[A recent conversation prompted me to get clear on the issues below. As in the past, my treatment owes much to Michael Neumann’s excellent “The Case Against Israel.” I’ll say it again: If you read only one book on the Palestine-Israeli conflict, make it this one.]
Defenders of Zionism—here, the idea that Jewish people are entitled to Israel—almost always begin from the assertion that “the Jews” inhabited the area in question some very, very long time ago.
In fairness, this is not the entirety of the Zionist argument; still, the point is always made to bear more weight than it should. For example: If Jews lived in the region long-ago, well, so did Arabs and a lot of other groups; some of these predate the Israeli settlement. Indeed, there is probably no spot of inhabited earth to which somebody else did not have title at some distant point; this poses no pressing moral issue for any of us (including the Zionists)—So why should it be so central to the Palestinian-Israeli conflict?
The most we can cede the Zionists is that certain Jews had some claim to certain parts of what is now Israel—some very long time ago. What we cannot say is which particular Jews had claims to which parts, and whether these persons are the direct ancestors of the Jews pressing contemporary claims, and whether those claims are to those actual parts. Yet this is precisely what we need if the “claims” in question are to fit the normal mold of modern proprietary justice.
Worse, even if we could establish with certainly that this ancestor had legal title to this parcel of land, and this modern person is his direct descendant—that wouldn’t be enough. First, property claims can be given up—sold, exchanged, abandoned. Sometimes they are gotten by coercive or fraudulent means and thus were never legitimate in the first place. Without knowing the whole history of exchanges in which a given parcel is embedded, we have no way to know whether a given later claim is just.
Second, as Neumann warns, “descendant” should never be conflated with “rightful inheritor.” Since when does property automatically fall to the biological offspring of-the holder? This isn’t the way we adjudicate property claims in the modern world. (Nor is it the way the Zionists set up the laws in the new government they formed.) If we are going to assess Zionist claims according to ancient rather than contemporary norms of inheritance—that is, if we are going to abandon that “modern propriety justice’” that holds in every other case—will we go the whole hog, and let Jewish property only pass to the male descendants, by way of each eldest son? That would warrant a radical redistribution of Israeli holdings, to say the least. (And what of other norms, unrelated to land? Will we permit contemporary Israelis to re-enslave the descendants of the Canaanites their ancestors overcame? This kind of reckoning gets ugly fast.)
Perhaps we might endorse nationalist land claims on the basis of group—“peoples”—rather than individuals: “The Jews” lived in what is now Israel; therefore, “the Jews” are entitled to it today.
One problem: The Israelites, by their own account, came to the land in question as invaders and conquerors. Do a thief’s descendants have a right to inherit items he stole? Typically, one is not entitled to stolen property even if the theft is many times removed from the transaction by which she came by it.
It may be said that after so many generations, we can let sleeping dogs lie. But the issue is more complicated. The Hebrews were just one in a long string of conquerors—the Canaanites before them, the Assyrians, Persians, Greeks (etc.) after. What warrant is there for plucking one “people” from the middle of this long chain, and saying, these, but none ofthe others, have the legitimate claim. Nor is there anything about the character of the Israeli tenure that might bolster that claim among the rest; it is distinguished only my its tenuousness, brevity, and the smallness of its geographic footprint.
The Jewish case is typical: In the ancient world, large displacements of people—“peoples,” no less—were typically full of violence and theft, and the history of world leading up to the present distribution of people is chock full of such large displacements. This makes it unlikely that anybody, anywhere has a just claim to the spot of land they occupy.
It also makes it impossible to figure out who should rightfully own any spot. Imagine a bicycle which has for eons been alternately stolen, sold, traded, lent, abandoned, split into parts which have been alternately stolen, sold, traded, lent, etc.; imagine that some of the “thefts” were legal according to the laws of the day or were made so retroactively—and that some of the bequeathments which were legal, customary or moral at the time would not be so under our own laws and norms.
A “long-ago” claim to land is like a claim to this bicycle: First, there is no obvious, non-arbitrary principle of justice according to which these competing “less-than-just” claims could be sorted out. Second, there is a practical problem: Even if we had the principle, the empirical history of who took what from whom, when, is lost to us. We simply have no data to apply a principle to.
This is why virtually zero of the potential claimants to long-ago land press these claims, and why nobody would pay any attention if they did. (The Italians are not going to ask for the lands of the old Roman Empire, nor would even the most liberal among us demand all of the U.S. for the Native Americans.) The Zionists have a colossal burden of proof in showing what is special about their claim, or what is dead wrong about all of those that don’t get pursued—that is, what is dead wrong about the prevailing norm that those claims oughtn’t be pursued. (A norm, mind you, that they would support in every other case.)
One caveat: It is tempting to conclude that, if present land claims are all irremediably unjust, then “anything goes” in the way of re-distribution. (What’s wrong with stealing from a thief?) But this doesn’t follow. It doesn’t even follow that every legitimate claim—if we could figure those out—should be honored. As Neumann notes, even if the current inhabitants of the U.S. do not have a just claim to America, to force them from this land and “redistribute” it to the Native Americans (or to anyone else) would itself constitute a new and prohibitively grave injustice—or, if you like, would require new and prohibitively grave injustices in the course of enforcement. (Note that this is abundantly not the case in, say, returning the Occupied Territories and the post-1967 settlements to the Palestinians.)
The principle that makes this so is the same one behind the legal device of construction easements: Occasionally, a homeowner finds that the edge of her house rests on a neighbor’s property. In this event, it is almost never the case that the house must be destroyed or rebuilt; the property line is simply adjusted. The neighbor has a claim to that strip of land, but pursuing that claim would cause such hardship to an innocent party—the first homeowner—that he is not legally allowed to act upon it.
The easement example suggests a final point. Let’s assume that the Zionist claim to Palestine is legitimate, and that it is absolutely moral to pursue it. This still does not mean it should be pursued in just any old willy-nilly fashion. Implementing a claim requires both a just process and a proper authority to do the implementing.
By analogy: I work at a bank; a parent once came in with a check made out to her adult child who was away at college; the parent wanted to cash the check for herself. When this was denied, she pressed the point that she was paying for her child’s schooling and upkeep, and he owed her the money; she even offered to show receipts for some dorm furniture she’d bought. Of course, this was all worthless to the case. Even if she’d had a contract ordering her son to repay her for tuition on that date, it wouldn’t have worked. The point is not that she didn’t have a real claim to the money—she did. The point is that I wasn’t allowed to adjudicate her claim. I couldn’t just dip into his bank account and hand it to her. Nor could I, nor say, her local butcher or a random bystander, kick her kid’s teeth in, take his bike and sell it to get his mom the money. Enforcement of the claim is a job for the court system—and you can bet they can’t go about it in any way they please, either.
So even if “the Jews” had a right to move into Israel, it does not follow that David ben-Gurion had a right to form an army and unilaterally force the Arabs out, on his specific timetable, without compensation, warning, or arrangements made to facilitate the move.
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In conclusion, there is an ironic sense in which none of the above really matters. For Zionism was never about “living in” the land but rather about ruling over it. The P/I “conflict” would be much simpler if the issue were just habitation. Indeed, the conflict was much simpler—or rather, nonexistent—until it became clear to the Arab population that their new Jewish neighbors were not content to continue living peacefully by their side, but rather intended to exercise sovereignty over them.
This is the heart of the issue: Even if we knew what we do not—that the Israelis had a claim to Israel, and the right to pursue that claim—and how to do this in a moral way and by whose authority—none of that would license anything like the racial-apartheid occupation state we know.