Exile,Statelessness,and Migration : Response to my critics

I

In her sensitive and playful reading of Walter Benjamin’s chess metaphor, Robyn Marasco writes that Benjamin is ‘applying two games at once: the game of chess and the art of illusion’, and she asks if we can speak of a ‘play-concept in Benjamin’s philosophy of history, which is also linked to his aesthetics and politics?’ As opposed to the orientalist image of an automaton in old Turkish attire playing chess, Marasco resurrects the image of ‘heliotropism’ – flowers turning towards the sun – from Benjamin’s Fourth Thesis on The Concept of History. She also reminds us of Adorno’s ‘fortune-telling gypsy’ in his Minima Moralia transformed into a ‘rescuing angel’.

In emphasizing this ‘ludic’ dimension in Benjamin and Adorno, Marasco both agrees with and departs from my reading of the Benjaminian element in the philosophies of Adorno and Arendt. In chapter 2 of Exile, Statelessness and Migration, I claimed that Adorno’s Inaugural lecture upon assuming a position in the University of Frankfurt, called ‘The Actuality of Philosophy’ (1931), was greatly indebted to Benjamin’s The Origins of German Tragic Drama. Marasco believes that highlighting this Benjaminian moment in Adorno’s work ‘probably also means minimizing Max Horkheimer’s influence’, in that Adorno’s early lecture reverses the relationship between philosophy and social science. For Horkheimer, in ‘Traditional and Critical Theory’ (1937), philosophy asks the questions to which the interdisciplinary program of social research provides the answer; whereas for Adorno philosophy provides the answers to the questions asked by science (ESM, 41).

Must contemporary critical theory choose between Adorno and Horkheimer, asks Marasco? Sometimes this question is posed in terms of the rivalry in contemporary critical theory between an approach that is oriented towards cultural and aesthetic criticism as opposed to one more concerned with social science and contemporary analytical philosophy. Whereas the mantel of Adorno appears to have been inherited by Foucault and Derrida, throughout his life Habermas has followed Horkheimer’s program of an ‘interdisciplinary social research’.

It was not my intention in this particular chapter to address this debate. Over the years, I have come to think of critical theory as a capacious tent under which deconstruction as well as genealogy can have their place – along with feminist, postcolonial and critical race theories. ¹ This does not mean that strong differences have ceased to exist between these two orientations. In particular, the place of law and normative theory as well as the legacy of liberal democracies are strongly contested among contemporary critical theorist. ² I concur with Marasco’s conclusion that we must avoid the trap of these binarisms, and instead creatively deploy both orientations in pursuit of an ‘interpretive social science’ that is critical and opposed to abstract idealism as well as empty empiricism.

Marasco sees such a project as decentring the inspiration that I draw form Arendt’s work. Quite to the contrary: I consider Arendt’s The Origins of Totalitarianism to be one of the great works of interpretive social science in the 20th century, not least because Arendt herself was inspired by Benjamin’s method of drawing ‘configurations’, exploring ‘changing constellations’ and ‘crystalline structures’ (ESM, 43 ff). Arendt searched for those elements of totalitarianism, for those currents of thought, cultural sensibilities and political events, which formed a particular configuration and crystallized together at one point, whereas considered by themselves and in isolation from one another they would not have been significant in the rise of totalitarianism. This was an unusual methodology that baffled many other interpreters, such as Eric Vogelin and Leo Strauss, for example, who wanted to see the rise of Nazism and its eliminationist anti-Semitic ideology in terms of the nihilism of modernity or authoritarian trends in German culture. Arendt was assiduous in trying to avoid the historicist fallacy of deducing future developments from an original that unfolded along a continuous, smooth line. Like Benjamin and Adorno, she considered this view to be a philosophical and a political trap which would lead to a certain fatalism of intellect and action. In weaving a rich tapestry of constellations that brought together European anti-Semitism, race-thinking as well as the ‘scramble for Africa’, Arendt bequeathed research questions that still preoccupy scholars of totalitarianism and the Third Reich. Marasco concludes with a profound insight that confirms Arendt’s unsurpassed perceptions on migration, statelessness and fascism: ‘For some, immigration itself is a Jewish conspiracy. Violent anti-Semitism and xenophobic racism are intimately connected and deeply interwoven on the far right’.

