Activism and Legitimation in Israel’s Jurisprudence of Occupation
| DOI | 10.1177/0964663914521449 |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Articles |
Article
Activism and
Legitimation in Israel’s
Jurisprudence of
Occupation
Nimer Sultany
University of London, UK
Abstract
Colonial law need not exclude the colonized in order to subordinate them, and ‘activist’
courts can advance the effect of subordination no less than ‘passive’ courts. As a case
study, this article examines the jurisprudential legacy of the Israeli Supreme Court in the
context of the prolonged Israeli occupation of Palestine. Applying insights from legal
realist, law and society, and critical legal studies scholarship, the article questions the
utility of using the activist and passive labels. It illustrates how the Israeli activist court,
through multiple legal and discursive moves, has advanced and legitimated the coloni-
zation of Palestine; that the court is aware of its role; and that arguments that focus on
the court’s informal role do not mitigate this legitimating effect. Unlike other scholars,
the article shows that the Israeli court’s role—by extending the power of judicial review
to the military’s actions in the occupied areas—is neither novel nor unique or bene-
volent, as the British colonization of India and the US colonization of Puerto Rico show.
Keywords
Activism, colonialism, Israel, judicial review, legitimation, Palestine, shadow of the court
Many consider Israel’s Supreme Court (ISC) to be an ‘activist’ court. This is evident in
the belief—especially in the United States—that Aharon Barak, the former Chief
Justice of the ISC and the most influential judge in Israel’s history, is an activist
Corresponding author:
Nimer Sultany, School of Oriental and African Studies, University of London, Thornhaugh Street, Russell
Square, College Buildings, London WC1H 0XG, UK.
Email: ns30@soas.ac.uk
Social & Legal Studies
2014, Vol. 23(3) 315–339
ªThe Author(s) 2014
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DOI: 10.1177/0964663914521449
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judge. For progressives he is a counter-majoritarian hero who defends human rights
and constrains the executive and who found the right balance between s ecurity and
human rights (Fiss, 2007; Goldstone, 2007). For conservatives, however, he is an
activist in a pejorative sense because he usurps political power and violates the
separation of powers (Posner, 2008: 368).
In this article, I argue that this activist image is false since it is both oblivious to the
actual record of the ISC and to the lessons of critical scholarship about the nature of
‘judicial activism’. My case study will be the rulings of the ISC with respect to the
occupied Palestinian territories (OPT), even though similar critiques can be directed
at the ISC’s role in issues that are not related to the occupation or the military
(Barak-Erez, 2002; Benvenisti and Shoham, 2004; Holtzman-Gazit, 2007; Jabareen,
2002; Kedar, 2001; Sultany, 2014). As my discussion of the jurisprudence of the ISC
and its effects in the OPT unfolds, I will show that the differences between the so-
called ‘passive judge’ and the so-called ‘activist judge’ may be more perceived than
real and that, contra Dyzenhaus (1991), purposive interpretation may be—no le ss than
‘positivism’ or ‘mechanical jurisprudence’—liable to advancing injustice and rationa-
lizing oppression.
The article is organized as follows. Part I discusses some of the critiques of acti-
vism focusing on structural injustice; indeterminacy of rights; and the gap between
law-in-the-books and law-in-action, between short-term and long-term effects, and
between symptoms and root causes. In light of these critiques, Part II examines the
ISC’s record and its effects. I specifically focus on torture because it is considered
to be the primary example for the ISC’s activism. Against the backdrop of the legit-
imation argument developed in Part II, Part III enumerates the key argumentative and
discursive moves of the ‘oppression-blind jurisprudence’ by which the ISC obtains the
legitimation effect. These moves include: escaping international legal scrutiny; selec-
tivity; submission to ‘security’; lack of timely remedies; de-contextualization; and re-
contextualization. The effect of these moves is to depoliticize the Palestinian question
and address it through ‘humanitarianism’ and security. Part IV provides evidence for
the ISC’s awareness of its legitimating role. As many scholars seek to salvage the
activist view of the ISC and mitigate the legitimation role by pointing out the informal
role that the ISC plays (Davidov and Reichman, 2010; Dotan, 1999; Kretzmer, 2002),
Part V shows the weaknesses of the ‘bargaining in the shadow of the court’ argument.
Finally, the Conclusion shows that Israel’s inclusion of the Palestinians in its legal
system by allowing them access to the Supreme Court—shortly after the occupation
on 1967—is not exceptional in the history of colonial powers. Nor is the legal inclu-
sion of the natives clearly advantageous to the colonized. Indeed, as Samera Esmeir
shows in her study of the British colonial occupation of Egypt, the natives’ inclusion
in colonial law by granting them rights can be as oppressive as excluding them and
humanizing them can be as violent and disciplinary as dehumanizing them (Esmeir,
2012; see also Fitzpatrick, 1992). Similarly, a review of more than four decades of
an elaborate jurisprudence developed in thousands of ISC rulings on the OPT shows
that the legitimation effects outweigh the benefits of inclusion. The jurisprudence of
occupation is one of inclusive subordination.
316 Social & Legal Studies 23(3)
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