The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm

Abstract

Israel's long‐standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever‐shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.

The Rule of Difference: How Emergency Powers Prevent Palestinian Assimilation in Israel

“…The state's authorities used additional emergency powers to wrest land from Palestinians. In this instance, Israeli authorities capitalized on Israel's fluid emergency legal system, which features several overlapping and incoherent legal mechanisms that exist alongside one another (Mehozay 2012). The minister of agriculture issued the Emergency (Exploitation of Uncultivated Lands) Regulation of 1948, 17 which authorized him to expropriate land that had been declared uncultivated.…”

“…6 Initially, as is common in wartime or shortly thereafter, emergency regulations were used to legalize control of various types of property that had been captured during the war. If legally sustained, these acquisitions were completed through military orders, which were, in turn, based on Mandatory emergency regulations (Regulations 48,72,(114)(115)(116)(117)(118) that Israel had incorporated into its domestic law (Bracha 1978;Cohn 1998;Dowty 1988;Hofnung [1995Hofnung [ ] 2001Mehozay 2012;Shetreet 1984), as well as the government-issued Emergency Regulation (Requisition of Property) of 1948. 7 These regulations enabled authorities to validate retroactively activities performed during the war (see Hofnung [1995] 2001: 164-165).…”

“…The 1948 declaration of a state of emergency was originally invoked as a temporary solution to wartime conditions (i.e., Israel's War of Independence)-not a permanent governing mechanism. Yet, quite quickly, this makeshift solution became a systemic, permanent mechanism in the hands of the Israeli authorities (Mehozay 2012). This development suggests that the Israeli authorities have gone beyond the protection of the state and its people and have used emergency powers to satisfy political objectives as well.…”

The Legal Structures of Subordination

“…The long-standing nature of emergency powers and their different legal sources reveal that far from being exceptional measures addressing security needs, these powers serve as a governing norm; rather than being tools that suspend the law, they extend and channel state power under the rule of law (Mehozay 2012b). Emergency regulations have been used against Palestinian citizens and their political leaders long after the end of the military regime in 1966.…”

Legal Emotions: An Ethnography of Distrust and Fear in the Arab Districts of an Israeli City

“…At the same time, Palestinian citizens' “acts of protests and political opposition are signified in nonpolitical terms as threats to the law and public order” (Korn : 580). Furthermore, since its establishment, the Israeli state has developed a complex emergency jurisprudence, which has become an internally incongruent but highly effective “governing tool” to manage Palestinians, including those with Israeli citizenship (Jiryis ; Mehozay ; Zureik ). Given the label of “dangerous people” attached to Israeli Palestinians, Israeli law‐enforcement agencies, especially the GSS, have for decades intensively if often invisibly intervened in the lives of Palestinian citizens of Israel (Cohen ; Sa'di ).…”