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This is the first in a series of posts featuring the author of a recently published book in constitutional or public law. This post is on The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State, by Mazen Masri. The book was published by Hart in February 2017.
Mazen Masri is a Senior Lecturer at the City Law School, City, University London. Mazen’s areas of teaching and research are constitutional law and public international law with special interest in comparative constitutionalism, constitutional theory, human rights law and equality.
The Dynamics of Exclusionary Constitutionalism explores the meaning of Israel’s constitutional definition as a ‘Jewish and democratic’ state. The literature on this question is immense with a range of opinions. While most authors defend and justify this definition, some highlight its contradictory nature. In writing this book, I was interested in something that goes beyond the classic argument that there is contradiction between the two terms. I wanted to explore the definition not just as a legal text, but also as an idea that is the product of the intimate relationship between law and politics: to explore the definition not just as a textual expression in basic laws, legislation and court decisions, but also as the embodiment and representation of an ideology that informs the mind-set, policies, and practices in the laws and institutions of the state.
The exploration focuses on two themes. The first theme is constitutional theory, more specifically, the idea of ‘the people’. I explore how constitutional theory (or theories) help us understand the definition and expose the weakness of the mainstream justifications. Based on constitutional theories that ground the democratic legitimacy of a constitutional order on the idea that ‘the people’ governs itself through the exercise of popular sovereignty, this book examines Israel’s constitutional order and democracy by addressing the question ‘who is the people in Israel?’ The people in this context is the ’self’ in the exercise of self-governance, which is one of the most basic ideas in democracy. I examine who is included in ‘the people’ through the prism of the existing constitutional order. An examination of the different facets of the constitutional regime focusing on how political power is generated and exercised by the state and its organs can help identify the source of ultimate political power that exercises sovereignty and holds constituent power, and thus who ‘the people’ is.
The second theme of the book is settler-colonialism and its relationship with law. As part of the development of settler-colonialism as an area of study, many scholars have argued that Israel should be classified as a settler-colonial state. Indeed, Israel adopts many policies that could be described as settler-colonial: where the state acts as the tool of a settler society in conflict with an indigenous population. Given that settler-colonialism is best understood as a structure — that is, not just a passing event but rather a founding principle or a way of ordering state and society — the logic of settler-colonialism is carried on into the settler state even if it operates and manifests itself in varying ways. In the book I focus on the relationship between settler-colonialism and the law: how settler-colonialism shapes the development of Israeli constitutional law, and how law, in turn, operates to give effect to the logic of settler-colonialism in the form of establishing and reinforcing the settler-nation and dissolving the native population. Here I rely on the work of Patrick Wolfe on settler-colonialism, and I apply some insights from Third World Approaches to International Law (TWAIL). I mainly rely on Anthony Anghie’s work who situates colonialism and the ‘civilising mission’ at the centre of the development of international law. The ‘civilising mission’ highlights the differences between the European and the non-European peoples and casts the latter as uncivilized and backwards, and justifies the use of law to bridge this gap. In the book I identify how similar dynamics could be identified in Israeli constitutional law.
Based on these two themes, I examine certain areas of constitutional law in Israel. I start with the Declaration of Establishment of the State of Israel, and discuss its legal significance and the settler-colonial narrative it provides. I then move on to discuss the immigration and citizenship laws and policies and their role in shaping ‘the people’. I also highlight their significance as one of the main areas where law complements violence in the process of eliminating the native population. Here I discuss laws such as the Law of Return and the Citizenship Law and the obsession with demography. The focus then turns to the idea of political representation. Representation is important in shaping the relationship between the governors and the governed, and the power of the government (the state writ large) is legitimated through representation. The discussion here focuses on Basic Law: The Knesset and other associated statutes which set recognition of the Jewish and democratic definition of the state as a condition for participation in parliamentary and local elections, and registration of political parties. Finally, I examine the constitution in action by highlighting the ways the constitution is shaped and amended, and how legislation is enacted, interpreted and reviewed by courts, and the role that the ‘Jewish and democratic’ definition plays in each of these areas.
One of the goals of book is to broaden the scope of engagement with Israeli constitutional law which has been hitherto dominated by models that highlight majority-minority relations or the ‘nation-state model’. This approach fails to take account of or explain historical events and many of the state policies. The approach I take, which focuses on how constitutional theory could help us understand inclusions and exclusions, which also adds the settler-colonial lens, provides a better framework for understanding the evolution and shaping of the law that go beyond the emphasis on the ethnically defined state.
While the inquiry here focused on Israel, the approach I use in this book could potentially apply to other states and constitutional orders. Asking who is included in ‘the people’, and how the constitutional order excludes certain groups, is useful in assessing the democratic character of any legal system. Similarly, taking note of settler-colonialism (where applicable), and using it as an additional lens to examine law and the constitutional order will provide more tools for analysis and a better understanding of certain trends and dynamics.
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The introduction chapter is also available for download at: https://www.academia.edu/31429497/The_Dynamics_of_Exclusionary_Constitutionalism_Israel_as_a_Jewish_and_Democratic_State-_Introduction_chapter