Narrative in the Israeli/Palestinian Conflict, Part II

A fabulous post by Marko Milanovic on the blog of the European Journal of International Law talks about many of the issues I raised in my own "Narrative in the Israeli/Palestinian Conflict" post a few years back. I highly recommend it -- as well as the exchange between Milanovic and Darryl Li in the comments.

The Politics of Recognition, Part III

Ahmad Samih Khalidi argues in the Guardian against Palestinian recognition of Israel as a Jewish state, for

behind what may appear an innocuous demand to accept Israel for what it deems itself to be lies an ideologically motivated attempt to force the Palestinians into an unprecedented repudiation of their history. Palestinians' recognition of Israel as a Jewish state implies the acknowledgment that the lands they lost in 1948 are a Jewish birthright. This runs contrary to the heart of the Palestinians' historical narrative and their sense of identity and belonging.

It invalidates the history of the ­Palestinians' century-old struggle and in effect demands that they should become Zionists; for the essence of Zionism lies in the belief that these lands are (and always were) the homeland of the Jewish people, and that the history of Jewish dispossession was rightfully rectified by the emergence of Israel in 1948.

Norm Geras responds:

There are two things wrong with this. First, recognition of Israel as a Jewish state does not at all entail acknowledging some original Jewish birthright or repudiating a narrative according to which the Palestinians have suffered a historical injustice. It involves accepting only that, as things now stand, Israelis as well as Palestinians have a right to national self-determination within the relevant territory. Second, the problem is to find a political solution to competing national claims within that territory, and not to validate the Palestinian narrative. As in a previous outing at the same venue, Khalidi seems to be insensible of the fact that this problem is the result of there being competing narratives - Palestinian and Jewish - to be justly accommodated. No accommodation will be possible if each side insists on the unconstrained validity of its own narrative and on any political resolution having to respect it. Better to find the political resolution and let narrative fidelity, or adaptation, take its course.

I've written before of how narratives clash inside Israel and Palestine, and I think Geras is correct to indict Khalidi's assumption that recognizing Israel's Jewish character necessarily obliterates Palestinian claims of injustice and suffering. What it does do is affirm is that, as I put it previously, Israel's "existence is not a mistake, not an affront, not blasphemy, not colonial, not temporary, and not negotiable." All of these statements are perfectly harmonious with the affirmation that Palestinians have suffered greatly.

Geras accurately notes that Khalidi's fundamental reservation -- refusing to acknowledging any compelling normative considerations on the Jewish side (as opposed to contemporary political exigencies) -- has the effect of simply reserving the maximalist Palestinian claim for a later date. Khalidi's claim that Hamas recognizes the possibility of a long-term peace with Israel reveals more than he thinks: a descriptive acknowledgment that Israel is there is small comfort if not paired with a concurrent affirmation that Israel ought to be there (or at least, that the moral arguments in its favor aren't negligible). Meanwhile, Israelis and Palestinians have to be made to understand that their partners aren't just ranting about gibberish: that their respective experiences are real, that their histories of oppression, violence, and displacement are as they tell them, and that their stories will be greeted with respect and empathy rather than seen as the latest ball to be added to the political playing field. Finally, this is also why Israel's standing on this vis-a-vis the Palestinians is qualitatively different than it is with its other neighbors: as Khalidi certainly recognizes, the legitimacy of Israel's Jewish character -- that Israel came into being due to fundamental elements of the Jewish experience and oppression which deserve acknowledgment -- is implicated to a far greater degree in its conflict with the Palestinians than it is with any other group. Stripping the Jewishness out of Israel strips Israel of any normative rationale whatsoever -- it becomes just another facet of 20th century colonialism. But doing this does violence to Jewish history -- it writes us out of our own story and makes into tertiary characters with no agency, independent interests, or autonomy.

The accommodation comes by recognizing that Israel did not come into existence because of Jewish mal intent -- that it was a response to oppression inside and outside of Europe, that it was reasonable behavior, that for Jews it was perhaps the only plausible route for social survival, that it was not "all about" colonialism and racism and greed and plundering. This does not mean that Palestinians did not suffer -- the world is not a kind place; injustice rarely stays constrained inside the boundaries set for it. It means that Israelis and Palestinians must relate to each other's narratives on terms of empathy and respect. Political settlement is going to require co-existence between narratives as well as people.

