The Legal Structures of Subordination: The Palestinian Minority and Israeli Law
Nadim N. Rouhana and Sahar S. Huneidi (eds.) "Israel and Its Palestinian Citizens: Ethnic Privileges in the Jewish State" (Cambridge University Press, 2016, Forthcoming).
47 Pages Posted: 9 Dec 2013 Last revised: 7 Nov 2016
Date Written: December 9, 2013
Israeli law, the subject of this chapter, is not monolithic. Zionist ideology influences Israeli law, but ideologies are rarely monolithic, and different actors within legal systems strive to advance their own conceptions and interests. Yet, an examination of the role of the legal system since Israel’s inception reveals that far from significantly challenging power structures, Israeli law effectively created a hierarchy amongst Israeli citizens. As I show here, it generally advanced, justified, and perpetuated a separate and inferior status for the Palestinian citizens in Israel. At the same time, it granted the Israeli regime an aura of legitimacy by containing its practices under the “rule of law.” Ultimately, although the legal system has a moderating effect — because it often pushes the political system towards the political center — this center itself has been moving towards the right-wing continuum of the Zionist movement.
The chapter is organized as follows: Part I examines the conventional story about the rise of constitutionalism and judicial activism in Israel. I question the analytical utility of this story in evaluating the role of law in Israeli society. The chapter shows that, at least with respect to the Palestinian citizens, the Supreme Court was far from the counter-majoritarian hero who stood in defense of basic rights. Part II examines three primary areas in which the legal system, and the Court in particular, contributed to the “subordination” — i.e., systematic disadvantaging — of the Palestinian citizens. Israeli legal structures have facilitated the dispossession of Palestinian land, the establishment of inferior and differentiated citizenship, and the segregation of Arabs from Jews in housing and education. I use the word “structures” to convey that this injustice is a result of resilient institutional practices (as opposed to a moral failing on the part of few individuals). I show how the legal and judicial deployment of seemingly neutral and technical legal categories effectively obscures this subordination while simultaneously justifying, shaping, and advancing it. Part III discusses some of the rhetorical and legal tools the Court deploys to justify its deferential attitude towards state power and oppressive practices: security, thin rulings, political questions, general questions, delay, ripeness, and facially neutral jurisprudence. This by no means suggests that the Court’s performance has been uniform and monolithic. Part IV mentions three examples of cases in which the Court moderated excessive or peripheral cases of discrimination: political participation, free speech, and state subsidies. Yet even in these cases, the Court affirmed the state’s Zionist ideology, and its rulings were often ineffective given the delay in delivering rulings, the dependency of the Court on other branches to enforce its rulings, and the lack of implementation by these branches.
Keywords: Israel, Palestinian minority, constitutionalism, judicial review, supreme court, subordination
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