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The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm

Published online by Cambridge University Press:  01 January 2024

Yoav Mehozay
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Abstract

Israel's long-standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever-shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.

Type
Articles
Information
Law & Society Review , Volume 46 , Issue 1 , March 2012 , pp. 137 - 166
Copyright
© 2012 Law and Society Association.

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Footnotes

The author wishes to thank Lauren Horwitz for her most valuable editorial assistance and Eran Fisher for his advice, support, and encouragement.

References

References

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Rubinstein, Amnon (1996) The Constitutional Law of the State of Israel. Tel Aviv, Israel: Schocken Publishing House. (Hebrew).Google Scholar
Saltman, Michael (1982) “The Use of the Mandatory Emergency Law by the Israeli Government,” 10 International J. of the Sociology of Law 385–94.Google Scholar
Shehada, Raja (1985) Occupier's Law Israel and the West Bank. Washington, DC: Institute for Palestine Studies.Google Scholar
Shetreet, Shimon (1984) “A Contemporary Model of Emergency Detention Law: An Assessment of the Israeli Law,” 14 Israel Yearbook on Human Rights 182–202.Google Scholar
Tzor, Michal (1999) Position Paper: The Mandatory Defence Emergency Regulations. The Israeli Institute for Democracy. (Hebrew).Google Scholar
Badi, Joseph., ed. (1961) Fundamental Laws of the State of Israel. New York, NY: Twayne Publications.Google Scholar
Official Gazette during the Provisional Council of State.Google Scholar
The State of Israel Official Publication: Bills Presented to the Knesset.Google Scholar
The State of Israel Official Publication: Decisions of the Supreme Court.Google Scholar
The State of Israel Official Publication: Government Notices.Google Scholar
The State of Israel Official Publication: Laws of the State of Israel—Authorized English Translation of Laws Promulgated by the Knesset.Google Scholar
The State of Israel Official Publication: Protocols of Knesset Proceedings.Google Scholar
The State of Israel Official Publication: Regulations Issued by Ministers of the Government.Google Scholar
Aslan v. Military Governor of Galilee H.C., 220/51 P.D. 5 (Nov. 30 1951).CrossRefGoogle Scholar
Bilar v. the Minister of Finance H.C., 243/52 7 P.D., 424 (Apr. 9, 1953).Google Scholar
Cook v. The Minister of Defence The Law H.C., 1/48-2/48 Vol. 3, 307 (1948) (not officially published).CrossRefGoogle Scholar
El Karbutli v. Minister of Defence H.C., 7/48 2, PD 2 (Jan. 3 1949).Google Scholar
Levon v. Gubernik H.C., 5/48, 1 P.D., 58 (1948).CrossRefGoogle Scholar
The Association for Civil Rights in Israel v. Israel's Government and Knesset H.C., 3091/99 (not published).Google Scholar
Ziv v. Gubernik H.C., 10/48, 1 P.D., 85 (1948).CrossRefGoogle Scholar
Basic Law: The Government S.H., No. 1780, 158. (7th March, 2001).Google Scholar
Carrying and Presenting Identification Law—1982 S.H., 20. (1983).Google Scholar
Civil Defence Law. S.H., 78 (1951).Google Scholar
Emergency (Defence) Regulations of 1945. Palestine Gazette, No. 1422, Supp. 2, 1055–98 (1945).Google Scholar
Emergency (Security Zones) Regulations, 1949. K.T., 11, p. 169 (April 4, 1949).CrossRefGoogle Scholar
Emergency Powers (Defence of the Colonies) Order in Council of 1939. Palestine Gazette, Supp. 2, 545 (1939) and Palestine Gazette, Supp. 2, 1118 (1940).Google Scholar
Emergency Regulation (Continuance in Force of Validity of Provisions), K.T. No. 226, 286 (Dec. 10 1951).Google Scholar
Evidence Ordinance (New Version) L.S.I. 421 (1971).Google Scholar
General Amnesty Ordinance I.R., Supp. 1, 173 (1949).Google Scholar
Law and Administration Ordinance, 1948. I.R., 5708, 1; 1 L.S.I., 7 (1948).Google Scholar
Palestine (Defence) Order in Council of 1937. Palestine Gazette, No. 675, Supp. 2, 267 (1937).Google Scholar
Prevention of Terrorism Ordinance, 1948. I.R., 1948, 73 (1948).Google Scholar
The Penal Law. S.H., 226 (1977).Google Scholar
