GEOGRAPHY OF LEGAL THE ON

STATES: SETTLER ETHNOCRATIC

RESEARCH TOWARDS A NOTES

AGENDA

(Sandy) Kedar* Alexandre

cannot Conqueror of

the

the Courts which title gives Conquest

a

passed

rights have whose

British to

The deny. government,..,

:.

occupied by

hands

all the title

asserted United

States, the

to

a

established... and maintained been have claims These Indians

question the

of this

for the Courts sword. by It is the country to

not

title. of validity this

Court, Supreme of the US Marshall Chief Justice

Macintosh (1823) Johnson in

the

of

goal wish and

the human appreciate and

understand

We

[Palestinian]

rights of

the

the recognize

Judges... Coi*rt

District to

[However]

equal

citizens

respondents their as

property

as

to

the rendering

inter-

from

refrain free judges correct

to

not

are we

might

result

the because of just law unsat-

pretation the

to us

seem

of the

international

that

light rule of the

treaty isfactory In

an

[and]

of the Courts...

iurisdiction

the subject

such

is

State

to

not

as

absentees..,

respondents

the finding that we the considering are

appeal.

[State's] the

than other

have

accept to

way no

Court, Supreme lsraeli of the

Berinzon, Justice

(1956)

Samara of Propert• Absentee

Custodian The in v.

Introduction

Conquerors'

of the

the 'Courts

quotations

opening

Suggest,

the

As

two

The land.

of native dispossession

toward the position complex manifest

a

observations

preliminary several

introduce

chapter is of this

to purpose

in Courts Supreme and of law

role the assumptions and tentative on

of this

for

Foundation its

support Israel

the Science generous thank

would like

to

Michael

Ramadan,

Abu

thank Moussa

also like would

761/99}. research (No.

ro

for

their Yifrachel

Saban, and Oren Ilan Guadalupe

Luna, Kedar,

Claudia

Birenhak,

research assistance. for his Ghantous

Jeryes and helpful

comments

543,588.

Wheat)

(8

US

21

(decided

1825,

1834

Other•, 10 and PD EI-LatifSaraara Abed The CAP 25/55

AC

concurring).

and Susman Hashin Berinzon, by Justice 19.56, Dec. in

402 Alexandre Settler (Sandy) Etbnocratic 403 Kedar States

establishing

and sustaining (residential territory). settler of given origin),

and the 'demos' In community

geographies societies'

of

This

a

power.

chapter

is of

work

legal heydays ethnocracies, clear in and

the of 'ethnos' the that

enjoys institu- investigates

legal

part the

geography a progress

of ethnocratic

settler citizenship,

Etl•nicity, societies. constitutes the While tional rather prominence. than

the 3 propositions

presented this

in

chapter

hope work,

distributing

for and illustrate main

criterion

the warrant

of interest

studying

more

power to resources.

land

regimes

of

settler

'settling settlement the ethnic sub-type ethnocracy'

societies, and The rogime

contribute development the

of

stresses

to

a

research agenda

legal

periods the

formative

the geography element of the regime,

project In of

s ethnocratic constitutive

settler

ag

on

a

states.

order In

do

first Zealand, Canada,

the Australia,

and of such New introduce settler

societies

in nutshell

the

to so,

of

ethno-

as

a

concept

settler

cratic developed usually of deeply

societies ethnic

involved by

political States, United the in is

geographer

strategy Oren Yiftachel.

state a

The

geographic then shortly country's section

the settlement, which alter

outlines and migration

aims

the

next

of

acade- to

emergence

recent

an

Legal

Geography

mic

usually discipline. refrains

from of settlers the charter and ethnic highlights As also

It

the

critical

outlook

group structure.

characterizing

legal such

populations

indigenous 'inferior' societies and

geographers, with mixing

and

the influence

groups, many of

notes

Critical Legal frequently resulting

Studies deeply of ingrained

segregation (CLS)

based

Legal Critical Geography

(CLG). patterns

The

on are on

third

indigenous. draws

founders, section and insights immigrants, three ethno-classes: from maior

in the ethnocrat•c model

upon

well

as

as

CLG

and

CLS offer preliminary

assumptions

how

law to

facili- some

group')

this (also termed the 'charter

'Founders" on The

(a)

group

the

and

creation

endurance

of

ethnocratic tates land

regimes.

fourth The

high cultural, military,

due the dominant

achieves

to

status

illustrates

section

focusing by

legal the

Israeli

my

argument

during the

established standing on political,

state's system and

economic

during

the

formation

of

the

land

Israeli

regime.

fifth The

section

is

intergenerational mechanisms, such

Furthermore, formative

a

years.

short

conclusion

chapter. of

the

and

transfer together of inheritance with rules regime, the

land

as

privileged

reproduce 'founders' rights the

of time

property over

Ethnocratic

Settler Societies societal realms.

different position in

different ethnic

'Immigrants--this

from

(b)

The The

of ethnocratic

developed group

a

by concept comes

societies

the pioneering

was

split of number (and often

founders background

into from

the is work

of political

geographer

Yiftachcl. a Oren

the

last For several 4

years,

Formall,•;

background

and the race).

sub-groups based ethnic Yiftachel

have and

worked together

legal

the

on and political

geography

on

being built the settler

in of

the nation

of

immigrants

Israel

and

other ethnocratic

parr

new central

societies. are A

question have

inves-

we

prolonged

of

undergo

they

while

society. tigated

However,

the process of role law

enabling a creating in and ethnocratic

concerns

land

they often

founding group'

remain 'upward'

'the

assimilation regimes. into

the

Due

relevance

the of 'ethnocratic settler

to

societies'

model

political geographical

positions.

and

economic,

lower

in

will

here

introduce of

to key

the my

present

argument,

some concepts

termed also 'aliens' People Indigenous

these

or'Foreign' formulated (c) by Yiftachel.

groups,

marginal-

by long-term characterized

'others',

'natives'

explained

by

As Yiftachel, ethnocracy

are

distinct or or

is regime

that

type

a

state-building; they

and

of through

the facilitates

nation-

ization

the

expansion

of

dominant processes

ethnic

multi-ethnic nation in

a

a

geographical, social

and

generally economic, the isolated

in territory.

Within these

regimes

exists are

between

tension

constant

a

two

example

for

include

periphery Such society.

the of settler

principles opposing political groups of

organization:

'ethnos' the

(commumty of

nineteenth- peoples indigenous Americans in such the Native

as

The

Australia, work

Aborigine and done

is

Canada, of the large

in the

USA,

conducting research Inuit in

project

political with parr

as

century

geographer

Yiftachel

Oten

financed

and by

the Foundatlor• Israeli Science

include other (Grant They 'alien' also Zealand. No.

the Maoris New in

groups

761/99).

such Chicanos settling the fully in

nation,

included

the

in

This

essentially

as is

based

his not

Yiftache].

work.

O. See part

Society 'Israeli

and

on

Jewish-Palestinian

Sri-Lanka, TamiIs the Reconciliation: nineteenth-century in southwestern

USA, 7 • •Ethnocracv"

and

Territorial its Contradictions'

Middle Yift•ichel,

Journal,

East

(1997)

51,505; 'Nation-Building O.

and

the Social Israel.

the Palestinians

in

or

of Division

Space:

Ashkenazi

Dominance

the "Ethnocracy" Israeli ',

Nationalism

and

Ethnic

Politics, (1998)

33; Yiftacb.el. O.

4, ""Ethnocracy':

The

Polincs of Judaizing

generally, Yifrachcl's

Israel/Palestine',

of ethnocratic societies

of

expansion the Constellations, For

(1999)

see

6, 364; also concept

and Fenster

in T.

Yifrachel O.

(eds.),

Development

above.

Kedar,

Frontier and Yiftachel above• and work, also

and ¢ndigenous 4

4

Peoples

(Exeter•

1997). YiftacJiel

also See O.

and

the

On Agrarian the Domain: Land Kedar,

Tenure in 'Chicana/Chicano A. 'Landed

Luna, G.T. Power:

See

Making The

r)f

the Israeli Regime', Theory Land

and

Criticism, of and Michigan

39. (2000) "Naked J. Knife"" Law 16, of (Hebrew). Edge (1998) Race 67

4

the

of

chap., For this

will

the

purpose

use

Kedar, settler

Yiftachel and above,

ethnocratic 74-5. 4

settler

erhnocratic societies, and settling terms states, n. societies

interchangeably. Ibid., 75-85.

Settler 405 Ethnocratic States

Kedar (Sandy) Alexandre 404

hegemony important of Gramsci's

Antonio Geography

Legal

concept

serves as an

approach. theoretical his foundation for ethnocratic In the 'Prison 9

FIELD EMERGING

AN

hegemonic Notebooks' elites constructed showed how Italian Gramsci

a

complete precedence,

enjoyed thereby

'truths'

field which birth of in geography certain of has given law

and The

intersection

system

to

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marginalizing excluding challenge

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geography. Of

there research, of

that

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to course,

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The moment' is relationship and in

law

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power

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on

chiefly agendas, capitalist which national representing benefit of work the appeared and the already the geography' :he itself 'legal 1920s

in

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working Likewise,

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legal the the since

nation. entire in articles

scholars,

Few German

t2

as

on

functioning privileged opened premissed continuing

often position the of Blomley his important

Nicholas is

late

23 1994

However, 1980s

on

as as

of discriminatory principles ethnocratic the by lamenting elites of Geographies and practices, the the Power, the

book, and Space, La•;

state

deflect generally debate field silence, that only about the this

subject. just

the

of research It is

•4

attempt open prevent,

to

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of territorial of expansion discipline. of

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ethnocratic the The

shape project issue

academic

begins

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nature recent system.

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granted' Legal

presented

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as

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legal geographies language media, for reader) of the the Ford, Such realms In reference. include • Richard edited Delaney, and

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popular knowledge works, and literary political speeches, music, research, the academic College

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University 2001, my

to

Geography. colloquium legal and and also formal discourses insnrurions. first Law

on

political

that,

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However, is it

structures,

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as m ro stress

des lois example: inequality, Esprit the Montesquieu, control, and notable especially exclusion, Esprit Montesquieu's based Des Lois

those

in

ts

on

of

(Librairie

edition _Paris, 1934).

Larousse,

While the ethnocratic long

unstable the ethnocratic 1°

is

in

system

run. Langhans-R.azeburg

coined

and "Rechtsgeographie"

1926 Merk used the in

W.

term

such

internal tensions,

genuine

powerful,

also

contains

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and (1983) Grossfeld, Law' 82

"geolurisprudence'

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the in B. structure

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'With Blomley 'eth- and Bakan

professed organizing Michigan

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scholar

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tions, appears space

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(community

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Bakan, 'Sp•cing

Out: Blomley

j. downplayed and

legal

theory': largely

been N. have

in

reliance

restrict its strives

The

ethnocranc

territory). Journal given Osgoode 661,664. Hall

Geography Law of (1992) Critical

Law' 30 on Towards to state

of geography

number legal

of Instead, aspires rein- the modern

Benjamin intimidation.

unconcealed tangible ir Forest

force

to

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traces ro

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Geographies

'Legal

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Geography, Historical Geography',

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(2000) 28, 5, 12.

historically

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institutionaliza-

and the

"Ri•orgiraento'l (the nation-building ibid., legal of critical studies scholars: during project the Italian work

7. the

interest in

at

Geographies Legal Reader

capitalist (eds.), The Delaney Ford Blomley,

of

and

D. R.T. regime. the N.K. tion

during

the

of settler geography

ethnocratic mainly legal analyse the (Oxford, here

2001). As *0 stares

here. expand period will this of creation, issue their

407 Ethnocratic Settler States 40• (Sandy) Alexandre Kedar

termed

could 'Law in be spatiality?

outlook recently Until This 'legal social geography' work geographically 24

ing has

most on

cen-

tred

topically Geography'. North

America, and

such law and issues

cities,

Iv

on

on

as

further

attempting geography

legal of segregation, globalization,

researchers

the environment,

ts Moreover,

•9 However,

the 2°

are now

etc.

as

Ford

Delaney, and Legal Blomley, Geography and study

of law

Colloquium

Reader and the the demonstrate, integrate

UCL argue both

space.

to

of

each

significant spatial the geographical legal

in topical begin and and the expand. focus

the

•'the that aspects Questions

ways, such

are,

to

of think-

mode

beyond dual

the land reform Likewise,

S.oja

and

other'.

2s restitution in post-communist well countries,

proposes to as move

as as

draws

mode that third

geography, for law and and

informal

indigenous

law and settlements about

land and ing upon Brazil,

in South

opt a

would

coin- "splices'. Africa, I

integration

27 Blomley this

Zealand,

Thailand, New being Trinidad, both.

suggest addressed.

