Thursday, October 23, 2014

Punishment & Prison: A Bibliography

The latest draft of my bibliography for punishment and prison is available here

Tuesday, October 21, 2014

Philosophy of Law & Legal Theory: Select Bibliography

The latest draft of my select bibliography for philosophy of law and legal theory is available here.

Thursday, October 16, 2014

Frederic (Fred) R. Branfman, March 18, 1942 - September 24, 2014

Lest we forget these egregious war crimes from our recent history: “...[I]nvestigations by Branfman and others showed that 2 million tons of bombs were dropped on Laos from 1965 to 1973 — about one ton for every Laotian man, woman and child — in a relentless campaign to blunt the operations of the North Vietnamese and the allied Pathet Lao.

The planes came like the birds, and bombs fell like the rain,’ Branfman, quoting one of the refugees, wrote in the New York Times in early 1971 after leaving Laos and joining the antiwar movement at home.” 

 Frederic (Fred) R. Branfman, March 18, 1942 - September 24, 2014

[my bibliography for the Vietnam War

Wednesday, October 15, 2014

The Black Panther Party, 1966-1982: Suggested Reading

According to the Zinn Education Project, today is the anniversary of the founding of the Black Panther Party. What follows is my list of suggested reading toward assessing the radical legacy of the Black Panthers.

Suggested Reading: 
  • Alkebulan, Paul. Survival Pending Revolution: The History of the Black Panther Party. Tuscaloosa, AL: University of Alabama Press, 2007. 
  • Austin, Curtis J. Up Against the Wall: Violence in the Making and Unmaking of the Black Panther Party. Fayetteville, AK: University of Arkansas Press, 2006. 
  • Bloom, Joshua and Waldo E. Martin, Jr. Black Against Empire: The History and Politics of the Black Panther Party. Berkeley, CA: University of California Press, 2013. 
  • Brown, Elaine. A Taste of Power: A Black Woman’s Story. New York: Pantheon Books, 1992. 
  • Carmichael, Stokely. Stokely Speaks: Black Power Back to Pan-Africanism. New York: Vintage Books, 1971. 
  • Carmichael, Stokely and Charles V. Hamilton. Black Power: The Politics of Liberation. New York: Random House, 1967. 
  • Churchill, Ward and Vander Wall, Jim. Agents of Repression: The FBI’s Secret War Against the Black Panther Party and the American Indian Movement. Boston, MA: South End Press, 2002 (1988). 
  • Cleaver, Kathleen and George Katsiaficas, eds. Liberation, Imagination, and the Black Panther Party. New York: Routledge, 2001. 
  • Davenport, Christian. Media Bias, Perspective, and State Repression: The Black Panther Party. New York: Cambridge University Press, 2010. 
  • Dawson, Michael C. Blacks In and Out of the Left. Cambridge, MA: Harvard University Press, 2013. 
  • Foner, Philip S., ed. The Black Panthers Speak. New York: Da Capo Press, 1995 ed. 
  • Forman, James. The Making of Black Revolutionaries (Illustrated Edition). Seattle, WA: University of Washington Press, 1997. 
  • Hilliard, David, ed. The Black Panther Party: Service to the People Programs (The Dr. Huey P. Newton Foundations). Albuquerque, NM: University of New Mexico Press, 2008. 
  • Jeffries, Judson L., ed. On the Ground: The Black Panther Party in Communities across America. Jackson, MS: University Press of Mississippi, 2010. 
  • Joseph, Peniel E. Stokely: A Life. New York: Basic Civitas, 2014. 
  • Kelley, Robin D.G. Freedom Dreams: The Black Radical Imagination. Boston, MA: Beacon Press, 2002. 
  • Lazerow, Jama and Yohuru Williams, eds. In Search of the Black Panther Party: New Perspectives on a Revolutionary Movement. Durham, NC: Duke University Press, 2006. 
  • Marable, Manning. Race, Reform, and Rebellion: The Second Reconstruction in Black America, 1945-1990. Jackson, MS: University Press of Mississippi, 1991. 
  • Murch, Donna Jean. Living for the City: Migration, Education, and the Rise of the Black Panther Party in Oakland, California. Chapel Hill, NC: University of North Carolina Press, 2010. 
  • Nelson, Alondra. Body and Soul: The Black Panther Party and the Fight against Medical Discrimination. Minneapolis, MN: University of Minnesota Press, 2011. 
  • Ogbar, Jeffrey O.G. Black Power: Radical Politics and African American Identity. Baltimore, MD: Johns Hopkins University Press, 2004. 
  • O’Reilly, Kenneth. “Racial Matters: The FBI’s Secret File on Black America, 1960-1972. New York: Simon & Schuster, 1989. 
  • Rhodes, Jane. Framing the Black Panthers: The Spectacular Rise of a Black Power Icon. New York: The New Press, 2007. 
  • Shelby, Tommie. We Who Are Dark: The Philosophical Foundations of Black Solidarity. Cambridge, MA: Belknap Press of Harvard University Press, 2005.
  • Tibbs, Donald F. From Black Power to Prison Power: The Making of Jones v. North Carolina Prisoners’ Union. New York: Palgrave Macmillan, 2012. 
  • Williams, Yohuru. Black Politics/White Power: Civil Rights, Black Power, and the Black Panthers in New Haven. Malden, MA: Blackwell, 2008 (Brandywine Press, 2000).
 Image found here.

