Palestine and the Melian Dialogue: Thoughts on the Ongoing Slaughter in Gaza

Oct 20

For anyone with the least awareness of the recent history of the Middle East, the most recent violence that began when Hamas launched a devastating assault on Israeli military bases and kibbutzim along the cease-fire lines between Israel and the Gaza Strip, was the culmination of a more than 75 year history of conflict between first, Zionist settlers, and then, the Israeli state, and Palestinian Arabs who were obstacles to the realization of the Zionist state. We are now fast approaching the denouement: either peace based on recognition of the equality of Jew and Palestinian Arab in historical Palestine, or something approaching genocide. If Israel chooses the latter strategy — and it seems likely that it will — it will not stop with Gaza. It will quickly turn its attention to the Palestinians in the West Bank and seek to liquidate as many of them as possible too. The only way to put an end to this slaughter, and restore a dynamic for peace, is intervention by outside powers, namely, the United States, but everything seems to suggest that the United States, under the leadership of “Genocide Joe” Biden, has come to accept genocide as a solution to the Palestine-Israel conflict.

How did we get here? In my opinion, the basic dynamic of the conflict between Israel and Palestine can only be understood through what behavioral economists call the ultimatum game. One of the lessons of the ultimatum game is that human beings have a general tendency to reject unjust outcomes, even when submitting to an unjust outcome would advance their economic welfare from the perspective of classical economics.

The tendency of human beings to prefer self-destruction over submission to unjust outcomes is well-illustrated in the famous Melian Dialogue of Thucydides’ The Peloponnesian Wars, the classical account of a several decades’ long war between Athens and Sparta over domination of the ancient Greek world.

In 2005, before I became a law professor, but was already despondent over the future of the Middle East and despairing over a just settlement of the Palestine/Israel conflict with the collapse of the Oslo Peace Process, I wrote a short essay, “Palestine and the Melian Dialogue.” The Melian Dialogue is a poignant presentation of the conflict between perceived right and the realities of might, precisely what I believe drives the conflict between Israel and Palestine. The Zionist movement, and later Israel, has always relied on overwhelming military might to create facts favorable to its political ambitions, and then seeks to compel the Palestinians to recognize those facts, regardless of the dubiousness of Israel’s normative claims. Given the structure of the interactions between Israel and Palestine, the only rational moves for Palestine are either to surrender or, by engaging in effective, but ultimately self-destructive, violence, convince Israel that it would be better off making a more generous offer. But for a strategy of resistance to superior power to prevail, the weaker party must also rely on the possibility of third-party intervention, others moved to act based on the injustice they see being done. Hence, the necessity of international law for the Palestinians, but its irrelevance to Israel.

We are witnessing this dynamic in real time today, as Israel applies genocidal violence against Palestinians in the Gaza Strip, and supporters of the Palestinians’ rights are mobilizing worldwide to restrain Israel in the name of international legality. My 2005 essay, although written almost 18 years ago, is frighteningly relevant to current events. I reproduce it below:

Watching the progress of the bloodletting among Palestinians and Israelis, one feels that he is a witness to a reenactment of Thucydides’ Melian dialogue.  Thucydides, the celebrated ancient Greek historian, tells us that when mighty Athens “invited” the tiny island of Melos to join its empire, the Melians responded by noting pessimistically that “all we can reasonably expect from this negotiation is war, if we prove to have right on our side and refuse to submit, and in the contrary case, slavery [if we submit and accept your terms].”  The Athenians dismissed the relevance of the Melians’ response, telling them that “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”  The Athenians warned the Melians of the grave consequences that would befall their land if they stubbornly insisted on independence, warning them against entertaining hope in either the gods or their kindred against Athens’ awful might.  The Melians, however, disdained the path of prudence, and instead, did choose to place their trust in “the gods . . . and in the help of men.”  Unfortunately for the citizens of Melos, the gods and men proved themselves unworthy of their trust. The Athenians laid siege to their city, and after some initial setbacks, they took the island, killed all the adult males, enslaved the women and children, and replaced the Melians with Athenian settlers.

Today’s Palestinians are in a situation not substantially different from that facing the Melians – either to stand on right, and face almost certain annihilation, or to accept the path of prudence, and submit to permanent Israeli domination.  In a rare moment of lucidity, Newsweek, at the time of the Camp David II negotiations, noted that peace would require Palestinians to “accept the bittersweet reality of permanent domination by Israel.”  In that one sentence, the naked power that lay behind the peace process was made plain to all by disclosing, honestly and forthrightly, that the purpose of the peace process was not to establish reasonable terms of coexistence between Arabs and Israelis; rather, its purpose was to enshrine Israeli domination over the Palestinians by “convincing” them that it was more prudent to submit to superior power than it was to stand fast on principle.  As we now know, the Palestinians, like the Melians before them, “foolishly” chose to have hope in the future rather than to submit to a certainty of domination, a domination made more “bittersweet” if obtained under the imprimatur of a legitimate peace treaty.

