Between the Rule of Law and States of Emergency

Yoav Mehozay

Description

Honorable Mention, 2017 Yonathan Shapiro Award for Best Book in Israel Studies presented by the Association for Israel Studies

Contemporary debates on states of emergency have focused on whether law can regulate emergency powers, if at all. These studies base their analyses on the premise that law and emergency are at odds with each other. In Between the Rule of Law and States of Emergency, Yoav Mehozay offers a fundamentally different approach, demonstrating that law and emergency are mutually reinforcing paradigms that compensate for each other's shortcomings. Through a careful dissection of Israel's emergency apparatus, Mehozay illustrates that the reach of Israel's emergency regime goes beyond defending the state and its people against acts of terror. In fact, that apparatus has had a far greater impact on Israel's governing system, and society as a whole, than has traditionally been understood. Mehozay pushes us to think about emergency powers beyond the "war on terror" and consider the role of emergency with regard to realms such as political economy.
List of Illustrations
Acknowledgments
Abbreviations

1. Introduction: The Co-Constitution of Law and Emergency

2. Israel’s Legal-Political System: A Fluid Structure

3. Fluid Emergency Legal Sources

4. Practicing Fluidity I: The Complementary Relationship between Israel’s Emergency Legal Sources

5. Practicing Fluidity II: Emergency Powers for Economic and Financial Ends

6. Conclusion

Notes
Bibliography
Index

Sujets

• Israel
• History of the Middle East
• Legal history

Informations

• Publié par: State University of New York Press
• Date de parution: 12 octobre 2016
• Nombre de lectures: 0
• EAN13: 9781438463407
• Langue: English

