The Jews’ Right To Statehood: A Defense

By Ruth Gavison

A new look at Zionism from the perspective of universal rights.

This approach necessarily distinguishes between claims regarding the legitimacy of Israel’s creation and claims regarding the right of Israel, once established, to maintain itself as a Jewish state. Such a dichotomy contrasts sharply with the view of most Arab leaders and intellectuals, who insist that Israel was wrongfully established and that its continued existence today is ipso facto unjustified. It is important to see that the two are not necessarily connected. For even if there was no justification for the creation of a Jewish state in 1948—a claim which I do not accept—it does not follow that the preservation of Israel as a Jewish state is unjustified today. Similarly, even if we accept the establishment of Israel in 1948 as justified, one would still have to show why the preservation of Israel’s Jewish character is legitimate today. The point here is that changing conditions affect the balance of legitimacy, and therefore no claim to self-determination can be absolute. This approach, which may appear at first glance to weaken the case for the Jewish state by making it contingent, to my mind provides one of the strongest universal arguments in its favor.
To see why this is so, it is instructive to divide the history of modern Jewish settlement in the land of Israel into five distinct periods, and to consider the degree to which a Jewish state was justified in each of them. Relevant factors include the size of the Jewish and Arab populations in the land of Israel or in parts of it; the alternatives available to the two communities; the situation of Jewish communities in the diaspora; the relationship of the Jewish people to the land; Jewish-Arab relations; the decisions made by those in charge of the territory prior to statehood; and the status of Arab citizens under Israeli rule.
The first period covers the end of the nineteenth and the beginning of the twentieth centuries, when the Zionist idea was first translated into concerted action. There is no disputing the fact that, at the time, the Arab population in Palestine was far greater than that of the Jews, despite the steady stream of Jewish immigration throughout the preceding generations.9 This disparity reflected the centuries-long absence of a Jewish majority in the land of Israel, initially the result of expulsions and persecutions and later of free choice. In this period, the Jewish people did not have the right to establish a state in any part of the land of Israel, for the right of a people to establish a state in a given territory requires that it constitute a clear majority in all or part of it. The Jewish people may have longed for and prayed toward their land, but very few chose to make it their home.10
The important question concerning this period, however, is not the right of the Jews to sovereignty in Palestine, but rather their liberty to create a settlement infrastructure that would enable them to establish a Jewish state at a later date. From the Arab perspective, such settlement was illegitimate at its core, since it was harmful to Arab interests and limited their control over the public domain. The claim that Jewish settlement harmed Arab interests is certainly understandable, and the fears that lay at its core were no doubt warranted. But did these fears place a moral obligation on the Jewish people to refrain from returning to their homeland?
I do not believe so. To understand why this is the case, it is useful to employ the distinction between “rights” and “liberties” first introduced by the American jurist Wesley Newcomb Hohfeld. According to Hohfeld, we may speak of a liberty when there is no obligation to act or refrain from acting in a certain manner.. A right, on the other hand, means that others have an obligation not to interfere with, or to grant the possibility of, my acting in a certain manner. Using this model, we may say that as long as their actions were legal and non-violent, the Jewish settlers were at liberty to enlarge their numbers among the local population, even with the declared and specific intent of establishing the infrastructure for a future Jewish state.11 Their liberty to create such an infrastructure was certainly greater, for example, than that of England and Spain to settle the Americas, and Palestine was certainly a more legitimate destination than Uganda or Argentina. The immigration of Jews to Palestine was vastly different from colonialism, both with respect to their situation in their countries of origin and with respect to their relationship with the land itself. Unlike colonial powers, the Jews were a people in exile, foreigners wherever they went; they were everywhere a minority, and in some places persecuted relentlessly; and they had never possessed national sovereignty over any land but the land of Israel. Add to this their profound cultural and religious bond to the land, and you have a solid basis for a unique connection between the Jews and the land of Israel–one far more compelling than the claims of a typical group of European settlers.
It was in fact precisely the power of this connection that made the local Arabs see Jewish immigration as far more threatening than any influx of English or French colonists. In light of the Jews’ historical connection to the land of Israel, the Arabs correctly understood the waves of Zionist immigration as something new, unlike the conquest of the Crusaders during medieval times or the settlement of the British under the Mandate.12 Considering the threat that Jewish settlement posed to the continued existence of a Muslim public culture in Palestine, the Arab population certainly had full liberty to take steps to resist this settlement, so long as they did not infringe on any basic human rights or violate the laws of the land. Thus, while the Arabs’ success in persuading the authorities to limit immigration and land purchases was a setback to Zionism, it was in no way a violation of the Jews’ rights.
When the Arabs realized that diplomatic measures alone could not prevent the creation of the infrastructure for Jewish settlement, however, they turned to violence as a means of resistance. This clearly was a violation of the rights of the Jews, and it was here that the great tragedy of Jewish-Arab relations began. The violent resistance of the Arabs ultimately lent significant weight to the Jewish claim to a sovereign state, and not merely to self-determination within a non-state framework. From the 1920s until today, one of the strongest arguments for Jewish statehood has been the fact that the security of Jews as individuals and as a collective cannot be secured without it.
Both Jews and Arabs attach great importance to this early period, and both sides continue to ignore certain facts about it. The great majority of Arabs believe that Jewish settlement was both illegal and immoral; even those willing to accept the current regime still refuse to recognize the legitimacy of the Jewish national movement. As a result, we hear the constant repetition of the claim that Zionism is, by its very nature, a form of both colonialism and racism.13 On the other hand, many Jews refuse to accept that Arab objections to Zionist settlement are not only legitimate, but almost inevitable. Now as then, Arab violence turns Jewish attention to the need for self-defense, and few are willing to admit that the original Zionist settlers did not come to an uninhabited land, or that they posed a real threat to local Arab interests.14 As long as each side continues to deny the other’s narratives, hopes, and needs, reconciliation and compromise over the long term are unlikely.
In the second period of the conflict, from the Arab Revolt that began in 1936 to the United Nations partition decision of November 1947, a number of attempts were made to find a solution acceptable to the international community and reflective of the reality in the Mandate territory. While the details differed, each plan suggested division of the territory into Jewish and Arab states in accordance with demographic concentrations, providing for the rights of those who remained outside their own nation state. This approach derived from the recognition of two basic facts: That a critical mass of Jews had formed in Palestine, in certain areas constituting a clear majority; and that the only hope for the region lay in a two-state solution. From the perspective of both sides to the conflict, this approach signaled both a major achievement and a serious setback. The Jews had succeeded in winning international recognition for their right to a sovereign state. The Arabs had succeeded in preventing that state from encompassing all of the territory west of the Jordan River, as was implied in the Balfour Declaration. The ultimate expression of this new approach was the partition plan ratified by the UN General Assembly on November 29, 1947. The Jewish and Arab responses could not have been more different: The Jews accepted partition and declared independence; the Arabs categorically rejected the UN plan and went to war.

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