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A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel

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\\server05\productn\N\NYI\36-4\NYI407.txt unknown Seq: 1 2-JUN-05 15:13 MINORITY RIGHTS IN DEEPLY DIVIDED SOCIETIES: A FRAMEWORK FOR ANALYSIS AND THE CASE OF THE ARAB-PALESTINIAN MINORITY IN ISRAEL ILAN SABAN* This Article makes observation about contemporary eth- nic relations in Israel. Its primary focus is to analyze a central element in the legal status of the Arab-Palestinian minority in Israel: namely, Arab-Palestinians’ minority (or group-differen- tiated) rights. The theoretical framework employed, however, may also be useful in the comparative legal study of minorities elsewhere. I. A THEORETICAL FRAMEWORK FOR ANALYZING GROUP- DIFFERENTIATED RIGHTS AND THE BACKGROUND OF ETHNIC RELATIONS IN ISRAEL A. The Complexity of the Legal Status of a Minority This Article focuses on one aspect of a minority’s legal status, but, at the outset, it is necessary to clarify the term “le- gal status.” The following definition directs this work: The le- gal status of a minority is the set of relevant legal norms affect- ing that minority’s reality (i.e., its sociopolitical status). Such norms primarily concern the following three questions: What are the key norms that take part in establishing power differ- entials between the minority and the other communities in so- ciety; what are the key norms that influence whether these dif- ferentials are exploited to the minority’s advantage or disad- vantage; and, how does the law provide mechanisms that preserve and stabilize the inter-communal state of affairs or, conversely, mechanisms that help generate changes in it? * Assistant Professor of Law, Haifa University, Mt. Carmel, Israel. I am deeply grateful to Moussa Abou Ramadan, Ziv Borer, Maor Fishman, David Kretzmer, Scott Streiner, Gilat Vizel-Saban, and Oren Yiftachel. This Article is based in part on an article that was published in Hebrew in July 2002, in Tel Aviv University Law Review [Iynei Mishpat]. Many thanks also to the editing staff of the Journal of International Law and Politics, who contributed greatly to the final version of this Article. 885 \\server05\productn\N\NYI\36-4\NYI407.txt unknown Seq: 2 2-JUN-05 15:13 886 INTERNATIONAL LAW AND POLITICS [Vol. 36:885 While one might restrict the focus to legal norms that confer rights or impose obligations on the minority, this would inac- curately depict the minority’s legal status. Such a limited focus would not capture legal dimensions that profoundly, albeit less directly, affect the status of the minority. Hart contributes to this analysis by distinguishing between two types of legal rules: primary rules and secondary rules of law.1 Primary rules are those rules that mainly impose “do” and “do not” obligations, thereby, determining rights and obliga- tions. Secondary rules determine the establishment, opera- tion, maintenance, and alteration of primary rules.2 An analy- sis of the legal status of a minority group must, therefore, em- brace questions involving not only rights, but powers, institutions, and procedures as well.3 These institutional norms are of great relevance to the minority, because they ad- dress how its rights, protections, obligations, and privileges are both formulated and implemented, if at all. More specifically, questions such as the following arise: Does the electoral sys- tem provide the minority with representation and influence in the main norm-setting institution (such as, the Parliament) in a way that reflects its proportion in the state’s population? Are there norms dealing with the minority’s representation in the main institutions that implement the norms (i.e., the govern- ment and the civil service)? How much access does the minor- ity have to supervisory mechanisms, like the courts? Are norms that protect the minority constitutionally guaranteed against alteration by a simple majority? Yet, the complexity of analyzing the legal status of a mi- nority group does not solely consist of the questions Hart pro- vokes. Missing from this analysis is how the law maintains or destabilizes the status quo. Here, additional questions arise. First, how does law conceal problems within the current state of affairs (e.g., how does law constrain the exposure of 1. See H.L.A. HART, THE CONCEPT OF LAW 78-79, 91-95 (1961). 