26

21

terms

or

now are

'jurispacedence'.

such special When designation,

legal

field the ing of geography, examines

emerging

impor-

it

is

as

one

a

Geographies of

and the

Space title Law, of book

differentiate

Blomley's

choice between several outlooks.

that

As One

tant

to

stream,

term

and of interconnectedness law

emphasis the

'Geography

the Power--indicates, geography

has focused Law', how

in

and

social 22

on

on space

production

of

place the of their i.n

exposition affect critical

legal law entails development. and

often However, second 2• perspective asks

a space

a

geography oppressive much shapes (taken granted) how

for

influences

law structures.

power not so

or

legal development,

and also, bur Edward inversely, Soja it, how

puts as

shapes law geographies;

production contributes law how

the social of

GEOGRAI'H¥(CLG)

to

LEGAl.

CRITICAL AND

what the legitimat-

of role law organizing constructing, and is in space, (CLS) STUDIES CRI'rlCALLEGAL

critical adopts geography legal

within influential

per-

Hence,

a

stream

an

Frug,

G. Legal City 'The Concept' of

Harvard (19801

Law

93

1057. Review for

the

conditions

recently

noted the

Blomley

emergence

spective. a

2s

See, Ford,

Blomley,

'Introduction--Local R. Delaney, and the

Racisms Law' in

e.g.,

that,

Geography

Legal

Critical

geography: legal

29 critical

svresses

Ford, and above, Delaney,

Boundaries D. 'The 52-3,

16 of Responsibility:

neutral

and

natural, Interpretanon Geography notwithstanding of geogra- Blomley, School Dclaney, Desegregation appearance,

its in

Cases' and in

necessary,

Ford, above,

Legal

16

decisions 54.

phenomena,

z° natural

of

result n.

inherent

phy'

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See, Mitchell,

D. of Annihilation 'The Space by

Law: The and

Roots

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geographies and

n

mould

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demarcate, space.

shape,

Blo}nley,

Implications

of Anti-homeless Detaney, United the

Ford, States' in

Law in and

and

economic, 'social,

with concerned above, geographers legal 16

Critical 6.

at

are

Robert

'Legal Verchick relatively scholars

that late

have

field,

the

argues

come

to

but produced have

impressive insights

the law's of frontiers politi- about and other

boundaries

shape cal

fan&cape. physical

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the much of For

to

purposes, our

first.

of

the

geography

in

linking is law and of

mode

second this 'The reverse work divided

be sense

focuses

first

into three

categories. The

American

category

geographies.'

shapes

law

shapes how

geography

law but

asking how

by

law,

begins urban examining

It

political issues related segregation, and

The

not

poverty,

to

power. knowledge

understanding

help

applied

in

of

law

understandings

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includes

to

of environmental

work Here, the justice scholars, and are activists

who

category

organized

and and constructed

spatiality

social is

how of production

forg,ng social geographic the between

the distribution of

connections harms environmental space,

Ibid., expressed.

1426.

class,

and

other characteristics.

study and

The last

of

issues

at

race,

sex, category

concerns

above, xviii.

16

Law?' in Where Ford, 'Preface: is Delaney, and p. global Blomley, cyberspace, trade,

law, and international

political attempting understand what

to

above, 1425.

Soia, • and

technology borders

cultural

world will where and

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appear to

commerce

emphasizes

and 'splices',

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legal

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Blomley

superluminous

speeds. 2r

of

different these scholars In all investigate

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move at

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prison

Is

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differennate impossible

concepts.

it

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'Critical R.

many cases

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What?": Law %0

"What?"

Blomley,

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asks?

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legal he See

Or Theory: to

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Keeping Geography Local European and

Environmental in American category

of

law

of

the

description

gripping

vol. For

this

Geography

power

Retrospect', in

in

and Tulane

(1999) Law'

similar 73 Law Reuiew

739,

Forest, For

744. 13

of

Thing

Word: 'Beyond Law

the

Delaney, bodies D.

their and a prisoners as

above,

7.

see

over

vol.

this World',

in addition This

Geographies Legal the In

the

Reader and

conference UCL

ro

Legal-Spatial

Constitution

and the

and

Bodies

'Of Minds

Delaney,

See, D.

Conference

International

held Land Regimes

and Domination,

Harvard

e.g.,

Law

on

at

of

the (explaining

imporiance

37 25, 28,

Geography, 12000)

Historical

Sanctuary', of

School Vartey Illegal March (eds.), and also

3-4 Fernandes and 2001 E. Cities:

A. Law

on

geography'). legal

'critical Change

Urban and Developing Countries (London, 1998). in

above. Blomtey,

27 following

See

here

and the

used the

Law Literature

in

terms grate- movement.

the

bearing

direct

has

law..,

like explains, 'Space,

Blomlev way

Nicholas on

ful As for

Michael Birenhak terminology. this suggesting

to

geographies

of law s•cial

IT]he

constructed

life deployed

pas- and not

is Soia relationship

think between law geography it, As

about the

'As and

power

puts

their

with combination

but in

import,

of random

legal

backdrops the

relationship. sive

there be looking of different process, focuses that

how

One

ways

Btomley,

oppressive': powerful, 14

life,

be

social concerning implied n.

claims broadly geography

spatiality, even develop- affects legal

and social law

social can

more space,

first

above, rh•s geography xii. mode,

shapes

the In

influences

question how law and is

p.

ment

Richard

relations.

social

and shape demarcate

Concurrently social development': legal

power 5oja, Borders, 'Symposium:

and E. Afterward' Surveying Law

spaces (1996)

racial

and both

identified

'racially

while Stanford that perpetuates Ford 48 Law creates Review 1421, space 1425. argues

4O9

Settler States Ethnocratia

Kedar (Sandy) 408 Alexandre

mystifies outsiders

legal culture analysis

legal and

how effort 'expose

political

inequality

legal demonstrate how and seek institutions, to

to

con-

oppressive

circumstances

While

results',

legitimates

present z7 its and

relationships'. and reinforce ventions practices hierarchical

social

32

and bru-

direct predominantly

used

law

ample

which is

in

as

a

legal geographers adopted apply critical

instances from perspectives As

Critical

particularly

m•erested in

chapter,

this

of domination,

in tool •s tal

am Legal

Studies themes (CLS), will several pertinent

here reiterate intro-

of

law. role

legitimating

the

CLS's

argument

by duced this Legal

influential

Critical Studies on emerged

33

in

movement.

of

notion model, Gramsci's

ethnocratic the

Similarly

impact

leading

during on

to •ts law schools offered and US

the late trenchant left

1970s

a

well.

Crits legitimation 3•

of

influences

CLS's notion

argue 'hegemony'

as

legalism.

of liberal explication critique radical

addition

of

In

34

to own •ts

the make

of

law

is

functions of

quo

the

status main that seem

'one

to

legal deeply the existing order, affected turn-of-the- several has CLS

legal

While the

(legitimation)'.

4°

acceptable system

and/or

necessary

legal legal theory,

feminist critical such

critical

century

movements,

as

powerful

society, it

in

of and

visions privileges

the interests groups

theory, recently also and CLG. 3s race

explore seek 'Crits', scholars affiliated how the CLS with

movement, to

legal

and doctrine and

pervasive quoted Minda• 'work buttress

institutions

in

83-5 79,

73, Outward',

(1986) Telos, support

to

Turning a

'Law Minow.

M. 3v

scholars'

CLS been inegalitarian has

of characteristic resurrect relations'. attempts

oppressive A fourth to

intimate

36

An above, 108.

35

system

commentator

at

offers

Schlag

sim- legal discourse.

of

the

make them

and

a

social visio,•s disfavnured

part

identified early

the work

of characteristic CLS

(I)

attempt

to 201-2,

core 199, 203. as: an

Critique and

(1999) 10 Law Schlag,

CLS" 'U.S.

P.

characterization:

ilar

of

doctrine, indeterminacy legal demonstrate of

Law the

(2) of

in notions Marxist

relection implies

often

'legitimation' engagement of

While CLS

an

a

'soc-ial

rightl• that sometimes,

'historical, Gordon particular identify

analysis Robert struc- how

domination, of socioeconomic interest

tool direct notes

to

as

legal

writing

liberal

much

so aston-

existence

seems whose

and class

very

classes, social benefit from entrenched power

economic

institutions

ture,

oppressions--of slavery, Indian

groups,

legal

or

of directly.

Histories deny•o

ishingly

matter

to

legal despite

legal doctrines', of the indeterminacy

decisions

there's indispensable the

that

(3) rem,nders

Codes, labor in

Black removal laws, an

are unctions

keep

them-

legal

deploy powerful the

the

the to

system about

subtle

nothing often

•iisorganized above,

7.5.

In Gordon, 34

scared':

and

their orgamzed and victims selves

of

"well

Thompson similarly

that

Gordon writes

Thompson, was t6

E.P.

tribute

and

rich

for the

tricks

and

of

bag

power-

of law

functio,as instrumental

weapons define local

the

and that segregation pri- the boundaries

imagine

We that

as

governments

by

of

deployment law

and

manipulation

cynical

the [and]

the

against

ful

geography':

of inevitable function

natural and of

real

concentrations

poor

use

to

property

vate

are a

Legacies'

Thompson's

'Tribute: E.P. Gordon,

privileges':

R.

its

maintain

ruling Legal elite

Geography Analysis" Ford, Political

(1994) Boundaries of 'The

R. 107

in Race:

to

'violence

is that

should be

One

Journal

2005, 2006.

Law aware Georgetown

'Landscapes Blomley, (1994) 82

Harvard of Property' also See

1843, 1846,1856. Law N. Review

is

violence..,

Corporeal injurious

law.

adiuncr

integral

property

and (1998) Society 32 Law

569. to,

not an to,

forcible

the

such

only

actualized

implied

present--whether

cases, extreme

not

or

above, day-to-day

Forest,

13 9.

integral

the

also

dispossession.

It is

colonial

of

to

of

eviction

acts

squatters,

or

flaw

geography] involved geographers this and

pulverized, that of the Forest in 'Many

writes and

invoked,

produced,

regime

of

reproduction

gets

space

property

legit-

legal

research of and

parallels

writirig the schol- and expressed drew their

between

itself

is

violence

legal Law's movement..,

violence. of

through

forms

policed

above, legal

also working Forest, critical

studies': under umbrella

spatia-lization': the of 13 9. See

of

forms

such through

complicated,

ars

•Iso perhaps

while

imized,

Geography Blomley of

Bakan, 'Spacing Critical Geography, (1992) and

N. Towards Law'

J.

Out:

Historical

Property', of Violence

and the

•Deeds"

'"Acts", Blomley,

N.

Osgoode Journal

Hall

Law 30

661.

89.

(2000)

86

28,

at

ted.), Kairys brief introductions The legion. literature

The D. I2000] CLS For

Law' is

and

the

Hegemony, 'Gramsci,

see on Litowitz,

general

D.

review

For

see

of

and York,

Politics

Critique edn., 1998); ibid.,

(3rd New Progressive H. Davies

Law: A

of

Gramsci,

CLS's

For

.515. ar

Review see Law

University

Brigham

Young

Holdcroft, (London, dealing Jeremy and Jurisprudence: 1991),

Commentary

471.

articles As

D. Studies Texts Legal

Critical

important

'Some

Litowitz,

A•cording

532-3.

•o

death, rightly of

has achieved consider- Breaking

Paul CLS

'Despite

and its

"Building

Power

Harris,

reports

Paul premature Gable notes,

&

include Peter

hegemony

with

u•deniable

withering Critical Symposium away': and few

of

signs able

York,

University and shows

New

(1982)

11 of Law" and the

Legal success Practice

Theory

Critical

Images:

Kennedy's

Legal Legal

Critique Symposium

(D•but Si•cle):

Studies de Duncan. A Developments Cha'nge in

'A

Gordon,

"New

on

Robert on W. Social

369•

of

&

Law

Review

Adjudication' 'Critical Gordon, and also 701,702.

See R.

Cardozo Gramsci

(2000) Law Review

•Antonio 22

Edward Greet,

above, 28I;

ted.),

34 Kairys inD.

Theory"'

Kennedy,

Substance and

Legal Stanford 'Form Histories' 57. D.

Kennedy, ir

(1984) "Antonio

Law Review 36

Duncan

above,

304•

ted.),

34

Kairys

D.

'Legal in

Hegemony

n.

Kennedy, 'Judicial 'Freedom

Adjudication' 1685;

Harvard

D. Law

Klare, Law Review

(1976) Private 89

Karl E.

and (1982)

ALSA F. 32 Legal

System" 6

in

and

the

Gramsci

of

Phenomenology' Legal Journal (1986) Adjudication: Critical 36

Constraints Legal and

Consciousness,

in

A

Modern of

Origins the and

Wagner Act of

the

Deradicalization

of Adjudication: (Cambridge,

Holdcroft, de Si•cle

Kennedy, Critique Education Fin 518;

D. and

A also

Davies

265,268. See

Review

Law

Minnesota (1978) 62

1937-41"

of Transformation The 1870-1960: Law, American M.J.