Friday, October 10, 2014

Constraints, Structures, History...and the Reality of Freedom

From Simone de Beauvoir, Philosophical Writings (Edited by Margaret A. Simons, with Marybeth Timmons and Mary Beth Mader). Urbana, IL: University of Illinois Press, 2004. I thought I’d share a small snippet from one of the essays, “Moral Idealism and Political Realism” (1945): 

…[U]pon closer examination, the lines separating utopianism from realism are less distinct than they may have appeared at first. In fact, we can prove that squaring the circle and perpetual motion are impossible, but man is not what he is in the way a circle is, whose radii remain invariably equal. He is what he makes himself be, what he chooses to be. Whatever the given situation, it never necessarily implies one future or another since man’s reaction to his situation is free. How can he decide in advance that peace, war, revolution, justice, happiness, defeat, or victory are impossible? When Lenin was preparing in Switzerland for the coming of a new order, he could have been taken for a great dreamer; and if no one had been so bold as to want the Russian Revolution, if Lenin and all the revolutionaries had thought of themselves as insane, they would indeed have been so, for the revolution would not have happened.

That is why, when reform is suggested, the first reaction of the political conservative is always to declare it impossible, because he knows that by declaring it impossible, he contributes to making it so. It was, no doubt, not enough, as French pacifists imagined it was, simply to declare ‘There will be no war’ for it not to happen. However, it is also true that the impulse through which we accept the advent of a certain future contributes to its formation. We therefore do not accept the collaborators’ excuse of having been victims of a simple intellectual error. They argue that they believed Germany’s defeat to be impossible. This means that they consented to her victory. In reality, they opted for the German supremacy that they claimed merely to have recognized. Furthermore, the word ‘recognition’ is itself ambiguous, because when we recognize a government, we make it exist as such. Gaining an awareness is never a purely contemplative process; it is engagement, support or rejection. In 1940 some Frenchmen accepted collaboration with Germany in the name of realism. But they are striking proof of the weakness of an attitude that mutilates and distorts the very reality on which it claims to base itself, since it refuses to make the fact of human freedom an integral part of this reality. If all nations had resigned themselves to accept Hitler’s triumph, Hitler would have indeed triumphed; but they could refuse and they did. It is this refusal that the collaborator was unable [or refused] to see. Anxious to give up his own freedom, he wished to be carried along on the great current of history, forgetting that history is made by men. To be sure, the occupation of France by Germany was a reality. But it was equally real that the French remained free to give the event the meaning they chose. If everyone had collaborated, Germany would have become an ally. If they resisted, she would remain an adversary. [….] The first mistake of the political realist is to underestimate the existence and weight of his own reality. This reality is not given. It is what he decides to be. The lucid political man who truly has a hold of things is also conscious of the power of freedom in him and in others.

Image: A group of French resistants at the time of their joining forces with the Canadian army at Boulogne in September 1944. Accessed at the Wikipedia entry on the French Resistance.

Friday, October 03, 2014

Toward a Theory of Human Motivations

What follows is a selection from La Rochefoucauld (Tr. Leonard Tancock). Maxims. London: Penguin Books, 1959 (1678):

“One of the reasons why so few people are to be found who seem sensible and pleasant in conversation is that almost everybody is thinking about what he wants to say himself rather than about answering clearly what is being said to him. The more clever and polite think it enough simply to put on an attentive expression, while all the time you can see in their eyes and train of thought that they are far removed from what you are saying and anxious to get back to  what they want to say. They ought, on the contrary, to reflect that such keenness to please oneself is a bad way of pleasing and persuading others, and that to listen well and answer to the point is one of the most perfect qualities one can have in conversation.”

“Our self-esteem is more inclined to resent criticism of our tastes than of our opinions.

“We all have strength enough to endure the troubles of others.”

“We often pride ourselves on even the most criminal passions, but envy is a timid and shamefaced passion we never dare acknowledge.”

“Greater virtues are needed to bear good fortune than bad.”

“Neither the sun nor death can be looked at steadily.”

“Our promises are made in proportion to our hopes, but kept in proportion to our fears.”

“What makes us so unstable in our friendships is that it is difficult to get to know qualities of soul but easy to see those of mind.”

