Shadi Hamid has been getting a lot of applause for a piece of his at Wisdom of Crowds titled “Does Israel Have a ‘Right’ to Exist?” His initial answer is no, because states in general don’t have rights to exist, or really rights at all. Only individual human beings have rights, whereas states are just historically contingent creations of groups of individuals acting together, and may be made and dissolved without violating anyone’s rights at all.
If that is indeed the only reason states exist and the only basis of their legitimacy, then presumably a state that systematically fails to respect the rights of the people under its authority, that does not even recognize that it is their creation and exists only because they continue to will it into being, not only doesn’t have a right to exist but ought to be terminated and replaced with a state that does. This is the line that anti-Zionists cognizant of the liberal tradition might draw from Jean-Jacques Rousseau and Thomas Paine to their demands that Zionism be anathematized, because it was founded without the consent of the people who were already living in the territory that is now governed by the State of Israel, and nothing can give it legitimacy but their and their descendants’ consent.
But Hamid doesn’t go there. Instead, he argues that while Israel was “born in sin” it would compound the sin to try to override by force the clear and vehement wishes of the Jewish population for a state of their own. Therefore, while Israel doesn’t have a “right” to exist, Jewish Israelis have a “right” for their collective preference to be respected to the degree that any “solution” to the problem of Palestinians’ lack of representation has to still provide for the continued existence of a Jewish state so long as Israeli Jews want there to be one.
I’m not sure what, after all of this logic, Hamid has accomplished. Every state on earth was, to some degree, born in sin, and “it would be wrong to force Jewish Israelis to give up their state” is precisely what “Israel has the right to exist” means, because rights, as Matthew Arnold very capably explained in Culture and Anarchy, are really only the reciprocals of duties:
Now does any one, if he simply and naturally reads his consciousness, discover that he has any rights at all ? For my part, the deeper I go in my own consciousness, and the more simply I abandon myself to it, the more it seems to tell me that I have no rights at all, only duties; and that men get this notion of rights from a process of abstract reasoning, inferring that the obligations they are conscious of towards others, others must be conscious of towards them, and not from any direct witness of consciousness at all. But it is obvious that the notion of a right, arrived at in this way, is likely to stand as a formal and petrified thing, deceiving and misleading us; and that the notions got directly from our consciousness ought to be brought to bear upon it, and to control it.
This analysis strikes me as precisely correct, and applies to rights in general, which are all functionally limitations on the scope of other people’s rights. To say “I have a right to my property” is merely to say, “you do not have the right to take or use this property without my permission.” To say “I have a right to life” is merely to say, minimally, “you do not have the right to kill me” and, maximally, “you are obliged to do certain things to keep me alive”—perhaps come to my aid if I am attacked, perhaps even to provide me with healthcare, housing, etc. And so forth. Rights asserted are negative or positive obligations imposed on everyone else. So to say “Israel has a right to exist” is to say “you have a duty not to seek the end of Israel’s existence.” Which, to me, sounds like where Hamid has ended up, despite his initial denial.
Hamid would probably disagree and say he’s only made a prudential judgment that it would be unreasonable or unwise to try to end Israel’s existence, since Israel’s Jewish citizenry would not accept such efforts. But I don’t think that will fly. He frames his position in terms of democratic rights, which implies that even if prudentially it were possible to overwhelm Jewish opposition—say, by bringing such overwhelming force to bear that Israel could not possibly win, and might therefore plausibly surrender without horrific violence—it would, presumably, still be wrong. To make a comparison, imagine that Taiwan voted overwhelmingly for independence, China declared war in response, and America, Japan and every other outside power responded in turn by abandoning Taiwan entirely. Imagine further that China then immediately demanded Taiwan’s unconditional surrender or face being bombed into oblivion, and that Taiwan, recognizing the inevitable, submitted. I assume, based on what Hamid says about Israeli Jews’ rights to collective self-determination, that he would accord the Taiwanese a similar right, and therefore view China’s conquest as unjust. Does that not mean that, in some sense, if its inhabitants choose for it to “exist” as an independent state, Taiwan has a right to do so?
