How the Law of Return Creates One Legal Order in Palestine

Hassan Jabareen


The prevailing discourse in Israeli academia on justifying the values of
Israel as a “Jewish and democratic state” takes the form of a debate
involving questions of group rights of a national minority, as in any
liberal democracy. The framework of this discourse relies on three
interconnected, hegemonic assertions. These assertions assume the
applicability of equal individual rights, put aside the Occupation of
the West Bank and Gaza as irrelevant for the “Jewishness” of the state
as it belongs to a different rule of recognition, and conceptualize the
Green Line based on majority-minority relations with Jewish group
rights, including the Law of Return, as not leading to discrimination
against individuals. I contend that these assertions are invalid and that
colonialism is the relevant framework of Israel’s constitutional identity
in Palestine (the Green Line, the West Bank including Jerusalem and
Gaza). I argue there is one Constitution in Palestine based on one
conception of sovereignty, regardless of any rules of recognition where
the Law of Return, together with the value of “preserving a Jewish
majority,” constitutes its very essence that targets the Palestinians
as such. The Article presents a case-law study regarding family life
between spouses and their children in Palestine. This case-law reveals
an unfamiliar phenomenon. Unlike the plurality of written laws that
characterize colonial regimes, the Israeli legal system introduces
a unique model in which racial domination is created mostly by
decisionism of the Court, out of the written laws and regardless of
any rule of recognition.

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