“Everybody complains of his memory, but nobody of his judgment.”

“To be known well, things must be known in detail, but as detail is almost infinite, our knowledge is always superficial and imperfect.” [This is virtually identical to a key proposition found in Jain epistemology and provides one part of the justification of a relativistic and pluralist theory of knowledge.] 

“Nothing is less sincere than the way people ask and give advice. The asker appears to have deferential respect for his friend’s sentiments, although his sole object is to get his own approved and transfer responsibility for his conduct; whereas the giver repays with tireless and disinterested energy the confidence that has been placed in him, although most often the advice he gives is calculated to further his own interests or reputation alone.”

“We are so used to disguising ourselves from others that we end by disguising ourselves from ourselves.”

“The glory of great men must always be measured by the means they used to acquire it.”

“The virtues lose themselves in self-interest like rivers in the sea.”

“Spiritual health is no more stable than bodily; and though we may seem unaffected by the passions we are just as liable to be carried away by them as to fall ill when in good health.”

“Virtue would not go so far without vanity to bear it company.”

“Nothing is so contagious as example, and our every really good or bad action implies a similar one. We imitate good deeds through emulation and evil ones because of the evil of our nature which, having been held in check by shame, is now set free by example.

“Not many know how to be old.”

“We should often blush at our noblest deeds if the world were to see all their underlying motives.”

“It is far easier to stifle a first desire than to satisfy all the ensuing ones.”

“In order to succeed in the world people do their utmost to appear successful.”

“Alone among the moralists, La Rochefoucauld offered something like a theory of human motivations. In fact, his views about unconscious motivation and unconscious cognition are probably more valuable than anything found in twentieth-century psychology. To some extent it is true, as Jean Lafond says, that ‘a certain verbal exuberance together with the exaggeration required for an original assertion turns the psychology into mythology.’ Yet…some systematic views can be extracted from what first appear as a random collection of diamond-like maxims.”

—Jon Elster, from the section on “the French Moralists” in a work that evidences his singular capacity to see with remarkable clarity both the forest and the trees: Alchemies of the Mind: Rationality and the Emotions (Cambridge University Press, 1999). The four writers he treats in the part of the book—Montaigne, Pascal, La Rouchefoucauld, La Bruyère—“mark the beginning and the end of the greatest era in French intellectual and cultural history.” (Whether or not he intended it as such, we might read this, in part at least, as an indirect comment on the overweening infatuation with postmodern French philosophers among more than a few academic intellectuals.)

Wednesday, September 10, 2014

The direct and indirect effects of the eudaimonistic community on the individual: from Godwin to Keynes

On the Facebook page for the group, Union for Radical Political Economics, which I recently joined, I read a wonderful 1930 essay from Keynes: “Economic Possibilities for Our Grandchildren” (I’m not sure if this title is from Keynes himself). Keynes asks an uncommon question for members of his profession: “What can we reasonably expect the level of our economic life to be a hundred years hence?” I found his reflections on this question (in part II) pleasantly surprising and it prompted me to entertain the possibility that his membership in the Bloomsbury Group speaks in part to why he summoned the intellectual courage to indulge in such speculation, particularly insofar as it takes us beyond (capitalist) economics. It took some daring if only because, in his words,

“… [T]here is no country and no people, I think, who can look forward to the age of leisure and of abundance without a dread. For we have been trained too long to strive and not to enjoy. It is a fearful problem for the ordinary person, with no special talents, to occupy himself, especially if he no longer has roots in the soil or in custom or in the beloved conventions of a traditional society. To judge from the behaviour and the achievements of the wealthy classes today in any quarter of the world, the outlook is very depressing! For these are, so to speak, our advance guard – those who are spying out the promised land for the rest of us and pitching their camp there. For they have most of them failed disastrously, so it seems to me – those who have an independent income but no associations or duties or ties – to solve the problem which has been set them.”

Keynes’ essay moved me to think of the possible direct and informal influences on his thought that may have arisen from participation and fellowship in the Bloomsbury Group, a select circle of rather intelligent and creative individuals whose class status and social background provided them a tantalizing taste of what freedom from “economic necessity” (in the capitalist sense) might mean for individual and collective self-realization. Of course axiomatic concern for such freedom earlier motivated Marx’s critique of capitalism, as Jon Elster makes clear in his brilliant essay, “Self-realisation in work and politics: the Marxist conception of the good life.” In other words, membership in the Bloomsbury Group is provocatively emblematic (as both cause and effect) of that which afforded Keynes both the time and inclination to reflect seriously in a utopian key (the phrase used here in a non-pejorative sense*) of life beyond capitalism, to imagine what it means for “man” (anthropologically speaking) to fully (i.e., existentially if not metaphysically) confront and ponder the real possibility of how to use “his freedom from pressing economic cares,” that is, to initiate careful consideration of “how to occupy the leisure, which science and compound interest will have won for him, to live wisely and agreeably and well,” which I suspect will undermine most of the current claptrap of what we think is involved in the pursuit and attainment of “happiness.” However precipitous its fall from grace and despite the somewhat harsh retrospective judgments by its own members of the Bloomsbury Group’s shortcomings, it’s worth speculating on the memorable praxis of this remarkable group of individuals who, to some significant extent at least, used their privilege, even if unintentionally, to concretely demonstrate what it might mean to live “beyond” or after capitalism.

