The Rise of American Conservatism in Israel

The American fascination with the link between interpretive methodology and political ideology rarely reaches beyond its borders. This Article offers a comparative case study, which converses with the American example—Israel. A twofold argument is offered to facilitate this conversation. First, the Article identifies a shift in the ideological climate of the Supreme Court of Israel, manifested in the rise of a new interpretive method. For the first time, the interpretive theory prevailing in Israel, Purposive Interpretation, faces a viable competitor. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While Purposive Interpretation is conceptually and historically tied to American liberal theories, Purposive Originalism deeply resonates American conservatism, espousing variations on its three basic tenets: originalism, bright-line rules, and deference. Second, the Article contends that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy, and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks an Israeli recreation of the dynamics that emerged in the U.S. in the 1980s, with an all-encompassing conservative backlas

On the Place of Self-Defense in Public Life: A Hobbesian Critique of the Supreme Court’s Second Amendment

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of modern political philosophy: squaring popular sovereignty with natural rights, and particularly the right to use violence in self-defense. Curiously, however, the philosopher who first and most influentially established how self-defense and popular sovereignty bear on each other, Thomas Hobbes, is absent from Second Amendment analyses. The article explains why this absence is unfortunate and then rectifies it. Ruling that self-defense is a necessary component of the good state puts the Second Amendment in Hobbesian terrain. However, while Hellerian Second Amendment law might appear to vindicate Hobbes’s protoliberal bases for justice, with the necessary adjustments for a constitutional democracy, Hobbes does very different things with the same ingredients. Hobbes would recognize the conclusions that the Supreme Court reaches as exactly those that we ought to overcome. The Second Amendment’s self-defense is hierarchical and moralistic: it is a just infliction of violence and an individual right to designate fellow citizens as criminals. Hobbes’s self-defense is egalitarian and materialistic: it is a matter of self-preservation. Hence, for Hobbes, self-defense is neither a moral nor a social achievement. It will always have a place in public life, but that does not make the presence of self-defense a desirable one. Self-defense is base, as we are when we are left alone; we contract to no longer be left alone. Rather than come naturally and be discarded if they don’t, Hobbes thought that peace and sociability require work. The article focuses on four critiques of the Supreme Court’s Second Amendment that Hobbes helps to flesh out. First, Hobbes conceptualized self-defense as directed toward safety, whereas the Supreme Court adopts the Lockean view, which links self-defense to autonomy and hence allows private appeals to morality to cut through political associations and assert themselves by force. Second, Hobbes held an egalitarian understanding of political subjectivity, and ascribed corresponding representation and protection responsibilities to state institutions. The Heller-Bruen line of cases, in contrast, favors a patriarchal order of hierarchy and self-sufficiency. Third, Hobbes viewed self-defense as natural but unfortunate, a right that we have but that should not dictate our everyday lives. The phenomenon of mass shootings epitomizes the dangerous repercussions of a contrasting cultural script, according to which the ultimate American citizen is a self-defender. Fourth, Hobbes linked self-defense and popular sovereignty to cultivate a flourishing public life, but the Hellerian Court translates this relationship into constitutional fetishism. For the Second Amendment Supreme Court, self-defense serves not to bring about a social contract but to break one up

The Astro-Nomos: On International Legal Paradigms and the Legal Status of the West Bank

The continuous Israeli occupation of the Palestinian territory may well have exhausted the international community and exasperated the Palestinians, but it still stimulates the Israeli legal imagination. In 2012, the Israeli government established an expert committee to examine the status of Jewish construction in the West Bank. The committee’s report concluded that from an international legal perspective, the West Bank is not occupied territory; the law of belligerent occupation is not applicable to the area; the “prevailing view” is that Jewish settlements are lawful; and that Israel has a valid claim to sovereignty over the territory. This Article, combining a doctrinal analysis with both Cover’s notion of ‘Nomos and Narrative’ and Kuhn’s ‘Structure of Scientific Revolutions,’ posits that the report is epistemologically groundless and ethically blemished. The committee’s reading of international law substitutes an ideology for professionalism. The ideology, resurrecting the long discredited colonialist/Orientalist paradigm, reflects an idiosyncratic utopian vision, one that is simultaneously hegemonic and insular. Consequently, its legal position is methodologically extraneous to the structure of international law, substantively at odds with the compelling commitment of the international community to self-determination, and ethically dystopian

On the Place of Self-Defense in Public Life: A Hobbesian Critique of the Supreme Court’s Second Amendment

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of modern political philosophy: squaring popular sovereignty with natural rights, and particularly the right to use violence in self-defense. Curiously, however, the philosopher who first and most influentially established how self-defense and popular sovereignty bear on each other, Thomas Hobbes, is absent from Second Amendment analyses. The article explains why this absence is unfortunate and then rectifies it. Ruling that self-defense is a necessary component of the good state puts the Second Amendment in Hobbesian terrain. However, while Hellerian Second Amendment law might appear to vindicate Hobbes’s protoliberal bases for justice, with the necessary adjustments for a constitutional democracy, Hobbes does very different things with the same ingredients. Hobbes would recognize the conclusions that the Supreme Court reaches as exactly those that we ought to overcome. The Second Amendment’s self-defense is hierarchical and moralistic: it is a just infliction of violence and an individual right to designate fellow citizens as criminals. Hobbes’s self-defense is egalitarian and materialistic: it is a matter of self-preservation. Hence, for Hobbes, self-defense is neither a moral nor a social achievement. It will always have a place in public life, but that does not make the presence of self-defense a desirable one. Self-defense is base, as we are when we are left alone; we contract to no longer be left alone. Rather than come naturally and be discarded if they don’t, Hobbes thought that peace and sociability require work. The article focuses on four critiques of the Supreme Court’s Second Amendment that Hobbes helps to flesh out. First, Hobbes conceptualized self-defense as directed toward safety, whereas the Supreme Court adopts the Lockean view, which links self-defense to autonomy and hence allows private appeals to morality to cut through political associations and assert themselves by force. Second, Hobbes held an egalitarian understanding of political subjectivity, and ascribed corresponding representation and protection responsibilities to state institutions. The Heller-Bruen line of cases, in contrast, favors a patriarchal order of hierarchy and self-sufficiency. Third, Hobbes viewed self-defense as natural but unfortunate, a right that we have but that should not dictate our everyday lives. The phenomenon of mass shootings epitomizes the dangerous repercussions of a contrasting cultural script, according to which the ultimate American citizen is a self-defender. Fourth, Hobbes linked self-defense and popular sovereignty to cultivate a flourishing public life, but the Hellerian Court translates this relationship into constitutional fetishism. For the Second Amendment Supreme Court, self-defense serves not to bring about a social contract but to break one up

The Rise of American Conservatism in Israel

The American fascination with the link between interpretive methodology and political ideology rarely reaches beyond its borders. This Article offers a comparative case study, which converses with the American example—Israel. A twofold argument is offered to facilitate this conversation. First, the Article identifies a shift in the ideological climate of the Supreme Court of Israel, manifested in the rise of a new interpretive method. For the first time, the interpretive theory prevailing in Israel, Purposive Interpretation, faces a viable competitor. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While Purposive Interpretation is conceptually and historically tied to American liberal theories, Purposive Originalism deeply resonates American conservatism, espousing variations on its three basic tenets: originalism, bright-line rules, and deference. Second, the Article contends that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy, and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks an Israeli recreation of the dynamics that emerged in the U.S. in the 1980s, with an all-encompassing conservative backlas