Origins, Legitimacy, and the Consistency Test

If Israel’s Founding Invalidates It, What Else Follows?

Part IV of a Seven-Part Series

Part III asked what remedies should follow from what Israel does. Part IV asks a different question: what follows from how Israel came into existence? Some critics do not stop with occupation, settlements, discrimination, or military conduct. They argue instead that Israel’s founding history contains defects so fundamental that the state itself remains illegitimate. The alleged defects vary. Israel is described as a product of European colonial sponsorship, a settler-colonial society, the result of an externally supported partition, a state formed through Palestinian displacement, an ethnonational project, a country that privileges a worldwide diaspora, or a political order whose creation involved coercion and violence.

Those arguments deserve serious treatment because they concern more than policy. They concern political legitimacy itself. But claims of that kind also require a discipline that is easy to lose in arguments about Israel: consistency. A principle becomes a principle only when we are willing to examine what happens when it is applied beyond the case that first made us invoke it. If settler-colonial origins permanently invalidate contemporary statehood, then the principle cannot stop at Israel. If partition accompanied by mass displacement nullifies the legitimacy of the states that emerge from it, then other twentieth-century partitions have to be examined as well. If European imperial involvement permanently destroys political legitimacy, then countries throughout the Middle East and beyond cannot simply be exempted from the analysis.

Comparison, however, does not mean equivalence. Palestinians are not Indigenous Americans. Israel is not Canada. The Nakba is not the partition of India. The British Mandate in Palestine was not identical to French rule in Syria and Lebanon. Comparative reasoning serves a narrower purpose. It asks whether the rule being proposed in Israel’s case is really a general rule, and, if it is, whether we are prepared to accept its implications elsewhere.

Settler Colonialism and the Question of Remedy

A substantial scholarly literature analyzes Zionism and Israel through settler-colonial theory. Critics emphasize immigration, land acquisition, Palestinian dispossession, separate institutions, and the eventual creation of a new sovereign political society. Others argue that the analogy is complicated by Jewish historical attachment to the land, persecution in Europe and the Middle East, the absence of a conventional imperial metropole directing the project, and the diversity of Jewish migration. Those disagreements matter, but the consistency test can begin even before they are fully resolved.

Settler-colonial scholarship routinely examines the United States, Canada, Australia, and New Zealand. In those societies, contemporary Indigenous claims are generally expressed in terms of sovereignty, self-determination, treaty rights, land, reparations, truth commissions, institutional reform, and cultural survival. The existence of grave historical dispossession does not ordinarily lead to the conclusion that the contemporary political society itself must vanish. Instead, historical injustice creates continuing obligations that may require profound political and legal change.

That distinction gives us two very different principles. One principle says that settler societies inherit responsibilities toward dispossessed peoples and must confront those responsibilities through land, sovereignty, restitution, political reform, or other forms of repair. Applied consistently, that principle can make demanding claims on Israel in relation to Palestinians, just as it can make demanding claims on North American and Australasian states in relation to Indigenous peoples. A second, stronger principle says that settler-colonial origins permanently extinguish the legitimacy of the political society that emerges. If that is the rule, however, it cannot logically stop at Israel. The continued legitimacy of the United States, Canada, Australia, and New Zealand would be implicated as well.

The difficult question, then, is not whether dispossession matters. It plainly does. The difficult question is what remedy follows generations later.

European Empire and the Modern Middle East

British imperial involvement in the history leading to Israel is undeniable. The Balfour Declaration endorsed the establishment of a Jewish national home in Palestine, and Britain subsequently governed the territory under a League of Nations mandate. Yet European imperial power also shaped much of the political geography surrounding Israel.

Following the defeat and dissolution of the Ottoman Empire, Britain and France divided former Ottoman Arab provinces through the mandate system. That process contributed to the political formation of Iraq, Syria, Lebanon, and Jordan, while Palestine followed its own contested path. The cases were not identical. Iraq was assembled from former Ottoman provinces; France shaped the political development of Syria and Lebanon; Transjordan emerged under Hashemite rule within Britain’s mandate system; and Palestine contained competing Arab and Jewish national movements. But if the proposed principle is that substantial European imperial involvement permanently invalidates a state’s sovereignty, then the principle cannot reasonably be confined to Israel.

Postcolonial analysis usually proceeds differently. It criticizes imperial borders, externally imposed political structures, and the long-term consequences of European domination without concluding that present-day Iraqis, Jordanians, Syrians, or Lebanese therefore possess no legitimate political society. That does not settle the Israeli case, but it does force greater precision. If imperial sponsorship is part of the argument against Israel, we still have to explain why imperial involvement produces national invalidity in one case but not in others.