If so, how far can we extend this principle? Did the Confederate States of America have a right to exist because their citizenry voted for it? That’s not how President Lincoln saw it, and not because slavery was unjust (though he believed it was), but because the Constitution declares itself to be the creation of the people of the United States, not the peoples of the several states, and therefore the union could not be dissolved unilaterally by secession. I think Lincoln was correct in this, but the question was ultimately decided not by debate before some neutral arbiter (who could possibly have had the power to impose arbitration?) but on the field of battle. And that’s almost always the way it is where powerful interests and deep sentiments are involved. Did Bosnia-Herzegovina have the right to exist when it voted to leave Yugoslavia? Well, Yugoslavia’s 1974 Constitution did provide for a right to self-determination for its constituent republics, but that constitution itself was not enacted democratically, and the 1992 referendum that overwhelmingly endorsed secession was overwhelmingly boycotted by Bosnia-Herzegovina’s Serb population, both facts that militate against a simple “yes.” Here again, the question was not decided by debate. Bosnia-Herzegovina did secede—but then the Bosnian Serbs went on to secede in turn from newly independent Bosnia-Herzegovina and form the Republika Srpska. Did that entity have a “right to exist?” They said they did, Bosnia-Herzegovina said they didn’t, and after years of warfare and the on-and-off involvement of outside powers, the Dayton Accords ultimately recognized for it a limited form of existence. The state of Bosnia-Herzegovina was structured as a federation between the the Bosniak and Croat-inhabited Federation of Bosnia and Herzegovina and the Serb-inhabited Republika Srpska, such that the latter had no right to secede, but the federation had no right to dissolve the Republika Srpska either.
Where, in all of this, can we discern anything about natural collective rights to self-determination? I don’t see a principle at play; I see demands asserted, challenged, and fought over—civil war as politics with the addition of other means—ending in full recognition or something less than that. Inasmuch as Israel has the “right” to exist as a Jewish state, then, it is because that right has been recognized in various ways: via the Balfour Declaration, which established a Jewish homeland in Palestine; via the United Nations, which voted to approve the creation of a Jewish state (and an Arab state) in Palestine; via its own declaration of itself as an independent Jewish state and the war that won its independence on the field of battle; and via bilateral diplomatic recognition, as most of the community of nations around the world have recognized Israel as a legitimate state (and most of them have also recognized a legitimate state of Palestine alongside it, albeit with borders unspecified). To say “Israel does not have the right to exist” is to renege on those commitments—which, to be clear, is the kind of thing states do from time to time (Russia once recognized Ukraine’s borders, but no longer does)—but it is not incorrect for Israel to view any such decision as an inherently hostile act, regardless of whether it proceeds by legal forms, just as the Palestinians view acts by Israel’s government that harm them and their prospects for self-determination as hostile acts regardless of whether they proceed by legal forms (as, for example, the expulsions from Masafer Yatta have done). The demand for recognition is, in that sense, simply a demand for non-hostility.
The deeper point, though, is that the very idea that the support of the people is what makes a state legitimate presumes the existence of a “people,” a self-conscious collective that the state could represent and belong to. But the arrow of causality may just as likely run the other way. The process of state-building in the modern era has more often than not also necessitated people-building in the sense of inculcating this kind of self-consciousness—the creation of the State of Israel being a prominent example. And, as David Polansky wisely notes in his response to Alana Newhouse’s “Zionism for Everyone” piece that I responded to here, Palestinian national consciousness is also largely a consequence of (and in some ways an imitation of) Zionism, much as the first stirrings of German nationalism were roused by Napoleon’s invasions.