That the expected outcome of the peace process was not to be peace so much as submission should not have surprised any but the most casual observer of Israeli-Palestinian relations.  When Theodore Herzl, the founder of modern Zionism, dispatched two rabbis on a fact-finding mission to Palestine in the late 19th-century, they reported to him that “[t]he bride is beautiful, but she is married to another man,” a reference to the incontestable fact that Palestine was not an empty land awaiting Jewish settlement, but a land that already teemed with inhabitants, inhabitants who lived in its cities and towns, inhabitants who developed that country with their labor, as demonstrated in their arts, crafts, agriculture, business, and other manifestations of human civilization.   Instead of this fact deterring the Zionist project, however, the Zionist movement adopted the strategy of the “Iron Wall”: Zionism would prevail over the Palestinians not on the basis of a superior moral claim that could be presented to Palestinians with the reasonable expectation that they would give it their assent, but on the basis of overwhelmingly superior power, presented in the nature of a fait accompli or ultimatums, that would compel the Palestinians to submit to the Zionist program.  

Zionism’s stubborn refusal to recognize the existence of inalienable Palestinian rights in historical Palestine has resulted in the two sides being caught in a deadly ultimatum game.  The internal logic of an ultimatum game requires that each move be accompanied by a marginal increase in violence until one of two possible long-term outcomes is reached: either both parties realize the irrationality of the game, and abandon it in favor of a compromise based in equality, or the stronger player obliterates the weaker one. 

The collapse of the peace process, the ensuing bloodletting, and the strategies subsequently deployed by both the Israelis and the Palestinians during Intifada II are perfectly predictable consequences of a framework that afforded no concern to legality.  Some might dismiss a stubborn insistence upon legal rights as either pie-in-the-sky idealism, or extremely dangerous insofar as it promotes false hope in the Palestinians, or both.  Yet, lawyers know that in the absence of a baseline of entitlements that only law provides, it is virtually impossible for any negotiation to be concluded successfully.  In a context of lawlessness, each party gets only what it is strong enough to take.  By its very nature, therefore, the Palestinian-Israeli peace process, has encouraged unilateral actions that only produces in the other side the desire to strike quicker, faster, and harder. 

Moreover, because the Israelis enjoy overwhelming military, the Palestinians know that the end game is their annihilation, and accordingly, the only way they can “win” this game with Israel is to convince it that the cost of victory is too high by demonstrating their toughness.  Indeed, if we are to believe Thucydides, the Melians, upon rejecting the Athenians’ offer, did not sit around waiting for the inevitable Athenian invasion: They immediately initiated hostilities with Athens. But, because of the overwhelming disparity in the power of the two sides, the only likely outcome, if the parties are left to themselves, is the destruction of the Palestinians. Certainly Israel has no incentive to abandon the game, and the Palestinians, cannot abandon the game without surrendering.  The United States is the only power that can impress upon both parties the desirability of abandoning their game.  Were the Bush administration to insist that the peace process proceed on the basis of the universal values enshrined in international humanitarian law, it would rescue the Israelis and the Palestinians from the ever-increasing spiral of violence that marks the grim progress of an ultimatum game.  So far at least, the Bush administration has eschewed a law-based approach to the Israeli-Palestinian dispute, and has tacitly chosen to remain passive in the face of Israel’s decision to proceed in its next round of escalation.  In these circumstances no one, especially President Bush, should be surprised that, in the words of Yeats’ Second Coming, “Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world,” and we are all left to wonder “what rough beast, its hour come round at last, Slouches toward Bethlehem to be born?”  And, Israel too, ought to heed both the prudential words of the Melians – that exercise of might unrestrained by justice inevitably reduces security, as all will feel threatened and will eventually confront what they collectively perceive to be a dangerous threat – as well as the eventual, disastrous defeat the Athenians suffered at the conclusion of the Peloponnesian War.   Israel may very well its immediate battle with the Palestinians, but in so doing, it may also end up losing the war.