Partition and Mass Displacement

Partition presents an even more difficult comparison because it takes us directly into the history of 1947 and 1948. United Nations Resolution 181 recommended dividing Mandatory Palestine into Jewish and Arab states. Jewish leaders accepted partition as a basis for statehood. Palestinian Arab leaders and surrounding Arab governments rejected it. War followed, and hundreds of thousands of Palestinians fled or were expelled and became refugees.

That history cannot be treated casually. The Palestinian experience of 1948 remains central to the moral and political arguments surrounding Israel. Yet if the broader principle is that a contested partition accompanied by mass displacement permanently invalidates the states that emerge from it, South Asia becomes impossible to ignore.

The partition of British India in 1947 created India and Pakistan amid extraordinary communal violence and population transfer. Roughly fourteen to seventeen million people crossed the new borders, making Partition one of the largest forced migrations of the twentieth century, while estimates of the dead commonly run into the hundreds of thousands and often approach one million. The comparison does not imply that British India and Mandatory Palestine were the same. Their populations, political movements, colonial structures, territorial arrangements, and subsequent wars differed significantly. But if disputed partition plus mass displacement constitutes a rule of permanent national illegitimacy, Pakistan becomes an unavoidable case, and the post-partition territorial order of India enters the analysis as well.

Most contemporary political thought does not proceed that way. It distinguishes between the injustices associated with partition and the continued existence of the societies that emerged from it. That distinction is uncomfortable because it forces us to do two things at once: take the injustice of the founding moment seriously while refusing to assume that historical injustice settles every later question about political existence.

The Nakba and Population Transfer

The Palestinian Nakba remains perhaps the strongest moral argument concerning Israel’s founding. Hundreds of thousands of Palestinians fled or were expelled during the 1948 war. Communities were depopulated, property was lost, and most refugees were prevented from returning. Their claims, and those of their descendants, remain unresolved and continue to shape the conflict.

Comparison does not diminish that history. It does, however, test a more specific proposition: whether large-scale displacement during the consolidation of a state permanently nullifies that state’s legitimacy. Postwar Europe provides a difficult comparison. German populations were expelled or transferred from Poland and Czechoslovakia as borders were redrawn and more ethnically homogeneous political orders were consolidated. These expulsions involved enormous human suffering and remain part of the moral history of postwar Europe.

Contemporary discussion does not ordinarily conclude that Poland or Czechia must cease to exist because forced population transfers accompanied the formation of their postwar territorial orders. The injustice instead raises questions of memory, acknowledgment, restitution, compensation, reconciliation, and the treatment of displaced populations and their descendants.

The comparative question is therefore not whether Palestinians were wronged. The historical record makes clear that mass displacement and dispossession occurred. The harder question is what obligations follow from that wrong now, and whether national dissolution is the only possible remedy. That is a much more demanding inquiry than simply declaring that the founding was unjust and treating every later conclusion as already decided.

Ethnonational Identity and Diaspora Preference

Israel’s constitutional identification as the nation-state of the Jewish people generates another line of criticism. The strongest form of that argument maintains that defining a country around one national group is itself incompatible with legitimate statehood. Yet comparative constitutional practice complicates that claim.

Croatia’s constitution explicitly identifies the republic as the nation-state of the Croatian nation while also naming national minorities and guaranteeing their equality. The comparison does not demonstrate that Israel has adequately reconciled Jewish national identity with equality for Palestinian Arab citizens. That remains a substantive question. What the comparison shows is that national identification and minority rights are analytically distinct issues. A state can define itself in relation to a majority nation and still face a separate question about whether minorities enjoy genuine equality.

The same is true of diaspora preference. Israel’s Law of Return gives Jews around the world preferential access to immigration and citizenship, a policy that becomes especially controversial when placed beside unresolved Palestinian refugee claims. Yet diaspora preferences are not unique to Israel. Armenia, for example, provides simplified citizenship procedures for people of Armenian national origin. Again, the comparison does not erase the differences between the two cases. The unresolved Palestinian refugee question makes Israel’s policy far more politically and morally contested. But if the principle is that diaspora preference itself renders a state illegitimate, then Israel cannot be treated as the only country to which that principle applies.

Religious-National Identity

Some criticism of Israel’s identity as a Jewish state treats the matter principally as a religious problem. Jewishness, however, does not fit neatly into a purely religious category because it includes religion, peoplehood, ancestry, culture, and nationality. Even so, a general rule against constitutional religious identity would extend far beyond Israel.

Pakistan is constitutionally the Islamic Republic of Pakistan, and Islam is its state religion. Many other countries likewise recognize an official religion or embed religious identity in constitutional arrangements. The more serious constitutional question is therefore not simply whether a state possesses a religious or national identity. It is whether people outside the majority identity enjoy genuine equality, full political participation, religious freedom, due process, and protection under law.

That is a demanding standard, and Israel should be judged against it. But it is analytically different from declaring the state itself illegitimate merely because it possesses a majority national or religious identity.