The great value of nationalism to a state is the degree of sacrifice the state can then demand of its people because of their emotional investment in the state. A state legitimated by that kind of strong national feeling will likely be more effective in asserting its rights (not natural rights, but conventional ones) versus other states than a state without that kind of legitimation, all else being equal (and all else is rarely equal). It will, in that sense, be stronger. But a “right to exist” cannot be predicated on the idea that only states that democratically represent authentic peoples are legitimate without opening the door to endless instability and violence. There are peoples all over the world that don’t have independent sovereign states: there is no sovereign Kurdish state, no Catalonian state, no Tibetan state, no Cherokee state, no Zulu or Afrikaner state—the list can go on and on. And there are states all over the world whose connection to self-conscious peoplehood is tenuous at best. 90% of the population of the United Arab Emirates is non-Emirati; the UAE is not only not a democracy, but does not even pretend to speak for the vast majority of its population. Does that mean it has some positive obligation to dissolve itself? Declaring most of the world’s states presumptively illegitimate serves no coherent purpose that I can discern.
Where does that leave us? Since rights are merely the reciprocals of duties, I think it would be instructive to speak more in terms of duties and less in terms of rights. If we said that Israel has the “right to exist” as a Jewish-majority state, that would seem to imply that it can take whatever actions are necessary to maintain that majority status if it is ever threatened—such as, for example, alienating non-Jewish parts of the population. That sounds extreme, but not entirely illogical as a derivative of the premised right. But if we phrased the same thing as a duty—that non-Jews have a duty to surrender their citizenship (or even leave the country) if by their presence they threaten the Jewish majority—the idea sounds absurd and obviously wrong. Whatever duty of non-hostility outsiders may have towards Israel, any “right” Israel has to sustain itself as a Jewish state is limited by its own duties. Similarly if you say that Palestinians have a “right to return” to precisely the homes they left or were expelled from generations ago, that sounds like a very strict accounting but, again, a not entirely illogical derivative of their premised rights. But if you say that the Jews of Israel have a duty to abandon their homes and surrender their country to a hostile population, it sounds absurd and obviously wrong—and, more to the point, like something that simply won’t ever happen. Whatever rights Palestinians have to press their own claims must be limited by their own duties. “Rights” are posited against an amorphous and unspecified set of powers that are supposed to ensure they are respected. Duties must actually be fulfilled by someone specific, and are therefore more clarifying.
Israel’s demand for recognition of its right to exist a Jewish state is an assertion that everyone else has a duty to let it remain such a state. That strikes me as a much more reasonable demand to make of outsiders than against people over whom it has authority, and towards whom it presumptively has significant duties. And that, I should think, is the most useful response to make to Israel’s demand for recognition of that right, to ask what duties the Jewish State of Israel has towards the Palestinians, those that are its citizens, those that are subject to its authority, and those that are neither but continue to press their own claims against it. “None” does not strike me as a particularly credible answer, nor one likely to convince anyone not already convinced that the Jewish State does have a right to exist.
I’ve been working on the above on and off for the past few days, and as I’ve been writing the world continues to spin off its axis. It feels kind of surreal to be debating abstractions like whether Israel has a right to exist as a Jewish state at a time when that state is telling the world what such a state actually is or might become by, most recently, passing laws to hang Palestinians convicted of deadly terror attacks, convictions that would be handed down by military courts without a chance for appeal or many other aspects of due process. Nobody credible thinks this law is a useful measure in any respect to fight terrorism or maintain order, many have persuasively asserted that it would violate international law, and it’s pretty obvious to me that its primary purpose is precisely its discriminatory nature, precisely to delineate just how little duty the State of Israel bears towards those it has determined are its enemies.
At the same time, I’ve been preparing for Passover, and trying to figure out what to say about the ongoing global collapse into moral and practical anarchy in the context of that holiday. I decided I wanted to say something about a very well-known Passover tradition, the removal of ten drops of wine from the kiddush cup as we recite the ten plagues. I had always heard that the reason for doing this was to say that while the plagues were necessary to liberate the children of Israel from slavery, we should nonetheless recognize that this liberation was purchased at the cost of great suffering on the part of the Egyptians, and diminish our joy to show that we do recognize this. A similar lesson is delivered by a midrash in which the angels in heaven cheer as the Egyptian army is drowned in the sea, and God rebukes them, saying: why are you cheering when my children are perishing?