II

For many Jewish thinkers, only the law and legal institutions could provide a bulwark against the rise of violent anti-Semitism and xenophobic racism. Max Pensky asks:

What should we make of the historical and conceptual connections between the rise of a cosmopolitan dimension of international law in the wake of the Second World War, and the content of the European Jewish experience? How did the latter become significant for the former?

In Exile, Statelessness and Migration, in exploring these developments, I focused primarily on the intellectual history of German Jewry. As Pensky rightly points out, two recent books ³ treating these topics focus on the experience of East European Jewry in Poland, Lithuania and Galicia. Both works emphasize that these communities had cultural and legal autonomy rights that permitted them more extensive self-government privileges than was the case for German Jewry. In particular, the ‘minority rights’ principle proclaimed by the League of Nations made the ideals of self-government for ethnic and religious communities within the nation states of these territories seem plausible. Steeped in Hebrew language, culture and lore, these communities had rich collective lives and did not suffer as intensely from the predicament of Goldstein’s ‘eternally half-other’ as did German Jews. As Sands’ work clarifies, it is no coincidence that Ralph Lemkin developed his concept of ‘genocide’ on the basis of the conviction that ethnocultural groups were entitled to rights of self-expression and self-governance; and that the destruction of such autonomy was against the law of nations. What prevailed after WWII, however, was not thinking on behalf of group rights; they were discredited after the failure of the League of Nations to protect them. Rather, the more individualistically oriented principle of ‘crimes against humanity’ won the day. The British Prosecutors at the Nuremberg Trials preferred Lauterpacht’s formulation to Lemkin’s more alien-sounding conceptual concoction mixing Greek and Latin – genos (Gk. group, kind) and cide (Latin, act of killing), yielding ‘genocide’.

The one theorist treated in my book who was deeply familiar with and immersed in these legal theories is Judith Shklar. While Hannah Arendt was poring over the transcripts of the Eichmann trial, which she had brought back with her from Jerusalem to New York, a little-known Lecturer in the Government Department at Harvard University by the name of Judith Nisse Shklar published Legalism. An Essay on Law, Morals and Politics in 1964 (Harvard University Press). What Shklar called her ‘bare bones liberalism’ (Legalism, 5) carried the indelible marks of disbelief in the face of a world gone insane. Yet what is distinctive about her voice as an emigré political theorist, and what sets her apart from Strauss and Arendt, both half a generation older than she, is the lack of pathos with which she registered the destruction of her familial world and the end of her childhood. Although brought up in a German-speaking Jewish household, Shklar was not a German-Jewish philosopher.

Educated at Harvard by the émigré Weimar political and legal theorist, Carl J Friedrich, Shklar is one of the first to address the philosophical puzzles of international criminal law in the post-WWII period. ‘There was and is no system of international criminal law’, she wrote, ‘just as there are no international community and international political institutions to formulate or regularly enforce criminal laws’ (Legalism, 157). Despite her almost militant dismissal of international criminal law, Shklar reaches the surprising conclusion that, ‘What makes the Nuremberg Trial so remarkable is that, in the absence of strict legal justification, it was a great legalistic act, the most legalistic of all possible policies, and, as such, a powerful inspiration to legalistic ethos’ (Legalism, 170). While the trial was a political one in that it aimed to punish a political enemy and its ideology, ‘it need have given offense neither to legalistic nor to liberal values’. And it was ‘[o]nly because the crimes against humanity were the moral center of the case that all this was possible’ (Legalism, 170).

Shklar says nothing about the justification of crimes against humanity. The form of perverted legalistic consciousness, exercised by the likes of Eichmann, clearly was what Shklar also had in mind by ‘legalism’, that is, blind obedience to orders and the law of the land, no matter how perverse and criminal they may be. Yet by leaving the concept of crimes against humanity so unelaborated and philosophically unjustified, she left her own argument open to the charge of ‘Siegerjustiz’ (victor’s justice). ‘As for the Eichmann case it, too, does not really create new problems for legal theory’, she writes. ‘Eichmann, alas, was always a Jewish problem’ (Legalism, 155, my emphasis). According to her, from the non-legal point of view, the trial had to be judged in terms of its political value for the various Jewish communities involved, but from a theoretical point of view, the problems being the same in Nuremberg and in the Eichmann Trial, there was no need to consider them separately (ESM, 133–35).

