The Nakba Files is proud to present an online symposium on The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Hart Press), a forthcoming book by Mazen Masri. Masri’s book is an important intervention in ongoing debates over Israel’s legal system and shows that no such debate can ignore the state’s constitutive exclusion of Palestinians.
By Mazen Masri
Hassan Jabareen’s comments highlight how the “Jewish and democratic” values of the state, which reflect the spirit of Israel’s Declaration of the Establishment of the State, effectively translate into policies and practices that limit the rights of Palestinians in Israel. He argues that they are essentially “anti-Arab or anti-native.” In this sense, inclusion in or exclusion from the Declaration’s “we the People” is not just a matter of semantics or abstract statements; it is one of the cornerstones of institutional discrimination in Israel.
This is what I aim to demonstrate in my forthcoming book. I focus on the existing constitutional definition of the state as “Jewish and democratic” and explore how a range of actors including the courts, state institutions, politician, and scholars use the definition to justify, and at times consolidate and extend, institutionally embedded discriminatory outcomes. I examine how the definition is entrenched, maintained and constantly regenerated within the constitutional order, and how it affects the internal ordering of the state, the processes of shaping the political community through immigration and citizenship laws, political representation, and constitution-making. I demonstrate how the constitutional order (with all of its values, actors, institutions, contradictions, tensions) operates to produce and regenerate the dynamics of exclusionary constitutionalism.
I discuss these central themes of the book in their specific context. The parallels that K-Sue Park draws between Israel and the US and how the idea of a social contract evolved from the process of colonisation, highlight the importance of the social and political context: political theory, as well as law, cannot be studied in the abstract without a critical examination of the social and political context in which they were produced. In settler states such as Israel, the US, Canada and Australia, settler-colonialism is a significant component of this social and political context. This context is not only relevant for the indigenous population. It is also relevant for other marginalised groups, as we see in the infamous 1857 Dred Scott v. Sanford decision of the US Supreme Court. In that case, the Court used the social contract as a basis to rule that people of African descent could not be considered citizens.
As Park notes, every era is imbued with its own sensibilities but while settler-colonial practices vary from one place to another and from one epoch to another, their core logic does not. This insight highlights the importance of comparative work in the area of settler-colonialism, which is now an established area of study. In my book, I draw on theories of settler-colonialism and colonialism in general, which were generally developed based on other contexts, to examine Israel’s own strand of settler-colonialism. I explore the intimate relationship between the “Jewish and democratic” definition and settler-colonial policies, practices and outcomes, and argue that the definition is one manifestation of settler-colonialism.
The close relationship between the definition of the state and settler-colonialism, and the centrality of the definition for the constitutional order, demonstrate how the logic of settler-colonialism is embedded throughout the legal system. The legal system facilitates settler-colonial policies and practices and will continue to do so. This observation will be helpful for future research on questions related to law in Israel.
An analytical framework that takes into account settler-colonialism and its impact can provide a historically, socially and politically informed understanding of law and its function. It can help us understand how law contributes to creating the “structure” of settler-colonialism, as Patrick Wolfe views it, and how it also operates within the “structure” to maintain it and maintain the privileges of the settler population. This analysis of course will have implications for assessing the potential of legal action in challenging prejudicial and discriminatory laws and policies. Furthermore, understanding the relationship between settler-colonialism and law could also be an opening to think about possibilities of decolonisation, its shape, and what role law could play in the decolonisation process.
The observation that settler-colonialism permeates the legal system opens up the opportunity to explore how settler-colonialism shapes and animates other areas of law. While we see beginnings of such inquiry in the area of property law, research in this area should be extended beyond the Naqab/Negev to explore how settler-colonialism drives the development of the law. Other areas of law, especially those related to the use of violence such as criminal law and procedure, or areas where there is jurisdictional differentiation such as family law and education, could be fertile topics for research on the intersectionality between settler-colonialism and the law. Furthermore, given the similarities between Israeli policies in Israel and Israeli policies in the occupied West Bank and Gaza Strip, some of the insights and approaches could be useful in assessing and understanding the role and the function of law in the occupation regime.