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The Legitimacy of Taqlīd

Aug 06

The last lecture I gave during my recent trip to Morocco was delivered at the Muhammad VIth Institute for the Training of Imams and Murshidat in Rabat. This is a post-graduate institution (i.e., students are admitted after graduating from another degree program) intended to produce graduates with the skills required to meet the daily religious needs of Muslim communities, such as prayer leaders in public mosques (imams) and spiritual care. Standards, as far as I can tell, are relatively high: no one is admitted who has not, for example, already memorized the Quran.

One of the innovations of this institute was that it opened itself to female students (murshidāt). While Islamic law does not permit women to lead mixed-gender congregational prayers, and Maliki fiqh does not even allow women to lead congregational prayers consisting solely of women (although other Sunni schools of law do), clearly Muslim women need religious instruction just as Muslim men do. The creation of a program for women to serve as murshidat was intended to make sure that women, too, had access to high-quality teachers of religion.

This institute reflects the domestic and international aspects of Morocco’s religious policies. Domestically, Moroccan policy seeks to create a Moroccan national religious identity based on three elements — Ash’ari theology; Maliki jurisprudence; and moderate, “Junaydi” Sufism. Internationally, Morocco seeks to project itself as a bastion of moderate and authentic Sunni Islam. The institute, therefore, is international, accepting students from other North African countries, Subsaharan Africa, and France.

I have no idea whether these policies “work” as a matter of statecraft, but as this video shows, the Moroccan state seems to take them quite seriously as this video of the king marking the completion of the third stage of the institute along with his attendance at the distribution of awards to the top students seems to indicate. The video, based on what I saw when I gave my lecture, gives a fair representation of the diverse nature of the student body. When I gave my lecture, there were large numbers of female students as well as large numbers of students from Subsaharan Africa. Any yes, the lecture hall is quite large. I don’t think I ever gave a lecture in a larger lecture hall than that of the Muhammad VIth Institute.

It was also quite a humbling experience: I think of myself as a legal academic, no more, and otherwise, just an ordinary Muslim doing my best to live a reasonably Islamic life. When I entered the lecture hall, the students welcomed me by standing up and reciting the opening lines of Busiri’s Mantle Poem in praise of the Prophet Muhammad. They did the same when I left. Despite my general cynicism, the warm welcome the students gave me was deeply moving.

In choosing my lecture topic, I wanted to both be respectful of my guests and their policies toward religion while at the same time say something substantive. In preparing for my lecture, I came across this document on the website of the Moroccan Ministry of Endowments and Islamic Affairs, “The Guide for the Prayer Leader, the Friday Preacher and the Religious Adviser (Dalīl al-Imām wa’l-Khaṭīb wa’l-Wāʿiẓ).” This document attempts to assist those religious functionaries who interact with the public on how to go about delivering the most important Muslim public ritual – the sermon at the Friday congregational prayer.

The Friday sermon has always been political in Islam, it being the prerogative of the ruler to deliver the sermon. Traditionally, the Friday congregational prayer could not be held without the permission of the ruler. For this reason, the Shi’a have generally refused to recognize the validity of Friday prayers in the absence of the Imam, but that discussion must be deferred for another day. In any case, the aforementioned Guide for the Prayer Leader, in addition to being a practical reference guide, amounts to a clear articulation of the political theology of the Moroccan state, and is worth of an academic study from that perspective alone.

But there was one topic it touched upon that overlapped with my narrow interests as a legal academic: the obligation of religious functionaries to follow the well-established (mashhūr) position of the Maliki school when they publicly perform rituals. The continued salience of taqlīd is a point of major contention in Muslim societies in the modern period. In my lecture, I defended the legitimacy of the duty of taqlid, particularly in the domain of ritual, from a theological perspective and a political one: theologically, taqlid is legitimate because Muslims are not obligated to follow “true” opinions, only reasonable opinions, and the fact that a doctrine is “well-established” means by definition that it is a reasonable understanding of what God requires; and politically, taqlid in matters of worship is defensible because the point of ritual is discipling the self through practice, something that is fulfilled by acting in accordance with the well-established rules of the Maliki school, while opening the doors of reinterpretation (ijtihad) in matters of ritual will only have the effect of creating dissension and confusion without furthering the principle aim of ritual — disciplined practice — the least.

I also argue in this lecture that just as the common good vindicates taqlid in matters of ritual, it also places limits on taqlid in non-ritual matters: we cannot use taqlid as an excuse to continue following rules that are neither theologically absolute or consistent with our common good, and that this was the kind of taqlid that earned the criticism of modern reformers like Muhammad Abduh, Rashid Rida and the 20th century Moroccan jurist, Muhammad b. al-Hasan al-Hajwi . It is in this latter category of actions that ijtihad is required, not out of fear that practicing taqlid results in not following God’s will, as certain kinds of Salafists would have it, but out of fear of not pursuing the common good.

