Book Review: The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State

DOI10.1177/0964663918809284
Published date01 February 2019
AuthorRobert Wintemute
Date01 February 2019
Subject MatterBook Reviews
MAZEN MASRI, The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic
State. Oxford: Hart Publishing, 2017, pp. 256, ISBN 9781509902538, £70 (hbk).
When it is claimed that Israel (including the Palestinian territories it controls) is an
apartheid state (see Wintemute, 2017: 91, n. 10), a common response is that this cannot
be true because the minority among Palestinians who are citizens of Israel have equal
rights. Mazen Masri’s excellent book convincingly demonstrates that this response is
inaccurate with regard to Israeli constitutional law, especially as this body of law affects
the political participation of Palestinian-Israelis.
Masri starts with a striking illustration of the problem his book addresses (p. 1): two
Bedouin villages inside 1949–1967 Israel, one designated for demolition to make way
for housing for Jewish-Israelis, the other designated for demolition to make way for a
Jewish National Fund forest (and in fact demolished and rebuilt 99 times), even though
the residents are theoretically equal citizens of Israel according to the case law of the
Supreme Court of Israel. Masri asks (p. 2): ‘How can the law ...displace one group of
people, grant favourable land rights to others, and still be seen as ...fulfilling the
requirements of equality among citizens which is at the heart of democracy?’ This causes
him to interrogate Israel’s definition as a ‘Jewish and democratic state’, found in two
Knesset acts with constitutional status (the 1992 Basic Law: Human Dignity and Free-
dom and the 1994 Basic Law: Freedom of Occupation), and the potential contradiction
between ‘Jewish’ and ‘democratic’ in a state with a large non-Jewish minority. His focus
(p. 6) is the material level (allocation of poli tical power and rights) rather than the
symbolic level (flag, anthem, language rights), secular law rather than religion, and
1949–1967 Israel rather than the Occupied Palestinian Territory.
Masri begins (pp. 7–8) by noting that, in Israel, it is not clear who ‘the People’ are
who have consented to governmental power through the constitution: Are they all cit-
izens of Israel (Jewish, Palestinian, or other), all Jewish citizens of Israel, or the Jewish
people (all ethnically Jewish persons around the world, whether they are already citizens
of Israel or are eligible for future Israeli citizenship)? In addressing this question of
constitutional theory, he adopts (pp. 15–16) as the relevant political context ‘settler-
colonialism’, with its ‘structure of privilege’ for the settler population, and its ‘logic of
elimination’ for the indigenous population. Although (pp. 18–20) ‘what happened
in ...historic Palestine in the past hundred years fits the definition of settler-
colonialism as theorised by ...Patrick Wolfe or James Tulley’, he takes this as a premise
and does not seek to prove it. Instead, he focuses on ‘how settler-colonialism shapes the
development of Israeli constitutional law’, and on how it is a helpful lens ‘for under-
standing the logic behind many laws and policies in Israel’. He argues (p. 21) that ‘the
Jewish and democratic definition – despite the right of the Palestinian citizens to vote
[...] – means, in theory and in practice, that in the Israeli constitutional order sover-
eignty and constituent power are exclusively concentrated in the hands of the Jewish
citizens’, in other words, ‘the People ...does not include all citizens”. “[T]his finding
has serious implications for ...the extent to which Israel can truly be seen as a democ-
racy’ (p. 23). The common thread in Chapters 2 to 7 is the role of settler-colonialism in
Book Reviews 131

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