Abstract This article explores the complex and often contradictory ways in which framings of violence as punishment or as war can serve to legitimize or de-legitimize lethal violence. It analyzes how in different contexts, the attributes of modern state punishment – sanctions targeting individual wrongdoers, following a bureaucratic process – can make lethal violence appear acceptable or objectionable; and argues that treating war and punishment, battlefield killing and executions, soldiers and executioners, as binary sets can help us analyze how each pole of the set is constructed in relation to the other. The Article, grounded mainly in the Israeli case, begins by examining different iterations of the punishing-fighting binary: first looking at cases where punishing is portrayed as legitimate violence and fighting as illegitimate, and then at the reverse. The third section expands on both by examining the soldier-hangman binary in Israeli cultural imagination and political culture. The final two sections identify and analyze two forms of synthesizing war and punishment: the first examines punitive assassinations (“targeted killings” in the Israeli parlance), the second attempt to conceptualize at least part of the Israeli violence in Gaza as punitive revenge while anchoring it in the colonial concept of the “punitive expedition.”
Abstract This Article examines the relation between law, politics, and history in the initial phase of the genocide case brought by South Africa against Israel in the International Court of Justice (ICJ). It analyzes how both parties invoked and mobilized the past within their legal strategies. While the proceedings centered on the pressing issue of applying the legal category of “genocide” to the devastating reality in Gaza, they also involved a turn to history. Both parties extended the trial’s temporal framework to advance rival historical narratives, reaching into the distant past and turning the trial into a contested site of confrontation between competing global memories: South Africa through the paradigm of settler colonialism, and Israel through the narrative of the uniqueness of the Holocaust. By analyzing South Africa’s and Israel’s claims, and the public debate surrounding the case, the Article seeks to explore how legal discourse mobilizes history and what this reveals about the role of international law in clarifying the past and shaping historical memory. Building on Judith Shklar’s framework in her 1964 Legalism, the Article develops the concept of “neo-legalism” to capture a dual movement: a forward-looking appeal to law as a tool of political transformation, coupled with a backward-looking effort to reframe contested histories through legal categories. While engagement with history is essential for promoting a democratic future and for illuminating long-overlooked and marginalized historical experiences, Shklar warns that stretching the temporal frame of a trial too far into the remote past runs the hazard of flattening the complexity and contingency of long-term historical processes. This risks not only producing oversimplified narratives but also undermining the political judgment essential for shaping a shared future.
Constitutional law often portrays courts as the final defenders of democracy. When countries undergo processes of autocratization and experience significant social polarization, it is not atypical that courts feel more empowered to exert their role of safeguarding constitutional democracy. Interestingly, the interdependent relationship between parliaments and courts in such situations is not extensively discussed in comparative constitutional law, despite political science highlighting that courts heavily rely on parliaments to protect constitutionalism. This article examines the relationship between party fragmentation and its implications for strengthening the judiciary’s role in safeguarding democracy. Political fragmentation, by complicating coordination, tends to increase the costs of co-optation. In such a fragmented environment, courts may find the necessary political support to assertively challenge potential autocratization processes. To this end, the article examines the case of Brazil under Bolsonaro, analyzing the behaviors of Congress and the Courts during and after his presidency. The argument suggests that, under certain conditions, party fragmentation can serve as a safeguard against autocratization processes. Using the Brazilian case as a reference, this article examines the circumstances in which such a positive outcome may potentially be realized.
In recent times, a crisis confronting constitutional adjudication has spread to various parts of the world. In several cases, this crisis is directly linked to turns to right-wing populism and illiberalism, whereas in others it arises in the context of an ongoing liberal constitutional setting. As attacks on judicial settling of contested constitutional issues have long endured, the question becomes whether this most recent crisis is veritably different or merely a variant in the quest against systemic “juridification.” Starting in the second half of the twentieth century there has been an expansion of the constitutionalization of politics with a corresponding politicization of the constitution. Does that irremediably blur the boundary between adjudication and politics? And are populist and illiberal conceptions of adjudication thus reducible to stark differences in political agendas? Based on the thesis that principled differences can be drawn between ordinary politics and judicial politics (or judicial philosophy), this article maintains that law and adjudication operate within a “language game” that remains distinct from that of ordinary politics. Consistent with this, a further distinction can be drawn between judicial politics “in substance” or based on a plurality of cogent judicial philosophies and judicial politics “in form” or using the language of law but animated by ordinary politics. By drawing on developments and cases in four different countries, Hungary and Poland under illiberal and populist rule, and Israel and the United States where liberal constitutional traditions have come under increasing stress, the article seeks to sort out the meaningful differences between liberal and illiberal or populist adjudication. The article concludes that except when populists and illiberals revert to patently unconstitutional means, they make use of the tools that generally animate the dynamic between judicial and ordinary politics. That said, overall populism and illiberalism’s approach to constitutional adjudication emerges as significantly different than what has preceded it within the confines of liberalism.
In 2023 Israeli society was torn by a severe political crisis over constitutional changes proposed by the government. The division crossed lines of political identity and exposed an axis of polarization over how the constitutional order allocates powerbetween popularly elected and elite non-elected institutions. A central issue in this type of polarization is who holds the power to make substantive policy decisions. Polarized identities relate to the extent to which each camp views itself as included and represented, or excluded and under-represented, in non-elected liberal loci of power. Liberal constitutionalism and its agents are not only affected by this type of polarization; they are central actors, identified with one of the rival camps. I discuss this axis of polarization in relation to the innate tension in liberal democracy between its conflicting foundational logics, the popular and the liberal, and explore the broader implications for liberal democracy and for constitutional actors, when the institutional and sociological balance between these logics becomes the object of political polarization .
