Can the Court normalize the exception in non-emergency cases? Palestinian cases before the Israeli Supreme Court

Abstract

Abstract The leading legal literature published after 9/11 recognizes the exception only in emergency. These writings follow the concept that “necessity knows no law” and, as Manin puts it, “security is the only acceptable principle” which justifies arbitrary coercion in liberal theory. Although Carl Schmitt criticized such liberal legal writing, including Hobbes’s sovereign, in that it does not recognize the power of the political identity, Schmitt’s sovereign also appears to decide on the exception only in “extreme emergency.” Accordingly, the judiciary’s political role is marginalized as the court always arrives too late, due to the urgent need to respond immediately. Based on this literature, court decisions always fall within the realm of legality, especially in non-emergency cases. In this article, I argue that the exception also appears in non-emergency cases and that the judiciary plays a serious role in normalizing the exception when the government acts without any legislative authorization. I further argue that these judicial decisions tell us about the very essence of the state’s political identity as it is linked to the authorities’ understanding of the state’s sovereignty. The case study that I examine is Israeli Supreme Court decisions that deal with cases brought by Palestinian citizens of Israel concerning territoriality claims, such as the right of property and the right to live in specific places with basic services. These cases were decided after the enactment of the Basic Law: Human Dignity and Liberty in 1992, which is considered to be part of the “constitutional revolution” in Israeli legal discourse.