Origins Matter, but They Do Not Decide Everything

None of these comparisons proves that Israel’s creation was just in every respect. They are not meant to. The fact that the United States is widely studied as a settler-colonial society does not vindicate Palestinian dispossession. The partition of India does not make the Nakba less consequential. German expulsions from Poland and Czechoslovakia do not cancel Palestinian refugee claims. European involvement in the creation of Iraq or Jordan does not make British policy in Palestine morally neutral.

The comparisons serve another purpose. They test whether historical characteristics can function as categorical rules of national illegitimacy in one case without forcing us to confront what those same rules would mean elsewhere. That is why origin and remedy have to be distinguished.

Settler societies may owe land or sovereignty claims to Indigenous peoples. Refugees may possess claims to return, compensation, restitution, or acknowledgment. States created through imperial boundaries may require constitutional reform. Nation-states may fail to protect minorities and require profound institutional transformation. Historical wrongdoing can impose obligations that survive for generations.

A compromised origin therefore does not produce a blank check for the present. But neither does it automatically establish national extinction as the required remedy.

What the Consistency Test Establishes

The argument can now be stated more carefully. If settler-colonial formation permanently invalidates statehood, then the United States, Canada, Australia, and New Zealand must face the same principle. If European imperial construction invalidates a state, Iraq, Syria, Lebanon, and Jordan cannot simply be excluded. If contested partition accompanied by mass displacement permanently nullifies sovereignty, India and Pakistan become unavoidable comparisons. If forced population transfer during territorial consolidation destroys state legitimacy, Poland and Czechia enter the analysis. If constitutional identification with a majority nation is inherently illegitimate, Croatia raises a comparable question. If preferential citizenship for a global diaspora is disqualifying, Armenia becomes relevant. If religious-national identity invalidates sovereignty, Pakistan presents another test case.

These comparisons do not prove that any two histories are equivalent, nor do they determine borders, refugee claims, constitutional arrangements, or the political settlement Israelis and Palestinians should ultimately adopt. They establish a narrower proposition: a general principle strong enough to declare an existing state permanently illegitimate because of its origins must be capable of being stated and examined as a general principle. If the rule produces consequences elsewhere, those consequences have to be confronted rather than ignored.

Israel itself has been a member of the United Nations since May 11, 1949, when the General Assembly admitted it through Resolution 273. That fact does not resolve the moral or historical arguments surrounding 1948. International recognition does not place the founding history of any country beyond criticism. But it does mean that the contemporary question concerns an established political society containing millions of people, not merely a proposal still awaiting judgment in 1947.

Palestinians likewise constitute a people with national, civil, and political claims that cannot be erased by Israel’s existence. The challenge, therefore, is not to place two peoples before a historical tribunal and determine which one possesses a sufficiently innocent past to remain. Both exist. Both possess histories. Both have suffered. Both make claims to the same land.

Historical judgment remains necessary because origins create obligations. But injustice at a nation’s founding and the continued existence of that nation are not automatically the same question. The intellectually harder task is determining what justice requires now: what obligations flow from historical wrong, what political arrangements can protect the rights of both peoples, and what standards should be applied consistently rather than selectively.

That question also exposes the limits of the consistency test. Comparison can identify double standards, but it cannot explain why Christians themselves have reached sharply different conclusions about Israel and Palestine while reading the same Bible. Some Christians emphasize covenant, promise, restoration, and biblical land as reasons for extraordinary support for Jewish sovereignty. Others emphasize creation, the prophets, Jesus, liberation, and justice as reasons for defending Palestinian rights.

Those theological differences matter not only inside churches. At different moments, they have entered political institutions and influenced people exercising governmental authority. The next stage of this series therefore turns from the legitimacy of states to the political use of Scripture. Part V asks what happens when Christian understandings of covenant, promise, and the biblical land are carried into foreign-policy decision-making.

Notes

1. Chris Cunneen, “Settler Colonial States and Transitional Justice,” in The Oxford Handbook of Transitional Justice; Robert J. Miller et al., Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, 2010).
2. “West Asia from the First World War,” The New Cambridge History of Islam, on the mandate system and the creation of Iraq, Syria, Lebanon, and Jordan.
3. Haimanti Roy, “Partition,” Oxford Bibliographies; Ayesha Jalal, “The Creation of Pakistan,” Oxford Research Encyclopedia of Asian History.
4. Matthew Frank, Expelling the Germans: British Opinion and Post-1945 Population Transfer in Context (Oxford University Press, 2008).
5. Constitution of the Republic of Croatia, Historical Foundations.
6. Constitution of the Republic of Armenia, art. 47.
7. Constitution of the Islamic Republic of Pakistan, arts. 1–2.
8. United Nations General Assembly Resolution 273 (III), “Admission of Israel to Membership in the United Nations,” May 11, 1949.