Extrait

BETWEEN THE RULE OF LAW AND STATES OF EMERGENCY
BETWEEN THE RULE OF LAW AND STATES OF EMERGENCY
The Fluid Jurisprudence of the Israeli Regime
YOAV MEHOZAY
Cover design by Anat Saacks, A design studio.
Published by State University of New York Press, Albany
© 2016 State University of New York
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Printed in the United States of America
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For information, contact State University of New York Press, Albany, NY
www.sunypress.edu
Production, Jenn Bennett
Marketing, Kate R. Seburyamo
Library of Congress Cataloging-in-Publication Data
Names: Mehozay, Yoav, 1973- author.
Title: Between the rule of law and states of emergency : the fluid jurisprudence of the Israeli regime / Yoav Mehozay.
Description: Albany : State University of New York Press, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2016007712 (print) | LCCN 2016007844 (ebook) | ISBN 9781438463391 (hardcover : alk. paper) | ISBN 9781438463407 (e-book)
Subjects: LCSH: War and emergency legislation—Israel. | War and emergency legislation—Political aspects—Israel. | Arab-Israeli conflict—Law and legislation—Israel.
Classification: LCC KMK2650 .M44 2016 (print) | LCC KMK2650 (ebook) | DDC 342.5694/062—dc23
LC record available at http://lccn.loc.gov/2016007712
10 9 8 7 6 5 4 3 2 1
To Elinor
CONTENTS
List of Illustrations
Acknowledgments
Abbreviations
1. Introduction: The Co-Constitution of Law and Emergency
2. Israel’s Legal-Political System: A Fluid Structure
3. Fluid Emergency Legal Sources
4. Practicing Fluidity I: The Complementary Relationship between Israel’s Emergency Legal Sources
5. Practicing Fluidity II: Emergency Powers for Economic and Financial Ends
6. Conclusion
Notes
Bibliography
Index
ILLUSTRATIONS Figure 1 . Diagram: The Co-Constitution of Law and Emergency Figure 2 . Output of Emergency Regulations: Procedures following Changes in Currency Rates and Essential Work Service s, 1948–2012 Table 1 . Emergency Legal Mechanisms
ACKNOWLEDGMENTS
M any people have helped to make this book possible. I wish to thank my mentors from the Graduate Faculty of the New School for Social Studies: Andrew Arato, Uri Ram, who spent two years at the New School while I was there, Oz Frankel, and Ann Stoler. Andrew Arato has inspired me with his intellectual enthusiasm; thank you for sharing your brilliance and analytical rigor and for your support throughout the years. Uri Ram was the first person who, for better or worse, made me think about a project related to Israel. My deepest gratitude to Oz Frankel, who has been my biggest supporter at the New School over the years. Oz, I cannot thank you enough for your support and advice. I also wish to thank Ann Stoler, who in conversations over the years has advanced my work.
Chapter 5 and some of the theoretical ideas of the book were developed during my tenure at the the Center for Middle Eastern Studies at Harvard University. I would like to thank Sue Kahn, Roger Owen, Baber Johansen, and the stuff of the Harvard Law Library. An earlier version of chapter 3 was originally published in the Law Society Review in 2012. In recognition of part of the work presented in this book, I won the Association for Israel Studies Baruch Kimmerling Prize. I would like to thank the Prize Committee: Hanna Herzog (chair), Ian Lustick, and Mary Totry, and the AIS president at the time, Gad Barzilai. The final configuration and preparation of the book was done in my current position as a faculty member of the school of criminology at the University of Haifa. I would like to thank my colleagues and the administrative staff of that school. Finally, I wish to give an enormous special thanks to my dear friend Eran Fisher. Thank you for reading and commenting on my work, but much more for always being there for me and encouraging me in my toughest moments throughout this difficult process. The arguments expressed in this book, and any errors of fact or interpretation, are, of course, exclusively mine.
Special thanks to Lauren Horwitz, who accompanied me throughout this project, for her most valuable editorial assistance. A big thank you to my sister, Anat Saacks, who designed the cover of the book. I also want to thank SUNY Press for their support, especially Michael Rinella and Rafael Chaiken. Last, but certainly not least, I would like to thank my lifetime companion, my wife, Elinor Dehan. I cannot begin to express my gratitude; without you this project would have been impossible. This book is dedicated to her and our amazing children, Naomi and Nathan.
ABBREVIATIONS
Guide to General Abbreviations HCJ High Court of Justice LAO Law and Administration Ordinance, 1948 OPT Occupied Palestinian Territories SOE State of Emergency
Guide to Abbreviations of Official Publications of the State of Israel DK Protocol of the Knesset Proceedings. HH Hatza’ot Hok—Bills Presented to the Knesset. IR Iton Rishmi—Official Gazette during the Provisional Council of State (before the Knesset). KT Kovetz Ha-Takanot—Regulations Issued by Ministers of the Government. LSI Law of the State of Israel. SH Sefer Hahukim—Statue Book. YP Yallkut HaPirsumim—Government Notices.
Guide to Abbreviations of Court Materials AD Case Materials, Additional Deliberation. CA Case Materials, Civil Appeal. EA Case Materials, Election Appeal No. FH Further Hearing No. HC Case Materials, High Court No. PD Piskei Din—Law Reports of the Supreme Court of the State of Israel
1
INTRODUCTION
The Co-Constitution of Law and Emergency
I srael’s physical security is a central theme in the evolution of the state’s law and society. Indeed, few would dispute that the democratic state’s legal systems are intertwined with ensuring the safety and security of citizens.
But students of Israeli history may be surprised to learn that, even when physical security was not threatened, the Israeli authorities have resorted to emergency legal measures to achieve desired political goals. In fact, the state has a long history of using emergency powers to ensure various political and economic outcomes that have no bearing on the state’s security. In essence, the state has used emergency powers to achieve desired political outcomes, even when that use of power ran roughshod over democratic rule.
In general, a state of emergency (SOE) is a severe condition that results from a clear and imminent threat to the well-being of the state and its people. With an SOE, traditional law is suspended to address the crisis—often with military means—to ensure safety and security, and then reverts to traditional democratic rule once the immediate crisis has passed. But in the case of Israel and regimes like it, the emergency suspension of laws continues after the precarious moment has passed. In Israel, a legal SOE has been in place since the inception of the state. 1 It was proclaimed amid Israel’s war of independence with the expectation that it would be temporary, but it has remained in effect ever since. With emergency declared, the state can suspend regular governance for a variety of weakly justified exceptions. The continual SOE has produced peculiar outcomes.
Consider how it has been used with respect to purely political issues, such as the state’s currency valuation. In October 1977, for example, the newly elected government in Israel used emergency measures for a non-security purpose. Headed by the Likud party, the new government was determined to open the foreign exchange market as the first step in liberalizing Israel’s economy. Just a few months prior, the state underwent a major political upset, with the right-wing Likud party winning elections for the first time. Israel’s liberal party was a faction within Likud, and its members came armed with a ready-made economic plan.
While the new economic strategy was expected, the method of achieving it was not. What is surprising—and practically unacknowledged—is that this “major reform of controls” (Halevi 1986, 244), was executed with emergency powers. But the sole function of these emergency powers should be to address situations that threaten the physical security of the state. Instead, a new economic program, which should have been introduced via primary legislation and which had nothing to do with supporting a population during wartime, was instituted using emergency regulations.
As the events of October 1977 suggest, Israel’s emergency powers are so deeply embedded in its governance that normal and exceptional modes of governance become virtually indistinguishable. Israel’s political structure also highlights the commonness of exception in its legal system. With its single-house parliamentary system, the government could have used its coalition majority to enact this new policy rather than resort to emergency powers. The evidence presented in this book reveals a reality in which law and emergency make up a co-constitutive mode of governance.
But the events of October 1977 point to an equally important phenomenon that extends the power of emergency laws even further. The implementation of the new foreign exchange policy reveals how by building emergency