I argue in this short post that the Israeli legal order, in its attempt to establish a Jewish State, offers an especially rich site to explore 1930s Weimar-era jurisprudential debates regarding sovereignty, the rule of law, and the sovereign exception. As this short post will make clear, early Israeli judicial decisions (1948–1925) regarding citizenship in the new state, and Israel’s 1950 Law of Return and its 1952 Nationality Law suspended the operation of ordinarily applicable legal rules in a manner that recalls Carl Schmitt’s arguments about the nature of sovereignty. The subsequent history of the Israeli state, and its violent relationship with Palestinian Arabs and its neighbors, however, also vindicate the most prominent Weimer-era critics of Schmitt’s decisionism—Hans Kelsen and Hermann Heller. Applying their critique of Schmitt to the Israeli legal order reveals it to be the moral equivalent of an ersatz, rather than a true, miracle. As a result, the Israeli state must rely on violence to make up for its irrational, even absurd legal claims. The magical nature of Israeli claims of exclusive sovereignty in Palestine—foretold in the early case law of its courts and its early legislation on Israeli citizenship—recently reached its apogee in the 2018 Nation-State Law. That law declares that only Jews may exercise the right of self-determination in Palestine, even though non-Jewish Arabs make up half of the population living in historical Palestine and living under Israeli control.
Carl Schmitt, the conservative, turned Nazi legal theorist of Weimar Germany, famously noted that “Sovereign is he who decides on the exception” (5). For Schmitt, the sovereign decision was constitutive of the political and existed outside of the law’s positive rules. The sovereign’s power to suspend the ordinary operation of the law, as well its power to restore it, was indispensable to the existence of any legal order in Schmitt’s view. Liberal legality was a myth because it attempted to suppress the existence of the sovereign decision in law and reduce law to the mechanistic operation of rules.
Applying Kelsen and Heller’s critique of Schmitt to the Israeli legal order reveals it to be the moral equivalent of an ersatz, rather than a true, miracle.
Schmitt, when he wrote those words, had in mind the liberal German legal theorist, and defender of the Weimar Constitution, Hans Kelsen. Kelsen’s pure theory of the law, by contrast, made a categorical distinction between politics and morality, on the one hand, and legal rules, on the other, stating that only positive rules can be the object of a science. For Kelsen, sovereignty was not the will of a person, as Schmitt would have it, but rather is the property of a legal system that identifies particular persons as exercising various powers on behalf of the state. Conflating legal sovereignty with power, in the sense of “the capacity to bring about an effect,” according to Kelsen, is a result of a mistaken application of theology to political science, reflecting a basic confusion between the legal authority of a state and the theological idea of God as prima causa of the Universe (208).
Herman Heller, a leftist German legal theorist who was critical of both Schmitt, for his authoritarianism, and Kelsen, for his attempt to exclude the political from the legal, pointed out that Schmitt’s association of politics with the will of the sovereign was, in practice, a repudiation of Enlightenment rationality and a return to medieval conceptions of a personal deity who is free to suspend the rules of nature whenever it wishes, presumably, as a favor to the chosen recipient of grace. As David Dyzenhaus notes, the irrationality that Schmitt’s conception of sovereignty introduced did not mean that it would inevitably fail as a practical matter; however, it did mean that political projects grounded in non-rational appeals to the exception could only succeed through the deployment of “great violence” (175).
The miraculous/magical claims of Israel’s legal system are no where on better display than in its Nationality Law of 1952, and some early decisions of its courts (see year 1950, International Law Reports, 110–12) on the question of Israeli citizenship prior to the passage of the Nationality Law.[1] Three Tel Aviv district court cases disagreed on the fate of Palestinian citizenship in the period between the expiration of the Palestine Mandate in 1948 and the adoption of the Nationality Law of 1952. Two decisions, Re Goods Shephris and Oseri v. Oseri, held that Palestinian citizenship had come to an end with the conclusion of the Mandate. A third decision, A.B. v. M.B., affirmed the continuing vitality of Palestinian citizenship throughout this period. Israel’s Supreme Court brought an end to the conflicting lower-court decisions when it ruled in 1952 in Hussein v. Governor of Acre Prison that, with the establishment of the State of Israel, Palestinian citizenship ceased to exist, whether in the territory that became Israel, those parts of Palestine occupied by Egypt and Jordan, or “anywhere else in the world” (International Law Reports, 112).
Against the view that Palestinian citizenship had come to an end with the expiration of the Mandate, the judge in A.B. v. M.B. pointed out that it was a settled position of public international law that upon a succession in sovereignty, the persons in the territory, ipso facto, acquire citizenship of the new sovereign. To hold otherwise in the case of Israel would lead to the absurd result that Israel came into existence as a state in 1948 but had no nationals until 1952 when the Knesset passed the Nationality Law (International Law Reports, 111). Despite the absurdity of this legal result, the judge in Oseri argued that the citizenship regime put in place by the Mandatory authorities—which granted Palestinian citizenship to all persons who had been citizens of the Ottoman Empire and had habitually resided in Palestine regardless of religion—in reliance on the provisions of the Treaty of Lausanne are “devoid of substance in the State of Israel” and are “inappropriate to the situation following the creation of Israel and the changes which that event has brought” (International Law Reports, 112).
