Raif Zreik

A graduate of The Hebrew University (LL.B., 1988; LL.M. Magna Cum Laude, 1997), Columbia Law School (LL.M., 2001) and Harvard Law School (S.J.D., 2007), Raif Zreik, a Palestinian Israeli, is currently teaching as a visiting professor at Georgetown Law School. Before accepting this position, he taught at Haifa law school and was a researcher at the Van Leer Institute in Jerusalem. His research and teaching address questions related to legal and political theory, as well as citizenship and identity issues. He has published broadly in these areas, with work appearing in edited collections and in legal and interdisciplinary journals, such as "Notes on the value of theory" in the Journal of Law and Ethics of Human Rights (2007), "The persistence of the exception: remarks on the story of Israel constitutionalism" in Thinking Palestine (a book edited by Ronit Lentin, 2007), "Palestine, Apartheid and rights discourse" in the Journal of Palestine Studies (2004) and "Palestine as exile" in Global Jurists (2003).



The Persistence of the Exception: Notes on Carl Schmitt and Israeli Constitutionalism


C
arl Schmitt defines the sovereign as he who decides on the exception. Schmitt-very much following Kierkegaard- shifts the focus of the discussion from the norm to the exception and insists to bring back into the picture the hidden creative violent and constitutive moment of the birth of the modern liberal state: beneath the norms there is the exception and behind the rule of law there is sheer will and violence, and the constitution is a decision not a contract. Schmitt insists that the original moment of decision/violence never vanishes or disappears completely; rather, it is latent and immanent in the system and can show its head each and every moment of crisis. In those moments of crisis, of exception, the real face of the sovereign appears again, as making the “naked” unbounded decision. In my paper, I will argue that while in some Western liberal democracies one needs to unearth the moment of exception that is hidden beneath the neat surface of normality and rules, the case of Israel constitutionalism reveals in much more clear manner the nature of modern liberal constitutionalism and its violent hidden nature. In this sense, Israel is a scandal case for modern liberalism because it reminds it of what it aims to forget. In this sense, the paper tries to work in two opposing directions at the same time: To use the case of Israel in order to say something about the nature of liberal constitutionalism, and to use liberal constitutional theory to say something about Israel itself, so I hope that the paper will allow us to understand both the story of Israeli constitutionalism and modern liberal constitutional theory in a better and fresh way in light of Schmitt’s insights.






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