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Realistic Liberalism
A Response to Lama Abu-Odeh's "The Case for Binationalism"

Louis Michael Seidman

Lama Abu-Odeh's proposal for a binational Israeli-Palestinian state is bold, courageous, and moving. People with entrenched interests in old and tired ways of thinking about the problem—that is to say, almost all the participants in the dispute—are bound to dismiss her ideas as utopian or worse. An entirely sufficient answer to these complaints is that all the alternative courses of action have reached a dead end. Abu-Odeh's proposal is indeed utopian if one is prepared to give up on the hope that the conflict over Israel/Palestine can yet be resolved without denying the common humanity and aspirations of the people who live there. Of course, a two-state solution is also utopian in this sense. And we may indeed have reached the stage where any proposal that avoids a blood-soaked disaster can be dismissed as utopian. Still, Israelis and Palestinians alike are wrong if they suppose that they can inflict devastation on the other side while avoiding it themselves. In the current environment, utopianism is the only real option.

I will leave to others who are more knowledgeable the difficult and crucial task of turning a utopian sketch into a practical blueprint for action. Instead, in this brief response, I want to locate Abu-Odeh's ideas within the a broader, evolving discussion among progressives about the political valence of nationalism.

At first, it may seem that Abu-Odeh's proposal runs counter to the main thrust of that discussion. There was a time, of course, when most progressives were universalists. Socialism was supposed to be an international movement, and working class solidarity was supposed to transcend national and ethnic boundaries. For the universalist left, nationalism was a trap used by an entrenched ruling class to prevent workers from understanding their own interests.

Although left universalism retains a vestigial hold on some progressives, many others have come to see it as naive and misguided. The problem is not simply that many workers have remained stubbornly attached to their national and ethnic identities. It is also that for many modern progressives universalism itself is a trap. They claim that it is not nationalism, but the suppression of nationalist impulses by liberal constitutionalism, that obstructs meaningful change.

Progressives of this stripe want to unmask the false facade of neutrality and objectivity that hides what they see as the real nature of liberal constitutionalism. Liberal constitutionalism is not, and cannot be, a neutral arbiter between contending groups, they claim. Instead, it adopts the rhetoric of neutrality and rationality to legitimate institutions and outcomes that favor powerful interests.

Left nationalism has had a profound influence on the movement for racial and gender justice, where older integrationist ideals are under assault by advocates of identity politics. For obvious reasons, those convinced by the rhetoric of this politics are likely to view Abu-Odeh's proposal with profound suspicion. Civil rights law cannot bring liberation, they will claim, because civil rights law is an empty vessel that will inevitably be filled by those who exercise social power. What is worse, civil rights law is positively harmful because it allows the dispossessed to win just often enough to make the overall system appear just without actually doing anything significant to make it just. On this view, the civil rights revolution in this country has made the continued subjugation of African Americans seem like it is their own fault. If Abu-Odeh's proposal were ever put into effect, it would do the same for Palestinians.

Although there is surely something to this worry, the Palestinian example also reveals a significant flaw in the nationalist position. Left nationalism rests on a crucial non sequitur. Beginning from the premise that the neutrality of liberal constitutionalism is a fraud, left nationalists reach the conclusion that the oppressed should have more power. But if neutrality is in fact a fraud, then there is no reason why oppressors should even pretend to be neutral. The unmasking of liberal constitutionalism leaves nothing but force to take its place, and the brute fact is that the Israeli army has overwhelming force at its disposal.

There is thus reason to think that Abu-Odeh is right to prefer Israeli lawyers to Israeli generals. Even if we grant all the criticisms of the civil rights revolution in the United States (and, to be clear about it, I'm quite prepared to grant them), my guess is that many Palestinians on the West Bank would gladly trade places with African Americans in the United States. Liberal constitutionalism may indeed help prop up unjust regimes, but it is nonetheless often inclusive enough to allow advances that cannot always be achieved by the raw power available to oppressed groups.

Moreover, it is simply wrong to suppose that the choice is between naive left universalism and self-defeating left nationalism. There is a version of liberal constitutionalism that recognizes the hollowness of civil rights rhetoric while taking advantage of it to achieve progress. Indeed, it may be the very emptiness of the rhetoric that allows progress.

The liberal constitutional tradition is closely associated with a contractarian political theory that imagines a final working out of conflict that divides groups. It is this final working out—often in the form of a "neutral" written constitution—that avoids a war of all against all. Left nationalists are right to deny the possibility of a constitution that is both determinate and neutral. But they tend to ignore the virtue of indeterminacy. Perhaps the greatest advantage of a liberal state is that the very emptiness of constitutionalism—its failure to achieve a final, neutral resolution of social conflict—provides the space within which oppressed groups can find a measure of justice.

At least that is the hope that Abu-Odeh's proposal holds out. One must concede that the hope is fragile. As things currently stand in the Middle East, it is hard to know what else to hope for if Abu-Odeh turns out to be wrong.<



Louis Michael Seidman is professor of law at Georgetown University. His new book is Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review.

Return to the forum on Binationalism, with Lama Abu-Odeh and respondents.


Originally Published in December 2001/January 2002 issue of the Boston Review



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