The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification

Every time the Supreme Court strikes down a law enacted by Congress or a state legislature the age-old debate over the “counter-majoritarian difficulty” resurfaces. Theories of judicial review, new and old, are offered to answer this tension between constitutionalism and democracy. But what explains the persis- tence and contestability of this difficulty? Why has the existing wealth of schol- arship failed to resolve this difficulty? In this Article, I address such questions while contextualizing “counter-majoritarianism” within larger liberal theoreti- cal frameworks. I offer a typology and map the prominent progressive liberal answers deployed to justify judicial review in constitutional democracies. This typology and map fill a gap in the existing literature, which has been largely preoccupied with advancing positions within the debate rather than assessing it holistically. This reconstructive exercise both organizes the field of constitu- tional theory and identifies the discursive moves and patterns of reasoning used within the field. The Article evaluates the similarities and differences between the different positions. By mapping these differences and relations, I show that the supposed distinction between democracy and constitutionalism has been un- dermined without resolving the underlying tension between these competing val- ues. The collapse of the distinction exposes the circular movement of the debate around the tension. Ultimately, I conclude, the existing body of literature offers no satisfying method for assessing whether the ruling in any controversial case is “counter-majoritarian.” I suggest that rather than attempting to solve the difficulty, scholars should recognize its irreconcilability, because only then would a better understanding of the role of law in society emerge

Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the Aftermath of the Arab Spring

This article examines the debate over the constitutionalization of shari’a in post-authoritarian Arab regimes. A shari’a clause would empower judges to review the validity of legislation on the basis of Islamic law. Thus, it raises for the first time the potential counter-majoritarian effect of judicial intervention. This article examines the conceptualist-style approach to the question of Islam and democratic constitutionalism. Such an approach, which has hitherto dominated the debate, seeks to show the compatibility of Islam and democracy, or the lack thereof, on the basis of conceptual analysis of abstract concepts like Islam and democracy. The article maps and evaluates the different discursive moves that moderate Islamists, Salafis, and secularists deploy in this debate. Comparing the debates to the U.S. constitutional debates between originalists and living constitutionalists, I show the unacknowledged methodological similarities between the opposing camps. I argue that the contestability of the basic concepts on which the debate is based shows the futility of the conceptualist debate. Furthermore, ignoring contestability, fleeing to abstraction, and falling prey to formalism produce bad normative effects that are detrimental to the debate. Ultimately, I seek to advance a different kind of conversation: a pragmatic, consequentialist-style analysis that takes into consideration prudential and normative arguments for or against the inclusion of shari’a law in the emerging Arab constitutional orders

Liberal Zionism, Comparative Constitutionalism, and the Project of Normalizing Israel

The second half of the 1990s witnessed the forceful introduction of the phrase“a state for all its citizens,” into the Israeli public debate, mainly by leaders and intellectuals of the Palestinian minority. Palestinian citizens of Israel challenged the Jewishness of the state and demanded democratization and equality. In reaction to these challenges, many Zionists formulated defenses of the “Jewish and democratic” state. Others attempted to enact laws and draft constitutions or consensus-formation documents that would entrench the Jewish character of the state. This essay is a critical scrutiny of one recent prominent example of a defense aimed at normalizing Israel-Alexander Yakobson and Amnon Rubinstein’s book Israel and the Family of Nations: the Jewish Nation-State and Human Rights (english edition, Routledge, 2009). The focus will be on the use of the comparative method in the service of this project. As I argue and demonstrate below, this project is, first, an attempt to escape from the demanding aspects of liberal theory; second, a legitimation project; third, it uses functionalism as the comparative method to achieve the required result; fourth, it is selective in employing the comparative method in order to ensure the lowest common denominator; fifth, it often ignores the gap between form and practice; and sixth, it focuses on law-as-text to present legal and constitutional arrangements as free from ideological manipulation

Review of Plunder: When the Rule of Law is Illegal

This essay reviews Ugo Mattei and Laura Nader's book. After presenting the arguments I problematize three central themes in the book: legality, empire, and plunder. Examining each one of these themes I show that the authors did not present a convincing account. Legality is not carefully distinguished from other terms like justice, formal legitimacy, or substantive legitimacy. Imperialism is used in different ways throughout the book and the authors do not contrast their usage with Hardt and Negri's. Plunder is presented expansively as a unifying logic and in a functionalist manner. I conclude by calling for analytical clarity in scholarship examining the ideology of law

