July 23, 2019
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 well-being 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.
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.
Negating the mainstream academic canon
Justice for Some represents an important trend in scholarship, which seeks to combine 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 favour 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
This deformed equation offers us a definition of hate speech that amounts to a death sentence for freedom of expression.
It is a national disgrace that American legislative bodies at the state and federal level are swallowing this
“Law is politics” – and Israel has been better at using it
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
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
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.’
Some examples of international law defiance
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
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.
What can be learned from “Justice for Some”
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
This regulative (or hermeneutic) paradigm reflects the rhetoric of international law and the way lawyers habitually address
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
Erakat’s undertaking is less concerned with understanding the way the world
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.” (Theses on Feuerbach).