Acktzin, Benjamin (1953–54) “Bilar Precedent and the Israeli Legal System,” 10 Hapraklit. (Hebrew).Google Scholar
Azoulay, Ariella, & Ophir, Adi (2008) This Regime Which Is Not One: Occupation and Democracy between the Sea and the River (1967–). Tel Aviv, Israel: Resling Publishing (Hebrew).Google Scholar
Benton, Lauren (2002) Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. New York: Cambridge Univ. Press.Google Scholar
Benvenisti, Meron (1987) The West-Bank Handbook: A Political Lexicon. Jerusalem: Kane Publication.Google Scholar
Bishara, Azmi (1993) “The Arab Minority in Israel,” 3 Theory and Criticism 20–27. (Hebrew).Google Scholar
Bracha, Baruch (1978) “Restriction of Personal Freedom without Due Process of Law According to the Defence (Emergency) Regulations, 1945,” 8 Israel Yearbook on Human Rights 296–323.Google Scholar
Chatterjee, Partha (1993) The Nation and Its Fragments: Colonial and Postcolonial Histories. Princeton, NJ: Princeton Univ. Press.Google Scholar
Cohn, Margit (1998) “‘The Practice of Patching’ in Emergency Legislation,” 29 Mishpatim 623–88. (Hebrew).Google Scholar
Dowty, Alan (1988) “The Use of Emergency Powers in Israel,” XXL(1) Middle East Rev. 34–46.Google Scholar
Goldstein, Michael (1978) “Israeli Security Measures in the Occupied Territories: Administrative Detention,” 32 Middle East J. 35–44.Google Scholar
Hofnung, Menahem (1996) Democracy, Law, and National Security in Israel. Jerusalem, Israel: Dartmouth Publishing Company.Google Scholar
Hofnung, Menahem (2001) [1995] Israel—Security Needs vs. the Rule of Law. Israel: Navo Publishing. (Hebrew).Google Scholar
Hussain, Nasser (2003) The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Kedar, Alexander (Sandy) (2001) “The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948–1967,” 33 NYU J. of International Law and Politics 997–1044.Google Scholar
Kimmerling, Baruch (1989) “Boundaries and Frontiers of the Israeli Control System: Analytical Conclusions,” inKimmerling, Baruch, ed., The Israeli State and Society. Albany: State Univ. of New York Press.Google Scholar
Klinghoffer, Hans Y. (1962) “On Emergency Regulation in Israel,” inCohen, Haim, ed., SeferYovel Le-Pinhas Rozen. Jerusalem: Mifʻal ha-shikhpul, Bet ha-hotsaʼah shel Histadrut ha-sṭudenṭim shel ha-Universiṭah ha-ʻIvrit. (Hebrew).Google Scholar
Kolsky, Elizabeth (2005) “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” 23 Law and History Rev. 631–83.CrossRefGoogle Scholar
Korn, Alina (2004) “Political Control and Crime: The Use of Defense (Emergency) Regulations during the Military Government,” 4 Adalah's Review: In the Name of Security 23–32.Google Scholar
Kretzmer, David (1990) The Legal Status of the Arabs in Israel. Boulder, CO: Westview Press.Google Scholar
Lustick, Ian (1978) Arabs in the Jewish State: A Study in the Effective Control of a Minority Population. Dissertation, University of California, Berkeley.Google Scholar
Lustick, Ian (1980) Arabs in the Jewish State: Israel's Control of a National Minority. Austin: Univ. of Texas Press.Google Scholar
Mironi, Mordechai (1986) “Back-to-Work Emergency Orders: Government Intervention in Labor Disputes in Essential Services,” 15 Mishpatim 350–88. (Hebrew).Google Scholar
Peleg, Ilan (2004) “Jewish-Palestinian Relations in Israel: From Hegemony to Equality?,” 17 International J. of Politics, Culture and Society 415–37.Google Scholar
Rouhana, Nadim (1997) Palestinian Citizens in an Ethnic Jewish State: Identities in Conflict. New Haven, CT: Yale Univ. Press.Google Scholar
Rubinstein, Amnon (1996) The Constitutional Law of the State of Israel. Tel Aviv, Israel: Schocken Publishing House. (Hebrew).Google Scholar
Saltman, Michael (1982) “The Use of the Mandatory Emergency Law by the Israeli Government,” 10 International J. of the Sociology of Law 385–94.Google Scholar
Shehada, Raja (1985) Occupier's Law Israel and the West Bank. Washington, DC: Institute for Palestine Studies.Google Scholar
Shetreet, Shimon (1984) “A Contemporary Model of Emergency Detention Law: An Assessment of the Israeli Law,” 14 Israel Yearbook on Human Rights 182–202.Google Scholar
Tzor, Michal (1999) Position Paper: The Mandatory Defence Emergency Regulations. The Israeli Institute for Democracy. (Hebrew).Google Scholar