Indeed, Keynes and the Bloomsbury Group calls to mind an earlier instance of a similar cause and effect relation of such interpersonal group dynamics on the thought of another original thinker, in this case, the anarchist philosopher William Godwin (1756 –1836). It seems Godwin drew inspiration for his model of the plausibility of anarchist society and its conspicuous reliance on sophisticated individual judgment as a vehicle of rationality and benevolence from “the context of the social circles in which he lived, worked and debated.” These radical social circles in turn “were part of a larger middle class community which drew on a range of philosophical and literary traditions in developing critical perspectives on contemporary social and political institutions.” (Mark Philp) To be sure, Godwin drew upon the philosophes and British radicals, as well as the periphery of the early Liberal tradition (e.g., Paine), but especially the “writings, sermons, and traditions of Rational Dissent” when composing An Enquiry Concerning Political Justice (first edition, 1793, later editions to 1798), but his belief in the veracity of his critique and vision was grounded in the daily life of the social circles of metropolitan radicalism in which he worked and spent his convivial and leisure activities. While this social and intellectual culture soon succumbed to government repression, it provides the intimate empirical evidence Godwin needed to confirm his belief (shared with Condorcet) in the “perfectibility” (which is distinct from perfectionism) of man and the necessity of an anarchist society as the soil of germination for same. Godwin was not a political activist (although he knew members of radical groups and organizations) but a philosopher, but the radical social circles in which he lived tempers our understanding and seasons our judgment of the more extravagant utopian tendencies of his great work, at the very least they demonstrate radical principles were incarnate in a group praxis, even if Godwin had insufficient appreciation of the greater and deeper socio-economic and political conditions that gave birth to and nourished such radical sentiment: “Given the assumptions and conventions of his background and his social circles” writes Philp, “his position could be rationally defensible.” Godwin’s seemingly naïve faith in the power of private rational judgment received strong empirical or experimental confirmation, in other words, in his experience of these social and intellectual circles. In Philp’s words,

“…[Godwin’s] membership [in] a literate and intellectual culture which cannot be identified politically, socially or intellectually with either aristocratic privilege or with the potentially violent and disruptive London poor. It is in this group that we find the politically unattached intellectuals and writers who had greeted the French Revolution and who had called for reform at home on intellectual and humanitarian grounds.

[While this group is] “diffuse and made up of heterogeneous social and intellectual currents…there seems to be no doubt that in the last quarter of the eighteenth century, there existed in both London and the provinces significant number of critical, literate, professional men and women who held often very radical views on social, political and religious issues who regularly met together for the purposes of discussion in a number of overlapping social and professional circles. [….] Godwin moves in the company of artists, portrait painters, engravers, grammarians, industrialists, writers, editors, publishers, antiquarians, librarians, actors, theater managers, playwrights, musicians, novelists, poets, classical scholars, scientists, dons, lawyers, mathematicians, doctors, surgeons, and divines—and this list is not exhaustive. We should also recognize that members of these groups sustained a commitment to radical thinking throughout most of the last decade of the century.”

“As both [Roy] Porter and [Marilyn] Butler stress,” the middling class radicalism of these men and women was not simply the product of a Dissenting background, the French Revolution, and the influence of the philosophes, for it required the warp and woof of a cultural experience of that type of sociability that formed the “basic fabric of late-eighteenth century intellectual life:”

“Once he had concluded his morning’s work Godwin’s day was free and he generally spent it in company—talking and debating while eating, drinking and socialising. His peers’ behavior was essentially similar; they lived in a round of debate and discussion in clubs, associations, debating societies, salons, taverns, coffee houses, bookshops, publishing houses, and in the street. And conversation ranged through philosophy, morality, religion, literature and poetry, to the political events of the day. Members of these circles were tied together in the ongoing practice of debate. These men and women were not the isolated heroes and heroines of Romanticism pursuing a lonely course of discovery; they were people who worked out their ideas in company and who articulated the aspirations and fears of their social group. Their consciousness of their group identity was of signal importance….”