This is not so, however. Without the evidence concerning the Nazi genocide of the Jews, which was not all that central to the Nuremberg Trials, ‘crimes against humanity’ hangs in mid-air. In this sense, the Eichmann Trial contributed far more to the project of international criminal law than Shklar may have been willing to admit. Pensky calls attention to Arendt’s odd defence of Israel’s right to prosecute Eichmann on the basis of her interpreting ‘territoriality’ not merely as a geographic term but as ‘the space between individuals in a group whose members are bound to, and at the same time separated and protected from each other’ and asks:

This understanding of the crime of genocide as the murder of plurality, as world-destroying rather than group-destroying, is an exemplary instance of jurisgenerativity. Is it also a chapter in a broader, progressive story, one including the rise of a global human rights culture, or the normative re-foundation of international law?

III

It has often been noted that Jewish intellectuals enjoyed a ‘particularistic monopoly on universalism’. It is the merit of José Medina’s trenchant reflections, ‘The Other Within: Agency and Resistance under Conditions of Exclusion’, to extract the universalistic kernel from the particularistic shell of the European Jewish experience. He introduces the term ‘constitutive exclusions’ to locate ‘these exclusions not only in the failures of states but also in their proper functioning, that is, in their very design and constitutive structures’. The exclusion of colonized populations, enslaved populations, imprisoned populations, of so-called ‘illegal aliens’, in his view, is more than the failure of the liberal democratic states to realize the universalistic promise of human rights or to sustain the promises of international law. Generating exclusions and creating ever new forms of othering are intrinsic to the modern state.

Although Medina does not distinguish between the liberal democratic state and other state forms, I would like to argue that constitutive exclusions are generated by liberal democracies in particular. Precisely because these state forms hold out the universalist promise of inclusion via citizenship and human rights, they can only justify not granting them to certain human groups by othering them. In authoritarian and autocratic regimes or in multinational empires of the past, for example, every human group has its place in a particular hierarchy, sanctified either by divine order, by ancient cosmology or simply by the grace, wisdom and generosity of the autocratic leader. Think here of the Chinese, Ottoman and ancient Aztec Empires.

This should lead us to ask what exactly is the mechanism generating constitutive exclusions if not the failed promises of universalism itself? I think it is also the principle of territorially circumscribed sovereignty that defines itself internally and externally against other such sovereignties. The exercise of territorial control can only be fulfilled through the demarcation from other lands, often achieved through war and occasionally achieved through agreement and/or purchase. This legacy of conquest and domination creates others within who may ostensibly have the legal rights of residency and citizenship but who remain social, cultural and often legal strangers. I know of no modern nation state whose history does not testify to this truth. Thinking about the constitutive violence at the core of this political formation, we should also note that the histories of imperialism and migration are deeply and not only accidentally related: most migrants to the resource-rich countries of Europe and North America, Canada and Australia are ex- and postcolonials whose lives have been impacted and imbricated in the formation of these nation states. This is the way in which the ‘empire strikes back’.

I agree with Medina that ‘exile and statelessness begin at home, that is, they always start with an internal form of exclusion’. Some excluded subjects can escape and become migrants; others are stuck in the very community that rejects them. Given that only around 3.4% of the world’s population are international migrants, crossing recognized state boundaries, the vast majority of the world’s population suffer otherness within because of economic poverty and discrimination, ethno-racial exclusion, and even, incarceration. Medina is sceptical that jurisgenerative politics can provide answers here and he challenges me to expand on the relationship between legal agency and social and political agency.