Duncan Kennedy on Constitutional Theory and Palestine

In this brief contribution I would like to acknowledge Duncan Kennedy's influence on my thinking and work in the past years. My own work has focused on constitutional law and theory—and although this was not a primary concern of Duncan’s scholarship— in this piece I will focus on two aspects of his work and career that influenced me as his student, political ally, and friend: radical left theoretical thought and radical left practice. Indeed, this combination is the reason why many of us admire him. He is one of the few scholars who were able to commit in his long career to both projects: intellectual critique and a left-wing politics. He was able to prevent the stifling of critique by the political, and at the same time to perform critique without undermining the political. He did not fall to the trap of either the free-floating intellectual or that of the simple party member

Unmasking Juridical Humanity

Taking the British colonial occupation of Egypt as her case study, Samera Esmeir shows in her outstanding book "Juridical Humanity" how the law was implicated in producing the ‘human’ and constructing ‘humane’ practices. Through a genealogy of the colonial career of the construction of the ‘human’, Esmeir convincingly argues that the production of the ‘human’ was intertwined with violence, discipline and dis- possession. For that purpose Esmeir assembles an impressive range of historical data, which she analyses through the lens of sophisticated theoretical tools. This essay offers one possible reading — my reading — of this rich book. Parts I and II summarise the book’s main arguments. Part I presents the descriptive background to the concept of ‘juridical humanity’. Part II shows how the book challenges both liberal and anti-colonial accounts of law since they both presuppose ‘juridical humanity’. Parts III and IV situate the book within critical traditions and critically examine some of its primary themes. In particular, Part III argues that the book can be read as a contribution to the scholarly strand that seeks "liberation of nature" rather than "liberation from nature", i.e. that which seeks empowerment rather than the imposition of an artificial order and the fabrication of "human nature". Part IV focuses on the book's notions of indeterminacy and coercion. Whereas the book locates law's indeterminacy in the split between the factual and the ideal, the Legal Realists and Critical Legal Studies find indeterminacy more pervasive and hence is located in the ideals of humanity themselves. A legal left perspective cannot be satisfied by demanding openness to a plurality of conceptions of the "human", because openness may admit conceptions of the human that are no less coercive than juridical humanity, and are inconsistent with the goals of the liberation of nature. The need to demarcate the acceptable limits of openness and plurality is inescapable. Esmeir’s book provides us with a first remarkable step towards envisaging such a project by clarifying the conceptual field and illustrating the potential negative normative effects of juridical humanity

Debating Israel’s Palestinian Minority

Review: 'The Palestinians in Israel: The Conflict Within' by Ilan Peleg and Waxman, and 'Arab Minority Nationalism in Israel: The Politics of Indigeneity' by Amal Jama

The Making of an Underclass: The Palestinian Citizens in Israel

I argue here that Israel’s ‘basic structure’ (i.e., the main economic, social, and political institutions), to use John Rawls’s phrase, subjects the Palestinian citizens to a process of ghettoization that relegates them to a separate and unequal status. This basic structure is particularly unjust, as it does not provide these citizens with the minimal conditions of a decent life. The state not only fails to rectify this injustice but is actively implicated in producing it. I argue that this process has included five key and interrelated elements: labor segmentation, land appropriation, de-development, deficient education, and the production of poverty. The Essay shows how the legal system is implicated in producing the segregation and subordination of the Palestinian minority. Ultimately, ghettoization within Israel intersects with a process of separation and annexation in the Occupied Territories. Together, these processes are eroding the citizenship status of the Palestinian citizens in Israel

The Legacy of Justice Aharon Barak: A Critical Review

This Article evaluates the legacy of Israel's Supreme Court former Chief Justice Aharon Barak with respect to the Palestinians in the Occupied Territories. This Article challenges the perception (especially in the US, of both conservatives and progressives) that Barak was an activist, liberal, rights-vindicating judge who restrained the military and limited state power. I contextualize Barak’s legacy as internal to a framework of domination and subordination within which he, as a former judge in the Israeli judicial system, operated. Barak as a leading judge and as a Chief Justice did not only work within this framework but also has justified it, refined it, and represented it as a “diplomat-judge.” My emphasis will be less on what Barak has said and written, but rather on what he has done, the impact of his opinions on the victims he has left behind, and the alternative narratives he has so powerfully destroyed. The primary source of the distortion in discussing Barak’s legacy rests on the emphasis on his “liberal” rhetoric while at the same time ignoring the illiberal outcomes of his Supreme Court opinions. As will become apparent in the course of this article, Barak’s legacy is not liberal in any convincing way. The article will also highlight the totally ignored aspect of Barak’s work as a “diplomat-judge”: a judge who is the main representative of his state’s policies abroad