Land, Law, and Legitimacy in Israel and the Occupied Territories
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LAND, LAW, AND LEGITIMACY IN ISRAEL AND THE OCCUPIED TERRITORIES GEORGE E. BISHARAT" TABLE OF CONTENTS Introduction . .................................... 468 I. Land and the Zionist Enterprise ................. 474 A. Motivations for Zionist Land Acquisition ........ 476 B. Zionist Settlement and "Arab Feudalism".. ........ 481 II. Land Tenure in Palestine Before 1948 ............. 491 A. The Late Ottoman Period ................... 491 B. Zionist Land Acquisition in the Pre-state Period ... 495 III. Land Acquisitions in Israel After 1948 .............. 502 A. Opportunity: The Palestinian Mass Exodus of 1948 .................................. 503 B. Added Incentives: Challenges of the Formative Years .................................... 505 C. New Justifications: The Cant of Conquest ....... 507 D. Israel's Control of its Arab Minority ............ 509 IV. The Legal Regime for Land Acquisitions ........... 512 A. The Absentee Property Law ................... 512 B. Emergency and Security Regulations ........... 514 C. The Transfer of Ownership .................. 517 D. The Law of Prescription ..................... 520 E. The Role of Israeli Courts .................... 521 V. Israeli Land Acquisition in the Occupied Territories... 524 A. The Aftermath of the 1967 War ............... 524 B. The Legal Framework for the Occupation ....... 526 C. Israel's Settlement Policies in the Occupied * Assistant Professor of Law, Hastings College of Law; A.B., University of California- Berkeley, 1975; M.A., Georgetown University, 1979; J.D., Harvard Law School, 1983; Ph.D., Harvard University, 1987. 467 468 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 43:467 Territories ................................ 530 D. Methods of Land Acquisition ................. 533 1. The Beit El-Toubas case ................... 536 2. The Elon Moreh case .................... 537 E. The "Redemption of State Land"................ 538 F. Private Israeli Land Purchases in the Occupied Territories ................................ 542 VI. Law and Legitimacy in a Colonial Society ........... 544 A. Land Expropriations and the Palestinians ........ 544 B. Israel's Image and the International Community 547 C. Land Expropriations and the Constraints of Democracy ............................... 551 D. Limitations of Legal Justifications .............. 555 Conclusion ....................................... 558 INTRODUCTION This Article challenges the claim that law plays a significant role in legitimating1 the standing social and political order within the oppressed groups or classes in society.2 The claim rests on an assumption, occasionally explicit, that a dominant class could not rule, or at least could not rule as efficiently, without the consent of the dominated. In other words, a distribution of power that leaves the dominant group with less than complete control of society compels the resort to legality.' By the logic of this view, one should not 1. As used here, "legitimation" refers to "the attempt by those engaged in some realm of social activity to offer a normative justification for their actions." Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEX. L. REV. 639, 686 (1981) (concluding that rules do not serve legitimating function if they are impossible to carry out). According to Professor Richard Abel, the party may offer the justification to those whom the policy will affect or to outside observers. Id. 2. There is a voluminous body of scholarship positing that law confers legitimacy on the state or political system. See, e.g., EUGENE D. GENOVESE, ROLL, JORDAN, ROLL 25-49 (1974) (arguing that dominant groups in society use law to cement their authority); ANTONIO GRAMSci, SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI (1971) (theorizing that successful domination rests on legitimacy and consent of governed); Charles W. Gray, Whatever Happened to Politics? A Critiqueof StructuralistMarxist Accounts of State and Law, in MARXISM AND lAW 196, 196-207 (Piers Beirne & Richard Quinney eds., 1982) (concentrating on Marx's theory of law and its effect on society); 6 20TH CENTURY LEGAL PHILOSOPHY SERIES, MAX WEBER ON LAW IN ECONOMYAND SocIETY 334-37, 338-42 (Max Rheinstein ed., 1954) (studying impact of law and economics on society); ROBERTO M. UNGER, LAW IN MODERN SOcIETY 43-242 (1969) (finding that law is glue that holds society together); cf. Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 WiS. L. REV. 379, 400-18 (questioning theoretical and empirical validity of Weberian model of legitimation through law). 