Published by De Gruyter

Volume 21 Issue 2

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Publicly Available September 18, 2020

Frontmatter

Page range: i-iii

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September 18, 2020

“Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace

Cheyney Ryan

Page range: 207-228

Abstract

Is there an intimate connection between nationalism and war? Does the right to national self-determination invariably lead to bellicose relations with others? These have been central concerns in the literature on nationalism and war. They have also been concerns of political thinkers/activists who have worried about these connections and have sought to fashion a conception of national identity free of its warlike proclivities. This essay explores the link of war, nationalism, and national self-determination with reference to the founding of the state of Israel. And it reflects on the views of Martin Buber whose writings on Zionism constantly engaged these questions in searching for a peace-oriented nationalism.

September 18, 2020

Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination

Yitzhak Benbaji

Page range: 229-254

Abstract

This Article offers a defense of egalitarian Zionism that, unlike Chaim Gans’s argument for this view, does not appeal to the Jewish problem in justifying the Zionist requirement for a state with a dominant Jewish community. The argument extracts from the egalitarian principles that underlie John Rawls’s political liberalism, a conception of global justice according to which members of a scattered nation are entitled to a fair opportunity to establish a new state within which they enjoy the advantage of demographic dominance

September 18, 2020

In Pursuit of Political Imagination: Reflections on Diasporic Jewish History

Julie E. Cooper

Page range: 255-284

Abstract

In recent years, scholars of Jewish politics have invested political hopes in the revival of “political imagination.” If only we could recapture some of the imaginativeness that early Zionists displayed when wrestling with questions of regime design, it is argued, we might be able to advance more compelling “solutions” to the Israeli-Palestinian conflict. Yet how does one cultivate political imagination? Curiously, scholars who rehearse the catalogue of regimes that Jews have historically entertained seldom pose this question. In this Article, I revisit a historical episode—the appropriation of diasporic historical narratives by Zionists in mandatory Palestine—in an effort to cultivate a richer political imaginary. I analyze the labor Zionist deployment of Simon Dubnow’s influential master narrative, focusing on a 1926 speech in which David Ben Gurion depicts the autonomist regime that he advocates as a variation upon diasporic political practices. On my reading, this episode illustrates the dilemmas that confront thinkers who invest political hopes in regime design. To realize the promise that new political configurations may emerge from reflections upon Jewish history, I argue, we must develop a new account of political agency, once foundational assumptions of the nation-state have been suspended.

September 18, 2020

Territorial Justice in Israel/Palestine

Margaret Moore

Page range: 285-304

Abstract

This Article examines the two dominant theories of territorial justice — one associated with justice, the other with self–determination. It applies these theories to the case of Israel/Palestine, and to ongoing claims by political actors with respect to territorial rights there. It argues that justice theory seems to straightforwardly suppose the territorial rights of the State of Israel, at least if historical and retrospective considerations are not at the forefront, though once they are brought in, this argument can be deployed in support of a number of different political positions. The self–determination argument, it is argued, is somewhat less indeterminate and seems to most straightforwardly support a “two–state” compromise. However, as with justice theory, its assumptions can be challenged on a number of fronts, and could also be deployed to buttress other arguments. The merits and challenges of both theories are analyzed through this case study.

September 18, 2020

Constructing “Private” Historical Justice in State-Building

Manal Totry-Jubran

Page range: 305-341

Abstract

Wealthy philanthropic individuals operating within private law have been largely absent from the historical justice narrative of states in transition and, consequently, from normative discussion regarding the justification of their actions under the auspices of the market. This Article seeks to fill this void by examining the “private” historical justice of Jewish state-building prior to the establishment of Israel. Specifically, it focuses on the legal history of Baron Edmond de Rothschild’s settlement project during the Ottoman and Mandate periods and investigates the project’s normative implications. The Baron was a fundamental actor in the design of the Palestinian/Israeli space, as he supported existing Jewish settlements and established new ones. He also built several public institutions that continue to exist to date. I argue that the Baron’s settlement project needs to be addressed from a multidimensional aspect with regard to different groups that were affected by it. On the one hand, his settlement project was just towards the Jewish settlement because it provided a shelter for Jewish immigrants who fled Europe, and it realized the Jews’ right of self-determination. On the other hand, his project resulted in the coercive displacement of an underprivileged local Arab population called the fellaheen and unjustly infringed on their territorial rights.