Khalidi laments that the demand to recognize Israel's Jewish character means forcing Palestinians to become Zionist. I've often hoped for a day when all Jews would sign on as allies of Palestinian national aspirations, because the Palestinians see that as essential to their liberation as people. In spite of the fact that Jews (including myself) have long seen this movement as a threat, as fundamentally hostile to their lives and livelihoods, and as committed to the erasure of their own history and experience (as I believe Khalidi does), I do not believe it is intrinsically tied to any of these things. Though I will never sign on to statements or positions which buy into these frames, I do not view that commitment as being remotely in conflict with advocating for a Palestinian state. For Palestinian national liberation. Because ultimately, we are all our brother and sister's keeper, and our obligations to each other do not dissolve so easily even in the wake of our justified anger and mistrust.

Zionism is seen by Jews as our own national liberation movement -- what we need to be equal and dignified members of the human community. It doesn't depend on erasure of Palestinian suffering or history, or occupation, or discrimination -- though it may have manifested itself in these things before. Do I ask them to deny the suffering of occupation? No. Do I ask them to disavow that they have as much a claim on the land as do the Jews? No. Do I ask them to abandon advocating for equal rights for persons of all faiths and backgrounds inside and out of Israel and Palestine? No. But I don't view any of these commitments as being remotely in conflict with calling oneself a Zionist.

If the end of all this is a day in which Israelis can say "there is a vision of Palestinian liberation here, and I support their efforts to enact it," and Palestinians can say "there is a vision of Jewish liberation here, and I support their efforts to enact it", in other words, call themselves Zionist -- well, that wouldn't be the worst thing in the world, now would it? Indeed, I'd call that the end game.

Originalism, The Death Penalty, and The Perfect Poison

The decision in Baze v. Rees set off much discussion (stemming from Justice Stevens' concurrence) as to whether the death penalty can be ruled unconstitutional. The major argument against is that the constitution clearly contemplates the use of the death penalty at several points -- most notably the due process clauses ("No person shall ... be deprived of life, liberty, or property, without due process of law...."). Given this rather clear affirmation that the state can (after satisfying due process concerns) take away a person's life, is there any room for the an abolitionist claim?

To explore this issue, I offer up a fantastical historical scenario which I nonetheless think might illuminate how context is critical, even in seemingly clear textual cases. It is the story of the Perfect Poison:

* * *

When European settlers first began to arrive in America, they discovered a bounty of new flora and fauna, wildlife and crops, that were rare or non-existent back in their homelands. One of the most intriguing of these was a small, clover like plant that grew wild in the forested expanses of the east. Local Native Americans used it as euthanasia for their dying elders, or warriors mortally wounded in battle, for, when mashed into a paste and ingested, it had the effect of immediately and painlessly causing death. Observers who saw the plant being administered marveled at how -- in contrast to the bloody spectacle of beheadings or the slow struggle for air during a hanging -- men and women who were fed the clover simply seemed to drift off to sleep, without struggle or apparent distress. Dubbed "American Hemlock", the plant was colloquially known simply as "the perfect poison."

Seeking to distinguish themselves from their more backwards European forebearers, American colonists rapidly began utilizing the perfect poison as their sole method of execution. This is not to say there was no debate over the morality of the death penalty. Quakers and other abolitionists argued strongly that the state had no right to claim a human life, as part of their generic opposition to non-violence. When America achieved independence and the constitution was being drafted, this debate grew in salience dramatically. When the due process clause was drafted to include the potential for capital punishment, progressives reformers attempted to make a stand and strip the word "life" from the text.

