Kotef, Hagar. Movement and the Ordering of Freedom: On Liberal Governances of Mobility. Durham: Duke University Press, 2015.
We live within political systems that increasingly seek to control movement, organized around both the desire and ability to determine who is permitted to enter what sorts of spaces, from gated communities to nation-states. In Movement and the Ordering of Freedom, Hagar Kotef examines the roles of mobility and immobility in the history of political thought and the structuring of political spaces. Ranging from the writings of Locke, Hobbes, and Mill to the sophisticated technologies of control that circumscribe the lives of Palestinians in the Occupied West Bank, this book shows how concepts of freedom, security, and violence take form and find justification via “regimes of movement.” Kotef traces contemporary structures of global (im)mobility and resistance to the schism in liberal political theory, which embodied the idea of “liberty” in movement while simultaneously regulating mobility according to a racial, classed, and gendered matrix of exclusions.
Table of Contents
1. Between Imaginary Lines: Violence and Its Justifications at the Military Checkpoints in Occupied Palestine / Hagar Kotef and Merav Amir
2. An Interlude: A Tale of Two Roads—On Freedom and Movement
3. The Fence That “Ill Deserves the Name of Confinement”: Locomotion and the Liberal Body
4. The Problem of “Excessive” Movement
5. The “Substance and Meaning of All Things Political”: On Other Bodies
HAGAR KOTEF is based at the Minerva Humanities Center at Tel Aviv University.
“Voluntary repatriation” to a country of origin may be necessary to restore refugees’ rights, when only a country of origin will provide rights associated with citizenship. Yet, if refugees are returning because they do not have access to basic rights in a host country, their return is not voluntary according to UNHCR guidelines (1996). There is a tension between facilitating repatriation to restore rights, and ensuring that repatriation is voluntary. This article will first draw on arguments from moral philosophy to suggest an alternative policy to current UNHCR guidelines. Following this normative analysis, the article hypothesizes that, on an empirical level, a repatriation policy that attempts to only facilitate repatriation that is not coerced, out of concern for voluntariness alone, may fail both to prevent coerced returns and to restore right through repatriation. This hypothesis was then tested in the case of South Sudanese repatriation from Israel between 2009-2012.
The conference is free and open to the public, but registration is required. Please email ISCP@yu.eduwith your name, affiliation, and contact information.
Constitutional Conflicts and the Judicial Role in Comparative Perspective
This conference will explore the Israeli Supreme Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies.
Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state.
The Israeli Supreme Court Project at Cardozo
This conference marks the launch of the Israeli Supreme Court Project at Cardozo Law (ISCP). Intended to both inform and engage constitutional scholars, lawyers, and judges in democracies around the world, the ISCP is a center of study and discussion of the decisions of the Israeli Supreme Court, one of the great judicial bodies of the world and a court at the forefront of dealing with issues at the core of what it means to be a democratic society.
The central undertaking of the ISCP is the translation into English and dissemination of key opinions of the Israeli Supreme Court. In this, the Project is continuing, and will expand on, two decades of work and over 200 translations by the Friends of the Library of the Supreme Court of Israel. Translated opinions, other relevant material about the Court, and more information about the ISCP can all be found on the Project’s website, VERSA, at versa.cardozo.yu.edu.
This conference, as well as the other work of the ISCP, are made possible by essential support from the David Berg Foundation, which is gratefully acknowledged.
2:30-3 p.m. Registration and Coffee3-3:15 p.m. Welcoming Remarks
This panel will consider the value and challenges of comparative legal study. Why should scholars and judges in one country care what their counterparts elsewhere are up to? Is it ever possible for outsiders to understand the details, cultural meanings, and historical underpinnings of a foreign legal system? What are the settings, issues, or circumstances that make for a successful comparative work?
8:30-9 a.m. Registration and Coffee 9-10:30 a.m. The Role of the Judiciary in Comparative Perspective
The Israeli Supreme Court hears over 10,000 cases a year, has a large mandatory docket, for many of its most important cases is the court of first instance rather than a court of appeal, and has only limited threshold “justiciability” doctrines (such as standing requirements or the bar on political questions). In these features it is utterly different from its U.S. counterpart. This panel will consider such structural characteristics, then turn to their broader implications regarding the role of the judiciary in governance and in society, including the question of whether a Supreme Court leads or follows civil society, whether it is an educational institution, and the sources of its legitimacy.
10:45 a.m.-12:15 p.m. Judicial Oversight of National Security and Intelligence Gathering
Effective national security and intelligence gathering are generally understood to depend on secrecy, dispatch, and subterfuge. These characteristics would seem to leave little room for judicial oversight, which assumes transparency, forthrightness, and deliberate pacing. On the other hand, there is a very real danger of abuse without some sort of oversight and legal restraint. This panel will consider how national security issues differ (if at all) from other issues that come before the courts and what exactly the judicial role should be in overseeing national security agencies.