The 1997); Horwitz, Mass.,

482-3. above,

34

generally,

of

of 'according,to

York, evaluation CLS Legal Orthodoxy the

1992).

Crisis For (New that explains

Kennedy,

recent 201-2, Duncan 203.

above, Schlag,

37

Critical social Si•cle, of Adjudication: Symposium de Kennedy's and

Critique Fin

Duncan

constitute

that

A

hierarchies

of particular

hypothesis,

the

legitimation

set

Kennedy's •really" of

Critique Legal

Symposium they Duncan are':

(D•but Studies Si•cle), A de "A than

just

and

natural,

look

necessary

arrangements

'the according

Adjudication' CL$,

Cardozo

Review 701. (20001 Law that

Holdcroft 22

write and to

above, Davies

236.

Kennedy,

34

n.

Jurisprudence

order,

Legal

and

Minda,

Posrmodern Movements: Law generally existing See

the

that G. think people

at

leads

of law

rule

the

rights

legal and

of

to rhetoric

Century's York,

34 alternative': (New End 1995).

than

better

least that is

inequitable

just

is any

despite its

aspects,

at

or

Fitzpatrick Legal Conference' and of Studies in P. A. Hunt

Critical 'Statement

above, 482.

quoted (eds.), Minda, York, Legal above, Critical 1987) in Studies (New 35 106.

Ethnocratic

Settler States 411 (Sandy) Alexandre Kedar

prefer,

Whatever ideology legalism, version

of the

broad

in its

simultaneously legitimizes

we

privileging

this and

makes

natural. it

As

seem

important constitutes

ingredient

hege- the ot?

in construction sense,

Robert

aptly an Gordon explicates,

general the

umbrella

legit- of

'law

so

as

Iegitimation. and

butes the belief that

It

social 42 inequal-

contri

mony imating ideology'

to includes

theories. of Gordon

from

spectrum

a

starts

ity

somewhat is

natural inevitable, influential of

and the

those

closest

straight or not

explanations outcome 'instrumentalist'

maintaining

that

to

social professional abstract

legal An

and 43

discourse

justifies

'[a]ll actors.

law pig

dressed judges' law is robe'.

That in

is, law

for

is

up

means a

domination privilege

and

claiming while simultaneously

neutrality

in

'organizing ruling the class cheating for and disorganizing coercing,

and

and

emphasizes Kennedy judges Duncan how

make

process

outcome.

[dominated] the

classics]'.

Gordon gradually proceeds then

theories

to

ideological

legal of choices

interpretation deny simultaneously and these

emphasizing

complex

the by

hegemonic which law contributes

ways

to

a

choices.

result The

of 4s

naturalness, is the

'appearance in

an

increase order.

explain Some that ruling Crits

confirms

'the

class by rule its mak-

necessity,

and relative of Thus, justice the

quo'. elites

attempting

46

ing good status

enough

potential of promises

its

convince that

on

to opposltlon

legitimize

dominant their

complex

'legal posinons

to

power construct the

tolerably

fair'.

ruling is 'the Others

class that itself

is

system

stress

belief

that

privileges. rationalize structures' hierarchies

Legalism and

4v

legal taken by ideology',

and Usually

that

middle class the

more are con-

justify

explain seeks

class,

gender disadvantage and

'to

and and

race,

than vinced lower

society.

Another

points that 'the version

groups

in

out

privilege' througia

professional abstract

discourse which

claims 'an

"neu-

by legal

exerted

regime bring less force

the that

consists in it

power

a

can

trality

legal in and

result,

decisions ,.48

outcome..."

that As

process

bear a

against violators of persuade

rules capacity than its in its

to

to

inequalities

social being

conceived just

perpetuate

promote or people part

are as

that

the described world images only and categories in the its is

things. of the natural of order

attainable

world

which Would in

live'.

person

want sane to a

Legal

geographers apply insights legal these demonstra.te CLS that

to

building ordering blocks the

and in

•mportant structures consntute

legitimation

of spatial They hierarchies. 'legal that

categories

49

argue

larger explain quotation A better: will it

'All law

judges' pig

law

dressed

is for 1. robe.' law That

in

organiz-

is,

is

up

means

of

reification the the

through

categories of

which

conflict

social the

very

ruling ing

the nature cheating

class and for disorganizing

and [dominated] coercing,

the

defined': Gable 'Bnilding P. and Breaking Harris, P. Images: Power and Legal Critical

class[es}...'

Theory

and the

of

Practice University of York

Law' (1982-3) dr

Review New Law

1l

ruling

""The

induces masking class by demobilizes 2. and opposition

rule its

consent

Change

Social

quoted

Minda, 396,

above,

in

35 113.

widely n.

shared procedures, in

fair utopian which and distorts then

it

its

norms

to

legal The of formalism

contested

purposes." e.g.D. Kennedy, For supposedly is

[IJn class review

universal society these

concept

own

al•o 'Legal Formalism', unpublished deployed

•.le

with author). bene,St particular for the

[They] (2001) of the

facto de

class See (on

manuscript

operate

a

to

rein-

force

of advantages Decline The Maumer, of Formalism and the M. the (Tel-Aviv, Values Israeli of Law

Rise of these wealth and The in

feel

victims

power.

outcomes

pow-

(Hebrew); 1993) of Shamir, erless

'The Politics complain Reasonableness', Theory 13-23

R. legitimate and produced by because the

have been

to

outcomes

Criticism, (1994) rules and 5, procedures.' 7.

Kairys David depoliticize..,

ruling 'The taw As 'The it: making and to the

by 3.

class confirms good actually enough rule strUc- of

utopian its its

puts

serves to

cast

on

and things.., distribution of

achieved without the for somehow

promises

human

need

tolerably potential

fair that the convince opposition and is ture

as

any to

system

capa-

by and social people., Decisions ble made improvement, that have been

depicted of

faults.' with all

its agency.

structures

even

obiective, neutral,

preordained, God-given, providing ruling legitimacy

false

"The

itself class

legal

by ideology; taken justly

believes that 4.

is in it

acting

it's

to

existing social and

relations': Kairys,

Kairys fed.),

according 'Introduction' D. in when

law, approximately

it getting 34 best that the

the

is

power

acts

n. everyone pos- to

above,

12. sible deal fact.

ideology

of the "rule of of (In law,"

the the

middle-class in

Minda, explicit above, explains David implicit 35

Kairys '[t]he that people 110.

people.)' theme

rather

working

sold lower-class

it than

just

'Law isn't

are

more

on

of

judicial almost

law

opinion made do "the Kairys, above,

is of

struggle'.

of it" ': domination, class

instrument 34 class

3. The

of

it's

every

me

an n.

an arena

content

Kennedy,

of

Critique Adjudication,

legal

Kennedy

above.

that

rules A ideologically while

34 and

practices writes tilted favor of... reproduction the n. of is in

cur-

'Ideology, influences

adjudication legal by through structuring discourse and of modes

ruling

domination everything hierarchical

but classes don't

have

strategtc

rent

choice regularly iudges deny interpretatton',

in

their strategic behaviour their

(This and for

way.' Whigs example of Thomson position

the his is E.P.

in and

own

legal

proiect effect of rhetorical Kennedy, adjudication: necessity their

The of Origin

Hun•ers: A Black the York, 1975) 258-69). (New

attempt Act

to

to

Critique olCAdludication, above,

discourse 34 19. 'The of 5.

law--•ts modes, reasoning categories, rhetorical

arguments,

Ibid.,

2.

procedural co•nplex rituals--fits of and

discursive practices that

tropes,

taro

Gordon, Critical of 'Some R. fed.), and

Theories Critics', Kairys their t.aw in together

reality'. people

34 how

social this

perceive.., another 'To

structure

put

way,

above

641,649.

the

legal by exerted bring force

the

less that bear regime it in

power

to

above, Minda, 35

110.

against violators of persuade capacity people

rules

than that the world its

in

to

•ts

Blomley

and

legal

'both Bakan noted that Critical and

have geographic studies described

only categories

images the and attainable world which its in

in is

disciplinary the categories

interrogate

within each

relied Arguing mainstream...

above, would

Gordon, 93-5, live':

109.

34 upon

person •o

want n.

that

Blomley these

socially categories

Bakan, constructed':

above, and

666. 12

legal and

thought

Gable Paul

Peter of

As Harris

the 'conservative

is

power Such argue,

'tend world the not systematically

that

to

favor the

in

constructs

to

construct

ways

legal

found be

conflicts favor of in dominant which resolve in but in outcomes groups,

412 Settler Alexandre 413 (Sandy) Ethnocratic States Kedar

and distinctions

dispos-

phase only violent and draw this and often

in

consciousness,

form but

both it...

component

vast

not

occasions

a

upon

shaping

possessed indigenous they and for peoples of land constraining the from social, session imaginary

ss

popular and

readings

of

generanons.

the spatiality

acquired by of

originally force,

direct this

life', land social legal Explicit While

in background is

rules and s°

legal

most

cases

shape landscape regimes subsequently institutional violent translated acquislnon into apartheid, of

is 'social

inequitable

distribution

arrange- a

public of

relationships

legttimize the ethno-

political that and in

and

disenfranchisement',

While law sl

represent power resources is

ments

implicated

usually

production the ethnocratic settler societies contain have in

and crati• As of spatial end

inequalities,

vari- seen,

state. we

urance

rhetorical

Ethnocratic founders, and

devices immigrants, natives, three divert major

s•

from

therefore and attention

it contribute

ous

groups:

to

stratification. land legitimization their reproduce the and reinforce social this

In land and According

perpetuation, Detaney,

s2 formal

regimes

to

legal Immigrants

land they founders

control

the and

regime

reasoning

inscribe of 'certain meaning..,

most

resources. argument create,

sort

a

onto

landscapes... lived-in and indigenous alien who

usually only while [S]patial small configurations

receive reflect that and reinforce

part; groups,

a

generally

ideologies denied

fair land,

of

often contributors

the justified racist

have

been main right,

reasonable,

preferable

and

a

are serve as

as

to

Fhe spatial freezing other 'initial' of allocation. this By share its 6° arrangements', ss

arrangement,

of the generations Thus,

facilitates the

perpetuation production the allegedly

of

technical formal

rules, of

system over property

new

strategic

of ethnocratic categorization,

• legal distinctions, of meticulous s4 the selective

acts structure. power

legal-cultural

order that

also of'facts'

The screening constitutes accepted

in background the omnipresence of

ss

property regime

a

courts,

the ethnocratic

of force

direct necessity

reduces the rules maintain

and

that

discussed, fundamental pil- system.

to assumpnons

are

never

serve

as

hege-

tnstkutionalize

lars

of of the dominant ethnocraric

spatial-legal the Elites legitimation

inequalities

of

hierarchies.

and

a group to

As srr:ve

a

justifies their

and deflects the

result, that debate about

'contingency

portrayed

necessity, the

portrayed created

system is con-

mony open

•s

as

as

spatial

found, the ethnocra-tic hegemomc the trol of Under this

territory.

the

the

constructed political the

natural the

nonpolit- system, the

as or

as

granted'.

and

for something

constructed 'taken

order Law ical', would is like s6 contribute

offering insights by these

courts

as

to

to

some pre-

leg,timizarion of

and

special institutionalization

place liminary

the

observations in

the shaping crucial role of

law

settler in

occupy a

on

scholars and

socio-spatial have CLS

ethno-spaces. these

As societies' •a

seen, structures. power we

Peoples:

Aboriginal Rights The of

and

'High influence': the Russell,

Courts

dominant

P.

Supreme Law,

Making Courts, and the of Settlers' The eth- 247,248. Regimes Land Judicial Independence' Review: of Saskatchewan Law 61 (1998) Limits

references

the

details

of

For

wider societies. model

nocratic

see

encompasses group

The establishment

of ethnocratic

usually settler

the entails above.

4

states

n.

con-

of

struction

frequendy

regimes,

acquisition founding of The

Blomley

land

sv

crucial is its

'in

As system to

property

seems

property new

moment, argues,

a

J. Singer, also

'Re- See

Blomley,

dispossession': 89. above,

of violent 38

entail

at

acts n.

and

'Sovereignty

J. Singer, England reading 711; Review (1992) New Law property?

26

powerful'.

However,

both

objectivity law of and since

have neutrality,

and air

University Northwestern Review 1.