The debate was fierce, instigated primarily by a few true believers on each side. Knowing that their "objective" critique of capital punishment was unlikely to sway undecided delegates, abolitionists pointed to the excesses of the French Revolution and tried to emphasize the risk of brutal, undignified killing at the hands of the state. The "spirit of '76" made the delegates very receptive to the inherent human dignity possessed by all individuals, even criminals. But advocates of the death penalty responded by pointing to the perfect poison. America already had nearly 100 years of experience with this drug, and thus reliably knew that they could apply the ultimate punishment while still maintaining the dignity of the criminal. They pointed out that if, by some chance, the national government wished to abandon the perfect poison, it would run afoul of the just-completed clause prohibiting "cruel and unusual" punishment (what would later be the 8th amendment). The risks the abolitionists claimed were confined to old Europe. Americans had developed their own method of execution, that was quick, painless, and immediately lethal.

As the debate progressed, it became clear that the existence and use of the perfect poison was going to be the decisive factor. Delegates who had come in undecided were gradually won over to the pro-death penalty side. The abolitionist's arguments were abstract and unpersuasive given the existence and universal usage of the perfect poison. "Were we still in England, and capital punishment meant sickening hangings (with many more savage citizens clamoring for the return of burning at stake!), I would not hesitate to ban it," proclaimed one delegate from New Jersey. "Where the culture is one of barbarism, where the norms of the enlightenment have not penetrated, the penalty of death is too dangerous to lie in the hands of man. But, God blessed America with an excellent herb, one which evades all the traps of savagery, and our people in their infinite wisdom have taken to use it. It is always possible that our people will regress or thirst for more blood, I admit. But I believe that, given the choice between civilization and the abyss, our people will choose the former."

And so it was that the constitution passed explicitly contemplating the use of the death penalty in America.

Unfortunately, what was not foreseen by the Representative from New Jersey, nor any of the other delegates at the Convention, was the rapidity by which Americans would settle their new country. American Hemlock, as mentioned, grew only in the leafy expanses of the eastern forests, and was resistant to cultivation. It was also highly sensitive to human encroachment. As these woods were cut down to make room for new farms and homesteads, the perfect poison became harder and harder to find. At the same time, its demand was skyrocketing, leading to over-harvesting. By the mid-18th century, the plant was only rarely seen. In response to this scarcity, governors began authorizing the alternative forms of execution that had repelled the framers: hanging and firing squads. But even with this shift in policy, habitat loss had doomed American Hemlock. By 1890, it was declared extinct.

* * *

The point of this story is to illustrate how contemporary context can matter, even to an originalist or textualist. The framers sanctioned the use of the death penalty within the specific context of the availability of the perfect poison. Not contemplating the modern problem of ecological collapse, the founders did not envision the potential for these circumstances to change. But, without the perfect poison, it would seem clear that, at the very least, the question of whether the death penalty was constitutionally sanctioned was open again, notwithstanding constitutional text that contemplates its use.

Now, obviously, this story is extreme. Most obviously, there was no perfect poison, nor is there any proof that American colonists would have used or preferred even if there was. Also importantly, the story creates a scenario where the necessary trigger for permitting the death penalty physically disappeared from the planet. I am not arguing that the actual process of deliberation over the death penalty even closely approximated this.

Nonetheless, I think this story is conceptually illustrative. For one, at the very least I think it demonstrates that changes in context can theoretically alter what is and is not sanctioned by constitutional clauses, even under a very strict form of originalism. And I think it demonstrates that point more broadly that might be apparent at first glance. The framers in this story were making decisions about broad principles based upon what -- in retrospect -- we can see to be temporally-specific assumptions. Here, the assumptions were laid out explicitly (in the debate, anyway -- the drafted text did not anywhere specifically demand that life only be taken by the perfect poison), and the change in circumstances was dramatic. But in general, I think it's obvious that when people engage in deliberation they work from within the only conceptual framework available to them -- that is, their own place, time, and vantage point -- and make decisions that are contingent on those assumptions. As Iris Marion Young points out, "in political communication our goal is not to arrive at some generalities .... Instead, we are looking for just solutions to particular problems in a particular social context" [Inclusion and Democracy (Cambridge: Oxford UP 2000), 113]. Everyone deliberates that way, utilizing assumptions (usually unstated) drawn from the world around us that -- like the world itself -- can and often do change in the future.

