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The force of law vs. the law of force: a review of Noura Erakat’s ‘Justice for Some’

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JUSTICE FOR SOME
Law and the Question of Palestine
by Noura Erakat
352 pp. Stanford University Press $30.00

I make no claim to approach this book with an open mind. Making a fuller disclosure, I acknowledge with some pride that I have endorsed Justice for Some even before it was published, and my blurb appears on its back cover. Beyond this, two months ago I took part in a book launch at George Mason University where Noura Erakat is on the faculty. My effort in this review is not to make a calm appraisal of the book’s strengths and weaknesses, but rather to celebrate it as a major scholarly contribution to the critical literature devoted to resolving the Israel/Palestine struggle in line with the dictates of justice rather than by a continuing reliance on muscular weight of subjugation as augmented by geopolitics. And accordingly, to seize this opportunity to urge a careful reading of Justice for Some by all those interested in the Palestinian struggle as well as those curious about the way law works for and against human wellbeing as revealed by its use in a sequence of historical and societal circumstances.

Erakat focuses on the deformations of militarism and geopolitics that have been inflicted on the Palestinian people as a whole, making readers aware of how ‘law’ and injustice have all too often collaborated through the decades. Erakat brilliantly offers readers this illuminating critical jurisprudential exposition, but she does not stop there. Justice for Some also partakes of a constructivist methodology in the following sense. While Israel has cleverly deployed law to oppress the Palestinian people, Erakat’s text also explains to readers how law can and is being used on behalf of justice, serving the cause of Palestinian empowerment as integral to the ongoing emancipatory struggle of the Palestinian people.

In a sense my own partisanship on behalf of the Palestinian struggle parallels that of Erakat who makes evident from the Preface that her intention is to depict Palestinian territorial and national victimization as transparently as possible through the optic of law and human rights and to deplore the Israeli use of legal regimes, procedures, and tactics to carry forward the Zionist project at the. cruel expense of the Palestinians.

Cover of "Justice for Some: Law and the Question of Palestine." (Image: Stanford University Press)

Cover of “Justice for Some:
Law and the Question of Palestine.” (Image: Stanford University Press)

Justice for Some represents an important trend in scholarship, which seeks to combinge academic objectivity with undisguised ethical and political engagement. Such a combination of goals might seem appropriate when dealing with a struggle as poignant as Israel/Palestine, but it has not been so treated in mainstream scholarship. The academic canon on scholarly writing continues to favor the posture of neutrality or supposed objectivity as to policy implications, which is but a professional mask worn by naïve or cynical academicians unwilling to own up to their own subjectivities of perspective. Worse than this, the Zionist influence over scholarly and media discourse on this subject-matter is so great that forthright writing of the sort contained in Erakat’s book is censored, self-censored, and attacked as ‘biased.’ For the mainstream, Erakat’s originality and the persuasiveness of her analysis is ignored if she is lucky, and if not, demeaned. Such authors are often attacked as representatives of the so-called ‘New Anti-Semitism,’ that is, a label used to discredit writing and writers critical of Israel’s policies and practices by maliciously merging criticism with hatred of Jews. This deformed equation offers us a definition of hate speech that amounts to imposing a death sentence on freedom of expression. It is a national disgrace that American legislative bodies at the state and federal level are swallowing such cool aid!

It is difficult to convey Erakat’s jurisprudential originality without extensive discussion, but I will try. Much springs from her bold assertion “I argue that law is politics.” (4) By this she means, put crudely, ‘the force of law’ depends on ‘the law of force,’ that is legal rights without the capability to implement the law to some degree is without effect or its insidious effect is to give legal cover to inhumane behavior.  Or as Erakat puts it metaphorically, politics provides the wind that a sail needs for the boat to move forward. At the same time Erakat when discussing Palestinian rights and tactics is insistent that the advocacy of ‘force’ does not imply a reliance on or a call for violence. Her tactical affirmation of nonviolence becomes explicit when she discusses approvingly the political relevance of the BDS campaign as well as in her endorsement of various efforts to discredit Israel at the United Nations and elsewhere.