(1991) Law Property' 86 space

an

they

ply 'appear

of

things, sire of non-negotiable': the order

and thus Blomley,

ibid.,

27 See

11

part

n.

above.

also

Blomley, See

Ford Delaney, in

Ford,

and

above down

i• wilderness 16

did 53. the frontier settlers

'The into

roots at

set

to

go not out

forcibly

seized from

United

the States the Rather, real

lands.

Blomley in

Bakan, and

above, Blomley, also above, property was 12

670. See

most

54. 14

at

at

non-lndians... transferred

and by United Indians the States

Blomley,

Ford

American Delaney, in and

Ford, above,

16 government, to

53.

n.

ibid.,

perceived

racial hierarchies': 5.

based

This redistribution

Ibid.,

language 52-3.

Thomas

of

the magical As law

Ross

thing.

is 'a It

notes,

trans-

beginning the of the the

law, nation of United from history

States things 'The fnrms their present, into

Difficult

choices to become obvious.

Change becomes

opposites.

rights

dis-

that

premised allocate sovereign in of

the

continuity.

suffering Real

human

ways property

vanishes

the to

conjure righteousness. of power

on

specter

as

up

original of land':

inhabitants

the

discriminate--against

the and

criminate Rhetoric

becomes the

smooth

surface the cracked of the real

hard and

choices continue to

rights

ade-

tribal

of United

'The ibid.,

failure the

States law':

45. Ross, in

'The T. Rhetorical property Tapestry of protect

White Race:

courts to

Black Innocence and

of

distribu.non

legitimate

perceived need partly the

quately

based

is

curren.t Abstraction' I1990)

William Mary

and 32

to

or Law Review 1.

shape

and

of

mythological origins

the picture

by

reference

wealth and

Detaney,

D.

current Race, Place

the and (Austin, Tex.,

1998), to 1836-1948

Law: power a 3.

of

Weight

History

Increasing "Well Settled? The

Singer, rights': J.W. of Ibid., s4

19.

property

481,485.

Georgia

Indian Land Claims' (1994) 28 Law Review America

Gordon

Clark

relates how affirmative

the

in

excluded

court actton case *mpor-

Singer,

above, 3, 61 44-5;

and 'Sovereignty

Property', 1,

58 Singer,

See,

historical

considerations

n.

of 'facts'

'nothing

the and the

n.

than

e.g. cha-

rant

case

a

Right of

Special

Human

Rapporteur,

Russell, above; Daes,

E.A. above, 482; 57 justifying rade

political

agenda': Clark,

of Legitimacy Judicial G. "The conservative

(Second

Progress

Relationship

Land

Indigenous People

and

Peoples: their

Indigenous

Making

to

Decision the

Context of Richmond

in

BIomley, Delaney, and Croson'

in

Ford

of law attitude

the US

On www.un.org.) available

website June UN 1999

Report) (3

(eds.), above

I04,

16

I07.

on

n.

Land the Tenure 'Chicana/Chicano

in

Southwestern Luna,

Chicanos

G.T. US Delaney, in

s* above,

53

23-4.

to

n.

of

Michigan

Edge and

].

Law

Race of Knife"' (1998)

the "Naked Agrarian

4

Domain: On Following

Russell, focus

legal here

Peter political

and which

the in 'countries

on

of Treaty of The 'Beyond/Between Complexities

Race: Colors: the Luna, On traditions 39; G.T. English-speaking

of descendants settlers and their

have be the

to come

414

lexandre A (Sandy) Ethnocratic Kedar Settler States 4•5

legal critical

geographers

facilitating legal that dominant often

plays

While the crucial role th.e in

argue 'legal

system

groups

a construct

belief

structures', justify

that

racial populations transfer and of land from spatial settlers, control of the

the inequalities native

through it

to

a

complex

professional

discourse

that simultaneously

claims dispossession legitimates conceals the be objective the

and land

impar- and

to

new

tial.

By

.3

reconstituting

settlers'

cultural

biases

Settlers' and regime.

law land attribute the and

relations

system into

courts to new an

power aura

formalized

rules

such

of

naturalness and

necessity

that plays

law the and

property

significant as

arrangements,

protects quo pre- status

new

a

role

legitimation the

in

and endurance

play meaningful of legal redistribution. future ethnocratic

tools

role Formalisfic

settlers'

regimes.

vents

a

As

recently

exposed

in legitimization. apply 'linguistic such extensive

rhetorical semantics, Courts UN

in

6•

study, comparative

legal the an

often

imposes

insurmountable system

legal

peoples.

indigenous devices' disenfranchise

and other strategies obstacles

•9

that

natives to

prevent

and

other

'outsiders'

effectively

from

affirming

legal

tools

and cen.tral

Intricate and instruments

conventions

in protecting

their

land

serve as

interests.

Settler

frequently 64

defining

altering rights.

regard rules, and laws These

concerning lands

natives'

native public states

land,

as

which

disposed be

by

of

heavy professional, seemingly saturated dose of technical, with can and without the

governments natives' approval

a

knowledge.6S

result, As

language or even me•hods, scientific and

violent restructuring conceal the with

natives have

become

a many

trespassers

their

land.

if

Even the

on

inevitability

of neutrality.

Procedural recognizes and and rules the own

7t

7°

native's

state possession,

•mage

it an

usually

is

conceived be only

jurisdiction limits, obstacles, the 'at such of and

whim and of

time the 72

73

sovereign'

to

which

quesnons

as

can

revoke

the licence

the

standing; weight, land. Often, evidence, of admissibilii-y however, rules and

such 6• 7s 76 occupy to the

legal settlers'

as

altogether

deny

systems recogmtion of

land

native rights

any

when

even

the

native

has

been possession in

of group land the since

time

immemor-

ial,

the

in

of

'conceptualist the doctrine

highly framework' of effective The

law 'renders

ii

of

Western in

nullius as

case

(empty land)

force terra

in

in

application judges denying deny of the rule of law counterclaims.., the permits Australia

strict

until

1992. to

•v

rights, history, culture, Shamir, 'Suspended and constructed other': R. in

to context

Society under the 231,253. Space: of Israel' (1996) Bedouins and Review

30 Law Law

Guadalupe

Hitdago

and

Dred

Scott

Sanford'

(1999)

University 53

of

Wilkins, Miami

The

Sovereignty

Supreme

Law Indian

D. and the U.S. Court: American

Review:

691;

Fisher

W.

III, 'Property

and Power

in

American

Legal

History'

Harris,

of R. in

Masking

Justice

(Austin, Tex., 1997) 3.

Kedar,

A.

Likhovsky

A.

History and

(eds.),

Lahav P.

of The

Law

Multi-Cultural in

techniques

legal

0f of Israel's

and the administrative For in

Israel Society:

context

some

review

1917-1967

(Abingdon,

2002).

of of Legal Deeply Arab domination

Saban,

The Status its I. Minorities

m,norit• in

see

See

above,

62

and ft.

Francopbnne n. Minority Divided The Arab Canada Minority Daes, See Societies: Israel and the

in

in above.

62

Singer,

'Sovereignty

Property',

and

(Phd. above, (Hebrew) Hebrew 58 University, Dissertation, 2000)

315-26; 443-54. 3,

that 'property

argues

traditionally

interests

held

by

Indian

and

nations of

tribal Compare altering

the the members

of the labour iniunctions the ofte• in

treated

movement

use

course

commons for

available

non-lndian

when

example

procedure by needed Martha this of used

USA. As Minow non-Indians'.

purposes

support

par-

•t, to sees •s

Daes,

above,

62

33.

when Even substantive

(ed.), ticular

result: n. Kairys 'Politics and Minow,

Procedure' M. in 34 at

para.

native

land, possession

of states

recogmze

n.

this has

generally

been

regarded

of

Thus, 79, above.

87.

have natives

been as

act

grace. entitled

their

to retain

land

only

the with

repeatedly

particular problem of

above, the

authorities, that has been Daes,

62

46--62.

'A

and such

consent

often has

paras.

been at

consent

revoked.

Ibid.,

Similarly,Joseph

35.

Singer brought.., indigenous peoples

procedures deprive of the of

claim

at para.

misuse is that

'tribal

rights

argues to use or

property

properly

are

understood

rights

all, not

rights but

merely N.J. land their 'Indiar ibid., Newton,

and See also

55.

resources':

revocable

licenses':

as

at Singer,

para. to

61

above,

490.

In Zealand, New

Cou•ts the

traditional

of

Claims the Conqueror'

University the 753, Law (1992) in Review that 41 American the view

Maori legally had

was

no

ognized rights rec-

their lands

fisheries and

after

the to

820. British

Their annexation.

rights

considered were

the

sufferance

explains of

Kaplan

ibid.,

the limitations. Crown. Such of that there is See 790-800. at Wiessner, S. See

'Rights

and

Status

as statutes

of

Indigenous

Peoples:

Global A

Comparative

required

and the California the that that 'all claims

Land Claims International view which

Act,

Legal

Analysis',

support

to

Harvard

Human

Rights

Journal,

(1999) forever

lost, presented

by by 12, the be lands covered 57

the be date extin- Act certain

70.

to

or

Mabo See

Queensland

guished

Kaplan, aboriginal (No.

2), the California lands See title question'. J.

CLR 175 in M

This denial v.

109.

based

partly is

to at

'cultural

on

clash

of

paradigms'

which

in

the Aboriginal

Proof Extinguishment 'modern of and Title Indian Land'

(1979)

Western' 'Annotation: legal 41

does

to

system

recog-

not

the nize

locals

organized their

spatial Federal

ways Review relations 425,471. American Law

rise

rights. Acco'rding

g•vmg

as

property to

Carole

Rose,

defining

'in

the

of Claim to Indian created. Sender 1946,

Amy in

(ICC)

Commission

As possession

that

make

claim

e.g.,

acts

up

to

prop-

law

the

imprimatur

push

quick

Indian title

Supreme ¢rtv,

1CC created, "Once the particular

the Court symbolic

puts

and

the

writes,

to

audience

was was

system

on

that

this

Audiences

that do political before

deeming Commission,

claims the which

this it uses

understand system.

question issue

the

symbols

not

to

was

of

a

accept

or

luck':

are

out

Rose,

C.

'Possession

Origin the non-lusticiable': Example

of of Toward

Title: Sender,

'Australia's Treatment Native Property'

A.

University (1985) 52 Chicago of

Law

Review

Indigenous 73,

85.

Brooltfyn and

Indigenous People's nomadic peoples Rights Australia United Land the

(1")99) States' and

25

in

examples of those

of

luck'.

prame

'out

As

McSloy Steven

Paul

it, journal o•Internat•onal 'How Law

521,545 169. American Indian lands

puts taken?

The

answer

by

it

military

force.

explain, enable,

and rules and. not,

Thomas The Sarat

Kearns As Austin and turns

'conventions

out,

Geronimo

and Sitting

at

Bull-- wars,

massacres,

all

that

cleanup. really

just

example, surely

The

for

the for and

time, real constrain voice. This the

opportumt•es

pur-

•s,

conquest and laws.

paper,

was orl

maps maps"

What

those

showed

posefully of and (eds.),

those and evidence': laws the with

T. Kearns the rules

Sarat said

A.

has[?! that Indians

been

•conquered" respect case

to

merely

by being

d

scovered':

McSlov, S.P. of

The

Arbor, 'Because

Rhetoric Lav•"

(Ann Mich.,

the Bible I2. Tel Is 1994)

Me

Manifest

.So:

Destiny

and Tho•na•.

