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E. WEIZMAN
in sustaining the violent logic of any settler colonial project, and with it the privileges of
the settler community. What was achieved thus far by brute force alone is now regulated
into the settler state’s legal infrastructure. In the words of Kauanui and Wolfe (2012, 241):
. . . once the Natives have been violently suppressed [. . .], the colonizers have to establish
a colonial society in their place, on their land. To do that, you have to have a system of laws
and regulations – the playing field has got to look level. [. . .] A rule of law has to be applied
and applied consistently; otherwise the incoming settler society would get out of order.
Analysis of the Zionist colonial project in Palestine requires seeing the 1948 war as
a moment of ‘law-making violence’ (Benjamin 2009). Territorial conquest forged new
demographic realities, enabling the establishment of the new polity and the laying of its
legal foundations. Establishment of the state retroactively legitimated Israel’s founding
violence since it embodies a claim of new lawmaking authority’ and also because it was
‘used in the service of a public interest defined by the nascent settler sovereign’ (Erekat
2019, 54). But violence does not merely lay the foundation for a new legal system and
citizenship in the new polity, nor does it cease to exist thereafter. Indeed, the legal system
is one of the most powerful institutions at the hands of the state to construct its
legitimacy, internal coherence and, most importantly, to build capacity for sustaining
its power structures.
After its constitution, state law distinguishes between legally permissible and imper
missible violence. The legally prescribed violence is occasionally mobilised against
impermissible forms of resistance/violence that seek to fundamentally challenge state
law. Permissible violence receives immediate justification, as the law declares the obliga
tion to respect it and gives authority to the regime to enforce it, also by force (Derrida
1990). Thus, violence is the other side of law, according to the instructions and limita
tions determined in law and by law (Benton 2009).
While this is true for any state or regime, it is particularly valuable to think about the
link between law and violence in the context of settler colonial states, and in particular
Israel. Mazen Masri’s The Dynamics of Exclusionary Constitutionalism (Masri 2017a)
highlights the role of law, and the state’s judicial system more broadly, as an integral part
of maintaining hierarchical settler colonial social relations and the violent logic of the
settler colonial project. This is important since ‘the constitutional order [. . .] controls the
creation, transformation and exercise of political power’ (p. 193) while also regulating
and normalising state violence and shielding it with legitimacy. These processes of
‘legalisation’ and application of the ‘rule of law’ do not change the logic of the settler
colonial project, but rather:
[T]he way in which remaining Natives are eliminated shifts – it becomes more legal and
more genteel. It looks better. [. . .] The rhetoric shifts radically, but the outcome remains
consistent with elimination (Wolfe in Kauanui and Wolfe 2012, 241).
Establishing the rule of law in a given territory is an all-encompassing project grounded
in the definition of ‘the people’. Those who belong to ‘the people’ are now given formal
membership in the state and accorded social privileges that also regulate their status
within the polity. Citizenship, according to Isin and Turner (2007, 14) is ‘both a legal
status that confers an identity on persons and a social status that determines how
economic and cultural capital are redistributed and recognised within society’.