Occupied Zone – A Zone of Reasonableness?, 41 Israeli Law Review (2008), 13-40 (original) (raw)
The vocabulary of "reasonableness " invokes a wide margin of discretion that is often needed to temper the excessive rigour of legal rules and to deal with the inevitable problems of over-and under-inclusion associated with application offormal law to individual cases. The acceptability of the use of discretion by a law-applying institution such as the Israeli High Court of Justice is based on the assumption that its preferences and moral sensibilities are broadly reflective of the preferences and sensibilities of the community in which it exercises its jurisdiction. When jurisdiction is exercised in conditions of occupation, however such consensus cannot be easily presumed. On the contrary, recourse to moral pathos by an institution of the occupying power will appear to normalize its jurisdiction and add an element of hypocrisy to the felt illegitimacy of its possessing jurisdiction in the first place. Moreover it will undermine the moral and political significance of the fact of the occupation, even diminishing the urgency of bringing it to an end At times, there is more than one way to satisfy the proportionality demand. In such situations a zone of proportionality (similar to a zone of reasonableness) should be recognized. Any means which the administrative body chooses from within the zone is proportional.'
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