American

Indians'

(19961 Kaplan, St. 9 ab.ve, See, 73 Law Review 37, 436. 38. e.g.,

417 Settler States 416 Etbnocratic (Sandy) Alexandre Kedar

doctrine

SimilarlB

the

of

natives. 8z

favour presumptions working proot•; burdens and manipulation of the and in vv

treatises

laws of 78

past

practically

unlimited dis- precedents with

Congress legal of left and US 'Plenary the dispossessing effect categories, Power' v9 of have the of

•°

indigenous lands,

populations and their s3 regard Indians admitting dispossession.

without

the in cretion

to

even

Mclntosh Johnson

opmion in

Simultaneously,

Marshall's

notorious adopt Justice

Chief deferential leaving selective position,

v.

courts

a

ambivalent)

{and candid exceptionally

with legislative mind

granting

the (I.823),84 administrative in reveals

and in authorities ample

or my an

simultane-

and

the defer

indigenous

populations the settlers'

how conqueror

and their

land. connections

to 81 A powers

courts

over

to manner

of

dispossession natives: striking legitimize the example and phenomenon institutionalize of this ously been the non-enforcement has of

The

deny...

of Conqueror the

which

the Courts title

canno•

gives

Conquest

Supreme

a

the late

1980s, in shifted the

from tribal US

Court

asserted e.g.,

passed

States,

United

power the governments

rights have

whose

British

to

closely government

change in related issues

of the

land because the balance

of

in

states to

to

power

been

have

claims

These

occupied

Indians by

main- lands all

the within favour title

the

favouring limiting Court those of in

Indian

reservation

sovereignty.

to

a

of

this

[or

the Courts

country sword. Deborah by

It is Geier the

balance

that the

established.., of Indian could

thus shifted

tained 'be

and in

not

argues

country

power

dramatically

without justifications explicit solely through

reasoned and switching

the of

title this validity

the

quesr*on

to

underlying presumptions

the

and Geier, Presumptions: 'Power Rules principles which outcome': D. and

those of

defence

in

Although

do

engage

ro

mean

not Rhetoric,

we Brigham Institutions

Indian

and

[1994]

Young University

Law'

Law Review

if

find think

they

title, Indian

excuse,

lied

some have

Europeans may, we

4.54, 451,

to

472. app

rights

have

people

whose

of the

and habits

justification, William character explains, Fisher the As 7s

ostensibly

'The federal in

committed

government

not

was

to

the

recognition

rights and protection but of the practice, failed

Mexicans'

them in

from wrested

been

property

to

good

make

typically that

promise bore claimants

and the

proof; fierce Mexican burden of

this

inhabiting

on savages,

Indians

of

tribes

the

were country

legitimacy

they

failed

claims, if

the relevant

of of convince

tribunals their the

the land

chiefly the from

drawn to

subsistence

whose and

occupation

was whose

passed public war, was

skeptical the domain. into

of

Spanish

claims---either

American

courts

were

the

leave

their

country possession

a

them

leave to they country because

was poorly forest. To

documented

they

village

because to rooted

in

m

were

or

or

commu-

they

impossible,

because

people,

foreign

rights

nal distinct

devastating. them

land law. The result

wilderness; American

In New was

govern as a

was to

for independence example, Mexico,

of

lost the landowners

lands': their

their

80% Fisher

Mexican

lIl,

repel by

ready

over

attempt

on

every

arms

to

were

above.

Likewise,

Guadelupe 62 described

the

has derail always mechanism the Luna in that

a•d

whites

the

aggres- which

per- bloody

in

not

were

Frequent

wars,

dispossession

the mitted

of

Thus, Chicanos southwestern USA. in of in the

of the

advanced,

that

population

case

white

the

ensued unavoidably

As

Chicanos,

she

of that

rulings key number varied proof of the standard

'a claims

in sors, argues

occupied

by

its longer

being

soil..,

The receded

of ownership necessarilv

depending

Indians

whether the non-Chicana/o' no

that

in

status

grantee

a

ways

sovereign

of the will

according discriminated the legal

against Chicanos. She also that 'the parceled governmental power. and

habitants,

argues ancient to

out

actors

was

favorable legal extended dominant

population, "interpretations" the denied analo-

to

interpretations

ultimately holders, i-lowever fee

favoritism and that

Mexican expedited

inhab-

of gous

discovery to the

converting

of

pretension

the

an

extravagant dispossession'

Luna, £; T

'Chicana/Chicano Land

Agrarian the Tenure

in

Domain: On

the

asserted

in

principle

been

has

if

the

Edge into

ited of the

Michigan Journal of Knife'

Naked appear, dr conquest (1998) may

also Race

See Law 4 39,

49.

country

acquired held and

been

has

if sustained, afterwards

Kaplan,

above;

ff. Newton, above,

and

first 73 country 72

818

instance, a

n.

Singer, See, 'Sovereignty above, Property', v• and crit,cmng 3, 58

e.g.,

contempo-

Supreme

opinions

'attack Indian Court sovereignty

and

property'.

rary

period

as on

lengthy

for

points

Siegfried

Wiessner

out, 46. As

above,

reading language

However,

contends 62 Singer, Daes, 'from of

Court's the the opinions,

para.

at

one

tribes:

Indian

with

concluded

treaties the

honour did

would have

Courts

Canadian

presents anything changed• that idea

has The the

the

Court

cutbacks

not

no

recent

and

Global Comparatwe

Peoples:

A

Indigenous

of

'Rights

and Status

straightforward

application the

Nothing precedent. further Wiessner, of settled

could

S.

be

as

The

57, 66.

Journal,

12, (1999)

Rights

blarvard Human

Analysis', Legal from the

International analysing Likewise,

truth.'

the claims that he

"!

in Tee-Hit-Ton

'the

Court,

(Portland,

case,

2000),

Oreg.,

of Tradition

his Shelef, Future

in by

Leon raised

compelled also by

precedent point Tee-Hit-Ton, when, fact, claimed is in that decision

its

Tee- in

Wai-tang*

the

decision

1877

referred treaty

as

Pendergast Cj in

to Zealand,

Hit-Ton above, first of impression': Singer New

Singer,

In an also

94.

that

521.

61

was

argues case

n.

S.Ct,

(NS)

72, Jur.

NZ (1877) Wellington 3

o[

BislTo)

Param nullity':

simple 'the Wi

precedents

relying by

which

rewrite

distort the

'a

misstate

courts

Shelef

meaning

decision. See

reiected

1987

in

'nullity

doctrine'

The

Shelef. quoted

113. a failing conflicting of earlier by

of

was recognize precedents*: in lines ibid., and

See

529.

at

cases

to

also Newton, Aboriginal N. of

Sovereign, the Whim the 113.

Reconsidered'

'At Title (1980)

distract three

has

law, this and policy

Indian federal term

"Plenary Journal Power. Hastings

31

Law

1215.

sole

with vested

Clause

is

the Commerce

under

exclusive--Congress,

Singer

manipulated public/private •0

that 'the has Supreme Court the a)

distinc-

meanings:

argues

preemptive--

b)

tribes;

Indian with

affairs

government's

federal regulate

the

authority

applies

tribal

tion it

given

tribes has the of that in both

to

as governments

to way

government's

acting in

precludes

effectively

legislation

which

state Singer, Congress worlds':

'Sovereignty above,

Property', and

6.

58

enact

may

n.

definition

created judicially

absolute--this

unlimited

cl

related

Indian Prygosky, Metaphor See,

Prevailing Federal the

'War Indian

P. in Law

matters,

e.g.,

and as governmental

authority

boundless virtually

has

federal

Jurisprudence: •he Judicial Cooley that

Thomas government

(1997) tains Exercise Activism' An

in 14 Law Review

above,

Wilkins, 69

resources':

and

their

lands,

tribes,

their Indian

iunsdiction '[W]hat

does regulates when the Indian 491. Congress and Court do laws

nations its

over

but are

indigenous

property,

the

countries powers

over within [the] of trust

of provisions Ira

the

the The

374.

assumes

Constitution? that Court

state is

some not

answer

breached: Daes

is

this

remedies

in effective

with

trust

often another, indigenous makes

obviously

for dealing extra-constitutional

remain

congress

up

power to

use

73 above, Indian with

ibid.,

above, Sl2ff. Saban, also

62 also Nations': See See 512. 70 para.

at at

pp.

543. Wheat) (8 314-315. US 21

419

Settler States Ethnocratic 418 (Sandy) Alexandre Kedar

judi-

unfavourable

openly

the

quite opimon discloses Marshall's

if While under

it, the

of

the of

the

originates

property

great

it,

it in

community mass

of

discrimination

land,

the

and their becomes non-set- of Indians 92

the

of

law land, the cial

and questioned, be

ss treatment

cannot

of

construction

by the

masked often individuals

is and

tler

groups

Undoubtedly,

body

the

of

law

positive developed

jurisprudence and par-ticular

in truth

in denote

which

legal

categories

'neutral' seemingly

regard

indigenous

often has

land

discriminatory, persistently been

landscape,

legal

to

ss explains,

Delaney

David

As

ethnic 9• and social

a

groups.

This should

surprise.

explains,

Russell Peter As

the the of

categorical

distinctions,

not and conceptual

courts boundaries

com- of

consisting

law 'white

countries

'judicial

that man's is, courts':

conceptual institutions

is mon

are

'This

differentiation.

of not map.., 9•

contrives

system

a

established by

dominant the

settler staffed

society,

by almost

entirely

which

pr•ncipaI

in

but talking power about

of

simply

way

power, a

way

a non-aboriginal

iudges, interpreting

applying

and the laws of the

conceptualized.

'gs

is

dominant

society',

proceeding Before further

s7 this within differential rules

such

of

construction

argument,

the

role

central play in

Courts

a

would like however

that

while

Supreme the

land, while

American

Court

of native

dispossession

to stress the facilitate

These

categories.

and

contributed dispossession

the

of

Americans,

Native domman.t of American the

to

the

protection

muth property affording

to

stronger

a

jurisprudence

these

has been

issues

ambivalent and of

for-

'rules sometimes

that

on

Nell Newton

Incon-

96

argues immigrant the and

groups.

even

Thus, sistent,

ss Peter Russell

iurisprudence, Similarly, 'bitter-sweet'

Singer

it

s9 cases'. law •7 applied

Indian

terms a in still

inequality

mal

are

Furthermore,

important though it is that the

American

to note

even

Supreme

Court granted

Congress

unlimited

extinguish

congressional extin-

power intent an to

that

held

'has

to

the Court

(1985)

226,247-8

[IS

470

Nation

title, Indian

also

devised

it of above, 417,

according Frickey, 88

also constructions which

unambiguous" ". See

"plain and

be

canons

Title

Indian to

guish

must

Long

Abrogation:

"As ambiguities Treaty

of

Indian

in u&ciaI Review and

should 'J Wolkman, be treatises favour J. construed and

of the

in Wilkinson

C.

statutes

(1975)

That?"

Time is

Long

Earth"--Huw

the

Upon

Grlaws

Flows, Indians. Grass Although

Water

this 9° always has observed, been

had

it

canon not

an

601. California

Remew

Law 63

impact.

9a

[of

the

of

phrased

in canons

'[a]lthough they

ways, variety

a

that

ckev Fr

argues

federal

treatises, of

construction]

interpretation designed

promote

narrow

are

and

self-determination

promote

Indian intrude

to

that regulations

and

Wheat)

upon

(8 21 US

543,588-91.

above,

Daes,

62 38.

statutes,

para. of the

Many Indians. •mportant benefit

that most

of interpretation

Russell, broad above,

provisions

62

248.

these canons':

reference iustified

by

Court to Supreme

the

in

victories

Indian See,

were

Frickey,

'Marshalling

P.P.

And Colonialism,

Past Present:

e.g.,

above.

90

Wolkman,

and

Wilkinson

also

158. See

above, Frickey,

88

Constitutionalism,

Interpretation

and

Federal Indian at n. In Law'

I19931

t_hae

Harvard •nnul, 107 Law ,',c2uld

Ma,r•h,all

Chief •not Justice

acknowledges that Frickey Philip

Review 381.

title,

Indian and •_uro-e,

mencan

discovery

of an

wmcn of theories upon

the

effects Russell,

above

performance 57 Russell

249, the

253. of

the

American

today,

n.

Court assesses Supreme

the unlike

that

however, believes

Frickey

based'.

Supreme

titles follows:

Court

performance

'The

of Supreme

the

chief

Court the

as

the

between

exposi-

the

tensions as

mediate attempted

of Indian 'trilogy'

his Marshall of

to in

Indigenous

rights

the

of

peoples cases

the

United in

manifest

States

continues tor the

constitutional

democratic to

and

challenged, the

same

be

could

that

colonialism,

of reality bitter-sweet

character

not evident Marshall's day. the

upheld the Over

has in Court

the

years,

above,

385.

Frickey,

India'n basic kernel 88

order. of

Marshall's

of

recognition tribes

right

with internal

above,

70

Saban,

nat*ons as

also to a

above.

See

book,

69 Wilkins's

David

of

subtitle

self-government.

the

Note

has

provided

It

for Indian

tribal

protection lands

nations and

control

the

some

neutral

seemingly

used categor•zauon

israeli taw fo

how who from

hostile 315-19,

legislatures

and interpreted

has legislation federal

sometimes rev,ews narrowly

state

and

land

from

it

space.

and

minortty Arab

blunt

to

access prevent the assimilationist

of

Also,

Congress.' intentions

has it

rela- 'created

to so as

trust

Ibid., 25.

above,

16, 25. Delaney,

53 tionship

affords

that

by protection

federal misconduct the

executive

(re)famous

against some

handed down its

Court

Supreme

the

1955

In

above, 482.

61

S branch'.

See

hand, the On other

the

Court has wavered

nger,

for

the in its

other

refused

which

it support judgment,

in

(1955)

US to

272

348

States, United

indians

Tee-Hit-Ton

of tral

Marshallian the

doctrine--the federal plenary

government's

the

tenet

USA

the

decided

that

power

over

Court Supreme

The

land

rights

in Ind'ans

recognize

property.

