The words in its title are forbidden. That appears to be the central lesson of the field notes from the June, 2009 conference on models of statehood for Israel/Palestine. The second and third parts of this monograph deal with the mechanisms engaged to enforce the proscription around the one state topic; this part deals with its forbidden history and content.

When the call for papers for our conference came out in the fall of 2008, it was immediately met by one of my colleagues at Osgoode Hall Law School who noted, in a letter of complaint to the Dean, that “politically the ‘one-state solution’ has become a code word disguising a call for the destruction of Israel.” By way of explanation for why he thought Osgoode should not sponsor a conference that to his mind, would only bring controversy and dissension, he rhetorically asked the Dean.

Is there any legal issue per se in connection with the establishment of ‘one state’ in Israel & Palestine? Aren’t the models simple and obvious? Why hide then behind the number of states to be created? Isn’t it that the real issue, other than security, is the repatriation of the 1948 Palestinian refugees to their old homes in Israel? Will this objective not be facilitated by the one-state, certainly much more easily than in the framework of two states? Isn’t it self-explanatory?

By this analysis, the gezerah around the one state model protects the more deeply forbidden idea of the Palestinian refugees’ Right of Return to the place that they consider their homeland; a right that, if exercised, would undermine the Jewish majority in the state of Israel and, with presumably inexorable logic and pragmatics if the state of Israel is to remain democratic, the Jewish nature of the state. The impossibility of a Palestinian Right of Return is thus a fence around the more forbidden idea that the state of Israel might not be Jewish.

The verbotten one state model operates as one of the outer rings of prohibition protecting concentrically increasing sacrosanctity. As we experienced, the fence around the one state model is itself circumscribed by expanding rings of outer structures that ranged from demands for “balance” in discussions about Israel/Palestine to requisite thresholds of civility and scholarship supposedly attendant upon the topic.

The centrality of how fraught any discussion on the one state model would be (at least in the Canadian context) recurred as a theme from before that first email complaint up until the very day of the conference and beyond. As the Organizing Committee sought to gain the participation of local Zionist and two state proponents on our advisory committee – it having been relatively straightforward to secure the participation of Israeli scholars – we were informed by those we approached that the topic of the one state model was too charged for local participation.

Immediately after the letter of complaint went out from my Osgoode colleague, one of our Advisory Committee members, who had been copied on the email, raised with us an issue regarding the title of our conference that had not before occurred to him. As he noted, words exist, as Stanley Fish would say, within an interpretive community. The “One State Solution” has become a euphemism.

It’s not as vile as the “Final Solution”, but it has a similar impact on the reader and listener, and it simply cannot be used without signaling its now commonplace meaning. Most of the people who deploy it mean the “Destroy The Jewish State By Another Means Solution”. Unfortunately, no amount of bona fide explanation by the conference’s organizers can rid the phrase of the use that its most aggressive proponents have made of it.

The original title of the conference (One State or Two?) apparently was ineradicably a code for something far more ominous. It appeared that there could not be a space for discussing alternatives to the more orthodox two state model without triggering concentric rings of security alarms. As a result, it increasingly appeared as though the only legitimate discussions that could take place about statehood in Israel/Palestine were ones that were already received.

The four members of the Organizing Committee in fact had not only a broad scope of views on models of statehood between them, but shared a fair amount of skepticism and ambivalence about any of the models presented. From the outset, we actively sought out the participation of scholars who could represent a range, if not polar opposition, on conceivable ways out of the Middle East impasse.

When the call for papers was answered by a far more complex range of models than suggested by the original title – One State or Two? – we changed the title to reflect the diversity and richness of papers that were beginning to be sent in. Neither the conference vision statement – which was explicit in its aspiration to canvass diverse positions – nor the change in title could shake our critics’ preoccupation with the presence of the one state model as a scholarly topic of inquiry.

That the one state model was the central anxiety of the conference’s critics was reinforced throughout coverage. The Canadian Council for Israel and Jewish Advocacy (CIJA) issued a statement several weeks before the conference stating that “the conference aims to explore a one-state, bi-national solution to the conflict between Israelis and Palestinians, the imposition of which would spell the end of Israel as a Jewish state” and called on people to “write to the President of York University making clear that events like this should not have the sanction of the university.”

