Sovereignty, the Exception, and the Question of Palestine

Israel’s genocidal war against the Palestinians in Gaza raise fundamental questions about  sovereignty and the relationship of might to right. As both South Africa and the General Assembly appeal to the International Court of Justice to hold Israel accountable for gross violations of international law, Israel rejects any constraints on its power, having internalized Theodore Herzl’s dictum that “might precedes right” (76), and that everything is permitted to it in furtherance of securing the project of Jewish sovereignty. Its current prime minister revels in power, proudly tweeting from his office’s official Twitter account that “The weak crumble, are slaughtered and are erased from history while the strong, for good or for ill, survive.”

Whether through suits before the International Court of Justice, pro bono suits in American courts, appeals to the United Nations, or student-led civil disobedience movements on campuses all over the democratic world, Palestinians and their supporters are, by contrast, attempting to cause a miraculous rupture in the realm of positive law, not to further the arbitrary ends of power, but to further the just and lawful ends of Palestinian freedom. What we are witnessing today recalls when God miraculously intervened to save Ibrāhīm (Abraham) from Nimrod’s despotic power.

Nimrod, a well-known figure in the Bible, makes his first appearance in Genesis, 1:8-11, where he is described as “a mighty one in the earth” and “a mighty hunter before the LORD.” The First Book of Chronicles also describes him in similar terms, stating that “Cush begat Nimrod: he began to be mighty upon the earth” (1:10). The Quran, in keeping with its general narrative parsimony, does not name Nimrod, but instead recounts an encounter, al-Baqara (The Cow) between Ibrāhīm (the Biblical Abraham) and an unnamed idolatrous king that Muslim exegetes later identified as Nimrod:

Muhammad! Look at the one who, because God had given him dominion, contended with Ibrāḥīm about his Lord: Ibrāhīm said, ‘My Lord gives life and causes death.’ He said, ‘I, too, give life and death.’ Ibrāhīm said, ‘But God causes the sun to rise from the east. Can you make it rise from the west?’ Thus was the idolater confounded.

2:257

The tenth-century Muslim polymath and author of an encyclopedic exegesis of the Quran, Abū Jaʿfar al-Ṭabarī, narrated several reports from early Muslim authorities that identified this tyrant with the Biblical Nimrod, describing him as the first tyrant (jabbār) to appear on earth. According to one report, when Nimrod replied to Ibrāhīm’s initial argument by saying that he too gives life and death, Nimrod produced two prisoners that had been condemned, and put one of them to death immediately and then spared the other, in a terrible vindication of the truth of his claim. In another report al-Ṭabarī included, Nimrod is portrayed as having a monopoly over the people’s foodstuffs, such that the people could not feed themselves without his permission. Before he would give them supplies, however, he would ask them “Who is your Lord,” and they would answer, “You are!”, whereupon they would receive their rations.

This continued until it was Ibrāhīm’s turn. When Nimrod asked Ibrāhīm the same question, Ibrāhīm replied, “The one who gives life and causes death.” Nimrod turns him away, refusing to provide him provisions. God, however, miraculously provides food for Ibrāhīm and his family when He replaced the sand in Ibrāhīm’s saddle bags with the “best food that anyone had seen (ajwad ṭaʿām raʿāhua aḥad).” Having received the benefit of this miracle, Ibrāhīm recognizes that it was God who sustained him (fa-ʿalima anna allāha razaqahu).

Some Muslim exegetes also associate Nimrod with the people who sought to burn Ibrāhīm at the stake after he destroyed their idols. This incident is mentioned twice in the Quran, al-Anbiyāʾ (The Prophets), 21:51-70, and al-ʿAnkabūt (The Spider), 29:16-25. One of Ṭabarī’s reporters explains that Nimrod and his people resolved, together, to come to the aid of their idols by burning Ibrāhīm at the stake. Although they threw Ibrāhīm into a fiery pit, God saved him, miraculously, from death.