Indian

The

as nations.

has Court federal

law overturned

grounds the that

tribe Indian

con;fiscate

of

never a

on

land

rhe

property

take might/with

exceptions)

limited or

Congress

has

or

jurisdiction

exceeded affairs, Indian

its has and permitted

it

Court Supreme

govern

The

compensation.

iust

without and

of law

due

paying unilaterally Congress without

abrogate

process

with Indian

ibid

nation':

the

to treaty entitled

latid,

an

is

Indian

aboriginal title,

not

by

held

found most

that as Thus,

established

of

property

required

clear

Congress

that construction

United See

States.

canons

the statement

in

other

acccrded

property

protection that

constitutional

to really intended

extinguish

Ambiguities original

the title.

Indian

supposed

Aboriginal

of to

Rights

and the

to

'High

Courts

Russell,

worl•

P.

above, 41•

62

favour

Daes, of Indian in

Singer, above,

interests. See para.

This

of 61 509.

247.

Rewew

Law

Saskatcloewan

(1998) Independence" 61

Judicial

of

Peoples:

The Limits

by

described tion

Clinton,

is follows:

Newton, and

'Canons of Price

racist/ethnocentric

the statutory

do

judges

who

applied

'by

questmn..

rules

not

These

indian

determination Once struction: has

particular been made that are

affects

legal

different

of

statute

construction

This

cat-

826.

above,

Newton, 72 rules':

of

these

basis

individuals,

tribes

have

favoring of

invoked

construction and creation

Cohen: Felix or Legal

Realist courts

by

device noted

already

been

has

legitimating

•gories

of rights.' preservation Indian

usually specific 'required American have

clear and land

of

taking

"expropriation";

courts called

is

white from of land

taking Governmental

men

by

Congress--in

legislative finding history--before

reliable in

%bolishing statement the

stature

or

reservation"

an

the from reser-

indian

"freeing

the or

called

Indians

is from

extinguish

rights': intention

Clinton, (eds.), Newton and N. R.

Price

M.

treaty

to

Legal

Conscience:

The

Judicial

Logic'

in

and

Theory

Cohen, 'Field

system"

F. ':

vation

Indian

American Cases Law: Charlot•esviIle, I3rd edn., and

Va., Materials 1991), 230-1.

quoted

61

Singer,

in

150,

1950),

Conn.,

n. Haven,

[New Cohen

of

Felix S. Selected

Papers

also Getches, See Wilkinson, D. C. Williams, Federal Indian and R.

and Cases Law:

527. above, Paul, (3rd edn., Materials

St. of Minn., County Oneida 1993) Oneida 345. In Indian at

421

Settler States Ethnocratic

(Sandy) 420 Alexandre Kedar

background

is

short neces-

however, examples

the

getting

a

into

Before

contends

that the Supreme United has States Court funda-

maintained

'a

lOI

sary.

Arabs

the and

disjunction mental Jews between legal

of the and Indian

Indian

struggle

between

prolonged ethnic treatment

non

Following

a of

favour

1947

in November property'.

•s

voted 29

United

Nations

the

Palestine, on

in

and, plan

partition

Furthermore,

channelling accepted

the

of the these the

issues confines into

Jews

The

Palestine. 1°2 of remote

partition

the

the force,

legalistic of in then the deference, Mandate peripheral

realm, of immediately'following the procedure, British terrains

of the

end

the

Arab

evidence,

day, legal distinctions,

intricate

categories,

makes exacting following coun- them

the

seven established.

On

Israel

of so

State

was

already

that

complicated

that the

and few these distant joining

lands. Israel,

into wearisome

was

• of

war

the State

venture

declared

tries

on war

During

ties-l°3

communi dispossession,

this

All transfer, buries discriminatory

land and Arab allocation Jewish and

Palestine's

between

in

progress

al-

(known

Independence'

under legal

of Placing

and technicalities.

mountain other natives of as

'War

Israeli

1948 a

the

following

non-

and

Israel/Palestine

populations, settler Palestinians), local legal

Chicanos,

such distinct

into categories,

the

Catastrophe',

as 'the among

Nakba,

flight

or

included the

application rules procedure, This

discriminating

of of evidence masks the and

population

movements.

experienced extensive

territory the

resided

in laws. legal These fundamental

who

combined the

silence questions

Palestmians

700,000

of constructs

expulsion

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some

fleeing

of Jews

number

behind these similar seemingly methods,

and result discussions that

of in arrival

the

and

Israel,

are

*°4

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become

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to

countries

Islamic technical, and neutral, political

devoid of and and positions biases.

survivors)

Holocaust

(mainly

Europe

from

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Israel

in

Simultaneously 1948 the

of after remained facilitate dominance these cele- the

narrative war tabs

Palestinian tropes A

a

160,000

Some

brating

equitable

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and regime,

existence

citizenship. property

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received

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israel's

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only the tribute during

also the the but and persistence endurance years

creation

changes demographic

not

to

to

massive

These

of

consisting

discriminatory of ethnic land regimes.

shaping structure

role central in

played

an existence a

Making of Regime The the Israeli Land

Kedar,

and

above, HISTORICAL BACKGROUND

Yiftachel,

4

and Kedar of

condensed version

is section

Th•s

above.

100

Transformation',

Legal

']'he

For &rabs. My

this presented intention

illustrate the

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section

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and

Jews

accepted the to arguments by

m

resolution

Legal

The

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Kedar,

references,

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and strife, examples the previous see &awn from

with Israeli law and of this

section

history

of the

depiction

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extensive

above.

Yiftachel,

4

and

Kedar

n. above,

during 100

making decisions

the Transformation', of Israeli land

regime,

the

of

the

while

rest present not to

territory,

a most of

the

controlling

Israel

most

resulted in

The

War

Claims

legal

dispossession history "Private systematic of of Palestinians after

the Zamir, to and 1948.

l°° E.

Benvenisti

E. Egypt. Jordan and

of control

Journal

the

89American (1995)

to

came

Settlement'

Israel-Palestinian

Future

the

hts in rt3o•n•ern,•,•,•,-':g•--• Pr•°'P"

Ri

the and israel

"m Legitimacy

and

'Land,

Law,

Bisharat

G _•97",

295

•aw

4,67,502.

Review

Law

University

American

(1994/43

Territories'

Occupied

Israeli

remained

in

who

of

those and

refugees

Arab

of

number

of the

The

72;

1971), York,

estimates

(New

Israel

and

of

Zionism

Encyclopedia

(ed.),

Singer, 'Sovereignty

Property', of and above.

Patai 58

R. See

Question

The

Said,

vary. E. 95;

1988),

(London,

Natiohal Fund

Jewish

regarded special

branch of

'Indian

obscure law the Law containing techni- is

The Lehn,

of

Transformation W.

as

an

Demographic

Abu-Lughod,

'The

J.

45;

cal marginalization

rules

1980),

from of law. 14, (London, all other This substantive law

Palestine Ill.,

197I),

setting

apart

*t

(Evanston, areas

Palestine of

Transformation

The Abu-Lughod

led.),

obscurity from further with the combined the of the Indian claims

I.

1947-1949 in

Palestine'

Problem,

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Refugee

Palestinian

of

the

Birth

The

critical

glare of the Morris legal scrutiny from of progressive academic and and the

communities

B

-61,

Problem'

153

140

Refu•,ee

r•estinian

•lnewngms

public );

opinion Similarly,

See

Singer also

that 15 Nlorr•s above, well':

1987 Newton, r'd (Camb 848. 72 of the State

Early argues

:_'•.

Years

g

The

aeli

History"

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legal specialized generally

Indian principles

treated field 'American whose

issues

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eO.I,

L. t•ew in Development

Demographic are as

the

'Trends

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Gilbar

G ;Y• 3" (•.•e•o irrelevant

'Sovereignty. of United

the law': and

42 Singer,

States

1991•

The ork

Israel-•87•-1948"

Landau,

'Catbedra, J.

(Hebrew);

property

to core

43 g:et•

45,

(1998)

Philip

Property', above,

Frickey 'Federal law does that Indian Likewise 58 42.

(New Israel

argues

Arabs

n.

The

Jiryis,

S.

3;

1969),

lLondon,

Study Political deserve impenetrably complex

image by

of

law inhabited and

Israel: tiny backwater Affairs, its A Refugee

Arabs

in

of not

Department

Organization,

Liberation

Palestine

dull

Frickey,

289",

above. issues':

88 383.

1976), York,

2000). Jerusalem,

see

and

(Ramallah

Factfile

1948-2000"

fi

of

Land, Redemption

Kedat, Arab

such Israeli the For and loo

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A.

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ees

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dissertation, School, the with

(SJD Harvard

University 1948-1969

1996) Arab

Law oljews The (on

lived

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to Israel,

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author);. Land, and the

Kedar, moved Law 'Majority Minority Time: Nation

Time, control A.

that

countries

safety

at

were in

their

for

feat

factors,

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Kedar,

Adverse (due, ro

University Israel' (1998) Possession Tel Rewew 66.5.

21 Aviv Law A.

countries among

became

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evacuees.

left

their

possessions

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Legal the Palestinian

Geography:

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Israel). Law Most

and

with

Israet.

Benvemstt

arrived

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also

Holocaust

of the

period, survivors oflnternational Landholder Politics 923-1000; and

J. NYU Law

(2001) (4) this 1948-1967' 33 During

of Kretzmer, (Boulder, Legal 297. The the Colo., D.

Arabs Israel 58-9, 1990)

Status above, M. in

103

Zamir,

n.

Hofnung, fLaw (Jerusalem, (Hebrew). Needs Securit.'v The Rule Israel: 1991

423 Settler States Ethnocratic Alexandre.(Sandy) 422 Kedar

delay much

without

control

and

ponent.• W•th Israel

three 1o layers. pos- major as as

degree

overgeneralization,

strove to

of

I°6 certain

own

it

a

•s

largely

goal been

Undoubtedly,

has

this

of sovereign sible

possible its

characterize met.

the space. ethno-class stratification

during

of

Israel

its to

Israeli

territory

approximately

into

of the

93

formative the By 1960s

period

according came

cent

per

ethnocratic the

model follo,vs:

those

x°7

to

as

Jewish

public and

institu-

of

control

effective

and ownership

formal

the

Jews

that resided

Palestine before

the in of

creation Israel

the constituted

Israel).

(Mekart•ei

This

Israel Lands

together

• aggregated

into

dominant

tions

'charter'

'founders'. of this

As

originated

princi-

group

group

of

registration and formal

major

rested

achievement state pally

from

Christian

(Ash•enazim),

sources:

two

countries Jews on

arnving after

many

land,

which

of Palestinian

nationalization

land, and the ownerless upon the

of backgrounds from Israel creation similar

better integrated

were

focus here.

layer. this into social Mizra•hi

Jews, from coming Islamic

countries,

fully

pub-

trans:ferred

refugees

of the Palestinian

The

to

made

'immigrant' the

was property

and of them

continued for

several

up

group

many

became and remained that

Palestinians

lic/Jewish addition, ownership.

In

generations geographical secondary

social and

positions30s

occupy to

they

land had

of

the approximately

40-60

lost Israeli

citizens cent Those per Palestinian Arabs that

remained became Israel and

in

its

citizens

mainly effected

ordering legal

mid-1950s,

this possessed,

Until the

lt2

form

was

'indigenous', the third

'local',

'alien' occupied and

the

group

or

Acquisitio

Land

Law the

(1950), Property through

Law the Absentee

n peripheries

of

Israeli and society.

space

with these conjunction taken in administrative actions statu•es,

(1953),

will draw

them. implementing •3 and interpreting

decisions

and

court

LEGALIZING DISPOSSESSION law

and the legislation,

of

pieces examples these from

asso- case two

mv

them.

ciated

with

only

approximately 1948,

In

of

the Israeli territory 13.5 pub-

per

cent

was

play

and

law settlers'

that argued third

section

the

in

have

courts an licly

owned and

controlled.

this remedv

undesired To *°9

situation, Israel

regimes. land

of legitimation

and

the role

creation

in

new

simultaneously

initiated ,mportant

comprehensive with

policy its geared creation

a

techniques

legal and

in formal

rules

of

emphasized

the

have

•mportance establish

land

regime.

