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21 Theoretical Inq. L. 459 (2020)
How the Law of Return Creates One Legal Order in Palestine

handle is hein.journals/thinla21 and id is 478 raw text is: 







    How the Law of Return Creates

       One Legal Order in Palestine



                          Hassan  Jabareen  *

    The prevailing discourse in Israeli academia on justifying the values of
    Israel as a Jewish and democratic state takes the form ofa debate
    involving questions ofgroup rights ofa national minority, as in any
    liberal democracy. The framework of this discourse relies on three
    interconnected, hegemonic assertions. These assertions assume the
    applicability ofequal individual rights, put aside the Occupation of
    the West Bank and Gaza as irrelevant for the Jewishness ofthe state
    as it belongs to a different rule of recognition, and conceptualize the
    Green Line based on majority-minority relations with Jewish group
    rights, including the Law ofReturn, as not leading to discrimination
    against individuals. I contend that these assertions are invalid and that
    colonialism is the relevant framework oflsrael   constitutional identity
    in Palestine (the Green Line, the West Bank including Jerusalem and
    Gaza). I argue there is one Constitution in Palestine based on one
    conception ofsovereignty, regardless ofany rules ofrecognition where
    the Law ofReturn, together with the value of preserving a Jewish
    majority,  constitutes its very essence that targets the Palestinians
    as such. The Article presents a case-law study regarding family life
    between spouses and their children in Palestine. This case-law reveals


*   Dr. Hassan Jabareen is the General Director of Adalah - The Legal Center for
    Arab Minority Rights in Israel and an Adjunct Lecturer in the Law Faculty of
    Tel Aviv University. Cite as: Hassan Jabareen, How the Law ofReturn Creates
    One Legal Order in Palestine, 21 THEORETICAL INQUIRIES L. 459 (2020). I would
    like to thank Barak Medina and Paul Kahn for their thorough comments and
    challenges on an earlier draft; my former colleague at Adalah, Orna Kohn,
    from whom I learned a lot about family unification cases; the participants in the
    symposium for this volume; the participants in the seminar of the Law Faculty
    of Hebrew University for their comments; Doreen Lustig and the editors of this
    journal for their comments and suggestions; finally, yet importantly, my wife
    Rina with whom I discussed the ideas presented here for years and who always
    encouraged me to complete this project.

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