In a move that strengthens the political and normative power of the Israeli courts, and especially that of the Supreme Court, the Israeli judiciary has construed the statutory definition of murder in a manner that allows the courts, while determining criminal responsibility, to conduct an additional, disguised procedure of labeling and normalizing. Courts have construed “lack of provocation,” which in Israel is an element of the offense, as requiring the defendant to convince the court that he killed while provoked, and that the reasonable person would have been likely to act similarly. Since the courts never, in fact, find that the reasonable person would have killed when provoked, this dual standard allows courts to determine that any defendant, who killed under provocation, whether or not he is convicted of murder, is not a reasonable person.
Through this labeling and normalizing process, the legal system develops its own quasi-psycho-social discourse of normalcy, titled “reasonableness,” with which it evaluates and labels defendants’ personalities, acting much like a (Foucauldian) disciplinary institution. However, unlike other disciplinary institutions, the judiciary labels, normalizes and disciplines through its judicial decisions.
This paper demonstrates these theoretical claims through the close reading of one case decided by the Supreme Court (in which one gay Palestinian man had killed another who publicly accused him of collaborating with the Israeli authorities), and proposes an alternative doctrine of provocation (one free of reasonable people and labeling processes).