Overall, Erakat reasons persuasively that Israel has been more adept than the Palestinians in making effective use of law, partly because the wind is at their back due to their linkages to geopolitics, especially the United States, but also because Israeli legal experts have done their ‘legal work’ better than have the Palestinians. Erakat’s book can be read as a stimulus to Palestinians to make better use of what she calls ‘principled legal opportunism.’ (19) In a larger sense, Israel due to geopolitical backing and discourse control has succeeded in having its most flagrant international crimes including the excessive use of force, collective punishment, and state terror ‘legalized’ under rubrics of ‘security’ and ‘self-defense,’ open ended legal prerogatives inherent in the very notion of a sovereign state. In contrast, Palestinians exercising an entirely justifiable right of resistance even if exercised against military targets is internationally criminalized and Palestinian behavior is characterized as ‘acts of terror.’ Israel’s most sinister ‘legal’ trick has been to defy international law repeatedly and flagrantly without suffering any adverse consequences. This dynamic of defying the law can be illustrated by Israel’s dismissal of the World Court Advisory Opinion of 2004 despite the agreement of 14 of the 15 judges (does it surprise anyone, that the lone dissenter was the American judge?) that building the separation wall on occupied Palestinian territory violated the basic norms of international humanitarian law, including the Geneva Conventions (1977).

Erakat also deserves praise by maintaining a scholarly tone while not mincing her words or becoming entrapped in the often fuzzy language of law. The question of language is crucial to her understanding of the disjunctions between law and justice that have deprived the Palestinian people, and their nation, of the basic rights for more than a century. Erakat is straightforward in a manner of very few international law scholars that the issues at stake can be only properly evaluated if fully contextualized historically and ideologically.  Following Anthony Anghie, and several others, Erakat deems it essential to expose the roots of modern international law as reflective of a legal framing that served to legitimate European colonialism and its practices. She provocatively extends this generalization to Israel, identifying it as the last ‘settler colonial’ state to be established. I would add that Israel was established despite the powerful anti-colonial current of history that has flowed in one direction since 1945.

Erakat is equally prepared to identify the Israeli prolonged occupation of Palestine following the 1967 War as having become ‘annexation.’ She also affirms the view that Israel’s manner of controlling the Palestinian people through political fragmentation and the instrumentalities of law is a form of ‘apartheid.’ In critical and constructivist approaches the avoidance of legal euphemisms is central to the central undertaking of liberating legal mechanisms from the machinations of states. What truth-telling language does is to see through the legal masquerade so as to illuminate the moral issues at stake. This linguistic surgery is a prerequisite to elucidating the relationship of law to justice and injustice not only with respect to Palestine, but in relation to particular issues, whether involving international migrants, abused minorities, or peoples denied self-determination.

Justice for Some helped me realize that this core sense of law as an inevitably politicized instrument of control and resistance can be at odds with the idea that I emphasized earlier in my own legal writing, that the true meaning of legal norms can only be discerned by their proper interpretation. I argued against the Vietnam War on this basis, contending that the American role entailed uses of force in violation of the UN Charter and international law governing uses of force, and that this argument was legally superior to the justifications being set forth by the U.S. Government and its apologists. This regulative (or hermeneutic) paradigm reflects the rhetoric of international law and the way lawyers habitually address controversy, including the modes of legal reasoning used by judges in tribunals, whether domestic or international, to explain and justify their decisions. It is especially applicable to the use of international law in statecraft to validate or invalidate contested behavior, indirectly reflecting both the intensity of the political winds filling the sails of the ship of state, but also the sophistication and motivations of whoever is doing the lawyering, and for whom.

