Between the Rule of Law and States of Emergency

The Fluid Jurisprudence of the Israeli Regime

Yoav Mehozay

• Publisher: SUNY Press
• Year: 2016
• ISBN:
  9781438463407
• Topic: Law
• Subtopic: Legal History
• Index: Law

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.

1

INTRODUCTION

The Co-Constitution of Law and Emergency

Israel’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 into the fabric of the law, it is the structural dynamics of the law, and not just the authority of the law, that extends the power of the sovereign: the Israeli authorities. Israel’s legal system features several emergency legal mechanisms that exist alongside one another. The authority of these mechanisms is overlapping but also complementary. These multiple legal sources work together to create a fluid structure, enabling authorities to travel easily between different emergency legal sources as justifications for measures, while nonetheless maintaining a degree of legitimacy as a government by law. These dynamics of law grant flexibility in the application of law. As a result, Israeli authorities can capitalize on multiple emergency legal sources to achieve their aims, sometimes by patching laws together for a desired result or moving freely from one legal mechanism to another when the first does not serve desired ends. In what follows, I elaborate on this concept.

Let us examine this strategy in practice: how certain emergency regulations and laws have been interwoven to create this fluidity. In October 1977, the Israeli government applied not one, but two emergency legal mechanisms that stem from two distinct emergency legal sources. On the one hand, the government relied on the Mandatory Emergency (Defence) Regulations, specifically, the Mandatory Defence (Finance) Regulation of 1941,2 to introduce a new monetary policy to control currency rates. Despite their originating in the British mandate, partly as a means to exert control over the Jewish community, the Mandatory Emergency Regulations are now part of Israeli law. As such, the Israeli government has a ready-made legal source to create emergency measures that do not hinge on declaring an SOE. On the other hand, the Israeli government used an original Israeli emergency mechanism. This alternative emergency legal source empowers the Israeli government to issue emergency regulations at the ministers’ discretion, and at any given moment without seeking the Knesset’s approval. With this authority, the minister of finance issued, two emergency regulations: the Emergency (Procedures Following Changes in Currency Rates) Regulation3 and Emergency (Cancelation of the Services Import Tax and the Travel Tax, and Correction of the Value Added Tax Law) Regulation,4 which blocked any benefit from devaluing the Israeli currency and implemented a new fiscal policy to ease controls on payments for goods and services, respectively.

Thus, the power that emergency authorities grant is based not only on their application beyond the realm of security necessities, but on dynamics of the law. Having a complex legal system that enables the authorities to call on whichever legal mechanism is most politically expedient for the situation is beneficial. It enables the authorities to pivot between legal mechanisms and to call on whatever is most appropriate to achieve a desired political outcome.

But when states of emergency become ever-present modes of governance, the question is whether they have become institutionalized, rather than being aberrations from the norm. And when these states of emergency become governing norms, what is the relationship between states of emergency and the rule of law? This book examines the interplay of emergency and the rule of law and explores whether these modes of governance are less distinct than previously understood. It asks, in fact, whether they are mutually reinforcing and mutually enabling—and how these states of emergency have imparted a particular character to regimes like Israel.

Rule of Law and Emergency Powers

Most scholarship on the rule of law and states of emergency does not take the interdependence between these two mechanisms of governance as its point of departure. Instead, over the course of a long history, these two modes of governance have been perceived as opposing concepts—despite attempts to reconcile them by controlling emergency powers through law. These attempts—often referred to as classical models of accommodation—include governing mechanisms such as “state of emergency,” “state of siege,”5 “state of alert [or alarm],” “state of readiness,” “state of internal war,” “suspension of guarantees,” “martial law,”6 “crisis powers,” “special powers,” “curfew,” and so on. These exceptional governing mechanisms reflect a shared understanding, even by the most liberal thinkers such as John Locke,7 that times of emergency necessitate the abandonment of rational law in favor of sovereign prerogative. Such a conception fosters the understanding that emergencies can take many forms, but the ability to prepare for them is limited. As such, emergency has become an umbrella term that refers to a variety of phenomena including but not limited to war, rebellion, epidemic, and economic meltdown. Thus, there is no precise definition of “emergency.” The fundamental assumption of the models of accommodation is that once a threat disappears, normalcy can return without the residual effect of the emergency regime.

In this context, the scholarship on governing during times of emergency has focused on the question of whether the rule of law and emergency powers—seemingly contradictory modes of governance—can or should sit together. This question is at once normative and practical; the normative question is what are the conditions, if any, in which we should apply emergency powers, even if they violate the rule of law? The practical question is how can government ensure the security of the state and its people while respecting the rights of its citizens?

Indeed, legal-political theory,8 particularly in the fields of constitutional theory and international law theory,9 has spawned much debate about whether legal tools can tame emergency powers. On the one hand, we have ratio (rational law) as the highest right, and, on the other hand, we have voluntas (sovereign will) as the highest might. This dichotomy between the principles of the rule of law and the necessities of emergency powers has presented a great challenge to legal-political thinkers who have attempted to codify emergency powers into law books or place them under judicial review. The fundamental question is how to institutionalize emergency powers without overrunning the rule of law.