By jurisgenerativity, I mean that,

Law’s normativity does not consist in its grounds of formal validity alone, though this is crucial. Law can also structure an extralegal normative universe by developing new vocabularies for public claimmaking; by encouraging new forms of subjectivity to engage with the public sphere and by interjecting existing relations of power with anticipations of justice to come. (ESM, 28)

In formulating this concept, I had two objectives in mind: first, I wanted to counter the very-widespread view in contemporary thought that law was an instrument of domination and control alone, without, however, wanting to deny the law’s jurispathic aspects which led people to lose their freedom, their lives and very often their dignity as well. Didier Fassin’s concept of ‘humanitarian reason’, which I discuss at length in chapter 6, shows the power of such a Foucaultian analysis when it is applied to the administration of the 1951 Refugee Convention by states which, on the one hand, attempt to uphold the Convention, while, on the other hand, reduce refugees to abject subjects of administrative detention, manipulation and increasingly incarceration (ESM, 115–21).

Yet there is something empowering in being able to claim one’s rights and to become the voice of justice rather than its object. Rancière’s phrase, ‘The Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’ (see ESM, 117), expresses the paradox that one does not have rights but needs to enact them and that it is this enactment which empowers one to become a rights-bearing subject.

As the experience of the international women’s movement – among others – has shown, this process of empowerment signals not only the emergence of new agents of justice, it exposes assumptions that every legal system makes about who the legal person is – her colour, her sexuality, her gender and her ethnicity. Militant jurisgenerative politics should lead to a critique of the law and to a general transvaluation of its categories by challenging the laws’ hidden assumptions. In order to show that such norm-development is not merely a story of progress (also feared by Pensky), in chapter 6, I focused on international refugee protection law precisely to show how contemporary international law protected migrant workers but excluded the undocumented; how the law privileged the politically persecuted but denied refugee status to those who suffered economic violence and so on. The dialectic of identity and otherness accompanies legal categories and needs to be challenged repeatedly by excluded and marginalized groups.

IV

If one were to ask for an ideal historical example of Medina’s concept of constitutive exclusions, one could not find a better one than the fate of the State of Israel. For Arendt and Shklar, Israeli politics were a tragic heartbreak – although Shklar refrained from publicly expressing herself on the matter. ⁴ Isaiah Berlin, by contrast, greeted the founding of Israel and even risked his own loyalty to the British government during the time that he served in Washington, by tipping a Zionist publisher that the US and British governments intended to oppose Zionist agitation. The leak found its way to the US Secretary of the Treasure Henry Morgenthau and other members of Jewish organizations who were militating for the establishment of the State of Israel (ESM, 176–77).

In ‘Exit, Voice, Loyalty: The Case of the BDS’, Adi Ophir challenges me for engaging in a brief but ‘fierce polemic’ against the Boycott, Divestment and Sanctions Movement (BDS) and Judith Butler’s support for it (see ESM, 96–100). He also notes, however, that ‘At stake is the very possibility of belonging to the Jewish people while accepting – or refusing to accept – the current Zionist interpretation of Jewish nationalism, which makes the eternal reproduction of the statelessness of others a precondition for ending Jewish statelessness.…. In its broad outline, both Butler and Benhabib share this vision’ (4–5). Emphasis in the original.

Indeed, one of my goals in writing Exile, Statelessness, and Migration was to recall the rich variety of life forms of diasporic Judaism and to decentre the claustrophobic focus on what Ophir calls the ‘most decisive factor of Jewish history in our times’, namely, the Israeli–Palestinian conflict. While wholly agreeing with him on the need to oppose Israel’s illegal occupation of Palestinian territories, its dispossession of Palestinian people and its discrimination against Arab citizens, by reconstructing the lives of Jewish intellectuals of a more cosmopolitan dispositions, I intended to challenge a central premise of Zionism that life outside Israel is a form of Galut, a form of exile, that is a condition of permanent homelessness. As Moritz Goldstein noted early on in the 20th century, Jews share some form of metaphysical homelessness under conditions of modernity with millions of others and it is foolish to believe that living in a nation state of one’s own people is the solution to this (ESM, 17–18). What creative political, social and cultural forms of life can and have emerged in the diaspora if one does not choose the Zionist option?

