The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State

by Mazen Masri

Overview

What does Israel's definition as a 'Jewish and democratic' state mean? How does it affect constitutional law? How does it play out in the daily life of the people living in Israel? This book provides a unique and detailed examination of the consequences of the 'Jewish and democratic' definition. It explores how the definition affects the internal ordering of the state, the operation of the law, and the ways it is used to justify, protect and regenerate certain features of Israeli constitutional law. It also considers the relationship between law and settler-colonialism, and how this relationship manifests itself in the constitutional order.

The Dynamics of Exclusionary Constitutionalism offers a novel perspective on the Jewish and democratic definition rooted in constitutional theory and informed by a socio-legal approach. Relying on a wide range of court cases and statutes as well as secondary sources, the book shows how the definition is deeply embedded in the constitutional structure, and operates, as a matter of law, in a manner that concentrates political power in the hands of the Jewish citizens and excludes the Palestinian Arab citizens in Israel from the political process.

Mazen Masri's study is a timely intervention in an increasingly important question, and is essential reading for those who want to understand Israel's character, its relationship with the constitutional order, and its impact on society.

Product Details

ISBN-13:	9781509930166
Publisher:	Bloomsbury Academic
Publication date:	06/27/2019
Series:	Hart Studies in Comparative Public Law
Pages:	256
Product dimensions:	6.14(w) x 9.21(h) x 0.54(d)

About the Author

Mazen Masri is a Senior Lecturer in Law at the City Law School, City, University of London.

Table of Contents

Acknowledgements vii

List of Abbreviations xiii

Table of Cases xv

Table of Legislation xxi

1 Introduction 1

I Israel as a Jewish and Democratic State 4

II The People and Their Constitution: Theoretical Approaches 7

III Settler-colonialism 15

IV The Argument in a Nutshell 20

V Outline of the Book 23

2 A Jewish and Democratic State: Theoretical Justifications and Critiques 25

I Introduction 25

II The Ultra-nationalist Approach 26

III The Nationalists of the Liberal Nationalists 28

A Conceptual Justification 28

B Resolving the Tension 30

C Conclusion 33

IV The Pragmatists of the Liberal Nationalists 34

A Interpretation and Abstraction: Aharon Barak 35

(i) Reconciling the 'Jewish' and the 'Democratic' Elements 37

V The Liberals of the Liberal Nationalists 40

VI Classic Liberal Approaches 43

VII Critical Approaches 45

VIII Conclusions 49

3 Locating the People in Israel: The Social Contract, the Basic Norm and the Beginnings of the State 51

I Introduction 51

II The People in Israel between Theory and Practice: Social Contract, Basic Norm and Nation 52

A The Social Contract Theory in Israel 53

B Basic Norm Theory 56

C Israeli Nation vs Israeli People? 57

III Beginnings I: The Declaration of Independence and the Colonial Encounter 59

A The Positive Dimension of Settler-colonialism: Erecting the Settler Nation 60

B The Declaration's Colonial Encounter 63

IV Beginnings II: The Declaration and the Constitution 65

A The Legal Status of the Declaration 65

B The Declaration and the Prospects of Constitutional Change 70

V Summary and Conclusions 73

4 Engineering the People I: Law and the Dissolution of the Native Population 76

I Introduction: Immigration, Citizenship and the Numbers Game 76

II The First Years (1948-52) 78

A Background 78

B The Regulation of Citizenship and Residency 1948-52 81

III The Citizenship Law: Exclusion and Elimination by Other Means 85

A Acquisition of Citizenship According to Habitual Residence 86

B Family Reunification 88

(i) Family Reunification and the Court 90

(ii) The Right to Family Life and the Image of the People 91

C Loss (and Possible) Reacquisition of Citizenship 93

(i) Ineligibility to Citizenship for Second-generation Descendants Born Outside Israel 94

(ii) Revocation of Citizenship 95

(iii) Regaining Lost Citizenship 96

D The Status of the Palestinians of East Jerusalem 98

IV Summary and Conclusions 99

5 Engineering the People II: The Legal Foundation of Settler Citizenship 101

I Introduction 101

II The Law of Return: Jews-only Immigration Policy 102

A The Law of Return as a Foundational Element of the Jewish State 103

(i) 'Who Is a Jew?' as a Constitutional Question 106

(ii) The Law of Return and the People 109

III Demography and Equality 112

A Demography as the Cornerstone of Israeli Policy 112

B Demography and the Supreme Court 116

C The People Between Demography and Democracy 118

IV Summary and Conclusions 122

6 Drawing the Red Lines: Political Representation and the Jewish and Democratic Definition 126

I Introduction 126

II The Evolution of a System of Exclusion: From Yerdor to Section 7A of Basic Law: The Knesset 127

A Political Representation of Palestinian Citizens in Israel Post-1948 129

B The Yerdor Case and the Triumph of Zionism Over Formalism 131

C The Yerdor Case as a Foundational Principle in Israeli Constitutional Law 134

III The Introduction of Section 7A of Basic Law: The Knesset and the Interpretation of Jewish and Democratic State 135

A Ben Shalom v CEC 137

B The 'State of All Its Citizens' and Section 7A 139

C Other Grounds for Disqualification in Section 7A 144

D The Parties Law 1992 145

IV Debating Section 7A: Settler-colonialism, the People and Defensive Democracy 145

A What Does Defensive Democracy Defend Exactly? 145

B Section 7A and Settler-colonial Reasoning 149

C Section 7A and the People 151

V The Jewish and Democratic Definition and the Elected Representatives 155

VI Summary and Conclusions 158

7 The Constitution in Action: Constitution-making, Law and Governance 161

I Introduction 161

II The Jewish and Democratic Definition in the Process of Constitution- Making 162

A The Basic Laws and Their Status: The Constitutional Revolution 162

B The Basic Laws and the Definition of the State 169

C The Basic Laws and the People 170

D Constitutional Amendments and the Definition of the State 173

III Making Law: The Jewish and Democratic Definition of the State and Legislation 177

A Making Law: The Knesset's Rules of Procedure 178

B Interpreting Law: The Jewish and Democratic Values and Statutory Interpretation 181

C Challenging Law: Judicial Review of Legislation and the Jewish and Democratic Definition 184

IV The Jewish and Democratic Definition in Other Legislation 190

V Conclusions and Summary 191

Conclusions 193

Appendices

Appendix A Declaration of Establishment of the State of Israel 200

Appendix B Basic Law: Human Dignity and Freedom 203

Appendix C Basic Law: Freedom of Occupation 205

Bibliography 207

Index 223

Editorial Reviews

The Dynamics of Exclusionary Constitutionalism is a welcome and long overdue contribution to Israeli constitutional scholarship, going far beyond the agonized hand-wringing of the "balancing+? model.
I-CONnect

What the author skillfully shows, with an impressive exposition of Israeli legal rationalizations, is how Israeli demographic concerns exerted a structural influence on lawmaking with respect to the differential rights of return enjoyed by Jews and Palestinians, as expressed in immigration laws and interpretations of citizen rights... Masri's contribution... offers a frightening template for how law can serve the purposes of injustice if deployed even by individuals endowed with subjectivities of goodwill yet pursued for the sake of unworthy goals.
Journal of Palestine Studies

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