2. See id. 3. See John Morison, How to Change Things with Rules, in LAW, SOCIETY AND CHANGE 5, 9-14 (Stephen Livingstone & John Morison eds., 1990); Claire Palley, The Role of Law in Relation to Minority Groups, in THE FUTURE OF CULTURAL MINORITIES 120, 121-26, 157-59 (Antony E. Alcock et al. eds., 1979); Robert Wirsing, Dimensions of Minority Protection, in PROTECTION OF ETHNIC MINORITIES: COMPARATIVE PERSPECTIVES 3, 12-14 (Robert Wirsing ed., 1981). \\server05\productn\N\NYI\36-4\NYI407.txt unknown Seq: 3 2-JUN-05 15:13 2004] MINORITY RIGHTS IN DEEPLY DIVIDED SOCIETIES 887 problems, and provide mitigating explanations and legitimacy when problems are exposed)? Second, how does the law deter people from working to achieve social change (e.g., by making them dependent on the state, contributing to co-optation of elites and potential elites, and buttressing the state’s capacity to threaten minorities with punishment)? Third, in what ways and with what tools does the law enable minorities and other marginalized groups in the society to take steps toward the transformation of both the group itself and the wider society?4 Finally, a discussion of the legal status of a minority re- quires demarcation. Everyone is subject to at least two legal regimes: the domestic law of the state in which one lives and international law. Some must also abide by regional laws, such as those that have developed in Europe. A few others conform to the religious laws of their religious communities, and so on. Thus, when analyzing legal status, it is important to identify the legal regime to be analyzed. If, for example, the domestic laws of a state are explored, then the norms of international law or religious law have a legal (as distinct from psychological or political) significance only insofar as the domestic law con- fers legality on them.5 Given the complexities described above, it is difficult if not impossible, within the confines of an article, to present a comprehensive framework of analysis for the legal status of a minority, and then employ it in a particular context. This Arti- cle, therefore, is limited to two tasks: It examines the legal status of the minority only in the domestic law of its state, and 4. There is important theoretical work in the area of law and society that deals with the law’s involvement in counter-hegemonic projects and other destabilizing processes, and there is an important social science litera- ture addressing in detail the stabilizing mechanisms that states develop in deeply divided societies. See generally ALAN HUNT, EXPLORATIONS IN LAW AND SOCIETY: TOWARD A CONSTITUTIVE THEORY OF LAW (1993); IAN LUSTICK, ARABS IN THE JEWISH STATE: ISRAEL’S CONTROL OF A NATIONAL MINORITY (1980) [hereinafter LUSTICK, ARABS IN THE JEWISH STATE]; ROBERTO MAN- GABEIRA UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY 530-35 (1987); Ian Lustick, Stability in Deeply Divided Societies: Consociationalism Versus Control, 31 WORLD POLITICS 325 (1979) [hereinafter Lustick, Stability]. 5. At the same time, the minority’s sociopolitical status (its reality) is affected by all the legal regimes that apply to it; hence, one should not lose sight of the overall picture, and the relationships between the different legal regimes. \\server05\productn\N\NYI\36-4\NYI407.txt unknown Seq: 4 2-JUN-05 15:13 888 INTERNATIONAL LAW AND POLITICS [Vol. 36:885 analyzes only one aspect of the minority’s legal status—its group-differentiated rights.6 Group-differentiated rights, or minority rights, are rights that stem from group distinctness. They are rights that are granted to the members of a certain group to enable them to continue preserving and giving expression to their distinct cul- ture and identity. Such rights appear in two basic forms.7 The first are rights granted to a certain community as a commu- nity. An outstanding example may be found in the realm of international law: The right to self-determination is bestowed on those, and solely on those, who constitute a people. The second are rights granted only to the individuals of a minority community because of their special group affiliation.8 For ex- ample, members of the minority community may have the right not to attend the regular public education system and, instead, receive a publicly funded education that accords with their culture, is conducted in their language, and is run by the community’s members themselves. The full spectrum of group-differentiated rights is wide, and this Article attempts to present a framework of analysis for 6. For a comprehensive discussion, which reflects a European concep- tion of the various dimensions of the legal status of a minority (or, what is called “Minority Protection: Law and Practice”), see MONITORING THE EU ACCESSION PROCESS: MINORITY PROTECTION: COUNTRY REPORTS, BULGARIA, CZECH REPUBLIC, ESTONIA, HUNGARY, LATVIA, LITHUANIA, POLAND, ROMANIA, SLOVAKIA, SLOVENIA, 16-68 (2001). For another discussion on the compre- hensive dimensions of minority “legal status” from the perspective of law and society, and an analysis applied to the contexts of Canada and Israel, see Ilan Saban, Ha-Ma-amad Ha-Mishpati shel Mi-utim B’M’dinot Demokrati-ot Shasu-ot: Ha-Mi-ut Ha-Aravi B-Isra-el V-Ha-Mi-ut Dover Ha-Tzarfatit B- Kanadah [The Legal Status of Minorities in Democratic Deeply-Divided Countries: The Arab Minority in Israel and the Francophone Minority in Canada] (2000) (Ph.D. thesis, the Hebrew University, Jerusalem) [hereinaf- ter Saban, Legal Status].
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