Surveying some of the recent debates among Israeli intellectuals about the possibilities of a lasting peace agreement with the Palestinians, Peter Berkowitz criticizes those who, out of frustration with the political-diplomatic process, want to use the law—usually expressed in the dubious claim that international law renders any Israeli presence in the West Bank illegal—to force a resolution:
[This line of argumentation] illuminates the dangerous propensity of liberal democracies, against which Tocqueville warned 180 years ago, to transform political questions into legal ones.
The “juridification of politics”—to borrow a term from the French thinker Alexandre Kojève—erodes citizens’ civic habits by depriving them of the opportunity to resolve political controversies through democratic give-and-take. It also distorts those controversies, which are inextricably bound up with conflicting interests and perceptions, contingent events, and prudential judgments. To subject them to legal reasoning that purports to yield rational, objective, and necessary judgments is to pretend that one right answer is available for disputes that can only be managed through compromise and mutual accommodation. . . .
American efforts to ease the Israeli-Palestinian conflict should [instead] focus on making peace more valuable to Palestinians by promoting in the West Bank the protection of rights; popular rule; and industrialization, commerce, and trade. [But] the challenge is likely to remain vexing. That’s because the means available to the United States—as well as to Israel, surrounding Arab nations, Europe, and the world community—to transform Palestinian ethnic and social bonds, cultural judgments, and religious beliefs are quite limited.