On the first day of the conference, the National Post published an article by Stephen Scheinberg and Neil Caplan on what they presumed was the “original political objective of the organizers”, namely the promotion of the one state model. As they noted, We believe that frustration with the lack of progress toward a two-state solution does not provide a sufficient basis for advocating a one-state solution.

Current calls for a one-state solution mask a desire for the disappearance of Israel as a Jewish state. They not only reinforce the demands of fundamentalist groups like Hamas, but also cater to demagogic seekers of “justice” and anti-Israel campus groups.

Some time after the conference, in an article in the Canadian Jewish News announcing a review of the conference by the President and Provost/Vice President Academic of York University to the Jewish community, the presence of the one state model in the themes addressed by a roster of speakers and as a topic of scholarly debate remained central to the Jewish community’s concerns: another issue that concerned many members of the Jewish community was the York-sponsored conference in June called Israel/Palestine: Mapping Models of Statehood and Paths to Peace. The concern stemmed from the fact that a large majority of the speakers promoted a one-state solution to the Israeli-Palestinian conflict – a solution that would mean the end of a Jewish state.

While not all of the furor that arose around the conference was focused on the perils of raising the one state model as a subject of inquiry, it is fair to say that vast bulk of the express anxiety was provoked by this stimulus. The successive proscriptions embedded within the forbidden one state topic fits well with the Talmudic analogy to gzerot established to protect a biblical precept. As with biblical commands within a world of religious pluralism, there is a contingent, contested, and at times radically incommensurable quality to those topics which different communities take – internally – to be indisputable.

The contingent nature of gzerot – the quality of being deeply and meaningfully proscriptive to insiders while potentially perplexing, if not arbitrary or even vexatious, to outsiders – is manifest in the history of these devices. This contingent quality is present even when outsiders have profoundly empathetic responses to the inner logic, even empathy sufficiently deep to be akin to a recognition of necessity.

Gzerot – rabbinical, and therefore human, commandments designed to shore up the sacrosanctity of the divine commands given in the Torah – emerged most prolifically after the fall of the second temple in 70 CE when the center of Jewish lawmaking moved from the land of Israel to the dispersed communities of the Diaspora and the Torah itself became interpretively surrounded by the mishnah and the mishnah by the spiraling complexity of the Talmud.

When the Jews of Europe were enclosed in ghettos – segregated communities that had earlier been preferred by Jewish communities wishing to settle in new towns but became imposed during the renaissance – the authority of rabbinical leaders became entrenched as the ghettos became autonomous and corporate law-making jurisdictions. Rabbinical law flourished commensurately and the distinctiveness of the Talmudic legal tradition was massaged to respond to a plethora of disputes and conundrums both ponderous and mundane. The structure of rabbinical jurisdiction became solidified as the threat of excommunication from a familiar space was given the edge of banishment to a surrounding world of pervasive and persistent anti-Semitism.

When the walls of the ghettos were taken down in the 19th century under the ideals of the Enlightenment and the expansion of the French Revolution through Napoleon, Jews dispersed from the corporate and segregated world of ghettos and aspired towards equal citizenship in their surrounding societies. As a result of the dispersal and of the promise of integration, the jurisdictional scope that the ghettos had afforded the integrity and development of Talmudic law was commensurately diluted. Not only did many Jews assimilate rapidly and sometimes with great success into non-Jewish society, Jewish law lost the solidarity and jurisdictional enclosure that enables many legal traditions to flourish.

This disruption was significant enough that, as Celia Fassberg notes, commentators have observed that by the end of the 19th century, “the rabbinical establishment had missed the opportunity to develop Jewish law in a number of areas crucial to modern life – contracts, torts, commercial institutions, and the like.” The waning robustness of Jewish law is one of several reasons that Jewish law did not play a significant part in the legal system of the new Jewish state.