September 18, 2020

Inheriting the Right of Return

Victor Tadros

Page range: 343-367

Abstract

This Article assesses one kind of argument for an intergenerational right of return in the context of the Israel/Palestine conflict. The question is whether descendants of those who were made refugees in the 1948 War can acquire occupancy rights from their parents through inheritance and bequest over territory that they have never lived on. Standard arguments for their inheriting such rights fail for a range of reasons. However, a less familiar argument for inheritance or bequest succeeds—descendants can acquire such rights because their parents have an interest in their being able to live the kind of life that, due to the violation of their rights, they were deprived of.

September 18, 2020

Justifying the Right of Return

David Miller

Page range: 369-396

Abstract

With the Israeli-Palestinian conflict in mind, this Article asks whether there is a human right to return to one’s country, and if so what justifies it. Although such a right is widely recognized in international law, who can claim it and on what basis remains ambiguous; the ambiguity is revealed by asking what “country” means in “return to one’s country.” I argue that to treat the right simply as an adjunct of citizenship is too narrow an approach, even though the right has a role to play in managing inter-state relations. As with other human rights, personal autonomy might be proposed as a justification for the right of return. But although the autonomy interest in developing long-term life-plans may explain the right not to be forcibly displaced from the place where you live, it cannot explain why there is a right to return once displaced, particularly in the case of people who enjoy an adequate set of options elsewhere. Instead we need to invoke the need to belong to a homeland, access to which the right of return protects. The Article explores a homeland’s different dimensions and considers various respects in which the need to belong might be thought too indeterminate to ground a right. Finally it distinguishes and evaluates the return claims of Jews and Palestinians to Israel/ Palestine; only Palestinians whose homeland this remains can claim a human right of return as analyzed and defended here.

September 18, 2020

Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict

Tamar Megiddo, Eyal Benvenisti

Page range: 397-425

Abstract

This Article examines the authority of states to settle individual private property claims in post–conflict negotiations towards settlement. We analyze this question by exploring the limits of states’ authority to take or limit private property rights for the public good. We argue that this authority rests on two cumulative justifications: the inclusion of the property owners among the public that stands to benefit from the public good, and their representation by the government that decides on the taking of the property. In post–conflict settlement, the negotiating states may redistribute both private property and the public good between and within their respective communities. Their authority to redistribute continues to rests on the same justifications of inclusion and representation. Hence, their authority extends only to the redistribution of property of owners who are members of the respective communities that negotiate the agreement, and who are represented by a negotiating government.

September 18, 2020

Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel

Itamar Mann

Page range: 427-458

Abstract

Israel’s discursive strategy for legitimizing the displacement of Palestinians in 1948 involved describing it as part of a regional “population exchange.” This argument contributed to three critical characteristics of Israeli citizenship. First, it solidified an understanding of citizenship as a negation of persecution and a haven for would-be Jewish refugees. Second, it tied Mizrahi claims against states across the Middle East to Palestinian claims against Israel. Israel thus exploited Mizrahi refugee rights for its geostrategic interests—a fight against the claims of Palestinian refugees. This had detrimental material consequences for both groups. Third, this strategy contributed to the construction of Palestinians as an “exchangeable remainder” and a demographic threat that could potentially pose a risk to the Jewish majority. Ultimately, Israel irrevocably entangled the displacement histories of three groups: Ashkenazi Jews, Mizrahi Jews, and Arab Palestinians. This Gordian knot remains with us today, and is reflected in a stratified Israeli society. But the vision that this symposium suggests we consider, that of “historical justice,” demands that it be undone. This Article therefore offers a way in which the refugee histories could perhaps one day be disentangled: a program of reparations for the Mizrahi and Palestinian citizens of Israel.

