How the Law of Return Creates One Legal Order in Palestine
-
Hassan Jabareen
Abstract
The prevailing discourse in Israeli academia on justifying the values of Israel as a “Jewish and democratic state” takes the form of a debate involving questions of group rights of a national minority, as in any liberal democracy. The framework of this discourse relies on three interconnected, hegemonic assertions. These assertions assume the applicability of equal individual rights, put aside the Occupation of the West Bank and Gaza as irrelevant for the “Jewishness” of the state as it belongs to a different rule of recognition, and conceptualize the Green Line based on majority-minority relations with Jewish group rights, including the Law of Return, as not leading to discrimination against individuals. I contend that these assertions are invalid and that colonialism is the relevant framework of Israel’s constitutional identity in Palestine (the Green Line, the West Bank including Jerusalem and Gaza). I argue there is one Constitution in Palestine based on one conception of sovereignty, regardless of any rules of recognition where the Law of Return, together with the value of “preserving a Jewish majority,” constitutes its very essence that targets the Palestinians as such. The Article presents a case-law study regarding family life between spouses and their children in Palestine. This case-law reveals an unfamiliar phenomenon. Unlike the plurality of written laws that characterize colonial regimes, the Israeli legal system introduces a unique model in which racial domination is created mostly by decisionism of the Court, out of the written laws and regardless of any rule of recognition.
© 2020 by Theoretical Inquiries in Law
Articles in the same Issue
- Frontmatter
- Introduction
- “Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace
- Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination
- In Pursuit of Political Imagination: Reflections on Diasporic Jewish History
- Territorial Justice in Israel/Palestine
- Constructing “Private” Historical Justice in State-Building
- Inheriting the Right of Return
- Justifying the Right of Return
- Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict
- Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel
- How the Law of Return Creates One Legal Order in Palestine
- Historical Justice: On First-Order and Second-Order Arguments for Justice
- The Idea of Israel as a Jewish State
Articles in the same Issue
- Frontmatter
- Introduction
- “Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace
- Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination
- In Pursuit of Political Imagination: Reflections on Diasporic Jewish History
- Territorial Justice in Israel/Palestine
- Constructing “Private” Historical Justice in State-Building
- Inheriting the Right of Return
- Justifying the Right of Return
- Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict
- Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel
- How the Law of Return Creates One Legal Order in Palestine
- Historical Justice: On First-Order and Second-Order Arguments for Justice
- The Idea of Israel as a Jewish State
