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Chapter 3 The Arab-Palestinian Community in a Jewish (and Democratic) State This chapter primarily examines the legal consciousness and practices of identity among the Arab-Palestinian minority. State law excludes the minority by framing it as religious groups that are entitled to a confined religious and juridical autonomy. Yet the community has essentially been placed outside state power foci, which allocate collective goods. Hence, this chapter is not a story about the sanctioning of legal pluralism but is about its suppression in the midst of liberal “globalization.” Such suppression has resulted (among other phenomena ) in collective violent resistance to the state. Its most prominent expressions were the violent and deadly clashes of Israeli ArabPalestinians with Israeli security forces in October 2000. This chapter considers violence to be communal resistance to state domination, in a broad legal cultural fabric, and entails critical communitarian analysis of state law and liberalism in modern political regimes . These regimes grant individual rights, and more rarely specific, group-affiliated rights, while avoiding recognition of the community’s meaningful identity. This chapter analyzes the inability of modernity and liberal nationalism to address the grievances of a national minority. From the minority’s perspective, as this chapter shows, domination and liberalism breed an ambivalent communal legal culture. By delving into state-community relations, we can see and learn about legal consciousness and practices (e.g., litigation and violence) and the relationships among these practices. The convergence of elements of critical communitarianism significantly improves our understanding. State domination, on the one hand, focuses our attention on various legalistic strategies toward the nonruling community. Legal consciousness and identities of the nonruling community in the context of its social being, on the other hand, 97 98 Communities and Law focus our attention on communal hermeneutics and the costs and benefits of identity practices of litigation and violent dissent. In the Israeli context, the boundaries between the Jewish state and the Arab-Palestinian minority are multidimensional and multifarious. I shall explicate different identities of the very same community and exhibit its practical interactions with state law. As we shall observe, conventional distinctions based on the binary epistemology of modern law versus customary law are insufficient. More intricate empirical and theoretical explorations will follow. This chapter delves into legal culture through communal voices and demystifies three prevailing theoretical notions: first, that liberalism can and aspires to resolve problems of national minorities; second, that communal rights necessarily endanger national sovereignty; and, third, that violence is an apolitical characteristic of nonliberal minorities. A Portrait of a Predicament: The Social Existence of an Indigenous Community in State Law Since the formal inception of Israel in 1948, Arab-Palestinians under its control have been a religious, cultural, and national indigenous minority. With the conclusion of the 1948 war, Palestine’s Arab population of around 1 million people dropped to about 160,000 in Israel following vast expulsions and migrations of Arab-Palestinians from lands occupied by Israeli military forces (Kimmerling and Migdal 1993). About 111,000 among the minority were Muslims, and others were mainly Christians, Bedouins, and Druze. That minority numbered about 1 million, or around one-fifth of Israel’s total population, toward the beginning of 2001.1 This minority has never been part of the Jewish and Zionist metanarratives. Accordingly, the Jewish majority considers the minority to be a security menace to the state (Barzilai 1997b; Smooha 1989– 92). This has been articulated in military and security restrictions imposed on the minority and in collective exemptions from obligatory military service. Israel’s application of martial law to its minority (1948–66) reflected one of the extremes of the state’s view of indigenous Arab-Palestinians as a “fifth column” subject to criminalization 1. Israel’s Statistical Yearbook, 1994, vol. 45, table 2.1, p. 43. Arab-Palestinian Community in a Jewish State 99 (Korn 1999). Despite the relaxing of military and security restrictions during the 1970s, the state authorities have continued to conceive of minority members as a security and military threat (Lustick 1980, 1989; Rouhana and Ghanem 1999). Since the beginning of the conflict between the Arab states, Palestinians , and Israel the minority has been caught in a political trap. To the Arab states, Israeli Arab-Palestinians are Israelis, but to Israel they are Arabs or Palestinians. Hence, the issue of identity has become immensely significant to their basic interactions with the state and its laws. As Adal Mana, an Israeli-Palestinian activist, has phrased it: “the minority can be neither entirely...

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