The custom of removing drops of wine dates back to the Middle Ages, and I planned to note how an excluded and oppressed people can still have the cognitive empathy to feel the pain of those who must suffer as a consequence of their own hoped-for liberation. So I looked into it—and it turns out that the interpretation of the custom that I learned is far newer than the custom itself. It dates to 19th century German Jewry, and only became widely popular in America in the 20th century.
From what I gather, it seems likely that the custom originated in a kind of magical thinking. Naming the plagues partakes of their power in a manner analogous to a curse. By pronouncing them in front of a cup of wine that one will later drink, that dangerous power might enter into the wine itself, such that when one drinks the cup one might be drinking the plagues, taking the curse upon oneself. Which would be terrible! So you take out a little wine with each plague, thereby transferring the plague to the wine removed, so that you don’t wind up ingesting it, and being infected by it.
This custom, probably folk in origin, must have struck some as silly and superstitious, because by the 12th century you have rabbis defending the custom with novel numerological justifications that I find both unconvincing and unedifying. Then, as noted, in the 19th century a moralistic-universalistic explanation arises. But that’s not the end of the interpretive history; in the 21st century another rabbi can come along and denounce that explanation, and assert that the real meaning of the custom is precisely the opposite: we’re taking out the drops not to protect ourselves from the malign power of the names of the plagues, but to wield it, to reinforce that they should fall upon our enemies. What I had always seen as an expression of empathy toward the suffering even of evildoers, he sees as a way of underlining that those evildoers, and not we, are the ones who truly deserve to suffer.
At first, this research depressed me. I wanted to demonstrate that a cognitive empathy that I prized was ancient in origin, and discovered instead that it was modern, that the ancient meaning was uncertain and likely not meaningful—to me, at least—and that it was at least plausible to invert the meaning I had understood entirely. What value, then, is the custom, if its meaning is so indeterminate?
But as I thought about it, I realized that this is just the nature of the condition of freedom, which is what the holiday is all about. To be free, cognitively, is to be able to make your own sense of the world, which is to say to discover your own meaning to actions and events. You might do that in many different spirits, and the spirit you choose will be expressive of who you are, but literally nobody else can do it for you, if you have your own mind, which is the most basic kind of freedom. For that very reason, therefore, what it means to be faithful to a tradition is to actively search for explanations that allow that tradition to continue to be meaningful. There’s nothing particularly special about the drops of wine in that regard—all traditions work this way. Why does the groom crush a glass under his shoe at the end of a Jewish wedding ceremony? Is it to symbolically represent the taking of the bride’s virginity? Or to detract from our joy be reminding us of the destruction of Jerusalem? Or to scare away demons that might be hovering nearby? A historian would trace the evolution of meaning over time, but a tradent would articulate a meaning that is persuasive to the congregation in the present, thereby keeping the past alive in present practice and strengthening the present by giving it roots.
I don’t share the progressive faith that it is always going to unfold in a positive direction, that new meanings will inevitably be superior to older ones. But the world only spins forward; new meanings will necessarily arise, whether we like them or not. That applies equally well to something like what it means for a state to be a Jewish state. That meaning is also in present hands, and that interpretive duty that cannot be disclaimed or consigned to people in the past, only assumed, or shirked.
Chag sameach.
Utterly fascinating and thought-provoking. I loved being privy to your process as you confronted the various interpretations of the spilled wine (about which I, too, have always wondered). Our Haggadah is so rife with incomprehensible complexities, numerology that doesn't add up, and - indeed - typos, that it's almost impossible to make heads or tails of any of it. But it always makes us laugh, and we make the same jokes every year, and they are all stained with the remnants of seders past (and now, upon my husband's suggestion, 20 years of signatures of who-got-which-one each year), so we love them. I'm missing Passover entirely this year b/c we're all too far away from each other, and I didn't really care until right now, where I am at present, feeling a bit sad but also grateful for your thoughtful post. ;)
The conclusion of the first part of the post accords well with a speech Rabbi Saul Berman recently gave in which he argued that only when they look to their obligations as opposed to their rights can Israelis and Palestinians begin resolving their conflict.