Another law professor, Avi Bell, who teaches in the U.S. and Israel and has written widely about international law and the Arab-Israeli conflict, writes something that you think is outrageous; in particular, Bell writes that Israel, having withdrawn from Gaza nine years ago, is no longer under any legal obligation to provide electricity and water to the Gazan population.
So do you (a) co-author a memorandum with a colleague who specializes in international humanitarian law explaining why Bell is wrong; (b) given that it’s so obvious Bell’s wrong, just write that memo yourself, even if it’s a bit outside your areas of expetise; or (c) write a note to Brian Leiter for publication on his blog, denouncing Prof. Bell, without providing any explanation as to why Bell’s legal analysis is wrong, or any link to a rebuttal of Bell’s work, but simply claiming that “Israeli academics working in international humanitarian law are working, of course, on detailed documents refuting the legal technical claims made in Bell’s opinion.”
Professor David Enoch of Hebrew University chose c, and concluded as follows: “I think that the legal academic community should do what it can to make it clear that there are consequences of such abuse of legal pseudo-scholarship and status in the service of gross immoralities – if nothing else, in terms of reputation.” (As I was about to post this, I see Prof. Bell has responded here.)
So Prof. Enoch is basically seeking to harm Prof. Bell’s reputation, without providing literally ANY documentation that Prof. Bell is wrong, much less so egregiously wrong that his work should be considered “pseudo-scholarship” and his reputation should suffer. We should instead just take Prof. Enoch’s word for it because, … well it’s not really clear why we should according to Enoch, except that Prof. Bell’s work suits Israel’s “right-wing,” and therefore apparently must be legally incorrect.
I’m sure Leiter himself could tell us which logical fallacy this best represents, but I can’t recall ever seeing a law professor attack another law professor in such a bullying manner, and without providing ANY indication that the attack is deserved beyond “trust me.” And it’s certainly not obvious to this non-expert that moral issues aside, a former occupier has a legal requirement to provide electricity and water to a belligerent state whose de facto government has initiated a war with the former occupier.
I don’t know Enoch, and I understand that emotions can run high about issues in the Arab-Israeli conflict, and that Enoch might very well think that cutting off electricity and water would be morally monstrous (though I note he doesn’t claim that Bell advocates doing so). But the right thing to do if you have an emotional outburst like this is to apologize when you’ve had time to think about it, calmly.
As an aside, as a colleague points out, bullying of a somewhat less egregious sort seems relatively common among international law scholars, where those who are outside the predominant leftist consensus are considered beyond the pale. Keep that in mind next time you see a reference to “consensus” in international law scholarship, and consider whether it means anything beyond, “dissenters are afraid to voice their opinions.”
UPDATE: In Bell’s response, he claims that Enoch relied on an inaccurate report in Ha’aretz without bothering to check with him, that he (Bell) has written publicly available analyses on the issue in question, and has publicly stated that he is against cutting off Gaza.
FURTHER UPDATE: Professor Enoch responds at the same link, as follows: “I have no interest in conducting a civilized, academic discussion with Bell, or in reading his ‘scholarship’ on the matter. Life’s too short (it tends to be shorter, by the way, with no water and electricity). What I have an interest in is exposing the moral horror (and with the help of experts in the field, the legal incompetence) of his relevant texts).
It goes without saying, or at least it should, that if you’re not interested in reading what Bell has written on the subject, you are in no position to denounce his writings as “pseudo-scholarship.” I’m appalled at Prof. Enoch’s behavior. If his claim is that cutting off Gaza’s electricity and water is so far beyond the moral pale that no one should agree to its legality, regardless of their understanding of the law, and regardless of whether they are for or against actually doing so, he should have simply written that. But once he claimed that Bell’s work was “pseudo-scholarship,” he should be able to back that up with evidence not that Bell’s work may help justify immoral action, but that it’s actually bad scholarship. Given that NATO forces “bombed Serbia into darkness” not too long ago, it seems like there’s far from an international consensus that electrical facilities are off-limits for bombing, much less that a belligerent state has to provide electricity to its enemy when it’s at war. But as Enoch himself has admitted, his main goal is to bully Bell into silence, not to have a rational discussion about international law.
David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His main academic interests are constitutional history, particularly of the "Lochner era," and the admissibility of expert testimony. He is also keenly interested in Jewish history and culture. Professor Bernstein is the author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003); Only One Place of Redress: African Americans, Labor Regulations the Courts from Reconstruction to the New Deal (2001); and numerous law review articles.
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