Presumably, the “changes” to which the learned judge alluded, but did not make express in his opinion, was the expulsion of more than 750,000 Palestinian Arabs and the decision of the State not to allow them to return to their homes, a decision that was reinforced by deeming Palestinian Arabs who sought to return “infiltrators” that could, and were, routinely shot and killed.[2] In order to create a Jewish state, the Israeli judiciary performed the miraculous/magical act of imagining Israel’s establishment as though it were an act of self-generation, creation ex nihilo, as it were.
So miraculous was the creative power of Israel as sovereign that even the citizenship of Jewish Palestinians could not seemingly survive its establishment. As a practical matter, however, the denationalization of Palestine’s Jewish citizens, like all false miracles, was an illusion: Section 2(a) of the Nationality Law gave Jewish citizens of Palestine the status of returnees under the Law of Return of 1950, thereby granting them Israeli citizenship on grounds of Jewishness rather than habitual residence in the territory that became Israel. Palestinian Arabs, by contrast, could only claim Israeli citizenship if they successfully resisted Israel’s campaign of ethnic cleansing by remaining continually present in the territory that became Israel until July 14, 1952, the effective date of the Nationality Law. The British law creating Palestinian nationality, by contrast, theoretically allowed any one otherwise eligible for Palestinian citizenship, but for whatever reason was not present in Palestine as of the effective date of the law, two years to apply for Palestinian citizenship from wherever he was located, even though in practice the implementation of the law deprived many Palestinians who were abroad of Palestinian citizenship because the steps they needed to follow to apply for Palestinian citizenship were onerous and impracticable given their circumstances.[3]
Section 18(a) of Israel’s Nationality Law provides that “The Palestinian Citizenship Orders, 1925-1942 are repealed with effect from the day of the establishment of the State.” By expressly canceling Palestinian citizenship for everyone, and denationalizing everyone who failed the Nationality Law’s strict residency requirements, without regard to race or religion, the law, like all false miracles, creates an illusion of articulating a facially neutral rule: Jewish Palestinians who lost their Palestinian citizenship—and only Jewish Palestinians—were, in Section 2(b)(1) of the same 1952 legislation that denationalized Palestine’s Arab population, granted Israeli citizenship through the legal fiction of treating them as “returnees,” even if they had lived their entire lives in Palestine. It provides as follows:
(B) Israel nationality by return is acquired:
(1) by a person who came as an “oleh [i.e., “returnee”]” into, or was born in, the country before the establishment of the State, with effect from the day of the establishment of the State.
Israel’s courts and its legislature, in constituting Israel as a Jewish state, operated as a Schmittian sovereign by suspending the ordinary operation of public international law that would have required Israel to grant Palestine’s Arabs citizenship in the new state, subject to their right to renounce it in favor of citizenship of another state (434). To avoid the charge of a racially discriminatory denationalization, Israeli courts gave the illusion of denationalizing everyone who failed an exacting physical presence requirement, knowing that Jewish Palestinians would be renationalized by the combination of the Law of Return and the Nationality Law. Israel, exercising the prerogatives of a Schmittian sovereign, could only achieve these results by acting against the immanent rationality of the principles of public international law governing citizenship in the context of a succession of sovereignty.
The artifacts of Israeli legal exceptionalism are paradoxical judicial decisions and anomalous statutory provisions. But their practical effect has been to normalize the death of Palestinians by rendering them, as a matter of Israeli internal law, foreigners, and in international law, stateless. While Jewish Palestinian “returnees” were the beneficiaries of the Israeli sovereign’s miraculous/magical grace, Arab Palestinians were transformed into “infiltrators,” who could, and were, shot and killed. Israel’s 2023–24 war in Gaza, meanwhile, is waged against a population the majority of whom are Palestinian refugees whom the Israeli legal order “miraculously” stripped of Palestinian citizenship as part of the founding of the state. Israel’s current war, therefore, can only be understood as a continuation of the Nakba that started in 1948. By suspending the rationality of law, Israel, as Kelsen and Heller predicted in their polemics with Schmitt, committed itself to a path of violence, a course that it has yet to abandon.
[1] For an overview of these cases, see Victor Kattan, “The Nationality of Denationalized Palestinians.” Susan Akram has made the case convincingly that Israel’s nationality law is a legal fiction insofar as Israel does not, in fact, recognize an Israeli nationality. Accordingly, what is translated in English as Israel’s Nationality Law is actually a citizenship law. Susan M. Akram, “Palestinian Nationality and “Jewish” Nationality: From the Lausanne Treaty to Today.”
[2] For an overview of the role of ethnic cleansing in the establishment of the State of Israel, see Ilan Pappé’s, The Ethnic Cleansing of Palestine.
[3] Mutaz M. Qafished, “Genesis of Citizenship in Palestine and Israel: Palestinian Nationality in the 1917–1925 Period.”.