Surely, I do not want to deny the special bond that diasporic Jews feel towards Israel. Ophir brilliantly deploys Albert Hirschman’s categories of ‘exit, voice, and loyalty’ to defend the BDS movement and to argue that Jews world-over are ‘stakeholders’ in the State of Israel both in terms of their material support and in terms of their political and spiritual loyalty. The BDS movement challenges this loyalty and encourages exit of world Jews from being active stakeholders.

The real ingenuity in Ophir’s argument is to show how Hirschman’s categories apply to the condition of the Palestinians:

The Palestinians who have issued the BDS call are in precisely this situation. All their previous attempts to use voice – with or without recourse to violence – in order to address the organization that rules them and change the way they are governed have failed…. Whether they are second class citizens, right-less non-citizens in the Occupied Territories or descendants of refugees living outside Palestine – the state responsible for their dispossession, daily humiliation, and political oppression ignores their grievances.

Wherein lies our disagreement? Why not view the BDS movement as deploying the weapons of the weak and showing forms of collective resistance of the kind called for by José Medina? Paraphrasing John Rawls’s famous phrase, I would like to say that for me whether or not one supports BDS is a political and not a metaphysical question. Not all resistance movements are emancipatory. BDS may be but at the time I wrote my critique two reservations were of concern to me and they still are: First, I have a different reading than Ophir does about the politics of Arab nationalism, the Palestinian Hamas and Hizbollah movements, and the Realpolitik constellation in the post-9/11 Middle East. As I have argued in a volume emerging out of the nearly decade-long Istanbul Seminars with the collaboration of the RESET Foundation and Philosophy and Social Criticism, the third-worldist, authoritarian nationalist and masculinist ideology that dominated liberation movements in this region of the world from Nasserism to Hamas are dead. ⁵ They have been replaced either by Islamic fundamentalism, of which Hamas is a proponent, or a kind of autocratic conservativism a la Erdogan, also with Islamist tendencies. I can only support a BDS movement which distances itself from both legacies and which does not solely address the guilty conscience of western academics.

There are progressive organizations in Israel–Palestine with whose goals I identify. For example, Adalah ⁶ is an organization that uses Israeli and international law to litigate against the Israeli Occupation of the territories; to disclose Israel’s violation of international norms; and to use the Israeli constitution to prosecute the discrimination and second-class citizenship of Israeli Arabs. I consider such measures together with the massive electoral participation of Israel’s Arab citizens in the electoral process to be more promising than the BDS movement.

My second reservation about BDS is this: Ophir seems quite sanguine that pressure upon Israel through the exit of diasporic Jews via withholding material and spiritual support will mobilize Israeli citizens to withhold legitimacy from their own governments. My assessment is the opposite: while I whole-heartedly support the rigorous critique of current Israeli government policies, I fear that one consequence of worldwide support for a BDS movement will be the activation of Israel’s Masada complex, reviving memories in Jewish history when a small group of isolated Jews withstood the onslaught of the Romans. ⁷ Another reaction will be Israel’s turn to illiberalism and even towards a form of Jewish fascism. Both tendencies gained steam under the Netanyahu regime, which may be nearing its end within the next months. Under Netanyahu, Israel has moved away from liberal democracies towards the autocratic regimes of Russia, China and India which do not exert moral pressure on it about the lot of the Palestinians. This does not mean that we, as Jewish citizens of our own republics, should not continue to criticize Israel, but only that we should be very clear about the changing world-constellation in an era when the United States has itself abdicated the post-WWII liberal order.

My belief is that in the long term only a kind of confederation of Israeli and Palestinian peoples, with two Parliaments and two electoral systems, but a common defence and security policy over territory and air space, sharing water and natural resources is a viable solution. ⁸ The Israeli state would not be dismantled but Israeli sovereignty would be disaggregated – as it is now with the many states of the European Union. Peace and security are collective goods that can only be achieved multilaterally. Unfortunately, the dominant illusion in Israel is that only a country armed to the teeth and in possession of nuclear weapons can guarantee its own security. Instead, what results is not peace but continuing conflict, occupation and oppression of the Palestinian people.

In opposing the militaristic and fascistic tendencies of current Israeli politics, Adi Ophir and I are on the same side. Our disagreement is one of tactics and not of ethics.