The standard "originalist" (or perhaps "classical originalist", since I think the debate here is still largely intra-mural) response here would be to say that the constitution accounts for changing circumstances through the amendment process, nothing more. But I think the perfect poison story demonstrates why this is too thin a response. The existence of the perfect poison -- assumed to be permanent but really contextual -- was an embedded assumption laid into the text as originally deliberated and drafted. It would seem foolish to take from that ratification debate the principle that the death penalty absent the perfect poison is consistent with the mutually agreed upon principles that came out of the ratification debate, because that's clearly not what had been agreed upon. Rather, any debate about the current constitutionality of the death penalty would have to closely examine the relevant context and assumptions under which it was passed (including assumptions about justice and human dignity) to see whether they still hold up in the present day. If, for example, the founders ratified the use of the death penalty based on a conception of human dignity that is now "extinct", is that any different than ratifying the use of the death penalty based on the availability of a "perfect poison" that is now extinct? I don't know. But it's an interesting question to ask.

The Script of Crime

I found this story from Julian Sanchez based on Ezra Klein's riff on the last passage and what it means for our criminal justice system. But it's actually a fascinating tale in its own right. Basically, a man was robbing a dinner party, but right after he demanded the money, a guest instead offered him a glass of wine. The robber accepted and sipped the wine. He then tucked away his gun, asked for a group hug, and then left without taking anything. Sanchez relates the story to a South African cop who was chasing a female anti-apartheid protester, billy-club in hand. The woman lost her shoe, so instinctively the cop stopped to pick it up and hand it to her. Once he did that, he couldn't just turn around and beat her, so instead he walked away. Sanchez writes:

We all act on a variety of social scripts, from which we find it enormously psychologically difficult to deviate once they're activated. Often, this is a problem, causing people to follow orders when they shouldn't, or to stand by in a crisis when they ought to be rendering aid. Sometimes it has more benign effects. The loss of the shoe suddenly shunted the policeman from his cop-script to his chivalry-script. Something similar probably happened with the burglar.

The crucial move here is that he wasn't directly challenged within the terms of the burglar script: The guests didn't refuse outright to hand over their money, but only offered him some wine first, so there was no need to move on to Act II: further threats. But since he hadn't asked for wine, the offer was not in line with the compliant-hostage script either: It was a social courtesy. Once he'd accepted, he was reading from the party-guest script. And holding up one's host at a dinner party is simply not the done thing.

"Script-breaking" is a rather prominent part of feminist theory, for example, in Sharon Marcus' work on rape prevention. She argues that rape is "a series of steps and signals whose typical initial moments we can learn to recognize and whose final outcome we can learn to stave off." It's not as easy as it sounds--just as the burglar is operating within a script of criminality, the target will naturally want to lapse into the script of "victim", the series of moves that society recognizes as the proper way for victims to behave. However, the risk of script-breaking is that its unpredictable--since people don't do it that often (hence it being a break), we don't know what the result of our behavioral alchemy will be. As Sanchez indicates, the best hope might be trying to divert the narrative from one recognized situation (robbery) to another recognized situation (dinner party)--even if the recognition stems only from media, TV, or social mores rather than lived-experience. But this only mitigates, not eliminates, the danger. For example, if rape is primarily a function of the desire for power and domination, a case where the victim refuses to behave in a recognizably "victim-like" manner could disorient and befuddle her attacker, but it also could enrage and infuriate him, leading him to yet more sadistic violence. This problem would seem to be extant regardless of whether the alternate script is familiar or not (although familiarity does seem to be a precondition for successful diversion).

Diversion works because it presumes we all have access to a certain universal index of narrative experience that has roughly similar (or at least mutually intelligible) meanings across the board. Where this is not the case, script-breaking runs into problems. The script itself may not adequately describe the situation being faced (a "rape script" premised around a drunk guy at the bar may not be of help when the woman is facing rape from her husband or father), or the perpetrator of violence may not be familiar with the alternative script being proposed (if someone had no conception of what a dinner party meant, the guest's reaction might have felt like mockery or worse). However, conceptually speaking, looking at crime in terms of scripts, and seeking to derail it by noting chinks in the armor of the narrative, is a surprisingly effective way to combat and prevent crime. Who says post-structuralism never gave us any useful practices?