E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Judaism occupies a special place in many
religions and in the Western cultural conscious. Jews killed
Christ. Jews must be treated differently because they are People of the
Book. The return of Jews to Israel is of special eschatological
significance. Persons have special obligations to convert the Jews. Both
philo-semitism and anti-Semitism are rooted in this western tradition of
regarding Jews as meriting distinctive treatment. Other religious faiths, by comparison, have
no special status in Judaism.
The academic infatuation with the BDS (Boycott, Divest, Sanction) movement
is the latest manifestation of the historical tendency for non-Jews (and
alienated Jews) to hold world views in which Jews have a special status. The National Women’s Studies Association and
the American Anthropological Association are the latest scholarly organizations
to institute and call for a complete boycott of Israel and Israeli
scholars. Academics affiliated with the
BDS have been known not to answer letters from Israeli children on subjects of
mutual interest on the theory that all Israeli Jews ought to be treated as contemporary
untouchables. There is, of course, much to criticize about
Israeli politics from a general perspective.
More reasons exist to criticize Israeli politics from the Jewish
perspective championed by movements associated with the Jewish religious left,
most notably the Hartman Institute. The
willingness of non-Jews to single out Israel as unique among the malefactors of
the world, and even among the plausibly democratic malefactors of the world, nevertheless
replays the historical special status of Jews, Judaism and Israel in Western thought
that most BDS supporters would treat as a prime example of unconscious bias in
almost any other circumstance.
The Middle East often
resembles the world’s most difficult international law and international human
rights class examination. No shortage of
victims exist. These victims represent all
nationalities, religions and ethnicities. No national, religion, ethnicity or political movement has anything that
resembles clean hands. Any political
solution or scholarly analysis inevitably privileges some contestable claims at
the expense of others, satisfies some demands for justice at the expense of
others, and puts some people rather than others in jeopardy of severe
harm. Were Israel a Buddhist state or a
state committed to one version of Islam rather than another, no scholarly
organization would consider standing as a discipline only with one party in the
dispute.
The BDS claim that Israel is
an “apartheid state” drains “apartheid” of meaning (we can't call Jews "Nazis" so we call them "Boers"). The condition of non-Jews and even of Muslims
in Israel does not approach the condition of native Africans in South Africa
for most of the twentieth century or, for that matter, Jews throughout most of
history. One might insist that no state
ought to have an established religion or provide special benefits to the
faithful, but Israel is hardly unique in that endeavor. The status of ethnic minorities in Israel
resembles the status of ethnic minorities in most moderately decent
democracies, which is to say clearly imperfect from the perspective of ideal
theory. Certainly, no basis exists for
singling Israel out if one measures equality by examining the political rights,
economic rights, education rights, or actual outcomes of ethnic minorities
within a polity.
Israel’s treatment of
Palestinians is more complex. I suspect
every progressive and every progressive Jew wishes Israel was far more scrupulous
in ensuring that civilians are not harmed in military attacks on suspected
terrorist groups. On the other hand, one
might also wish that the terrorist groups that enjoy considerable popular
support in the Middle East and in Palestine had any scruples about attacking civilians. Perhaps the leaders of the BDS movement in
Palestine are sincere when they claim that they are entirely independent of any
movement that intends to drive Israel into the sea, even if that means exterminating
(the word consciously chosen) every Israeli man, woman and child, though how
members of various academic associations can be sure of this is beyond me. And no one can give any guarantees to Israel
that a Palestinian state will not be a site for frequent terrorist attacks on
Israeli civilians. Properly understood,
the Palestinian problem is deeply problematic from almost any plausible theory
and is recognized as such whenever a non-Jewish nation deals with terrorist
threats. Jews, Judaism and Israelis are,
apparently, supposed to be better for reasons that appear largely
sub-conscious.
In 1 Samuel 8:20, the
original Israelis ask for a king so “that we also may be like all the nations.” For better or, in my judgment, worse, Israel
has become “like all the nations.” The
way in which Israel reacts to terrorist attacks seems no more exaggerated than
the way in which Americans and the French have recently reacted, although my
sense is fewer Israelis than Americans support Donald Trumpish responses. This is cause for dismay among those of us
who hoped a Jewish state would be more “a light unto other nations.” We are entitled to demand Israel be special
because, if Israelis are going to ask for our support as Jews, then we may
insist that nation live up to the best Jewish standards. An Israel that is like other nations cannot
provide reasons for young Jews abroad to identify as Jews and be proud of their
Jewish heritage. But the non-Jewish
world has no more right to impose higher Jewish standards on Israel than Jews
have to call on the Pope to live up to what we believe are the best Catholic
standards. Perhaps faculty supporting
BDS may need mandated cultural competence after all. Posted
8:12 PM
by Mark Graber [link]