to the stripping of citizenship that leads to the status of a “humanitarian case,” with no rights. Agamben in Homo Sacer, which was inspired by Arendt’s chapter, terms the transition from citizenship to the humanitarian, “bare life.” See Agamben, supra note 23, at 8. Indeed, until now, the villagers have been unsuccessful at obtaining access to drinking water in their villages, because there is no standard to be applied in the cases that defined the scope of “humanitarian.” See CA 2541/12, Salim Abu al-Qi’an v. The Government Authority for Water and Sewage (Feb. 20, 2013).
HCJ 3094/11 Abu al-Qi’an et al. v. The State of Israel (May 5, 2015) [hereinafter the “Umm al-Hiran Case”].
Id. ¶ 31.
Justice Rubenstein ruled that the appeal should be dismissed for two main reasons. First, the applicants do not “raise claims for land ownership,” as the land is state land. Second, he ruled that, “I do not see that the respondents’ acts . . . violate any legal rights of the applicants.” See id. ¶ 10. The minority opinion written by Justice Barak-Erez stated that the authorities should reconsider their decision, as it was based on a wrong assumption that the villagers were trespassers.
Hanoch Dagan & Mordachai Kreminitzer, Hiran Contains Umm Al-Hiran, or Is Established on Its Destruction, Isr. Inst. Democracy (June 1, 2015), www.idi.org.il/articles/3406 (in Hebrew).
Barak Medina, The Case of Umm al-Hiran: Eviction and Compensation and the Constitutional Right for Property, Faculty of Law, Hebrew University Blog (May 21, 2015), https://bit.ly/3hBkSty. See HCJ 1661/05 The Gaza Coast Regional Council et al. v. The Knesset 59(2) PD 481 (2005) [hereinafter the “Disengagement Case”].
Justice Rubenstein explains in Umm al-Hiran: “One may argue that planning settlement for Bedouins only by the authorities is a discriminatory one . . . but the principle of equality is satisfied by the possibility of planning separate settlements for the minority community to preserve its character”: HCJ 3094/11, Abu al-Qi’an at ¶ 37.
Plessy v. Ferguson, 163 US 537 (1896).
For example, the Court decided not to intervene in the executive’s decision not to supply mobile shelters or any security defense for the Bedouin during the 2014 war between Hamas and Israel, and one person from the unrecognized villages was killed from a rocket from Gaza as a result of the lack of shelters. See HCJ 5019/14, Abu Affash v. The Chief of Civilian Defense (July 20, 2014). In 2005, the Court dismissed a petition asking for in-house electricity in order to operate medical equipment for a sick child with cancer under serious risk of death. See HCJ 8062/05, Al-Atrash v. The Minister of Health (Nov. 23, 2005).
It is important for analyzing the exception to note that the Israeli Supreme Court did not create two separate legal regimes. The cases highlighted in this case study belong to the regime that the Court acknowledges is the territory where Israeli constitutionalism should apply, and thus the exception occurs within the same legal regime. David Dyzenhaus makes the distinction between a “parallel State” such as the case of the Israeli Supreme Court in dealing with Palestinians who live under Israeli occupation and how it applies a different legal regime to them than it does to the Israelis, and the “rule of law state” that creates second-class citizenship such as the case of the Israeli Supreme Court in dealing with the Palestinian citizens of Israel and the Apartheid regime in South Africa. The case study here is not about parallel legal regimes. See David Dyzenhaus, Dugardian Legal Theory, in The Pursuit of a Brave New World in International Law 3, 29–37 (Tiyanjana Maluma, Max du Plessis, & Dire Tladi eds., 2017).
Sami Smooha, The Model of Ethnic Democracy: Israel as a Jewish and Democratic State, 8(4) Nations & Nationalism 475 (2002).
For more about the Palestinians’ political participation in the electoral process and the question of democracy, see Hassan Jabareen, Hobbesian Citizenship: How the Palestinians Became a Minority in Israel, in Multiculturalism and Minority Rights in the Arab World 189 (Will Kymlicka & Eva Pföstl eds., 2014).
Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legal of Late Colonialism 27–32 (1996).
For a detailed discussion of these cases, see Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2003).
The collapse of the distinction creates anomalous zones, as described by Neuman. See Gerald Neuman, Anomalous Zones, 48 Stan. L. Rev. 1197 (1996).
See Sumi Cho & Gil Gott, The Racial Sovereign, in Sovereignty, Emergency Legality 182 (Austin Sarat ed., 2010) (arguing that the exception also appears under Empires to target racial groups and not only for security reasons, although sometimes the national security concept carries with it mainly a racial dimension). My analysis here also strengthens the thesis of Oren Yiftachel, who claims that Israel is an ethnocratic regime, where one ethnic group dominated the land regime and colonized the natives. See Yiftachel, supra note 8.
See David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?, 27 Cardozo L. Rev. 2009 (2006); Ernst Fraenkel, The Dual State (1941).
See supra note 17.
Richard Pildes, Law and President, 125 Harv. L. Rev. 1381, 1424 (2012).
On the Basic Law: Israel—The Nation State of the Jewish People, see Hassan Jabareen, The Origins of Racism and the New Basic Law: Jewish-Nation State, Verfassungsblog [Constitutional Law and Philosophy], (Nov. 11, 2018), https://verfassungsblog.de/author/hassan-jabareen/; Hassan Jabareen & Suhad Bishara, The Jewish Nation-State Law: Antecedents and Constitutional Implications, 48(2) J. Palestine Stud. 43 (2019); Eyal Benvenisti & Doreen Lustig, We the Jewish People: A Deep Look into Israel’s New Law, Just Security (July 24, 2018), https://www.justsecurity.org/59632/israel-nationality-jewish-state-law/.
