The Nakba Files is proud to present an online symposium on The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Hart Press), a forthcoming book by Mazen Masri. Masri’s book is an important intervention in ongoing debates over Israel’s legal system and shows that no such debate can ignore the state’s constitutive exclusion of Palestinians.

Below is an edited excerpt from Masri’s book. See also this response by Hassan Jabareen and another by K-Sue Park, as well as this rejoinder from Mazen Masri.

By Mazen Masri

As legal-political constructs, states are in constant need to legitimate their existence. One theory that is used to explain the origins and the legitimacy of states is social contract theory. Israeli constitutional law recognises a hypothetical social contract that is the basis of the state: the idea that individuals came together to form a contract amongst themselves to create the constitutional order or the state. This theory was mentioned and discussed in a number of decisions by the Israeli Supreme Court. Its most detailed and consequential discussion was in 2009 in Academic Centre for Law and Business v. Minister of Finance, in which Chief Justice Dorit Beinisch (with the majority of Justices concurring) adopted an approach that assumes a social contract as the basis of the modern democratic state, citing leading social contract theorists such as Hobbes and Locke. In her separate opinion, Justice Edna Arbel even called the social contract “the genetic code of the state.”

9781509902545If the social contract is the state’s DNA, the Declaration of Statehood is perhaps one of the most visible manifestations of this. The Declaration of the Establishment of the State of Israel, commonly referred to as its “Declaration of Independence,” was the first constitutional act marking the state’s creation in 1948. Even though it is not applied directly by Israel’s courts like legislation is, it has gained more prominence as a constitutional text after the enactment of the Basic Laws on Human Dignity and Freedom (1992) and on Freedom of Occupation (1994), which both refer to the ‘spirit of the principles set forth in the Declaration’ as a reference point for upholding human rights.

The Declaration was a momentous event, purporting to mark the transformation of a settler community under British tutelage into a collective of citizens in a nation-state. The document crystallized a ‘We, the People’ moment. The Declaration’s ‘we’ is very clear. In the declaratory paragraphs of Declaration, after affirming that­­­­ the state’s creation is an expression of “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State,” it went on to state that:

Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish State in Eretz-Israel to be known as the State of Israel (¶11).

The collective that is invoked here is made up of the Jewish community in Mandate Palestine and those who belong to the Zionist movement. This is the People, as represented by signatories who were all notable members of the Jewish community, mostly male and Ashkenazi.

This collective is not only defined as Jewish; it is mostly comprised of Jews who came with the intention of creating a state that is purely for the settler community. The Declaration glorifies the heroism of Jewish immigrants as ‘pioneers’ who came to the country despite the obstacles, and who were very active and energetic in building it (‘made deserts bloom’) as well as their own community with its own separate and distinct economy, culture, and language (‘built villages and towns, and created a thriving community controlling its own economy and culture’). This immigration and settlement was not for the benefit of the settlers only. In the tradition of the civilising mission, the settlers also brought ‘the blessings of progress to all the country’s inhabitants’. The motifs of immigration, settlement, building and benefits for the other ‘inhabitants’ reverberate throughout the Declaration.

As a Declaration of the Jewish state, its main themes concerned the Jewish people. But the starting point of the Declaration was not the people but the land. The opening paragraph emphasised that:

Eretz Yesrael was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance, and gave to the world the eternal Book of Books.

After opening with the land, the Declaration moves on to chronicle historical events. The history here is not of the geographical area that the Declaration opened with, but of a trans-territorial Jewish people. It is described as a community trying to re-establish its state, creating the impression that it seeks to do so on a vacant land. Not only is it vacant land but also ‘a desert’ that lacks civilization, culture or progress. The land needs the settlers to settle on it, reverse its horrid conditions, and ‘make the desert bloom’. In essence, it paints a picture of the land as terra nullius.

But presenting the land as an empty desert clashed with the realities on the ground. The reality of the presence of a native majority, which was resisting what it saw as an invasion was strong and could not be totally ignored, and it made its way to the Declaration where its framers:

appeal – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions (¶15).

The indigenous Palestinians, or ‘the Arab inhabitants of the State of Israel’, are not part of the history of the land but are only part of the present, and mainly when they plunge into the last parts of the text, they appear in the form of assailants. They are also presented as merely passive ‘inhabitants’, as opposed to the active Jewish pioneers who ‘made the desert bloom’. This approach that the framers of the Declaration take – the empty land, the passive inhabitants with no links to the land and no ‘natural’ rights over the land, and with no history to speak of – represents the negative dimension of Patrick Wolfe’s understanding of settler-colonialism: the dissolution of the native society. Having done that, the Declaration moves on to the positive dimension and erects a settler-colonial society by admiring the pioneering settlers and their achievements as explained above.

This oft-quoted paragraph is seen as one of the normative sources of equality in Israeli law, as it offers ‘full and equal citizenship’: an invitation to join the emerging state. It is reasonable to view the invitation to join the state on the basis of equal citizenship as a positive gesture and as a sign of commitment to equality, as it is often perceived by the Supreme Court and in the academic literature.

The UN Partition Plan envisioned a "Jewish state" with a 49.9% non-Jewish population.

The UN Partition Plan envisioned a “Jewish state” with a 49.9% non-Jewish population.

This gesture, however, should be assessed against two important points. First, we need to consider the composition of the population in the area that was assigned to the Jewish state according to the 1947 Partition Plan, which is seen as one of the bases of the Declaration. According to the report of the United Nations Special Committee on Palestine (UNSCOP) from September 1947, 49.9% of the population in the area designated for the Jewish state was Palestinian Arab in 1947. Thus, the Declaration does not include half the population in “the People” but instead invites them, after the fact, to join as citizens.

Second, by the time the Declaration was made, about 300,000 Palestinians had already been expelled or fled from the areas, which were under the control of the embryonic state as part of a wider process, one that has been described as ethnic cleansing. The signers of the Declaration were offering conditional citizenship to Palestinians, while at the same time sending military and paramilitary groups to expel them. About 78-85% of the Palestinians who were in the areas that fell under Israeli control had been expelled or has fled by the end of the war in 1949.

Even if one could somehow ignore the demographic and military context of mass expulsions around the Declaration, the document’s appeal to Palestinians is also deeply disturbing on its own terms. It strengthens the conception of the emerging (Jewish) settler nation as one with exclusive control over the state as a matter of law, indicating an exclusively Jewish People.

The Declaration created the dichotomy of the we/you, where ‘we’ are the sovereign People who, by virtue of this sovereignty, can offer ‘you’ – the native Palestinian ‘Other’ – citizenship and equality. There is no talk of citizenship as of right for Palestinians based on habitual residence according to the rules of state succession in international law or according to the Partition Plan. Nor is citizenship based for Palestinians based on a ‘natural and historic right’, similar to the rights mentioned in the Declaration as belonging to the Jewish people and cited as the underlying rationale of the state. It is a citizenship that ‘we’ will ‘give’ to ‘you’ if you ‘preserve the peace’. It is a conditional offer of inclusion and equality only if ‘the peace’ as understood by a settler state is preserved.

Read the complete symposium on Mazen Masri’s The Dynamics of Exclusionary Constitutionalism:

BOOK EXCERPT: Mazen Masri, “Israel’s Colonial Declaration of Independence

RESPONSE: Hassan Jabareen, “Why ‘Jewish and Democratic’ Values Negate Palestinian Equal Rights

RESPONSE: K-Sue Park, “The Colonial History of Social Contracts

REJOINDER from Mazen Masri, “Future Directions in the Study of Law and Colonialism in Palestine