Several schools of thought have emerged to explain persistent states of emergency in democracy. First, there are the skeptics, following the German legal-political theorist Carl Schmitt,10 who argued that emergency powers are fundamentally inconsistent with the rule of law. The term skeptics expresses the profound doubt that law can in any way control emergency crises. As the skeptics see it, emergency is elastic and ambiguous; it can appear in many different forms, and thus no legal form can foresee, let alone constrain, the measures needed to deal with an emergency crisis. Moreover, following Schmitt, they assume that emergency is what exists outside law.11 In this respect, emergency powers are a necessity in times of an existential threat, and “necessity has no law” (Agamben 2005, 24). That is, necessity demands swift actions; it is not based on a legal norm, nor is there good-faith judgment about a necessity. Action that comes from necessity therefore cannot adhere to rule-of-law principles such as clarity, publicity, and generality, or protect against violations of human and civil rights. While for Schmitt this justifies suspending legality, for Giorgio Agamben and other thinkers who in some respects follow Schmitt (and whom I will to refer as radical skeptics), it is a source of continual abuse of power by liberal democracies.

A second school of thought maintains that legal tools can control emergency powers. Scholars in this camp suggest different legal models of accommodation to restrain emergency powers.12 Members of this group are referred to as dualists (Zuckerman 2006) to indicate their conviction that times of normalcy and times of emergency should be governed by different legal measures (or extra-legal measures, in the case of the realists, as we shall soon see). The basic premise that guides this paradigm, and that was shared by political thinkers from Locke, Blackstone, and Jefferson to Machiavelli and Rousseau, is that emergency powers are at least partially legal; that is, based on “normative concepts” (Zuckerman 2006, 524). Yet this sizable group differs about the best legal means to use in a time of crisis.

Some members of the dualist group, following the tradition and work of Clinton Rossiter, base their analysis on the ancient model of the Roman dictatorship.13 They advocate a neo-Roman model that asserts the legitimacy of emergency powers within a constitutional framework. They believe that either the material or the formal constitution, or both, should be significantly transformed to deal with potentially grave emergencies (Ararto 2006, 547). In this view, a sovereign is vested with extraordinary yet constitutional powers (Gross, 2013: 334–335). Members of this group include Bruce Ackermann, John Ferejohn, Pasquale Pasquino, Richard A. Posner,14 and John Yoo.15 The impact of this approach is extensive, because almost all constitutions contain provisions for emergency powers (Neocleous 2006, 194 and 206).

Other members of the dualist tradition advocate an alternative legislative model16 in which emergency powers are delegated by ordinary legislation. The process of promulgating emergency powers is carried out by modifying ordinary laws or by legislating special emergency laws. Here too, emergency powers are considered exceptional, and once the crisis subsides, the system is to return to its ordinary legal and political processes. Advocates of the legislative model argue that its advantage over the constitutional model is that one need not anticipate the kind of emergency. This more flexible framework is an antidote to the chameleon-like nature of emergency. However, critics of the legislative model have warned that because the source of the legislation is ordinary, there is a greater risk that these emergency statutes will transform into normative laws.

The realists17 are another subgroup of the dualists. Their name suggests that they share the skeptics’ conviction that emergency exists outside law, but unlike the radical skeptics, the realists aim to restrain emergency powers by extra-legal measures. They are part of the dualist school of thought insofar as they approve the use of exceptional executive prerogatives in times of crisis—that is, governing measures that are different from ordinary legislation—but members of this group suggest that extra-legal alternatives should control emergency powers. Examples of this school are Oren Gross’s extra-legal measures model (2003)18 and Mark Tushnet’s “extra-constitutional” measures. These models argue that executive action should be reviewed not by law, but by mobilized citizenry (2005b, 46).

In addition to the skeptics and the dualists, there are the monists (Ferejohn and Pasquino 2004), or as they are also called, advocates of the “business as usual” model (Gross and Aoláin 2006, 10).19 While the monists agree that law and emergency are inherently at odds with each other, they argue that true democracy must govern by law and consistency, not by exception. The names of this school aim to capture the “strict” position (Posner and Vermeule 2005, 56) or the “inside” position (Lazar 2013, 138–159), in which even in times of crisis, the government should closely preserve and follow the rule of law and not go outside the legal realm (hence, stay “inside”) by applying extra-legal measures. In other words, the monist position rejects the notion that emergencies justify circumventing law and diverging from the ordinary scheme of governance (Zuckerman 2006, 524). David Dyzenhaus, for example, has claimed that the rule of law prohibits the use of extra-legal measures, and that it is possible to respond to emergencies while respecting the rule of law (2005; 2006). One should not dismiss the monist approach as naïve; their conviction comes from the awareness of the “tendency of emergency policies to become entrenched over time and thus normalized and made routine.”20 This understanding is referred to as the ratchet theory (Posner and Vermeule 2005, 57–59), which states that emergency powers move forward, not backward. In other words, once used, they remain on the law books rather than being stricken from everyday governance.

Often the monist approach relies on the courts to control emergency powers, though often on the basis of an ex post facto review. Dyzenhaus (2006) is of the opinion that judges are obliged to adhere to the rule of law at all times, including times of emergency, and to control the actions of the government. Laurence Tribe and Patrick Gudridge offer a more moderate version of t...

Table of contents

• Cover
• Title
• Copyright
• 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
• Back Cover