12:30-1:30 p.m. Lunch (Lunch will be provided for all attendees.)
1:30-3 p.m. Immigration, Asylum, and the Treatment and Status of Refugees
Of the Israeli Supreme Court’s recent decisions, one of the most important, divided, and divisive have concerned the detention of asylum seekers. Issues surrounding immigration and citizenship are hugely important, and hugely contested, in Israel and elsewhere. This panel will examine the ISC’s decisions in this area and consider what lessons can be drawn, positive or negative, for Israel and for the rest of the world.
3:15-4:45 p.m. Religion in the Modern Nation-State
Israel’s Basic Laws designate it as “both Jewish and democratic.” The Supreme Court, and many commentators, have struggled to reconcile these two fundamental commitments. Is it possible to construct a constitutional identity that privileges Jewish culture, history, and religion while remaining essentially democratic? The answer to that question has ramifications for religious liberties in many settings as well as minority rights in general.
Yitzhak Oren’s book examines and analyzes four dramatic events in the relationships between Israel and the United States towards the end of the 20th century, in which the diplomatic spin dominated the chain of events: the loan guarantees crisis, Israel’s willingness to attend the Madrid Conference, the deportation of Hamas leaders, and the receipt of the loan guarantees, accompanied by a journalist speculation about “fishing with the president.” The book further diagnoses and proposes the characteristics of the diplomatic spin as a new and fascinating theoretical field. The author adds to these case studies his personal perspective, as one who experiences the events from within the Prime Minister’s office.
Dr. Yitzhak Oren teaches political science and public diplomacy at the Academic College of Emek Yezreel and Haifa University. In the past he was a political advisor to Prime Ministers Yitzhak Shamir and Yitzhak Rabin, as well as an envoy for US congress matters at the Israeli Embassy in Washington, D.C. and an Ambassador in Nigeria.
Kalir, Barak. “The Jewish State of Anxiety: Between Moral Obligation and Fearism in the Treatment of African Asylum Seekers in Israel.” Journal of Ethnic and Migration Studies [early view online, prior to printed version]
Since 2005 around 60,000 asylum seekers, mostly from Eritrea and Sudan, have entered Israel by crossing the border from Egypt. Notwithstanding the Jewish history of persecution, and Israel being a signatory to the UN Convention for the protection of refugees, modern Israel systematically refuses to grant a refugee status to asylum seekers. Since 2012, the tenacious hostile approach of Israeli policy-makers and state-agents towards asylum seekers has resulted in an outburst of racist verbal and physical attacks against them. This article analyses the socio-legal location of asylum seekers in Israel by examining how their position is articulated by different parties, deploying competing discourses of human rights, citizenship, security and sovereignty. The article advances that appeals—mostly made by critical non-governmental organisations (NGOs), journalists and academics—to human rights, Jewish morals and historic sensitivities are beguiling; while they arouse hopes for compassion and moral obligation, they are also used by mainstream Israeli politicians to justify the exclusion and deportation of so-called ‘African infiltrators’. A hegemonic ideology of ‘fearism’—which brands the Israeli national narrative and informs the notion of citizenship among Jewish Israelis—leads to the construction of asylum seekers as abject Others, who pose a threat to the Jewish state and to Jews’ own right for secured citizenship.
When an individual signs a contract for voluntary repatriation through a private or public body, there may be a need to draw upon principles of contract law and to test contracts for unconscionability. In the case of asylum seekers and refugees, there may be procedural unconscionability when consent is only the result of fear of deportation or imprisonment, and substantive unconscionability when conditions after return include no access to basic necessities or persecution. At the same time, many asylum seekers and refugees do wish to return, despite conditions in the country of origin or because of conditions in the host country. Ethical issues regarding consent are therefore central. Yet, it is unclear how one would ensure consent under such conditions. While it may be possible to apply principles of paternalism and hypothetical consent in such cases, this may undermine the rights of those who wish to repatriate, and remove an option they otherwise would not have.
This article argues that Parfit’s Principle of Consent (CP) and Rights Principle (RP) may address these concerns and applies these principles to test for the unconscionability of two policies of repatriation of refugees and failed asylum seekers in Israel back to countries in Africa between 2009 and 2013. One policy was implemented by an NGO that repatriated failed asylum seekers to countries deemed safe, although returnees had no legal status to stay in Israel and were therefore at risk of deportation. A second NGO returned individuals to South Sudan, even though this was considered dangerous, but only returned South Sudanese who had the legal status to stay in Israel, as this was considered criteria for true voluntariness in the decision to return. By attempting to apply CP and RP in a test for unconscionability, this article addresses both the ethical dilemmas of repatriation of failed asylum seekers and refugees, as well as possible ways in which contracts, more generally, can be tested for unconscionability.