Not only did integration play a role in retarding the development of Jewish law by dispersing the legal authority from theretofore highly localized communities with steep enforcement mechanisms for non-compliance, the Jewish Enlightenment (Haskalah) that followed upon the release from the ghettos also fractured the prior cohesion of the Jewish people. Where orthodoxy prevailed by default and by imposed context prior to the Haskalah, the Enlightenment’s dispersal of Jewish communities simultaneously fractured the religious community into distinctive clusters that accommodated, to greater and lesser degrees, elements from Europe’s surrounding and emerging modernity.

Beyond the religious fracturing that increasingly dwindled Orthodox Judaism’s monopoly over observants, the free and critical inquiry at the core of the Enlightenment further dispersed Jews into the secularism that was spreading throughout Europe. Over the 19th century, the conception of authority that had governed Jews – seeped in revealed truths and rooted in deeply historical sources, many with absolute validity – gave way to a persuasive authority whose sources were far more plural and hybrid and contentious.

The paradigm of fences built around absolute truths by authorities whose expertise clustered around a highly distinctive set of sources and methodologies shifted, for Jewish as well as non-Jewish Europeans. The corporate pluralism of the Middle Ages and Renaissance gave rise to a far more scattered and complex pluralism just as the concept of citizenship held the promise of embracing far more diverse swathes of society.

As Amos Elon has poignantly laid out in The Pity of It All: A Portrait of the German-Jewish Epoch, 1743-1933, this promise was devastatingly betrayed for Europe’s Jews. The Haskalah transformed the viciously stigmatized and ghettoized Jewish population into a stunningly successful and seemingly fully integrated part of the upper echelons of German society.

Having taken seriously the promise of full and equal citizenship in the European community of nations and the prospects of fecundating millennia of Jewish thought with the fruits of the Enlightenment (and vice versa), Jews found themselves transformed in the European imaginary into deadly threats to national integrity.

No longer having the security of ghettos to retreat to, the pervasive and seemingly ineradicable anti-Semitism of European society exploited the vulnerabilities that arise from the openness of integration, assimilation, and hope. The pedagogy of the Holocaust appears to logically and overwhelmingly reinstate a new absolute around which multiple fences are required, emerging as they do out of the seemingly indelible historical truth of deep-seated anti-Semitism: no state but Israel can ultimately protect the Jews and the state must be Jewish to provide this protection.

This is the logic of an unspeakable pain and grief that is hard to deny. This is an historical logic that, while contingent, is so virtually unassailable and so immediately evocative, also to outsiders, to render it a seeming necessity. It is hard to imagine a group whose terror of dependency on the goodwill of others is more justified.

At this post-deluvial point in history, however, the Jews are dispersed and fractured – both geographically and intellectually – and have been as deeply and widely infused with the Enlightenment’s core value of critical inquiry as the rest of us. Perhaps the best illustration of this is the high level of contestation and disputation that are tolerated within Israel proper, for example in its media and its universities; a tolerance that is often unparalleled in other Western democracies.

Some of the most vocal critics of pronouncements about the unassailable nature of the Israeli state come from Israel itself. When Professor Neve Gordon of Ben-Gurion University called for a boycott of Israel, the group leading the furor to have a tenured professor fired was the Jewish community of Los Angeles. While the President of Ben-Gurion was highly critical of Gordon’s position, she was also clear that “like it or not, Gordon cannot be readily dismissed.

The law in Israel is very clear, and the university is a law-abiding institution.” The recurrent commitment to the Enlightenment values of secularism and critical inquiry is also seen in the enduring tension within Israel itself over the place of secularism in the state. Very few states have this tension so omnipresently part of the national dialogue with itself.

In this much more complex post-Enlightenment/post-Holocaust context, where Jewish and non-Jewish communities are riddled with contradictions and seemingly irreconcilable tensions around competing core values, we are no longer innocent of the power of persuasive authority over the force of revealed authority.

The pluralism of the contemporary world makes it hard to see one peoples’ history as rooted in a bedrock of universal truth while another peoples’ history is rooted in imagination. However much necessity our shared understanding of history generates, it is hard for children of the Enlightenment not to see that it all could have been otherwise – and it all might be otherwise. Gzerot are ultimately fragile defenses against this need to know.