12 September 2007 - Israel/Palestine, week 1

Yesterday, I attended the first session of a course being taught at HLS by Professor Duncan Kennedy entitled “Israel/Palestine Legal Issues.” The syllabus indicated that the course would be quite anti-Israel. The first week, for example, covers “Historical background up to the establishment of the State of Israel and the expulsion of the Palestinians,” with emphasis on the latter bit of historical revision.

The central weakness of the course, in my view, is that it confuses politics and law, law and fact. The essence of the Israeli-Palestinian conflict is not a legal dispute but a political one. Framing it in legal terms seems to set aside the political complexity of the conflict, or to vindicate the claims of one side (in this case, the Palestinian side) by invoking various legal authorities, rightly or wrongly, against the other.

The course is both too ambitious, and not ambitious enough. On the one hand, it attempts to deal with issues of severe difficulty—such as refugees—that should each be studied on their own if they are to be understood. On the other hand, the course fails to provide the historical (or legal) background necessary to understand the issues—ignoring, for example, pre-1948 events or Ottoman and British law.

The intellectual posture of the course, and many of the included materials, is that of the Critical Legal Studies school, which claims that law itself is not “neutral” but determined by the interests of the powerful. Accordingly, many of the criticisms of Israel that are provided apply equally to most other democratic states as well (to say nothing of undemocratic ones) and provide few insights about this unique case.

The readings for the first week included some counterpoint, such as a relatively straightforward account by Aaron Wolf of the founding of Israel (albeit with a bit too much emphasis on water); a chapter from Alan Dershowitz’s The Case for Israel, responding to the charge that Israel created the Palestinian refugee problem; and a similar but more strident bit from Samuel Katz’s old polemic Battleground.

However, the thrust was provided by readings from anti-Zionist historians Ilan Pappé and Nur Masalha, and from “New Historian” Benny Morris. Elsewhere, Morris actually distances himself from Pappé and Masalha, who adopt an overtly political approach to history. Neither proves what they claim about a Jewish plot to expel Arabs, but the syllabus suggested we were meant to take the charge seriously.

Yesterday’s class went better than I had anticipated. The room was packed—there were almost as many auditors as enrolled students—and Kennedy did a good job of leading the discussion. People came from all kinds of backgrounds: both the president of the Alliance for Israel (myself) and the president of Justice for Palestine were there, and some people had no prior allegiances at all.

We spent a lot of time on historical texts, such as Woodrow Wilson’s Fourteen Points. I found this a bit irritating—I think too much emphasis was given to the Arab nationalist reading of World War I-era agreements. I pointed out that we had to read these texts with an understanding of the historical context—i.e. that the British did not actually promise a Palestinian state, nor were Arabs demanding one.

Kennedy took these points on board, and then moved on to a discussion of Ilan Pappé and the 1948 Palestinian refugee exodus. Thankfully few people had actually done the Pappé reading, and Kennedy gave time to my criticisms of his scholarship. He also concluded that Alan Dershowitz’s reading of Benny Morris’s research was accurate in its presentation of a multiple-cause story about the Palestinian flight.

However, we never got around to mentioning the Jewish refugees expelled from Arab lands. We also never spoke about the 1947 U.N. partition resolution, or the Peel Commission, or any of that. In fact the 1920s and 1930s were basically left out altogether: we jumped from Sykes-Picot to the Palestinian refugees. The only time the 1930s were mentioned was when I drew attention to the Arab revolt of 1936-9.

The discussion ended up being rather moderate, and I think I can say I had something of a positive influence, because Kennedy knew up front that I would criticize several of the readings and as a result we gave them a closer analysis than might have been the case otherwise. I get the sense that I have a better historical background than most of the people in the room, though I’m not an expert at all.

I believe Kennedy is sincere in his openness to dialogue and debate, and that it is better to engage in a critical way with a deeply flawed -course than to attack or abandon the entire enterprise. I’m going to keeping giving it a chance, hoping it leads somewhere positive. I’ll try to write about it, while staying on the safe side of the Harvard policy that classroom discussions are considered “off the record.”

On a related note, here’s Martin Kramer, who wrote Ivory Towers on Sand: The Failure of Middle Eastern Studies in America, evaluating the progress of Middle Eastern studies over the past few years, pointing out that some of its worst tendencies have been held in check but that there has been little progress in promoting alternative viewpoints. Harvard comes in for some criticism, too.