This

regime

based

national-

(1)

to

new a

was

on:

would like

regimes.

land

of these

and endurance

to the creation

stress

Judaization

and ization land, of

the (2) centralized by this control of

land

work legal ]egitimafion

that

first The

points. additional is

here can

Jewish

and (mainly Jewish institutions the

National

Fund), two

and

(3)

state

equity;

and justice

l•s promises

good

of

its

only makes

if

it

to

unequal selective

and

some of rights allocation on

Jews,

that in

possessory

to

ways

major the

societies,

ethnocratic

of

the

Secondly, that

believe in

mainly

favoured

the case 'founders'. chapter

focus this first

In the

on com-

which is

'indigenous'

the

much

legitimation of is

audience group,

not so

alternatively

force, of

threat by

direct either controlled often

or

use or

major that the believe

change

the

chance has

feels

that it system. to

no

the

belong

project

legitimation

of legal for of the

in-depth

need of

the and

analysis, groups nuanced

focus-

audiences

two

to am course

aware more

ing the important differences existing layer, within changes taking place each the

on

rhe within groups" and internal continuing relationships the the evolution of

structures,

them.

among

ethnocratic The

lo7 dynamic model

changes

do and

is

The

pic-

time.

Kedar,

above,

Yiftachel,

a one,

Kedar and over

4

of the other

For

components

review here a generalization

of the social immediately

is

the fol-

in

present

ture

a

years structure

above.

Transformation', Legal

100

'The

lowing

the

of

Israel. creation

Fund,

National Jewish

and the

Authority,

Development

the

the

That is

state,

complicated. The picture

do

is

Ashkenazi fitted that all

Jews

easily

into

(1960). of Israel not Lands mean

of

Basic Law:

'Israel Land'. together See

form

which

s.

framework the social

'founding'

by devised

the

However, overall

that

the

Jewish

Transfer

group.

Golan, 'The

*t

seems

above, A. 684;

Kedar, 100

above; Kark,

to

109

proportion of

immigrants

from

especially Christian and

European

back-

and Lucas

Independence', coming

in Troen of

eastern during

the Arab War

Lands

Abandoned of

Control

grounds, successfully

who

integrated

higher.than

much

the proportion

of Jews

Refugees

Palestinian

in

The

was Absentees:

com-

Cohen,

Present

above, 403-40;

H. (eds.),

109

from ing

Muslim

n.

countries.

above.

Kedar,

Yiftachel

and 4 (Hebrew);

(Jerusalem, 2000), 100

Israel

1948

Since

the

the end of

At Israel approximately

controlled

mil-

20.6

20/3/50,

Israel)

of

State

covering war, of the an area

(Laws Hachukim

Sefer

Law,

37 Property

Absentees'

lion dunams

five

(about of million officially hectares)

land However, land.

by

owned

Hachukim

Sefer

Compensation) 122

Law,

of

and (Vahdatiun

Acts

Acquisition

Land

86;

Jewish

individuals and

organizations only

approximately amounted of the

total 8.5%

Kedar,

above;

Land, of

100 Arab Redemption to

and the Israeli Kedar,

Law

58.

n.

20/3/53,

of

the

formerly With addition of the

land

that

by owned

the

Nattonal

British

of

Control

state. area

Jewish

Israel's

was

State:

the

Arabs Lustick,

in

1. 684;

above,

100

Mandatory

thereby Government only by and Israel, inherited

about million

13.5% (2.8

abo,•e. Hofnung,

100

above;

100

19801;

Kretzmer,

Tex.,

Minority (Austin,

dunams; hectares)

700,000

Israeli of under

ownership: Jewish

have of title.

mainly

settlement

territory

state

based began,

phase

mid-1950s

the

In

'Planning,

Kark, Housing Policy R.

and

The of

Land Concepts

Formation 1948-1952:

above.

100

Legal

Transformation',

'The analysed in

it

n.

and Governmental

Frameworks' /eds.l, and

I.S. Troen Lucas N.

in The Israel: First enough of

good

its

making

actually

by

rule

confirms

ruling

class its

'The

Independence o•

Decade (Albany,

also

NY, 478; Granot,

461, 1995) Netivol

A.

U and tolerably

.fair

is

the

opposition that

potential

promises

convince utopian system

to Meflasim

(Jerusalem, 1952), (Hebrew); Malman,

133-4

Dunam Plus

Y. 'A Dunam

ft.

Gordon, above.

34

faults':

all

with

its of capable

improvement,

even Billions', Ha'aretz, Worth (Hebrew). Apr. 1997, 20 B3

425

Settler States

Ethnocratic 424 Alexandre (Sandy) Kedar

Formally, the

Palestinians. only reality

encompassed

in

which

egories,

constituting

the 'nation' 'founders' the

and

the

'immigrants',

well

who as

included as

blind',

tt 'colour Of

'absentee'

person

definition any

international

audiences.

was

an I•6

of

participated the War, in

in

that

part

Arab resided any countries

in Though or

following review each in of the

legislation

both

and

sections

British-Mandate

control,

military

Israeli

under the

Palestine

law, any iudges' or

the legitimation

role in the not

project especially

is

interest- case

By residence)

z°

habitual of

place abandoned

his

that

Palestinian

citizen

ing

adjudication opinion. in early The dispossession of

the land

my

predomi-

refugees,

cases who

practically

Palestinian

all

definition,

this

by the Supreme

Israeli judges

Court reveals very

the

traits

mentioned

two

Israel,

by

controlled

the

outside

Arab

countries

moved nantly

area

earlier.

or

attempted that It these

judges to themselves,

convince

the

seems

to

of

indusi0n

the Furthermore,

'absentees'. automatically

per-

became any

Jewish population

Israel, and

the in international

community that,

all-encom-

residence'

habitual place

of

'abandoned his

who so

was

changes

notwithstanding

the

land radical

regime,

in its

son

Israel

demo-

is

Israeli

Jewish Arab a

and

potentially

include

could

that it passing

many

based

cratic

rule of law

impartially administered

by

inde-

state,

on

a

of

the

language

an

the that

warned

article

law review Indeed,

1949

citizens. pendent

and equitable a To

these

audiences, varied convince

system.

court

author,

Dr The

Jews.

also Arabs, only but

captured

Regulation

many

also

and not persuade

of the

Arab

of

Israel,

citizens

the

attempt

to to

some

regula-

these intend that

legislators

'[dlid

rhetorically:

the

asked

Vaks,

deliver

had Court

of these

founding especially

promises

the

in

to

some

regula-

If the [?] Israel

resident in

Jews Israeli apply

also would

to of

the

Israeli land

regime. ttons

moment

plainly

said

should be

Arabs, then it only apply

to

to

meant

were tions

Indeed,

explanation'. attached :z•

regulations in

clearly

the

and in

or

dominant the

Absentee dispossess Legislation Property usually

do legal regimes

while ethnocratic not

legal

and

differentiation, of

they

devise construct

ethnic

systems

The following period immediate

group,

the the

War Israeli

authorities

saw

without

rules

discriminatory of application

the facilitate

categories that

adopting

policy ambivalent refugees, toward

Palestinian

permitting

an

Vaks'

answered

Dr author

another surprisingly,

sug-

admitting

Not

it.

of

thousands

however,

Soon,

embraced Israel

policy

that

tens

to

return.

and

a

openly

discriminate

could

Israel enact

explaining that

not

'barring called

for

refugees')17

gesuon, Simultaneously, of the began Israel

return

utilizing

suggested the

Instead, he

for Jews. and

Arabs

for

laws

lay legal

foundations the separate

of

land

regime. its

to

new

regula-

Indeed, the regulations,

t22

of the

clauses

particular

The exemption Absentee Regulations Property

provided

major

component to a routineexcep-

resulted

in

sophisticated that

mechanisms

included

a

tions

this land

legislation

displayed

regime) This

•8 the of

charac-

new

many

example, 28•a) section

of For 'absentees'.

the

from of

Jews

status of

settlers' teristics outlined law

the

previous non in granted

section. far- It

w.ho,

certificate

exemption

person

compelled

issue

any

CAP

the

to

reaching

an discretion

to

authorities. the Israeli

instance, For all

to

left his had

property

of absentee,

definition

formal the

under

though

he

an

belonging

came 'absentee'

vested

of

Custodian

in Absentee

to

an

practice

actual was

a The enemies')

23

Israel's

of fear of

residence

habitual 'out

Property

(CAP)

legal further for with need thereby

action,

imposing

no Simultaneously,

of

Jews. exemption

systematic

resulted

in

of

CAP

the

legal

the

a landholder

the

that

he

entitled

the retain

onus on to prove

neverthe-

to

Israeli was

became

who Arabs

of thousands

of cmzens

several

land.

Regulations

The professedly

tens

119 also legal constructed

'neutral'

of

'present irreconcilable title cat-

acquired became the and

absentees

less

lives, of their x24

for

the

them

would haunt

that

rest

absentee'

one

Compare

ruling Gordon, 'The itself class legal by ideology;

taken

is in believes it

that

it's

justly

according

when law,

that the it

getting

approxi- 1947 acting

after is -Nov.

29

who to acts

everyone

included

'absentee'

of definition

or

person

on

The

on any

mately

the

best possible

fact,

deal'. ideology

(In

of the

of the in of the 'rule law',

mid-

Arabia,

Saudi

Syria,

Egypt, case

Lebanon, of

subject

citizen following:

(1)

of the

dle-class or

people

rather working- sold

than was

lower-class

people.I it outside

of

Palestine

'Law

are more on

in

countries

of these

part

(2) in

any

Yemen;

Jordan,

Iraq,

or

any

just isn't

domination, class

instrument of class

of struggle'.

of it's

place

The

abandoned

b.is

an

had

who

citizen

Palestine content

Regulations;

(3)

of

the

the

legal of

was

rules

and

ideologically practices favour

tilted area

of'..,

is

the

in reproduction

of

official

organization,

included

also not. definition cur-

The

residence. any

habitual

modes of hierarchical

domination,.., ruling

but don't everything classes

have

their

l(a).

See absentee.

becoming

conditions responding similar

s.

Gordon,

to ...' above.

34

Hapraklit,

way own

Regulations',

Property

Absentee

the New

Comment Vaks,

'A

Dr. A.

Bisharat,

See

above,

also

103 Segev, 504. See T. The lsraelis First {New 1949:

original.

Emphasis

in

28,

29. 6, 09491

York,

1986),

30.

Haprat•lit,

6, 92.

11949) Property',

Yifrah,

'Absentee

S.

The

Regulations,

supplemented which decrees,

first earlier

enacted under additional in

condi:ions

Dec.

prescribed

and

30

and 28{b) 29

S. 28(a).

See

ss.

but 1948,

published s. only beginning

of

the Absentee

Property Regulations,

1949:

1949,

his individual

at

could release

property

of Absentee Property

Custodian

the

which

Supplement 37 IR 59

governmental special

No. 2.

A draft the committee started

regu-

to

of absentee.

the

from

lations

during

status the

See Record War.

half 3 Knesset Apart several from

meaningful 163,

167. almost

above,

173-4,

Lustick,

113 According

above,

513.

103

Bisharat,

to See changes

introduced

the legislation

(the in

Absentee

Property

above, (1950)),

Act 100

Kretzmer,

absentees'. permanent

'present

Israel became remained

in

who

Palestinians

the

these regulations

fundamental the down law

governing

absentee

According

absentees'.

set

property. 'present Arabs became 75,000 about similarly

that

57,

Regulations. See of esnmates 5 the s.

427 Settler States Etbnocratic

Alexandre Kedar (Sandy) 426

Justice

Likewise, Minister

sanction') honorable 3°

received 'their

had

argued proof

have the burden of the

previous

As in section,

is

an

Party',

'Progressive

centrist-liberal

member of the

Pinhas

Rozen,

com-

a

dispossession

important of tool the land.

Steve Wexler in native

notes

•ar-reaching

questioned the

who

colleagues

his forted those

among

that

facts be therefore

and

be

many

cannot proven

must court

,n overly

be

should of

the Knesset Members

the

in

not

arrangements

statute.

proof

imposed If

burden of the assumed. side

social

is certain

on or cat-

a

the

extensive

would

monitor explained, the concerned,

he

since

courts

making 'when

of

the decisions, rarely, that

it it

egor};

comes to turns

out

that

in

is

in

Should

the CAP Custodian. of

the

not

way

act

a

powers

proof

if surprise! the burden of

be This What

the

is

ever,

met.

way can

a

will

wide

TM As

doors duties, the court's

with his accordance

open.

are

likely

works: law

conclusions

reach

the

it is it

to

fully starts out

more assum- did

of this interpretation

Supreme

Court's the be not statute

seen, probably Regulations of ing'. point. The drafters understood this

the Izs

fulfil

these

assurances. provided

They evidentiary

the him the

and

CAP with

potent powers gave

transfer

full

the

the CAP

allowing

clause contained

The

to

statute

a

proof possibility easily

shift land

burden The the of

possessors.

to to

on

called the

entity

vested him

land in of ownership all

new to a

strength judge-

of his

CAP could the appropriate

property any

own geared

on amendment

though

Furthermore, Authority'.