 In both of these incidents, the Quran portrays Ibrāhīm as contending with Nimrod, or Nimrod’s people, with rational arguments, but instead of defending their positions with rational counter-arguments, they use naked power against Ibrāhīm, in an attempt to silence him. Nimrod does so by cutting off provisions from Ibrāhīm and his family as well as Nimrod’s people. When Ibrāhīm destroys the people’s idols and they fail to answer his arguments against their false gods, they, with Nimrod’s assistance, resolve instead to burn him to death. In each case, God saves Ibrāhīm through a miracle. Israel and its supporters, like Nimrod, reject rational debate about Palestinian claims to freedom, and instead resort to naked power, an “iron wall” to impose their will on the Palestinians.

From a political perspective, both Nimrod and God are engaged in breaking the normal rules to manifest their claims to sovereignty: Nimrod, at least in the story Ṭabarī recounts, attempts to prove his sovereignty by showing that he can violate the ordinary principles of justice by killing whomever he wishes to kill and sparing whomever he wishes to spare, without regard to justice. Israel, too, seeks to vindicate its sovereignty over historical Palestine through its ability to kill Palestinians without consequence.

Unsurprisingly, both the Muslim and the Jewish traditions identify Nimrod as a tyrant, and indeed, the narratives Ṭabarī includes in his exegesis seem to originate in Late Antique Jewish exegetical materials. God’s miraculous intervention to vindicate Ibrāhīm, by contrast, furthers the moral aims of the law, not the personal aims of Ibrāhīm, making plain that the miraculous “exception” is ontologically distinct from the tyrant’s diabolical “exception” that serves only to advance his own interests.

 Carl Schmitt, in his controversial work Political Theology, famously claimed that “Sovereign is he who decides on the exception” (5), that all modern theories “of the state are secularized theological concepts,” and that “the exception in jurisprudence is analogous to the miracle in theology” (36). The Quran’s rendition of the story of Ibrāhīm with an anonymous tyrant, although associated with the Biblical figure of Nimrod, gets to the heart of the matter: does might make right (the view of the tyrant) or does right constitute might (the view of Ibrāhīm)? Hans Kelsen, the liberal Jewish target of Schmitt’s polemics, criticized Schmitt’s view and the views of his conservative fellow-travellers and admirers, namely, that sovereignty floats above the law. By focusing on power rather than right, they conflate the power of the state with the power of God, substituting theology for political science, and deifying the state in the process (208). Confusing the ability to produce an effect in the world – the ability to cause death and give life – with sovereignty, they idolatrously conflate the state with God, insofar as sovereignty, when viewed from a causal perspective, can only lie in God as the first cause (208).

Another contemporary critic of Schmitt, the social democratic German jurist Herman Heller, argued that Schmitt’s conception of sovereignty, insofar as it was based entirely on power, produced an image of God that was no different than a “sorcerer or medicine man” (174), able to work “miracles” in the natural order for no apparent reason other than to affirm his own claim to sovereignty. Heller, by contrast, although he agreed with Schmitt that sovereignty entailed the authority to go against the law, believed that the sovereign power of exception must be exercised only in furtherance of the immanent morality of the law itself, not the personal, arbitrary ends of the sovereign (19-20).

While Kelsen’s pure theory of law excludes the exception, and thus suppresses the miracle, Heller’s theory restores the exception as an extraordinary step for the vindication of the law. When God intervenes to suspend the normal causality of fire burning flesh in the case of Ibrāhīm, He does so not to vindicate His own omnipotence, but to vindicate the ordinary principles of law, i.e., that life may not be taken arbitrarily. So too, on Heller’s account, the sovereign at times may “suspend” the ordinary operation of the law, but only to further the law’s own political morality, not the sovereign’s personal interests.

While Israel seeks to suspend the ordinary operation of the law to destroy Palestinian rights, even their right to life, Palestine advocates seek to suspend the ordinary operation of the law by engaging in civil disobedience and other forms of legal exceptionalism to vindicate the ordinarily applicable principles of law by securing Palestinian independence and self-determination in their homeland. By doing so, they seek the lawful miracle of Ibrāhīm (Abraham), not the diabolical false miracle of Nimrod.