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

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 ACKNOWLEDGEMENTSThis 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 ment...