Activism and Legitimation in Israel's Jurisprudence of Occupation

Social & Legal Studies, 2014

26 Pages Posted: 6 Mar 2014 Last revised: 14 Feb 2015

Nimer Sultany

University of London - School of Oriental and African Studies; Harvard University - Law School - Alumni

Date Written: March 4, 2014

Abstract

Colonial law need not exclude the colonized in order to subordinate them, and ‘activist’ courts can advance the effect of subordination no less than ‘passive’ courts. As a case study, this article examines the jurisprudential legacy of the Israeli Supreme Court in the context of the prolonged Israeli occupation of Palestine. Applying insights from legal realist, law and society, and critical legal studies scholarship, the article questions the utility of using the activist and passive labels. It illustrates how the Israeli activist court, through multiple legal and discursive moves, has advanced and legitimated the colonization of Palestine; that the court is aware of its role; and that arguments that focus on the court’s informal role do not mitigate this legitimating effect. Unlike other scholars, the article shows that the Israeli court’s role — by extending the power of judicial review to the military’s actions in the occupied areas — is neither novel nor unique or benevolent, as the British colonization of India and the US colonization of Puerto Rico show.

Keywords: activism, colonialism, Israel, judicial review, legitimation, Palestine, shadow of the court

Suggested Citation

Sultany, Nimer, Activism and Legitimation in Israel's Jurisprudence of Occupation (March 4, 2014). Social & Legal Studies, 2014 . Available at SSRN: https://ssrn.com/abstract=2405370

Nimer Sultany (Contact Author)

University of London - School of Oriental and African Studies ( email )

Thornhaugh Street, Russell Square
London, WC1H 0XG
United Kingdom

Harvard University - Law School - Alumni ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

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