It is the daily life of this social round which fleshed out the skeletal structure of Godwin’s anarchist ideal of a natural society that is fundamentally “discursive,” in other words, a society defined by “intellectually active and communicative agents, a society where advances are made through a dialectic of individual reflection and group discussion.” Reason and argument were the lifeblood of the radicalism that flourished in this kind of sociability:

“The rules of debate for this group were simple: no one has a right to go against reason, no one has a right to coerce another’s judgment, and every individual has a right—indeed, a duty—to call to another’s attention his faults and failings. This is a highly democratic discourse, and it is essentially non-individualist: truth progresses through debate and discussion and from each submitting his beliefs and reasoning to the scrutiny of others.”

The values of openness, rationality, and discussion or conversation that distinguished this sociability were likewise suffused with the norms and values that animated the literature of sensibility from this period:

“Sensibility provided a means for exploring new regions of emotional and social experience, and in so doing it helped generate an identity for an emerging social class. Sensibility was not a philosophical perspective based on a withdrawal from the social world and a solipsistic reflection on sensation; rather, it was a celebration of that social world and an appeal to the emerging self-understanding of members of that world. Sociability and sensibility combined with a burgeoning market for literature of all kinds to produce a public realm in which art, literature, science, philosophy, and morality appeared as commodities to be consumed, discussed and improved.  [….] The experiments in the possibilities of experience conducted in the literature of sensibility, the rationalism which with they laid open every dogma to criticism and the deep concern with the arena of politics from which many of this class were debarred by virtue of their religion or their incomes can all be seen as essential components of this socially, intellectually and politically critical and ambitious group. But these ambitions were less individual than group-oriented: it is as a group that they see themselves as the foundation for a new and equitable social order.”

I think it profoundly important to consider the indispensable role of “the group,” to tease out and trace the myriad causes and effects of such circles of convivial community and ethically robust sociability that we discover in the life and work of a Godwin or Keynes, particularly when we sit at our solitary desks and computers and imbibe on the more nourishing and exhilarating products of their fertile minds.   

* I introduce the substance and possible parameters of such utopian thought and imagination here and here.

References & Further Reading:
    • Bell, Quinton. Bloomsbury Recalled. New York: Columbia University Press, 1985.  
    • Elster, Jon. “Self-realisation in work and politics: the Marxist conception of the good life,” in Jon Elster and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.  
    • Nicholson, Virginia. Among the Bohemians: Experiments in Living, 1900-1939. New York: HarperCollins, 2002.  
    • Norton, David L. Democracy and Moral Development: A Politics of Virtue. Berkeley, CA: University of California Press, 1991. 
    • Philp, Mark. Godwin’s Political Justice. Ithaca, NY: Cornell University Press, 1986. 
    • Rosenbaum, S.P., ed. The Bloomsbury Group: A Collection of Memories and Commentary. Toronto: University of Toronto Press, revised ed., 1995.

    Wednesday, August 27, 2014

    Indic Traditions & Neurophilosophy: Beyond Reductionism, Physicalism, and Computationalism

    One of our foremost scholars of Indic philosophies, Chakravarthi Ram-Prasad, has an important guest-post at the Indian Philosophy blog: “On the possibility and nature of neurophilosophical study of Indic traditions.” I happen to be in full agreement on the following proposition: “I am not particularly confident that neuroscience in its current paradigm and practice settles anything about the nature and content of the discourse of these [i.e., Hindu, Jain, and Buddhist] contemplative practices.”
    One of our foremost scholars of Indic philosophies, Chakravarthi Ram-Prasad, has an important guest-post at the Indian Philosophy blog: “On the possibility and nature of neurophilosophical study of Indic traditions.” I happen to be in full agreement on the following proposition: “I am not particularly confident that neuroscience in its current paradigm and practice settles anything about the nature and content of the discourse of these [i.e., Hindu, Jain, and Buddhist] contemplative practices.” - See more at: of our foremost scholars of Indic philosophies, Chakravarthi Ram-Prasad, has an important guest-post at the Indian Philosophy blog: “On the possibility and nature of neurophilosophical study of Indic traditions.” I happen to be in full agreement on the following proposition: “I am not particularly confident that neuroscience in its current paradigm and practice settles anything about the nature and content of the discourse of these [i.e., Hindu, Jain, and Buddhist] contemplative practices.”

    Sunday, August 24, 2014

    Unintentional blogging hiatus

    I apologize to any regular readers who have expectations for posts now and then. I've not been on vacation (indeed, not since our 25th wedding anniversary) but other things have taken up my time of late (in short, blogging comes after lots of other stuff). Should you care, I hope to return shortly, the focus being on the Israeli-Palestinian conflict. I appreciate your indulgence. Meanwhile, I'm sure there's lots of blogs out there to keep you occupied: 3 Quarks Daily, Indian Philosophy Blog, Crooked Timber, Opinio Juris, Electronic Intifada, Mondoweiss,The Arabist, Buddhist Art News, Religious Left Law, Dorf on Law, Informed Comment, U.S. Intellectual History Blog, Animal Blawg, Health: An Interdisciplinary Blog, Warp, Weft and Way: Chinese and Comparative Philosophy, Leiter Reports, New APPS, The Faculty Lounge, Poverty Law, Turtle Talk, Legal Theory blog, Arms Control Law, Jadaliyya, etc., etc. All good wishes, Patrick

    Saturday, July 19, 2014

    Expel Palestinians, populate Gaza with Jews, says Knesset deputy speaker

    I did not have the time to cross-post this today, so please see Religious Left Law.

