Luis Fleischman

Adjunct Professor of Sociology and Political Science, Barry University

The new antisemitism is no doubt subtler and more hegemonic than ever before.

It is not founded on direct delirious antisemitic attacks, but on intellectual constructions. Its agents are neither violent para-military groups nor monstrous like skin-heads or white supremacists. The target is not Jews per se in the way classic antisemitism has done it. However, it is still a flagrant attack against the only Jewish state, created specifically to provide protection and national emancipation to the Jewish people. The agents that carry this message include academics, media outlets, artists, much of the New Left, protest movements in the U.S such as Black Lives Matter, and a number of Jews and Israelis in addition to a substantial number of Arabs and Palestinians. The main thrust of the criticism is not solely Israeli policies, but the very legitimacy of Israel as nation of the Jewish people. Israel’s creation is portrayed as an act of theft, murder and oppression.

The de-legitimization of Israel is the main expression and the most worrisome aspect of modern antisemitism as it singles out the Jewish state, alone among all the nations of the world, as a scoundrel state that has illicit origins. As former Harvard University President Larry Summers has pointed out, constant attacks on the Jewish state and attempts at delegitimizing Israel cause antisemitism in effect, even if we give the benefit of the doubt that such antisemitism is not intended.

In this essay, I will focus on the question of what makes Israel legitimate. I will try to explore this question within the framework of sociology of law and politics.

The Question of Legitimacy

As modern societies become more complex, traditional forms of life and ethics diminish. They are characterized by countless number of conflicts that arise from modernization, secularization, the increased role of the economy and conflicts within civil society. Therefore, the law has developed into a formal mechanism that can be the result of compromise between a multiplicity of claims. Modern positive law is the outcome of diverse inputs and contradictions in modern society. Furthermore, its legal product constitutes a regulatory formal mechanism to resolve future conflicting interests, which is a legal structure for future reference.

Thus, law is no longer bound by what ought to be or by criteria of what is immanently good or bad. It is not based on Christianity, Islam, Judaism or any dogmatic imperatives. Nor is it based on old concepts of natural law, in which rights are conceived as obvious and natural based on certain conceptions about human nature. As Max Weber explains, “the disappearance of old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity… Law is the product of technical means aimed at compromising.”^[1]

Furthermore, the philosopher George Wilhelm Friederich Hegel argues that rights acquire their universality and validity through positive law: “Right becomes determinate in the first place when it has the form of being posted as positive law.” More importantly, Hegel points out that the existence of positive law enables to terminate vacillation in the interest of getting something done. The matter needs to be “settled and decided somehow.”^[2] In other words, the idea of having rights set in positive law is the outcome of the recognition that rights can be subjectively defined and stand in contradiction to each other. The written law enables standards through which rights can have validity. At the same time, the law could be made predictable and calculable so that the outcomes or decisions by judges could be legitimate and practical.

Yet, positive law does not have its own legal validity through procedure alone. Substantive elements that provide legitimacy to legal decisions must be present.^[3] Thus, how is this modern principle of positive law translated into international law?

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_{^[1] Weber, Max, Economy and Society, Roth, Gunther and Witich, Clauss (eds). Berkley: University of California Press, 1978, pp 874-875}

_{^[2] G.W Hegel, Philosophy of Right, Oxford University Press, London, 1967 p. 137}

_{^[3] Habermas, Jurgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, The MIT Press, Cambridge Massachusetts, 1996, p. 42-56}