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Graduate Program in Law Osgoode Hall Law School York University Toronto, Ontario THE DYNAMICS OF EXCLUSIONARY CONSTITUTIONALISM: ISRAEL AS A JEWISH AND DEMOCRATIC STATE MAZENMASRI A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO SEPTEMBER 2013 © MAZEN MASRI, 2013 .ABSTRACT This dissertation examines the meaning and implications of Israel's constitutional definition as "a Jewish and democratic state" focusing on constitutional theory. It seeks to explore how this definition is used to justify, protect and regenerate certain features of Israeli constitutional law that exclude the Palestinian Arab citizens of Israel from the processes of generating and exercising political power within the state. It argues that while the trend is to accord nominal inclusion to the Palestinian minority through formal citizenship and a measure of civil and political rights, in effect, and through the operation of the constitutional order, the Palestinian citizens are excluded from the People - the People understood as the political community underpinning the constitutional order. Given this exclusion from founding and participating in the constitutional order, the nature of the regime in Israel cannot be seen as truly democratic. The dissertation approaches the meaning of the "Jewish and democratic" definition of the state through the question of "who is the People in Israel?". The focus on the idea of the People is rooted in its importance in constitutional theory. Many schools of thought in constitutional theory see the People as the basis of the constitutional edifice. The People holds constituent power, and exercises sovereignty to create the constitutional order which regulates the internal ordering of the state and the relationship between the state and the individuals. The People here is the "self'' of the "self-rule" of democracy. The dissertation examines who is considered to be the People in Israel through the prism of the broader constitutional order. The dissertation focuses on four particular aspects that are central to constitutionalism. First is the founding stage of the constitutional order. The second is the citizenship and immigration laws and policies that shape the People. Third is political representation. The final aspect is constitution-making and law-making. An examination of these four aspects of the constitutional order reveals the dynamics of exclusionary constitutionalism that are fuelled by the Jewish definition of the state. The dissertation also explores the role of the colonial reality in creating and maintaining the dynamics of exclusionary constitutionalism. ii ACKNOWLEDGEMENTS This project would not have been possible without the many people who provided their support in many different ways. I would especially like to thank Bruce Ryder, my supervisor, for the generous support and the invaluable guidance he provided throughout my studies. Bruce was always very generous with his time, knowledge and skills. He is a great supervisor whose style struck an excellent balance between support and challenge, guidance and freedom, and finally, academic rigour and support for innovative thinking. Bruce has pushed me to develop my ideas to achieve their full potential, and he did so in his friendly and gentle way that very few can consistently maintain. He is indeed a great mentor and a friend as well. Another friend and mentor I want to thank is Susan Drummond, who was a member of the supervisory committee. I had long discussions with Susan that were very helpful in developing my thinking. I have benefitted from her insights and wealth of knowledge. Susan did not spare any effort in helping and supporting me in my different endeavours and was always willing to help even during her vacations. I was also lucky and privileged to be part of her efforts to defend academic freedom at York University. Thanks also to Faisal Bhabha, the third member of my supervisory committee. I am very thankful for his insightful comments and for his time and effort in reviewing the dissertation despite the tight timelines. I am grateful for the members of the examination committee, Michael Lynk, Sabah Al-Nasseri, and Obi Okafor for their enlightening questions and comments. iii I have had the good fortune of being part of a vibrant academic community at Osgoode Hall Law School and Toronto in general. In particular, I would like to thank Sujith Xavier (my library buddy for over two years) for his comments, feedback and long engaging discussions. Similarly, I would like to thank Claire Mumme, Amar Bhatia, Shanthi Senthe, Amaya Alvez-Marin, Irina Ceric, Mai Taha, Charis Kamphuis and Stu Marvel for their help and support over the years. Special thanks also go to Sharry Aiken, Jens Hans sen, Peer Zumbansen, Annie Bunting, and Hengameh Saberi for their help during various stages of this journey. Last but not least, I would like to thank my family for their loving support and encouragement over the years, and for instilling in me a healthy intellectual curiosity and the love of learning, and my partner Ryvka for her love and support. iv Table of Contents Abstract ............................................................................................... ii Acknowledgements. iii Table of Contents..................... ..... v List of Abbreviations.............................................................................. x Introduction . .. 1 Social, Political and Historical Context....................................................... 5 Israel as a Jewish and Democratic State ...................................................... 10 Outline of the Dissertation.................................................................. 16 Distinctive Contribution to the Literature.................................................. 19 Chapter I The People and their Constitution: Theoretical Approaches to Constitutionalism, Democracy and Sovereignty........................................................................... 22 1. Introduction ................................................................................. 22 2. Beginnings: Political Ordering, Constituent Power and the Constitution ............ 27 2. 1. Constituent Power and Sovereignty. .. .. 29 2.2. Sovereignty, Constituent Power and Democrary...................................... ...... 35 3. Different Theories of the People .......................................................... 40 3.1. The People as Outcome of a Contract..................................................... 40 3.2. Homogenous Prior Existence: Schmittian Decisionism .................................... 44 3.3. Positivist Conceptions of the People . ... .. 47 4.3. A Reflexive 'We the People" . .. 50 4. The People in Plurinational States........................................................ 52 4.1. The People in Multinational States ........................................................ 53 4.2. The People in Settler-Colonial Contexts.................................................. 55 5. Summary and Conclusions . .... 60 Chapter II A Jewish and Democratic State: Theoretical Justifications and Critiques ............ 62 1. Introduction. ... 62 2. Ultra-Nationalist Approaches .............................................................. 64 3. The Nationalist Approach................................................................. 67 3.1. Conceptual Justification................................................................ 67 3.2. Resolving the Tension .................................................................. 70 3.3. Human Rights, Equality and the Ethnic State ......................................... 75 3.4. Conclusion............................................................................. 80 4. The Pragmatic Approach ................................................................... 83 4.1. Ethnic Democrary ..................................................................... 83 4.2. Interpretation and Abstraction: Aharon Barak........................................ 86 4.2.1. Reconciling the Jewish and Democratic Elements .................................. 89 4.3. Summary ........................................................................... 93 5. The Liberal Approaches..................... ..... 94 v 5.1. Classic Uberalism ...................................................................... 94 5.2. Uberal Nationalism .................................................................... 97 5.3. Summary .............................................................................. 103 6. Critical Approaches ......................................................................... 106 7. Conclusions. .. .. 117 Chapter III Locating the People in Israel: The Social Contract, the Basic Norm, and the Beginnings of the State........................................................................ 119 1. Introduction. ..... 119 2. The People in Israel Between Theory and Practice: Social Contract, Basic Norm and Nation...................................................................................... 121 2. 1. The Social Contract Theory in Israel. .. .. 122 2.2. Basic Nonn Theory .................................................................... 127 2.3. Israeli Nation v. Israeli People?......................................................... 128 3. Beginnings: The Declaration oflndependence...................................... .... 130 3.1. ''We Herery Declare"................................................................
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