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What does Carl Schmitt Have to do with the Spiro Scandal at the University of Toronto?

Oct 09

Over the last few days, I received several personal emails from Jewish attorneys in Toronto, expressing alarm and pain after learning from a B’nai Brith Canada press release that I had included a picture of Justice Spiro in my Twitter profile, along with a quote from political theorist and jurist Carl Schmitt, who also happened to be a Nazi. They also thought the phrase in my Twitter profile, “Schmitt lives in Toronto,” was a reference to Justice Spiro. They therefore concluded that I had compared Justice Spiro to a Nazi. I replied to them politely, but without a thorough explanation why I chose the Twitter profile picture that I did, and why it included one of Carl Schmitt’s most (in)famous statements. Although I never intended to compare Justice Spiro to a Nazi, I can understand in retrospect why some people understood that my twitter profile did just that. I am deeply sorry for the pain that I unintentionally caused them.

I feel that I also owe them an explanation. My intent with the profile and the adoption of the moniker “Schmitt Lives in Toronto” was to highlight both the lawlessness Justice Spiro displayed in his actions in connection with the hire of Dr. Azarova, and the weak-kneed institutional response of the University and the Faculty of Law to his conduct.

The lawyers who reached out to me were right to note that Carl Schmitt was a Nazi who played a role in the rise of the Nazi Party to power in German in the 1930s, and I certainly agree that his politics and actions were loathsome.

But Schmitt was much more than a run-of-the-mill Nazi apparatchik: even before the rise of Nazism, he had been recognized as a prominent conservative legal professor and a powerful critic of liberalism and the liberal ideals of the rule of law. Unfortunately, despite his association with Nazism, his writings have made a comeback in the post-9/11 world. Questions similar to those he posed in Weimar Germany about the relationship of the rule of law versus emergency law have re-emerged in the wake of 9/11. Some contemporary scholars found his searing critique of liberalism appealing, even while distancing themselves from his Nazism. For example, legal scholars such as Paul Kahn at Yale, and Adrian Vermeule at Harvard, who are each critical of liberalism in his own way, have adapted elements of Schmitt’s political critique of liberalism to their own analysis of American law. 

While the ongoing appeal of Schmitt deeply disturbs me, he has become a central figure in contemporary jurisprudential debates involving issues of democracy, constitutional law and the liberal ideal of the rule of law. Anyone concerned with preserving liberal ideals of the rule of law in today’s environment must contend with Schmitt’s critique of liberalism and the rule of law. Indeed, one of my colleagues at the Law Faculty, David Dyzenhaus, has written extensively and eloquently, in defense of the liberal ideal of the rule of law and against Schmittian conceptions of the law and politics. Outside of the narrow circle of political and constitutional theorists, and some critical humanities scholars, however, Schmitt is an obscure figure, and so it is not surprising that my twitter profile could cause confusion.

I decided to change my twitter profile to a picture of Justice Spiro, with the quote “The sovereign is he who decides the exception” shortly after the release of the Cromwell Report, and after the University and the Faculty used it to claim full vindication of their conduct after Justice Spiro intervened to block Dr. Azarova’s appointment as director of the International Human Rights Program. The University continued to claim vindication despite the searing criticism that had been leveled at the incompleteness of the Report and its unjustified conclusions by voices within the Faculty of Law and voices outside of it. I observed that Justice Spiro’s intervention and the reaction of the Faculty and the University to it, raised in principle – albeit at a much smaller scale – some of the same theoretical problems concerning how to respond to breaches of the rule of law that we at the Faculty of Law have been discussing over the last two decades since 9/11.

One of Schmitt’s most important critiques of liberalism is that liberals constitute a “chattering class.” He asserts that liberals, when push comes to shove, lack the moral courage to defend the rule of law against authoritarian assertions of sovereign privilege, even when democracy itself is threatened. I adopted the phrase “Schmitt Lives in Toronto” as a critique of the University of Toronto and the Faculty of Law’s reaction to the IHRP hiring scandal. From my perspective these institutions behaved in precisely the fashion that Schmitt predicted when their norms were threatened: by backing down. In my opinion, the institutional response to Justice Spiro’s conduct was, and to a large extent has been, one of paralysis, served with a large dollop of wishful thinking on the side. The institutional indifference to Justice Spiro’s intervention in the IHRP matter sadly confirmed Schmitt’s criticism of liberals.

