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Occupied Zone - 'A Zone of Reasonableness'?

Israel Law Review, Vol. 41, pp. 13-40, 2008

Hebrew University International Law Research Paper No. 12-08

29 Pages Posted: 5 Nov 2008  

Martti Koskenniemi

University of Helsinki - Faculty of Law

Date Written: October 29, 2008

Abstract

The vocabulary of "reasonableness" invokes a wide margin of discretion that is often needed to temper the excessive rigour of legal rules and to deal with the inevitable problems of over- and under-inclusion associated with application of formal law to individual cases. The acceptability of the use of discretion by a law-applying institution such as the Israeli High Court of Justice is based on the assumption that its preferences and moral sensibilities are broadly reflective of the preferences and sensibilities of the community in which it exercises its jurisdiction. When jurisdiction is exercised in conditions of occupation, however, such consensus cannot be easily presumed. On the contrary, recourse to moral pathos by an institution of the occupying power will appear to normalize its jurisdiction and add an element of hypocrisy to the felt illegitimacy of its possessing jurisdiction in the first place. Moreover, it will undermine the moral and political significance of the fact of the occupation, even diminishing the urgency of bringing it to an end.

Keywords: occupation, discretion, reasonableness, Israel, HCJ, legal rules

Suggested Citation

Koskenniemi, Martti, Occupied Zone - 'A Zone of Reasonableness'? (October 29, 2008). Israel Law Review, Vol. 41, pp. 13-40, 2008; Hebrew University International Law Research Paper No. 12-08. Available at SSRN: https://ssrn.com/abstract=1292063

Martti Koskenniemi (Contact Author)

University of Helsinki - Faculty of Law ( email )

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P.O. Box 4
Helsinki, FIN-0001 4
Finland
+ 358 (0)9 1912 2469 (Phone)
+ 358 (0)9 1912 3076 (Fax)

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