The Interplay of Foucauldian Biopolitics and Jewish Nationalism in the Israeli Supreme Court Decision-Making Process

Abstract

If we concur with Foucault‘s view of racism as an elementary, structural characteristic of the modern nation-state (through the use of biopolitical technologies ranging from social exclusion to mass murder), there is little doubt that Israel can be theorized as a racial state. Israel‘s biopolitics largely operates in what Eyal Weizman has termed ― the politics of verticality — namely, Israel‘s simultaneous attempt to control three spatial levels — the land, the air, and even the subterranean level — in order systematically manage (and subjugate) its Palestinian neighbors. Because there was never an intention to constitute the Palestinian inhabitants as part of the Israeli citizenry or view them as a distinct people per se, Israeli biopolitics formed Palestinians as subjects susceptible to unchecked domination. The subsequently enacted controlling apparatuses utilized by Israel to reproduce power relations have taken on numerous features, coercive and noncoercive, legalistic and nonlegalistic, in an attempt to both normalize the occupation and perpetuate its existence. The population in Israel discursively forms a separate Jewish nationalist identity, while Palestinians and the Arab minority within Israel proper are inferiorly constituted. By mere virtue of their presence in the Occupied Territories (OT), Palestinians are thus collectively punished. For the sake of maintaining a Jewish state, Israel has also applied varying pressures on the Palestinian citizens of Israel in order to slow their rate of reproduction while not applying those same pressures to Jewish-Israelis. In the following essay, I will argue that the Israeli Supreme Court (ISC) has largely institutionalized a form of bio-politics in its decision-making process. An examination of caselaw generated by the ISC vis-a-vis the OT since the outbreak of the second intifada in late 2000 not only reveals a largely deferential mode of judicial review, but also a continued perpetuation of population control as resembled within Foucault‘s formulation of biopolitics. The Court‘s significance lies primarily in its willingness to use law as a mean to stall, defer, postpone, suspend, and generally legitimate conditions on the ground. This ― new hegemony has also generated extensive ― interest in the age-old demographic question among Israeli academics, policy planners, and government officials who have argued for a ― policy of containment‖ to preserve ― the Jewish character of Israel. Appreciating the Jewish nationalist identity foundational to Israel‘s existence is crucial in the broader examination of Israel‘s conduct toward the Palestinians in the West Bank and Gaza Strip and the ISC‘s foundational role in legitimating these practices.