3. See, e.g., GENOVESE, supra note 2, at 25 (suggesting that rulers of Western world maintain dominion over their subjects by representing their governance as embodying interests and objectives of dominated). In another variation, Unger suggests that the legal order in liberal societies is a sort of compromise, a "class stand-off," brought about by the incapacity of any one class to impose its hegemony over all the others. UNGER, supra note 2, at 69. 19941 LAND, LAW, AND LEGITIMACY IN ISRAEL expect to find a legalistic style of governance in societies characterized by extreme imbalances of power, wherein one group or class thoroughly dominates all others, and the support of the dominated is therefore inessential to the regime. Yet heavy reliance on law is characteristic of many colonial societies that are typified by precisely such extreme imbalances of power.4 The use of law by colonizers to execute and rationalize oppressive policies, notably the acquisition of native lands for European settlement, is poorly explained as an effort to gain the consent of thoroughly dominated indigenous populations.5 Rather, it is argued 4. "Colonialism" refers to European expansion into Asia, Africa, and the Americas that took place from the fifteenth through the twentieth centuries. Cf MARY E. TOWNSEND, EUROPEAN COLONIAL EXPANSION SINCE 1871, at 8-9 (1941) (defining modem colonialism as European expansion from mid-nineteenth century). Conquests of other peoples have by no means been limited to this era or to European powers. Both the size and the sweep of modem European colonialism, however, are unprecedented, doubtless because of the "unique alliance of the state and private enterprise which characterized the late modem period and distinguished it from its predecessors." Id. at 3-4. Although colonialism is a tremendously variable phenomenon, classical colonialism, if there is such a thing, involved domination of a non- European country by a European one, with political control often exercised from the European metropole. Beverly Gartrell, "Colonialism" and the Fourth World: Notes on Variations in Colonial Situations, 6 CULTURE 3, 3-4 (1986); Hans Kohn, Reflections on Colonialism, in THE IDEA OF COLONIALISM 4, 11 (Robert Strausz-Hup6 & Harry W. Hazard eds., 1958). The term "colonial society," on the other hand, denotes a society in which relatively sharp social distinctions persist between a settler population established via a colonial project and an indigenous population. Moshe Semyonov & Andrea Tyree, Community Segregation and the Costs of Ethnic Subordination, 59 SOC. FORCES 649, 649-50 (1981). These distinctions give rise to differential access to economic, political, military, cultural, and other tangible and intangible power resources, whether or not the society remains under the political control of a European metropole. The interaction between settler and indigenous populations tends to constitute a prominent social dynamic only when the indigenous population maintains a numerical "critical mass"; thus, to constitute a "colonial society," the indigenous population should represent some minimum of the society's total population. Other scholars, in describing "multi-ethnic societies," have fixed upon the necessarily arbitrary figure of ten percent, and that figure will be adopted here. See Semyonov & Tyree, supra, at 656-59 (studying segregation and its effect on Israeli society); Oren Yiftachel, The Concept of 'EthnicDemocracy' and its Applicability to the Case of Israe4 15 ETHNIC & RACIAL STUD. 125, 128, 130 (1992) (rebutting Professor Smooha's classification of Israel as ethnic democracy). 5. Virtually all settler-colonial ventures of the last five hundred years grappled with the moral and legal challenges of acquiring land for European settlement in areas inhabited by indigenous peoples. Popular memory aside, the history of European settlement is seldom simply "the story of the unbridled, unabashed, and undisguised power of the conqueror over the conquered," MichaelJ. Kaplan, Issues in Land Claims, in IRREDEEMABLE AMERICA: THE INDIANS' ESTATE AND CLAIMS 71-72 (Imre Sutton ed., 1985); see also Albie Sachs, Liberating the Land - Liberating the Law, in ESSAYS ON THIRD WORLD PERSPECIVES IN JURISPRUDENCE 355 (M. L. Marasinghe & William E. Conklin eds., 1984) ("This history of conquest and pillage and of violence to serve the ends of exploitation, was the principal element characterizing the phase of the implantation of the Portuguese colonial system in Mozambique."). Studies of Spanish, see, e.g., L.C. GREEN & OLIVE P. DICKASON, THE LAW OF NATIONS AND THE NEW WORLD 17-27, 81-124, 143-73 (1989) (evaluating legal, theological, and philosophical justifications of colonizers); LOUIS HANKE, THE SPANISH STRUGGLE FORJUSTICE IN THE CONQUEST OF AMERICA 17-36 (1949) (articulating that Spain attempted to make Christian principles prevail in its conquest of America); Rene Kuppe, The Indigenous Peoples of Venezuela and the National Law,