Book Review: Darryl Li on Mazen Masri’s “The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Darryl Li reviews Mazen Masri’s The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Oxford: Hart 2017).]

—Darryl Li, Assistant Professor of Anthropology, University of Chicago

Last month, the Israeli Knesset passed the “Basic Law: Israel as the Nation-State of the Jewish People,” drawing widespread condemnation. The measure constitutionalizes the principle of Jewish supremacy by foreclosing the possibility of self-determination for the 20% of Israel’s citizens who identify as Palestinian Arabs; legitimizing housing and planning policies that discriminate in favor of Jews; and ending the status of Arabic as an official language. Mazen Masri’s The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State appeared while the Nation-State Law was still being debated, but it is a vital resource for understanding the constitutional context that made it possible and the grim scenarios that lie ahead.

One of the dominant puzzles of Israeli constitutional scholarship is the balancing act between the state’s Jewish character and the demands of democracy. In this framing, Israel is a state whose citizens happen to mostly be Jews and therefore it might discriminate on their behalf against non-Jewish citizens, giving rise to concerns about majoritarianism or secularism. When commentators say that Israel is a “Jewish state,” they are not simply referring to the anxiously maintained Jewish demographic majority among Israeli citizens, the application of halakha (Jewish ritual law), or the adoption of state symbols and rituals that allude to Judaism. Rather, the phrase “Jewish state” is shorthand for the principle that the Nation-State Law has now spelled out: that Israel considers itself, constitutionally speaking, as the state of the Jewish people. With great rigor, detail, and care, Masri reveals the naïveté of the “balancing” narrative by exploring how the concept of “the Jewish people” has been constitutionalized in Israel. He argues that “in the Israeli constitutional order sovereignty and constituent power are exclusively concentrated in the hands of the Jewish citizens (and in some cases non-citizens)” (21). The parenthetical here is crucial: “the Jewish people” is a category encompassing all Jews worldwide, regardless of their connection to the state of Israel.[1] In key areas of Israeli constitutional theory, the state belongs to Jews who are not citizens more than it does to citizens who are not Jews.[2]

Masri traces the implications of this insight by proceeding carefully through the statutes, cases, and principles that comprise Israel’s constitution in place of a single integrated document. Chapters 4 and 5 are in many ways the heart of the book. Read separately, the 1952 Citizenship Law and the 2003 Citizenship and Entry to Israel Law suggest Israel is a country with restrictive but facially neutral immigration and citizenship rules. For example, second-generation Israelis born abroad are not entitled to citizenship; Israelis cannot bring spouses into the country who are West Bank residents. But for Jews only, these prohibitions fall away before the 1950 Law of Return, which grants automatic citizenship to any Jew in the world, regardless of their connection to the country (indeed, until 1980, even Jews born in the country were listed in the population registry under the category of “citizens by return,” p. 105). Here, the importance of belonging to “the Jewish people” – and not just mere Israeli citizenship – is most apparent.

The Law of Return is frequently misunderstood as a sort of immigration affirmative action justified by the need to provide a safe haven for oppressed Jews. Masri reminds the reader that Israel has always seen the law as something far more fundamental and expansive. He quotes the explanation given by Israel’s first Prime Minister, David Ben-Gurion that the Law of Return “has nothing to do with immigration laws. It is the eternal law of Jewish history,” which affirms that “the right of a Jew to settle is inscribed in him as a Jew in case he decides to join settling the country” (104). Masri rightly observes that “the Law of Return, and not the Citizenship Law, is what defines the People … Belonging to the political community, more than anything, is determined by belonging to the Jewish people” (124). Masri notes that in Israel the question “who is a citizen?” elicits far less interest than the question “who is a Jew?” – not because the latter is more complicated, but because so much more is at stake.

Another especially helpful contribution comes in Chapter 3’s analysis of the 1948 Declaration of the Establishment of the State of Israel, whose language on equality for Arabs has been widely cited as evidence of Israel’s democratic bona fides (or at least the promise thereof). Masri’s reading of the Declaration in light of social contract theory and the historical context brings out three salient points: (1) It was enacted in the name of “the Jewish Community of Eretz-Israel and of the Zionist movement” to establish a “Jewish state” in a territory whose population was 49.9% Arab, a gesture that already signals an attitude other than solicitude for one’s equals; (2) Israel’s Supreme Court very early on decided that the Declaration’s reference to equality could not be used as a basis to review legislation – and to this day, equality as a principle enjoys only the most tenuous status in Israeli constitutional jurisprudence; and (3) the Declaration’s language of “full and equal citizenship” for Arabs was couched as an offer conditioned on “preserving[ing] the peace” at a time when 300,000 Palestinians had already been expelled by or fled from Zionist forces. Masri provides perhaps the most thorough and exacting refutation yet of the myth that the Declaration was some kind of magnanimous conciliatory gesture toward the native population.

