Israel’s External Constitution: Friends, Enemies, and the Constitutional/Administrative Law Distinction

By Adam Shinar

When do we decide to extraterritorially apply constitutional law and when to extraterritorially apply administrative law? Using Israel as a case study, this Article examines the applicability of its constitutional law dealing with human rights to the Occupied Palestinian Territories (OPT). In Israel, the Supreme Court readily applies administrative law to all acts of the military government in the OPT, yet is deeply ambivalent about, often eliding the issue of, constitutional application.

The different treatment, I argue, does not stem from legal doctrine or constitutional text, but rather from deep-seated, mostly unarticulated sentiments about the nature of constitutional law. Constitutional law demarcates the political community. Those within its scope are nominally a part of the polity. Those outside it are frequently viewed as potential threats to the state and its people. Since Palestinians in the OPT are readily viewed as enemies and as a presumptive threat to the Jewish nature of the state, the Court is ambivalent about their inclusion in the Israeli social contract, often resulting in their exclusion from the protections of Israeli constitutional law.

These sentiments also explain the divergent applications of constitutional law and administrative law. Constitutional law sends a message of inclusivity to bearers of constitutional rights. Administrative law, on the other hand, is the hallmark of the administrative state and lacks the constitutive nature of constitutional law. Wherever there is bureaucracy there is administrative law, which takes care that “things administer themselves.” As such, administrative law is concerned more with the machinery of the state than with individual rights and political membership.

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