Against the background of this understanding, what Erakat seeks and achieves is less about the emancipatory interpretation of legal norms and more about allowing us to grasp the manipulative nexus that underlies international legal discourse, and shapes political patterns of control and resistance. The regulative paradigm is complementary and backgrounded as Erakat’s overriding purpose is to develop a comprehensive rationale for a political and normative paradigm that fits the reality of the Palestinian and similar struggles for basic rights, especially that of self-determination, better than do traditional approaches. These paradigms do not necessarily contradict one another, but rest on differing functions of law and lawyers in various contexts, and from a jurisprudential perspective can be looked upon as complementary. Erakat’s undertaking is less concerned with understanding the way the world is, than how it ought to be, governed, and how law and lawyering can (on cannot) make this happen. In this sense, the defining spirit of Noura Erakat’s book calls to mind that famous remark of Karl Marx: “Philosophers have hitherto only interpreted the world in various ways; the point is to change it.”

Richard Falk

Richard Falk is a professor emeritus of international law at Princeton University. He is the author or co-author of 20 books and the editor or co-editor of another 20 volumes. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on "the situation of human rights in the Palestinian territories occupied since 1967."

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3 Responses

  1. bcg on July 16, 2019, 11:48 am

    Falk writes :” Erakat focuses on the deformations of militarism and geopolitics that have been inflicted on the Palestinian people as a whole…”. Ok, not exactly on Erakat’s book but if we’re talking about recently published works that do a deep dive into the psychology and politics of the “conflict”, this is also must read: “War over Peace: One Hundred Years of Israel’s Militaristic Nationalism” by Uri Ben-Eliezer – the book shows how the Israeli mentality of “militaristic nationalism” – to use Ben-Eliezer’s words – make it impossible for Israel to make peace with its neighbors or the Palestinians. From the Amazon review:

    “Uri Ben-Eliezer shows that this militaristic nationalism systematically drives Israel to find military solutions for its national problems, based on the idea that the homeland is sacred and the territory is indivisible. When Israelis opposed to this ideology brought about change during a period that led to the Oslo Accords in the 1990s, cultural and political forces, reinforced by religious and messianic elements, prevented the implementation of the agreements, which brought violence back in the form of new wars. War over Peace is essential reading for anyone who wants to understand the role of ethnic nationalism and militarism in Israel as well as throughout the world.”

  2. LiberatePalestine on July 16, 2019, 10:53 pm

    → Israeli legal experts have done their ‘legal work’ better than have the Palestinians.

    I see the quotation marks, but still I reject this position. Law has nothing to do with the establishment or the continued existence of the Zionist entity. As the author admitted, the Zionist entity throughout its existence has ignored international law. The Palestinians have not been in the position to do the same.

    The Zionist entity has gotten away with its shit because it happens to be backed by the US and its partners-in-crime. That’s all.

  3. gamal on July 16, 2019, 11:52 pm

    ” impossible for Israel to make peace with its neighbors or the Palestinians”

    Stephen Gowans, author of the long war on syria has just published

    “Israel, A Beachhead in the Middle East
    From European Colony to US Power Projection Platform”

    “In 1967 Israel launched a successful war against the highly popular Arab nationalist movement of Egyptian leader Gamal Abdel Nasser, the most popular Arab leader since the Prophet Mohammed. Nasser rallied the world’s oppressed to the project of throwing off the chains of colonialism and subordination to the West. He inspired leaders such as Nelson Mandela, Fidel Castro, Hugo Chavez, and Muammar Gaddafi.

    Viewing Israel as a potentially valuable asset in suppressing liberation movements, Washington poured billions into Israel’s economy and military. Since 1967, Israel has undertaken innumerable operations on Washington’s behalf, against states that reject US supremacy and economic domination. The self-appointed Jewish state has become what Zionists from Herzl to an editor of Haaretz, the liberal Israeli newspaper, have defined as a watch-dog capable of sufficiently punishing neighboring countries discourteous towards the West.

    Stephen Gowans challenges the specious argument that Israel controls US foreign policy, tracing the development of the self-declared Jewish state, from its conception in the ideas of Theodore Herzl, to its birth as a European colony, through its efforts to suppress regional liberation movements, to its emergence as an extension of the Pentagon, integrated into the US empire as a pro-imperialist Sparta of the Middle East”

    https://gowans.blog/2018/12/20/israel-a-beachhead-in-the-middle-east/

    which would seem to bare that out.

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