    Tuesday, July 15, 2014

    A voice from “the generation that failed” speaks on ending the Israeli-Palestinian conflict (Addendum, July 19)

    Raja Shehadeh, a founder of Al-Haq,* proffers advice to the Palestinian leadership in this piece from the London Review of Books, ending with a succinct proposal on how to end the Israeli-Palestinian conflict (i.e., the ongoing conflict, not the recent escalation of violence). I’ve copied some of the article below which, unfortunately, is available online only to subscribers. 

    [….] “After the 1967 war, Israel spread the word that its occupation of Palestinian lands was the most benevolent in history, even if the ungrateful Palestinians refused to accept it. Those who actively resisted were called fedayeen; but Israel’s word for them was mukharebeen, which is what you call a naughty child in Arabic – anta mukhareb, ‘you are a spoiler.’ What, I wondered, were we spoiling? Then I realised that Israel was putting things in order for us and for them and we were spoiling it. Eventually, when George Bush declared the ‘war on terror,’ we graduated to being irhabyeen, ‘terrorists,’ every one of us, without exception. In Israel’s eyes we are all potential terrorists. And we are all here by permission of the Israeli state. Those who have a Palestinian passport are no different: the number on that passport is assigned to us by Israel and recorded in its security files and databases. Israel can on a whim forbid anybody to return home simply by revoking their residency. This is now the status of all Palestinians in the Territories and East Jerusalem. We are all infiltrators living where we aren’t supposed to live.

    By 1987 the number of mukharebeen had greatly increased in the Occupied Territories. Most of us were spoilers. We used every non-violent method and some violent ones to show that we’d had enough of occupation: the First Intifada had begun. Our insistence on a military struggle had brought no results. It was the non-violent uprising of 1987, waged inside the Occupied Territories, that forced Israel to the negotiating table. In 1991, four years after the Intifada began, Israel was persuaded to attend an international peace conference in Madrid, which was followed by negotiations in Washington between the Israelis and a Palestinian delegation. But the leadership outside the Territories failed to recognise the role those of us living under Israeli rule had played in the civil struggle, as I was to discover when I took part in the negotiations as a legal adviser. Incidentally, I remember Edward Said coming to Washington to offer his services to the delegation only to be sent away. He could have played a crucial role, explaining to the American public what these negotiations were about. What sort of leadership refuses an offer like that?

    Throughout the year I spent in Washington, and for some time afterwards, one question kept nagging at me: how did Israel succeed in using more or less the same tactics against the Palestinians and their property in 1967 as they had used in 1948? Why had the Palestinians not learned how to foil those tactics? Israeli military orders dealt with every aspect of life in the Occupied Territories as well as organising relations between the Palestinians – some but not all of them Israeli citizens – and the Jews who’d settled there. It was clear that Israel’s strategy in the negotiations was to hang on to as many of these orders – there were almost a thousand – as possible. Different orders applied to the two groups, discriminating between them in terms of allocation of land, use of natural resources and opportunities for development and growth. Marching in step with the military orders, Israeli laws were imported into the Occupied Territories and applied exclusively to the settlers. There had to be separate and unequal development – apartheid – if the Jewish settlements were to flourish. I had spent a year desperately trying to impress on the Palestinian leadership the need for a legal strategy based on a review of Israeli military orders when instructions to desist arrived from Arafat’s headquarters in Tunis: acknowledging the existence of military orders would only give them legitimacy. I packed my bags and went home.

    After I left Washington I remained intrigued by the Palestinians’ and Israelis’ very different attitudes to the law. I began exploring each side’s legal narrative. A legal narrative – how people tell the story of their rights – is a construction: for it to stand it must have consistency and its own internal logic, as well as external reference points to which others can relate. And it must be communicable. In the Occupied Territories Israel has expressed its narrative mainly in terms of military orders, which it has successfully kept in force. The Palestinian leadership’s thinking on legal matters is characterised by a search for absolutes, apparent in the excessive stress they put on recognition of the PLO, believing that if the Israelis recognised the organisation they would somehow also be recognising its programme of self-determination.

