In Justice for Some, Noura Erakat makes the noteworthy achievement of tracing the relationship between law and politics over a span of 100 years from 1917–2017 to narrate the question of Palestine. Through a lens of critical legal theory, she illustrates that in order to achieve law's emancipatory potential, Palestinians must wield the law in service of a political movement. Erakat writes a book that is both accessible to the non-lawyer and that serves as a critical analysis of law, history, diplomacy, and a political intervention in service of Palestinian freedom.
Erakat succinctly summarizes her analytical framework through an analogy. Law, she writes, is like the sail of a boat. While the sail guarantees motion, the wind—comprised of political mobilization and “legal work”—determines the boat's direction (p. 11). The concept of legal work, developed by legal scholar Duncan Kennedy, entails “the work that the legal actor performs to achieve a desired outcome” (p. 7). The idea is premised on the notion that law is indeterminate because it must be interpreted by lawyers and adjudicated by judges. Accordingly, actors undertake legal work to transform legal norms in order to suit their extralegal preferences.
Acknowledging that this indeterminacy results in the law being both the site of oppression and resistance, Erakat employs this framework to reveal how the same law takes on different meanings depending on the historical context, the geopolitics of the region, and the legal work of state and non-state actors. Each of her five chapters covers a time period during which a particular moment creates an opportunity to reinterpret the law.
The beginning of the first time period, 1917–66, began with the Balfour Declaration, which privileged Jewish Zionist settlers and was incorporated in the text of the British Mandate for Palestine in 1922. Britain declined to accept the principle of self-determination as it pertains to Palestinians because of Palestine's “absolutely exceptional” quality. Accordingly, Britain institutionalized a specialized, or sui generis, Mandate to enable Jewish settlement while suppressing Palestinian self-determination and self-governance, rendering Palestinian legal claims non-justiciable.
Sui generis, Latin for “one of a kind,” is an exceptional fact pattern that allows a sovereign to create new law given that there is no precedent. Britain's deployment of this sui generis framework resulted in an alternative legal model that placed Palestinians outside the law. Erakat draws the reader's attention to how Israel subsequently employed this sui generis reasoning in its legal work, starting with declaring martial law and a state of emergency that governed Palestinians inside Israel between 1948 and 1966—the same martial law that Britain declared during the Great Revolt in the 1930s. This state of emergency, Erakat explains, paved the long path of Israel's colonial confiscation of Palestinian land.
Israel's occupation of the West Bank, Gaza, and the Golan Heights following the 1967 war precipitated the second juncture when Israel claimed that the lack of a sovereign in the West Bank and Gaza prior to 1967 implied that the territories are sui generis. Thus, Israel argued, it is the sovereign authority and is relieved of occupation law's obligations to protect Palestinian sovereign rights. The result of Israel's legal work, Erakat explains, is that Palestinians are non-citizens of Israel and lack sovereign rights under occupation.
The 1973 October War gave rise to the third juncture and created a shift in the regional and international balance of power, allowing the Palestine Liberation Organization (PLO) to achieve diplomatic recognition as the sole and legitimate representative of the Palestinian people. Because of its legal work during a revolutionary moment in the UN in which former colonies became new member states after fighting wars of liberation, Erakat argues, the PLO was able to create new law by passing UN Resolutions 3236 and 3237. These resolutions affirmed the right to self-determination without preconditions and invited the PLO to achieve nonmember observer status in the UN.
The start of the first intifada, or popular uprising, in 1987 sparked the fourth juncture of 1987–2000 when, as Erakat demonstrates, the law continued to be shaped by political realities. While the United States leveraged its victory in the first Gulf War, the PLO experienced a vulnerable position in exile and negotiated an agreement with Israel, in which it gained recognition in exchange for accepting “sovereignty” over fragmented land. In back channel negotiations, the PLO agreed in the Oslo Accords to exclude reference to international law, including UN Resolution 242, the Geneva Conventions, and the PLO's achievements in the UN during the 1970s. This era, Erakat skillfully illustrates, ushered in a new exception—one that suspends international law in order to achieve a political resolution.
The most recent time period Erakat examines begins in 2000 at the start of the second intifada. Erakat reveals how, through legal work, Israel expanded its use of force, waging war against a population that it argued had no legal right to fight back. In order to do so, Israel ignored existing frameworks within international humanitarian law, which legitimate Palestinian use of force, and created a new category of “armed conflict short of war.”
Erakat concludes by showing how Israel's legal work, whether through martial law in the West Bank, warfare in Gaza, or civil law in Israel, has allowed it to meet its goal of colonizing as much land with as few Palestinians on it. Despite their success, rights-based movements such as the Boycott, Divestment, and Sanctions (BDS) movement, Erakat argues, must be coupled with a political goal. To this end, Erakat urges a need for radical imagination to reach an optimal future and borrows from Afro Futurism and indigenous struggles globally to think about freedom.
Throughout her book, Erakat strikes a fine balance between critiquing international law and its imperial colonial origins that uphold an asymmetry of rights and discussing the emancipatory potential of law if used in service of a political movement. Her analytical framework of law as the sail of a boat allows her to achieve this balance. Sometimes the law will not be beneficial and advocates must demand a new sail or abandon the sail altogether.
To this end, Erakat brilliantly leads the reader to draw parallels between historical moments and current events. For example, when Erakat discusses the success of the three year Palestinian strike in the 1930s and how that, along with the Great Revolt, accomplished what decades of legal and diplomatic advocacy could not, a critical reader is left thinking about failed peace negotiations on the one hand, and the promise of current Palestinian civil society organizing on the other.
Despite examining the early question of Palestine as a native people desiring an independent state, Erakat makes a timely intervention that the state is not the only path to freedom, as it “does not adequately treat the conditions of unfreedom” (p. 21). Erakat provides an often missing critical analysis of a state centric solution both in her examination of the past and the present. For example, in her discussion of Yasser Arafat's lauded 1974 speech at the UN General Assembly, she acknowledges that his presence embodied a “struggle to achieve recognition as people entitled to self-determination” but pointed out that this suggested accepting a state centric global order (pp. 97–98). Even today and despite it often serving as a model for realizing refugee right of return and for full inclusion, Erakat is wary of the danger of a one state solution without a decolonization framework.
Finally and very importantly, Erakat's interviews of living Palestinian historians, scholars, and lawyers who were involved in some capacity at each juncture she examines is an immeasurable contribution to existing literature. Often Palestinian history is not written by Palestinians, and so the need to contribute to a Palestinian archive is imperative.
One issue that Erakat briefly touches on, but that may merit more discussion, is where the lack of enforcement mechanisms for international law violations fits within her framework. One may argue that substantive law is on the side of Palestinians; for instance, only Israel and a minority of states subscribe to Israel's legal work that it is not an occupying power because there was no sovereign in the occupied territories prior to 1967. Accordingly, the argument goes, the only problem is the lack of enforcement mechanisms. However, the lack of enforcement mechanisms, embodied through dynamics such as persistent US vetoes at the UN Security Council, may cease to be a problem, Erakat is likely to respond, if advocates conduct legal work and apply political pressure in service of a political movement. Moreover, even if the law cannot punish, Erakat writes, it can impact diplomatic responses to the question of Palestine.
Justice for Some can captivate multiple audiences: it is a theory book that contributes to understanding the relationship between law and politics; a history book that narrates the question of Palestine through the relationship between law and politics; and a much needed intervention at this moment in history that advocates for critical analysis in service of Palestinian freedom.
