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.

Last week, we posted an edited excerpt from this book and a response from Hassan Jabareen from the perspective of Israeli jurisprudence. Below is a second response from K-Sue Park giving comparative perspective from the U.S. experience. To read a rejoinder from Mazen Masri, click here.

By K-Sue Park

In this new work, Mazen Masri identifies social contract theory as a source of authority that Israeli jurists draw on to legitimize the very foundation of the state of Israel. As Masri describes, Israeli Supreme Court justices in numerous opinions have elaborated the idea that a social contract is “the genetic code of the state,” quoting from classic social contract theorists Thomas Hobbes and John Locke. Masri describes the settler colonial logic of the identification of the “People” who formed that social contract in Israel’s Declaration of Statehood: it identifies a collective of Jewish “pioneers” who came to an empty land and “made the desert bloom.”

The social contract, as a metaphor for democracy, is a common trope in American case law too; it is popular for conservatives and such left-identified politicians as Elizabeth Warren alike to call for protecting the social contract to protect America. Legal scholar Anita L. Allen observes that, “[t]he legal system of the United States has an important relationship to social contract theory” because the social contract theory highly influenced the founding of the United States and its Constitution.

How settler colonial is the American invocation of the social contract? And how American is it for Israeli justices to invoke the concept? The concrete history of the social contract, in fact, is both extremely settler colonial and American. The idea today presents a good example of how a historical phenomenon rooted in the specific material context of colonization has been rarefied into an abstract, “universal,” conceptual political tool.

In particular, in New England, settlers who found themselves with little political guidance in unfamiliar lands formed compacts, in which they agreed to relinquish some individual liberties for the protection and benefit of the whole. In the woods, these “pioneers” signed formal agreements that they agreed would be the basis of their common government—according to a template the traces of which appear in the Israeli Declaration of Statehood that Masri analyzes.

The oldest such surviving compact based on popular consent is today known as the Mayflower Compact (originally called the “Plymouth Combination”). On November 11, 1620, its signers “solemnly and mutually, in the presence of God and one another, [did] Covenant and Combine our selves together into a Civil Body Politick, for our better ordering and preservation, and furtherance of the ends aforesaid.” Nine years later, in Salem, Massachusetts, settlers similarly covenanted “with the Lord and one with another” to “bind our selves in the presence of God”; other settlers made covenants using parallel articulations in short succession in Watertown, Cambridge, Dorchester, Dedham, Exeter, Pocasset and Quinnipiack. In 1641, settlers at Piscataqua wrote:

Whereas sundry Mischiefs and Inconveniences have befallen us, and more and greater may, in regard of want of Civill Government, his gracious Majesty haveing settled no order for us, to our knowledge, we whose names are underwritten, being Inhabitants upon the River of Pascataqua have voluntarily agreed to combine ourselves into a body Politick.

Today many scholars describe these agreements as “Lockean”, although John Locke was born twelve years after the first of these documents was drafted. Hobbes’ Leviathan (1651) and Locke’s Second Treatise on Government (1689) each liken the state of nature to America, and were both published well after the first English colonies in America had proliferated and grown fairly established. By Locke’s adulthood, the network of communities formed by social contract had organized themselves into a United Confederation according to the same model. Meanwhile, by that time Locke was an investor in colonial plantations and the slave trade in the Caribbean, and closely oversaw the design and management of colonial institutions in the Carolinas. His library was full of the writings of English colonists in the Americas, and there is no doubt that he knew of the early New England social contracts. However, he would not have wanted to emphasize that independent governments were arising in America in his text, given the formal fidelity the settlers owed the English Crown.

Still, Locke’s writing described early colonists’ collective agreements in New England with near exactness in the Second Treatise. As in early New England, in Locke’s narrative, a compact created a new community through the consent of the individuals taking part and in the absence of any other order or authority. Indeed, he echoed their language, writing that, “[w]hen any number of Men have so consented to make one Community or Government, they are thereby presently incorporated, and make one Body Politick, wherein the Majority have a Right to act and conclude the rest.” Further, “every Man, by consenting with others to make one Body Politick under one Government, puts himself under an Obligation to every one of that Society, to submit to the determination of the majority, and to be concluded by it.”

Locke’s narrative was not an abstract thought experiment or origin myth of political society, but a description of concrete historical events of his time. If the original political compact is an agreement between English colonists in the Americas, then those men who leave the state of nature to form a “Body Politick” in the Second Treatise are clearly settlers. The formation of the social contract does not mark the transition of an unorganized people into a civil society – as goes the standard interpretation– but a people’s arrival in a strange and seemingly hostile land re-scripted as an empty place.

For Locke, the impetus to leave behind a “Condition, which however free, is full of fears and continual dangers” thus describes the motivation to escape the perils of living in a new land without the force of the collective “Body Politick” protecting them. In the context of arrival, a group of individuals perceives more peril in the environment and its native inhabitants than from each other; they recognize their vulnerability, and form a community in which the mutual consent of each member is unprecedented, as much as the military loyalty of each is of paramount importance.

How does our understanding of the society founded by the social compact and its legitimacy change, when we see the main event of this narrative as a moment of arrival and the beginning of the enterprise of conquest? What does it mean, given this history, to insist on assessing the concept of the social contract in the abstract, by reference to questions of collective self-government and consent? It is not that the power of the social contracts’ universal thinking has shaped two “independent,” “democratic” nations, nor merely that one nation has followed and emulated the political tropes of the other, as the dominant world power. If the social contract evinces a scenario where one group comes into an inhabited land, the question must be how they interacted with the inhabitants of that land and not only how they organized with one another to do so. It must be about how they approached external groups, and the type of society that a small group sought to create given the presence of many others.

While the Israeli example Masri examines is an echo of the social contracts of colonial New England, it comes, however, imbued with the sensibilities of subsequent ages. The social contracts of New England did not purport to address indigenous populations; rather, “laws of nature” or of war governed inter-group relations. But in 1948, the challenge of anti-colonial nationalism made such openly racist presuppositions untenable. Masri demonstrates how the form of the colonial social contract adapted to that new reality through a conditional offer of inclusion premised on “preserving the peace” on the terms of the settler state.

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“