September 18, 2020

How the Law of Return Creates One Legal Order in Palestine

Hassan Jabareen

Page range: 459-490

Abstract

The prevailing discourse in Israeli academia on justifying the values of Israel as a “Jewish and democratic state” takes the form of a debate involving questions of group rights of a national minority, as in any liberal democracy. The framework of this discourse relies on three interconnected, hegemonic assertions. These assertions assume the applicability of equal individual rights, put aside the Occupation of the West Bank and Gaza as irrelevant for the “Jewishness” of the state as it belongs to a different rule of recognition, and conceptualize the Green Line based on majority-minority relations with Jewish group rights, including the Law of Return, as not leading to discrimination against individuals. I contend that these assertions are invalid and that colonialism is the relevant framework of Israel’s constitutional identity in Palestine (the Green Line, the West Bank including Jerusalem and Gaza). I argue there is one Constitution in Palestine based on one conception of sovereignty, regardless of any rules of recognition where the Law of Return, together with the value of “preserving a Jewish majority,” constitutes its very essence that targets the Palestinians as such. The Article presents a case-law study regarding family life between spouses and their children in Palestine. This case-law reveals an unfamiliar phenomenon. Unlike the plurality of written laws that characterize colonial regimes, the Israeli legal system introduces a unique model in which racial domination is created mostly by decisionism of the Court, out of the written laws and regardless of any rule of recognition.

September 18, 2020

Historical Justice: On First-Order and Second-Order Arguments for Justice

Raef Zreik

Page range: 491-529

Abstract

This Article makes three moves. First it suggests and elaborates a distinction—already implicit in the literature—between what I will call the first and second order of arguments for justice (hereinafter FOAJ and SOAJ). In part, it is a distinction somewhat similar to that between just war and justice in war. SOAJ are akin to the rules governing justice in war or rules of engagement, while bracketing the reasons and causes of the conflict. FOAJ on the hand are those principles of justice and arguments that derive their power from the distribution of entitlements, rights and duties of the parties prior to the conflict they are supposed to adjudicate. FOAJ aim in many ways to restore the distribution of entitlements that existed on the eve of the conflict. Thus, all arguments for corrective or historical justice could be viewed as FOAJ. The second move in the paper associates FOAJ with the Palestinians and SOAJ with Zionism first and Israel later on. The more the settler Zionist project became a reality, the more the Palestinian population felt a threat to their national project and exercised resistance, including violent resistance. The more Palestinians showed resistance, the more appealing and more relevant SOAJ of self-defense, security, and emergency. The third move in the paper is to ask questions regarding the relation between FOAJ and SOAJ offer a critique of the distinction itself, and offers a critique of the way the distinction is being deployed in the case of Israel-Palestine. The Israeli claims for self-defense and security(SOAJ) are becoming so pervasive that they threaten to suspend the claims for historical justice forever (FOAJ), to the point that everything, even the regime that is crystallizing in front of our eyes as an Apartheid regime, is being justified as a temporal necessity. Israel deployment of SOAJ is done in bad faith.

September 18, 2020

The Idea of Israel as a Jewish State

Alan Patten

Page range: 531-559

Abstract

Israel is often described as a Jewish state and as the locus of Jewish self-determination. How should these phrases be understood? How can they be squared with a commitment to equal citizenship for non-Jewish Israelis? This Article distinguishes between descriptive and normative answers to these questions. The descriptive answer interprets the phrases as referring to the fact that a majority of Israelis are Jewish. The normative answer reads into the phrases a special obligation to promote the common good of the Jewish people. The Article argues that the phrases are unobjectionable when taken in the descriptive sense, but problematic when understood in the normative sense. A state that is guided by the normative answer would offer inadequate protection to key interests of minorities. The critique of the normative answer also points to the more positive conclusion that Israel should foster an Israeli civic identity amongst all its citizens.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.

Volume 21 Issue 2

Issue of Theoretical Inquiries in Law

Frontmatter

Introduction

“Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace

Abstract

Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination

Abstract

In Pursuit of Political Imagination: Reflections on Diasporic Jewish History

Abstract

Territorial Justice in Israel/Palestine

Abstract

Constructing “Private” Historical Justice in State-Building

Abstract

Inheriting the Right of Return

Abstract

Justifying the Right of Return

Abstract

Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict

Abstract

Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel

Abstract

How the Law of Return Creates One Legal Order in Palestine

Abstract

Historical Justice: On First-Order and Second-Order Arguments for Justice

Abstract

The Idea of Israel as a Jewish State

Abstract