    The thinking is abstract: it takes no account of the shifting legal ground over which negotiations are conducted, and fails to anticipate the other side’s legal case, which makes it unable to respond adequately. At a meeting of the Palestinian National Council in Algiers on 15 November 1988, the PLO recognised the need for an international conference whose aims would include ‘the annulment of all measures of annexation and appropriation and the removal of settlements’. But it failed to devise a strategy for achieving this goal. Instead, the 1993 Declaration of Principles and the 1995 Interim Agreement between Israel and the PLO provided for the military orders to remain in force. Though it remained undeclared, what was in fact being preserved was a system of apartheid.

    To this day Jerusalem demonstrates the inability of Palestinians to fight their cause by legal means, in stark contrast to the Israelis. After 47 years of Israeli rule Jerusalem is organised, run and designed for the sole benefit of Israeli residents, particularly settlers in and around Arab East Jerusalem, with a shrinking ghetto assigned to disenfranchised Palestinian residents. Israel never announced it was annexing the West Bank; as for its incremental control of Jerusalem, it too is discreet, sometimes brutally so. Compare the struggle in 2012 to win nominal recognition at the UN for the state of Palestine, even though the Palestinian Authority has no territorial sovereignty. Israel’s struggle takes the form of persistent, low-level administrative actions; the PLO – and now the Palestinian Authority – have lofty, abstract aims that have great resonance but are almost empty of practical meaning. The wish to entrench its virtual acquisition of a state sometimes manifests itself in physical terms: for example, the construction in Ramallah of a million-dollar presidential palace for visiting dignitaries who come to pay homage to the putative head of a state yet to be born.

    This difference in approach to law and nation-building doesn’t of itself explain the defeat of the PLO in negotiations with Israel. Almost equally important is the fact that the experience of the Palestinian people under occupation meant little to Palestinians living elsewhere, including our leaders in exile. One kind of struggle, that of the glamorous, sometimes desperate fedayeen in the camps, prevailed at the expense of others, but it wasn’t because of a dearth of information from Palestinian organisations in the Occupied Territories. [….] 

    The negotiations that began in July last year between Israeli and Palestinian representatives under American patronage took place behind closed doors and between two hugely unequal sides. There was no prospect of international law being applied. Israel decides most aspects of Palestinian life as well as the very existence of the Palestinian Authority. Were there a powerful third party prepared to invoke the Fourth Geneva Convention and the enforcement mechanisms it provides for, Israel would be forced to withdraw and to reverse the consequences of its illegal occupation. But the third party is biased. Polling shows that most Israelis oppose withdrawal to pre-1967 ceasefire lines, even if land swaps were agreed to accommodate Jewish settlements. A number of observers on both sides have noted that the most any Israeli leader is prepared to offer is less than the minimum that any Palestinian leader could ever accept.

    What can be done to end this conflict? I would argue for a two-pronged approach. Israel must be made to realise that the failure to apply international law will not last forever and that occupation will begin to exact an economic price; but it also needs to see the benefits it can derive from making peace. For the moment the Israelis show no sign of getting over the dangerous euphoria that was a result of their victory in the war of 1967 and continue to believe what Moshe Dayan, the minister of defence, declared at the time: that Israel is now an empire. Why should this empire, the sixth biggest exporter of weapons in the world, submit to international law? For the time being the Boycott, Disinvestment and Sanctions movement seems to me a necessary tactic. I can’t exaggerate the relief I’ve felt now that it’s clear that I wasn’t criminal, mad or naive when I used to call for the enforcement of international law. Recently, in response to corporate accountability rules, several European banks and the Norwegian government’s pension fund have started to withdraw investments from Israeli companies involved in the settlements while the Norwegian Council on Ethics has recommended excluding Israeli companies ‘due to … serious violations of individual rights in war or conflict through the construction of settlements in East Jerusalem.’ Yet high levels of investment in Israel have been the norm for close to half a century, despite the fact that the international law relating to occupation is fundamentally unchanged. Why has Europe only now discovered that Israel is in breach of the law?

    If disinvestment continues, Benjamin Netanyahu will turn out to have been over-confident when he declared in February that world demand for Israeli high-tech goods would enable the country to outflank the boycott. But the boycott is a means, not an end. The objective is to overcome the anger and hatred that fuel exclusion, partition and separation. Once Israel begins to apply international law, the political outcome, whether one state, two states or a confederation with other states in the region, should be resolved by referendum. And once people’s rights are recognised, all kinds of possibility begin to open up.

    In 1993 I realised how quickly things can change. Just before the Oslo deal was signed, young Palestinians were saying that they would fight Israel to the last day of their lives. But once the deal was signed and began to offer a glimmer of hope the tone changed. You heard them say: Yikhribbeit el hjar, ‘to hell with stone-throwing.’ Reminded of their earlier position they said in their defence that they wanted a better future and a chance to live in peace with the Israelis. Prominent among those who went through this transformation and put their faith in the peace process was the Fatah leader, Marwan Barghouti, in his early thirties at the time, who is now serving several life sentences for allegedly leading attacks against Israel. It is a mistake to hold the young to the values we were proud of during the First Intifada, the golden time of struggle. To them we are the generation that failed.”

