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

Authors

  • Yoav Mehozay


  • The author wishes to thank Lauren Horwitz for her most valuable editorial assistance and Eran Fisher for his advice, support, and encouragement. Please address correspondence to Yoav Mehozay, 95 Saint Rose St., Boston, MA 02130; e-mail: yoav.mehozay@gmail.com.

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.

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