As for Justice Spiro himself, his conduct mirrored that of the Schmittian sovereign. He flagrantly disregarded the applicable norms of the rule of law when he interfered in Dr. Azarova’s hire and arrogated to himself the prerogative of excepting himself from ordinary legal norms that apply to others.

Justice Spiro gave himself the authority to breach at least three different sets of legal norms, ostensibly out of concern to deal with the “emergency” arising out of the imminent hire of a scholar who had written critically of Israel and in solidarity with Palestinian human rights.

First, he must have known that the information CIJA received regarding Azarova’s imminent hire was obtained by means of an unauthorized disclosure. Legal ethics prohibited him from taking advantage of that unauthorized disclosure. Yet, that did not stop him from contacting the University and further relay additional confidential that he acquired from his contacts within the University back to CIJA.

Second, he knew that as a judge, the judicial code of ethics prohibited him from involving himself in a controversial political issue. Yet, he interfered anyway.

Third, he knew that it was inappropriate for him – from the perspective of the University and the Faculty of Law of which he considers himself a close friend– to attempt to influence a hiring process. Yet, he did so anyway.

That he did so for what he believed were altruistic reasons makes it no less an exercise of the “exception” and no less subversive of the rule of law.

Justice Spiro, it is true, has expressed “contrition” over his conduct before the Canadian Judicial Council. To my knowledge, however, he has not apologized to those whom his conduct most directly injured: Dr. Azarova, the University of Toronto Faculty of Law’s student body, and the Faculty of Law itself. He has taken no concrete steps, to my knowledge, to rectify his breaches of the norms of legality that apply to all of us, to say nothing of the norms applicable to the conduct of a sitting judge, whom we reasonably expect to abide by such norms more strictly than the ordinary citizen.

It has never been my intention to compare Justice Spiro to a Nazi: I don’t need to invent false charges to be critical of his conduct and the conduct of the University of Toronto in this sad affair. Rather, my intention was to draw parallels between the attack on academic freedom and the University’s acquiescence and broader attacks on liberal democracy and the fragility of the rule of law. I should have considered that those who aren’t versed in contemporary debates around Schmitt and his writings could interpret the choices I made on my Twitter profile differently and would be hurt as a result. Unfortunately, I didn’t, and I am deeply sorry.

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The Mālikī School and Contemporary Morocco, July 1, 2015

Jul 17

This is the text of the Presidential Lecture I gave two years ago at Akhawayn University in Morocco. It addresses the current attempts of the Moroccan government to enlist historical conceptions of Sunni orthodoxy along the three dimensions of the legal (Malikism), theology (Ash’ari) and mystical (Sufism) to help resist the allure of Jihadi-Salafism, and the challenges Salafism in general poses to historical Sunnism, but why historical Sunnism, despite these challenges, offers important resources for establishing a democratic Morocco. To take advantage of those resources, however, there must be a sincere commitment to those principles. A cynical attempt to deploy  those resources to resist Salafism while failing to reform the foundations of the public order, however, risks increasing the attractiveness of heterodox religious movements, including, but not limited to, Jihadi-Salafism.

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Profiles in Courage: the Moroccan Jurist Abu Muhammad `Abd al-Salam b. Hamdun Jasus

Dec 16

This is the story of an 18th century Moroccan jurist who did not leave any important collection of legal opinions or an important commentary on a Sidi Khalil or otherwise make an important literary contribution to the history of Islamic law.  Nonetheless, he did something else which is probably more important for the possibility of securing a society governed by law: he willingly became a martyr to uphold the integrity of the law, not by revolting and leading a hopeless quest to overthrow the ruler, but simply by sticking to his values, and insisting that he would not compromise the clear demands of the law for the sake of the ruler’s convenience. The ruler was the Moroccan Sultan, Mulay Ismail Here is a link to an account of the relevant events in the Arabic chronicle, al-Istiqsa li-Akhbar al-Magrib al-Aqsa.

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ISIS’ Appropriation of Classical Islamic International Law

May 08

Brookings’ 2015 US-Islamic World Forum invited me recently to contribute to Will McCants’ series of discussions regarding ISIS’s relationship to the Islamic tradition which he initiated in response to the now (in)famous Atlantic piece by Graeme Wood, “What ISIS Really Wants“. I wrote about ISIS’s appropriation of classical concepts such as dar al-islam and dar al-harb to justify their actions against their enemies, domestic and foreign, while ignoring over 1200 years of the concepts’ evolution, including, in the post-World War II era where leading Muslim jurists have concluded that the distinction is irrelevant in the modern world.

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