Historical Justice: On First-Order and Second-Order Arguments for Justice

* Raef Zreik is an Associate Professor of Jurisprudence at Ono Academic College, Academic Co-Director of the Minerva Humanities Center at Tel Aviv University and Senior Researcher at the Van Leer Institute in Jerusalem. LL.B, LL.M Hebrew University, LL.M Columbia Law School, S.J.D. Harvard Law School. Cite as: Raef Zreik, Historical Justice: On First Order and Second Order Arguments for Justice, 21 Theoretical Inquiries L. 491 (2020).

** I experienced difficulties writing this Article. The difficulties stem from four facts: one is that we are still in the middle of a process of settling Palestine and an ongoing occupation, and it is difficult to think of any writing about the topic as not being part of a political polemic, of an attempt to change reality, rather than to make sense of it or justify it. Second, I have a deep belief that while philosophy has something to offer to help us reach a better understanding of the problems facing us, I still think that these problems are first and foremost political, and what hinders justice (whatever that means) is political, and not philosophical. Third, I have too many audiences to address this Article to; in part it is an intervention in an internal Israeli debate, and in part it is an intervention in a Palestinian debate. On a third level, it is an attempt to say something to the bystanders in the rest of the world, who are not immediate participants in the “conflict”; lastly this is an intervention in a philosophical debate about the possibility of separating different spheres of argumentation and the limits of such separation. Thanks to those who read earlier drafts of this paper, and those whom I discussed with them the ideas of this paper, and offered insights and comments: Helen Frowe, Shai Lavie, Louis Michael Ziedman, Duncan Kennedy, and Gary Peller. Special thanks to the participants in the workshop on Historical Justice at Tel Aviv University May 2019, as well to the editor Alon Jasper and the other anonymous editors of the Journal Theoretical Inquiries in Law for their valuable comments. All mistakes are mine.