    * Al-Haq is an independent Palestinian non-governmental human rights organization based in Ramallah, West Bank that was established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT). The organization has special consultative status with the United Nations Economic and Social Council. 

    Further reading: My bibliography for the Israeli-Palestinian conflict is here. I have related bibliographies on “the Modern and Post-Modern Arab World,” “the Bedouin,” and “Zionist ideologies.” 

    Image found here.  

    Addendum: The following is a reply to the first comment by Anonymous:   

    It’s important to remain anonymous when posting absurd comments of this sort. As Lisa Hajjar reminds us, 

    “the Gaza Strip is still occupied. Despite official Israeli remonstrations that the unilateral disengagement of 2005, which removed Israeli military bases and Jewish settlers, transformed Gaza into ‘no longer occupied territory,’ neither those changes nor anything that has transpired since has ended the occupation.

    ‘Occupation’ is a legal designation of an international nature. Israel’s occupation of Gaza continues to the present day because (a) Israel continues to exercise ‘effective control’ over this area, (b) the conflict that produced the occupation has not ended, and (c) an occupying state cannot unilaterally (and without international/diplomatic agreement) transform the international status of occupied territory except, perhaps, if that unilateral action terminates all manner of effective control.”

    Second, to the extent Gaza is a hellhole, it is because Israel (and to varying degrees, Egypt, the U.S., and some European powers, the latter two in particular after Hamas won democratic elections in 2006) has done everything in its power to make it so, assuring its effective “ghettoization,” beginning in 1994. It is Israel that has consistently acted to assure that Gazans “live under conditions of strangulation, isolation, starvation and economic collapse.”  

    The description of the Hamas leadership as simply “Islamist fanatics” is unhelpful because it does not allow us to see how Hamas has historically evolved as a social movement and political organization, nor how its politics and policies differ from far more radical Salafist groups (loosely integrated into the Jaljalat group) which have undermined ceasefires in the region with rocket and mortar attacks as part of their efforts to challenge the authority of Hamas. Analytically, the term “Islamic fanatics” prevent us from appreciating the following important facts:

    1. Respected researchers in and outside Israel have thoroughly documented and explained how “Hamas is neither anti-modern or anti-democratic, nor inherently anti-Western.”
    2. Hamas recognizes the significance and relative authority of popular mandates.
    3. Like other rational collective actors, Hamas has historically been open and responsive to contractualist or quid pro quo bargaining and negotiations with the state of Israel, to which Israel has repeatedly responded with disdain and dismissal, topped off with an ongoing assassination campaign of its key leaders.
    4. Hamas’ ability to inflict violence is an important source of its political authority (recall that States are frequently defined by their de jure or de facto monopoly on the means of violence and that Hamas is fighting for recognition of a right to collective self-determination which, in our time and place, takes the form of a State). “While this capacity for violence provides important symbolic capital for Hamas as a whole, the majority of its political leaders derive the bulk of their authority from other sources—increasing the possibility of a transformation away from violence if Hamas members believe their basic security will be guaranteed through different means.”
    5. With regard to democratic and especially electoral politics (e.g., the municipal and legislative elections of 2004-2006), Hamas has made cross-ideological alliances and the bulk of its “election manifesto reads like that of any ‘secular’ political party.” As part of their decision to participate in electoral politics Hamas fielded “candidates with political and administrative, rather than paramilitary experience, [which] suggests that it recognizes that political capital in the domestic arena is derived from having non-violent, administrative skills and professional expertise than from a career in the resistance.”
    6. Hamas has repeatedly demonstrated a “readiness to make alliances, even with those who support a two-state solution and co-existence with Israel,” a fact that “further underlines that Hamas is not fanatical and incapable of compromise, but pragmatic.”
    7. Hamas leaders, notably Khalid Misha’al, have repeatedly stated they would not object to a two-state solution were the terms favorable to the “will of the people” (‘During the 2006 election campaign, senior Hamas legislative candidates Hasan Yousef and Muhammad Abu Tair categorized negotiations with Israel concerning a two-state solution as legitimate if they were both “in the interest of the people” and “presented to the new parliament,” the embodiment of the popular will.’) and their willingness to abide by a long-term hudna or truce (several decades, the terms of which would be renewable), evidences a de facto recognition of the state of Israel. Hamas is hardly prepared to pronounce a de jure-like or principled recognition until such time as Israel is willing to grant the collective right of self-determination to Palestinians in the Occupied Territories (note again the logic of reciprocity).

    Wednesday, July 09, 2014

    Modern Iran: A Basic Bibliography

    My latest compilation is Modern Iran: A Basic Bibliography.