The Dynamics of Exclusionary Constitutionalism is a welcome and long overdue contribution to Israeli constitutional scholarship, going far beyond the agonized hand-wringing of the “balancing” model.[3] In the annals of global constitutionalism, Israeli jurists and legal scholars (nearly all European-descended Jews) circulate to and from Europe and the Anglophone settler colonies to engage with interlocutors (also largely white), through a dense web of professional connections – LLM and doctoral programs, conferences and workshops, visiting faculty appointments, clerkships. As Vidya Kumar pointed out in her Fanonian call for a “constitutionalism of the wretched,” global constitutionalism conversations in general tend to structurally marginalize the global south.[4] Israel/Palestine is a particularly poignant case of this problem, as a glaring example of how the “global south” and “global north” can unfold in the same space – and not by accident. The result is a parochial cosmopolitanism – or, to be blunt, a kind of monoracial echo chamber – that can only see the Nation-State Law as a betrayal of Israel’s promise rather than a sadly predictable fulfillment of it. Indeed, the outsized place of the “balancing” dilemma in Israeli constitutionalism debates is itself a symptom of the marginalization of Palestinian voices, which have long remarked that there is no real tension here: in the words of the Palestinian rap group DAM, the state is “democratic to the Zionist soul, and Zionist to the Arab one” [dīmūqrāṭī lil-nafs al-ṣihyūniyya wa-ṣihyūnī lil-nafs al-ʿarabiyya].

Masri is particularly well-positioned to intervene here. As a Palestinian citizen of Israel trained at the Hebrew University of Jerusalem and later at York University’s Osgoode Hall Law School (Canada), he combines an intimate knowledge of the Israeli legal system with a comparative perspective rooted in an awareness of settler colonialism. This enables him not only to meticulously engage Israeli jurists such as Aharon Barak, Amnon Rubinstein, and Ruth Gavison writing in Hebrew and English, but to usefully comment on their dialogues with theorists such as Ronald Dworkin, Will Kymlicka, and John Rawls. For readers familiar steeped in Palestinian studies and comparative settler colonialism, however, fewer surprises may emerge from Masri’s cautious and methodical tracing of Israeli jurists’ casuistic attempts to justify discrimination.

In an ideal world, The Dynamics of Exclusionary Constitutionalism would mark the irrelevance of the old debate about whether Israel can be both Jewish and democratic. Hopefully it will usher in a new era of scholarship that would examine together the entire post-1967 regime of Israeli rule, direct and indirect, from the Jordan river to the Mediterranean Sea over a population whose majority is now Palestinian. While Masri indicates the utility of such an approach (pp. 22-23), his focus is on the exclusions faced by the 1.7 million Palestinians with Israel citizenship – only a fraction of the Palestinian people, and arguably the one most privileged by Israel. Dwelling on the exception that proves the rule enables Masri to make his arguments about Israel’s ideological commitments to discrimination all the more powerful. But the need for a broader integrated analysis of Israeli rule in all its manifestations remains more urgent than ever.

Suggested Citation: Darryl Li, Review of Mazen Masri’s “The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State”, Int’l J. Const. L. Blog, Aug. 10, 2018, at: http://www.iconnectblog.com/2018/08/book-review-darryl-li-on-mazen-masris-the-dynamics-of-exclusionary-constitutionalism-israel-as-a-jewish-and-democratic-state

[1] Ironically, this also means that the state steadfastly refuses to recognize “Israeli” as a national category: this would undermine the imagined national commonality of Jews in Israel and the diaspora, and would also hint at the possibility of a common national identity for Jewish and non-Jewish citizens of Israel (pp. 57-58).

[2] This is reminiscent of earlier stages of U.S. settler colonialism before the consolidation of white demographic supremacy, when white non-citizens enjoyed greater voting rights than Black and Native citizens. See Aziz Rana, The Two Faces of American Freedom (Harvard University Press, 2010): 117-21.

[3] For a rare exception, see Michael Karayanni, “Two concepts of group rights for the Palestinian-Arab minority under Israel’s constitutional definition as a ‘Jewish and democratic’ state,” International Journal of Constitutional Law 10, no. 2 (2012): 304–339.

[4] Vidya Kumar, “Towards a constitutionalism of the wretched,” Völkerrechtsblog, 27 July 2017, available at http://voelkerrechtsblog.org/towards-a-constitutionalism-of-the-wretched/. Other Palestinian legal scholars trained both in Israel and abroad whose work enriches these conversations include Suhad Bishara, Samera Esmeir, Hassan Jabareen, Nimer Sultany, and Raef Zreik.