'Development

132

an

body

of

All needed certify writing he that

do

in

person, ment.

to

a

was

(the

absen- 'presen.t Israel

residing legally in Palestinians the

exempt

to

of 'absentee' absentee

under the

property

rejected. persons, status or

or came

amendment

the

of

•'•3 received cross-section

tees') was

support,

a

proof they of these The burden that did under

it

property.

not

come

or

essentially

the

the

enacted government minority small

as

A statute

fell.upon

involved) If this did suf- categories the zs

not person

owner or

proposed

it.

•34

revealing fice, the of Custodian also from his the immune

source was

classify information

led that absentee,

him

xz7

person

to

as an

a

of

Property Cases Absentee Regulations, Adjudication

they Notwithstanding of of the sweeping the Court Supreme

Patterns

scope were

legislation. nevertheless

the could

CAP

For

instance,

began temporary

not

waned, 'absentees'

had of the

War shock initial to the When

only

ownership transfer

of the but for lease him, the land vested in it

defined 'absentees'

PaIestinians

Most approach Israeli t3s the

as

courts,

enduring periods.

however, short-term Israel

established

Soon,

•z8

effort

judiciary. the

more

a

As Israeli

reach the

could refugees that to

not

were

began debate the

late the

intensive 1949, In Knesset

arrangement.

over failed, an the

of absentees

the

from of Israel

Arab

citizens

status

exempt

legislation, Property of the Absentee

t2• In its Act.

adjudi- permanent enactment

absentees', in

mainly 'present those

encountered Supreme Court

effort

the the

convince

support statute, government

to opponents had to Israel

Since authority:

limited

had

the Court such

cating

cases,

example, justify-

legitimizing authority invoked the of the

For in

courts. Supreme the

parliamentary of

model adopted British

the

supremacy,

Kaplan emphasized

the that the ing

Eliezer

Finance Minister

statute,

Consequently, the

judicial

of

review

lacked the

statutes. Court

over

power

by

Regulations the Israeli and had several been examined

times

legisla-

courts absentee

the forthrightly invalidate

could property Court

not

Supreme

Israeli

the

law

like certain

tion) However, courts,

36

common

village after left November

had his 'Every Arab Palestine who Peretz, Don

in

to

town or

classification

that and

interpretation

of

enjoyed

broad

regulations..All

Court Arabs

under the who liable classified absentee 29, 1947, be powers

to was

approa.ching

litigants

Accordingly, regardless

they fact have

of held of the that City the leeway. in New

Acre, substantial potentially

property it may

never

gave

classified absentees.

farther

The

City, Old traveled than few the

the

such

but

legislation

absentee the

meters to directly

did

as

the Court

contest

not

Israel, left

but who the

Arabs fled from another 30,000 place who

in

coun- never

to

one

from them

exclude its

persuade the Court

attempted instead scope.

individual

also declared

Any absentee. who

liable have their to

to

try,

may

property

days during

the latter of one-day have visit, the Bethlehem for

Beirut

gone to

Israel and the automatically

Mandate, Palestine Arabs

Peretz, absentee': D.

was Record, 165-6. an

(1949) Knesset 3

Record,

t39. (1949)

3 Knesset

(Washington, DC, 1958),

152.

1950.

Act

Property

of the Absentee

19(a)

See

•32

s.

•fBritisb Wexler,

Proof, University Nazareth Columbia 'Burden of

(1999•

Large'

S. 33 Writ Mapam, Mapai, Religious, United

Zionists,

General

of the Members

members 75, of

Law Review 78. Two-thirds

for

voted present

parties it.

and Communist

Democrats,

during

of Israeli Parliament members

the the by several

criticized This

power

was

abstained.

right of

of Bader the of wing the Knesset.

legislation. debate the criticism

Y. members

the See,

of the 120

against, and

favour, 18 permanent e.g.,

on in

The

26

out

vote

139-40,

Record (1949) Herut

3 Knesset

144.

party, above, Reported

172.

Peretz, 124

in

n.

Supreme

the reache'd

See •27 12,

CAP 32. the

against

Arab

of

litigation

first Apparently

the

ss.

of of

law the renewed Court until periodically the 1949. regulations June from 1950 The

decision

appeal

from District

September enactment

1949,

in

Court

half

of of

the

Force Security than absentee for fewer

See, the Extenston

of

end Stature 1950 Until

the Slati,

Saba

PD 3 61.

Gyres property.

The

e.g., CAP AC 48/49

See

o'f

for the

Extension Regulations

IR Statute

Concerning 57; (1949) 12 Property,

Absentee

Court.

Supreme the

reached

such

dozen

cases

Regulations

Propert

Regulations Security of the Absentee t19491 27 IR Concerning 12. Force

Absentee both the

include Legislation'

3,

"Absentee

refer the

•3•

to

to term

coali- chap. unusual

interesting describe the this

will

be a•le

In

ano

to

not and Absentee Statute.

the

debate. of the and tions Knesset in supporters opponents

Settler 429 Ethnocratic Stares (Sandy) 428 Kedar Alexandre

Custodian

The

classified

absentee However in

should be Certain petitioners attempted persuade

the Court that they

property.

since

not as

to

their of did

the petitioners leave

while

left Absentee Samara,

Property their residences they

first, 'absentees'.

the 137 At not Court

never not v.

were

displaced. Rhodes displayed

itself The Armistice

residence, the residence

neutral,

142 if sympathetic, approach

toward those

was

a not

even

pre-

that

determined the Jordan (1949) and Israel reaching between

absentees

Agreement If

Arab could

Supreme the convince it.

Court

area

sent

an

This Israel

Israel. turned

the.'Triangle'

would be that groundlessly the known

absentee,

CAP classified

him

gave

had he

to

over

as

as an

rea- a

them the

of Palestinians, thousands additional sonable Simultaneously of

chance

winning his

the among also

Court

sovereignty

over

case.

of the particular

respondents. dispute

focused

The effectively instructed the

CAP segment legaI

the

exercise respon- extensive

on a

to

more

powers

while of

Rhodes the Agreement,

dents' Before the

he Thus, commanded. accepted the the Court in 1950

contention property. enactment

case,

a

Jordanian

land respondents' of

and their in

the

home

Christian of

temtory, Arab that failed facie the refute CAP the

prima

evidence

part were

to

a

leaving While

already

territory. Israeli •43 produced additional

in he

that proving ruling 'absentee'.

he

While

138

in

tracts

were

not

an was

declared

the Israel, under the CAP had just the

land that untouched favour

of petitioner, also

the enjoyed

reminded that the the

CAP Court he

come

property'.

'absentee jurisdiction

He initially be Israeli

evidentiary disposal: according in

legis- his absentee

the

to potent rea-

tracts

power

at to

situated

outside

resided respondents had the

soned that

lation,

declaring certificate, the Custodian

could issue written

an area

m

as

person a

a

argued respondents

qualified

The iurisdiction they absentees.

144

Israeli shifted absentee.

disprove claimant This the the

as property

or

onus to

to

which

Rhodes

Agreement, violated

the

Custodian's

the

action that

later allowed the

In 139

Cou•'t the

certifi- it.

CAP

the

issue

case,

to

a even

Israel 'shall be

villages transferred of stipulated the

the residents

that

proceedings pending. while the Court the failed petitioner

As to

cate

were

rights

of

full

protected

their

in, shall be and

entitled fulfil maintain, the dismissed

the

the petition. Court

another In

14°

to to onus,

case

freedom'. residence, and 14s however, successfully landholder the decided that Arab Court the ful- property

defer

o,ften

their

of the

the such

Yet, fille theprima issues, the in facie and refuted

to by

presumption conquerors created the

courts

onus,

long

have

alien and

protecting

and

native

sovereigns, treaties Thus, of certificate. the individual issuance groups the

Court in made a TM

cases,

peoples.

happened

native often infringement.

This of

history

that

legal authority.

the did

exceed his CAP the to At

time, the

sure

not

same

integral of the

settler's

Additional 'aliens' who did constitute

took itself

itupon part of his remind the CAP and immense

an not

court

powers to

following example, the MexiCan-American

well.

suffered For

efficientl.v.

instruct him how

them

as

nanon

to use

from

of Mexico. acquired territory

United

Then, the States

War,

the

confronted mid-1950s the of

Court different in question

amounts vast

a

a

population

Chicanos,

of

significant

incorporated also

The

magnitude. argued

they previous the

petitioners As that

in had conquest

a

cases,

of

with the ended

holding land. The

of them

•4•

place their left habitual

of residence and

therefore enactment

their war

many

never property

explains, Guadalupe Hidalgo Guadalupe Luna (1848). of As Treaty the

promised the

that

provisions

contained

the

Treaty

private

protect

to

litigants

of Such

the the maintained that 13r ultra actions CAP

vires.

were

language

articles,

population, Several

in conquered

of the

a•7

a

Mazlah Joseph, Arab, property

petitionedthe

Christian

Supreme

against the Court

a

appro-

of priation by his argued The land the

petitioner should

been have CAP. that he clas-

not

sified absentee: produced facie he had

had evidence left his prima that he

as an

village,

proved

and identity

that he held

Apparently, first

Israeli card.

while

at

(Decided

Others, in

EI-LatifSamara

and PD 10 1825.

Abed The CAP 9_5/55

AC of village elders of supported the

the claim, his later

of them claimed he that

had

v.

some

concurring.)

and

by

Hashin Susman Justice

Berinzon,

1956, Dec. left Lebanon. The Joseph that the belief ruled

absen-

CAP's that Court

go to

to

was

conquered during

they

the War.

As the

of

had left the

existence that

petitioner Lebanon

the for dur-

were

tee,

or

country rumours

of

l(a)(1)(b)

Regulation

according

be absentees

believed them

The CAP

ing the produced

suffice refute did by

the

evidence the petitioner:

BGZ 91/50

not

to war

period:

they owned

thecrucia]

(1)

During

Regulations

(Absentee 1948.

Properryl

Security

Mazlah Yosepb of

Property, by Inspector

The Absentee (Opinions

154. Beker and

PD

5

of stayed

Eretz

they

in

jurisdiction

and (2) israeli

under the in Dunkelblum Asaf section J J, concurring. a Decided Jan. 1951.)

in

property

jurisdiction.

Israeli

outside the Israel

of

Regulations

the See

Emergency IAbsentee Property)

of 32 and

the

30

s.

General Armistice

Kingdom and Israel:

Jordan

Hashemite the Treaty

The Between

Absentee replaced

Property that advantages evidentiary them. Additional

Act

made

it

Lapidoth

and

reproduced

in

R.

Signed 6(6), Rhodes

1949,

Apr.

3

Agreement, extremely

difficult

for

challenge

the facts such certificate. E.g.,

stated

on in

person

to

nor-

Selected Resolution:

Documents

Conflict

and

The (eds.), Arab-lsrael its Hirsch

M. mally,

the

questioned knowledge. be CAP could

of of his the

the See

32

to not

source

as

s.

1828.

above.

also 25/55,

(Dordrecht, See 1992), AC

142 89.

Regulations,

and of

only

the Mazlach,

did the remind Statute. 30

the

Court CAP In

not s.

of

Treaty The Todo-Poderoso:

de

Nombre

'Symposium: Dios

el

En

Luna,

See G.

certificate,

that he

the also could issue

but stressed that the decision did written

it

pre-

not

fLaw and Journal

Southwestern

Legales'

Hidalgo (1998) 5

And Narrativos Guadalupe clude Custodian from the certificate issuing later date. such

57, 58. Trade the

Americas

in

olC Elkader

Abed El See a•o The Custodian Absentee Psakim Matri Property,

347.

4

who all

'and Mexicans

heirs, and

their prom,sed Chicanos,

that the

Treaty The

Zilberg

(Decided May

and 1951, concurring.) Vitkon in

with

it enjoy shall

by

said acquire hereafter

guarantees respect

to

The AC 216/58 by

Mery (Decided contract, Habib property

Hana, CAP Justice Hashin PD

13 740.

may

ibid.,

58.

United States':

of belonged ample the if equally the

citizens

April

at and in Agranat 1959, Berinzon concurring.) same to as

431 Etlonocrati¢ Settler States

(Sandy) Alexandre Kedar 430

individu-

few noteworthy

the

that

of Israel's enemies') is fear

It for ss

or of the Rhodes Agreement, their 'secured reminiscent title'

Mexicans in

be period requesting

earlier the

Court Supreme in

reached the

who

als

to

guaranteed and of them 'the taw that

protection extended it

to

to

same

Litigants

Arabs? typical Muslims

s6

non-absentees defined

not

were

as

according

United by the of the

Yet, Luna, citizens States'.

the

14s

to

turn

better somewhat enjoyed

(who Arab¢

Christian

either s7

sta-

a

despite of presumed the were

of the their protection

the in

century,

property

peti- Israel,

such special

link

could

who

tusaSS),

as a

to

prove persons a

or

Treaty

land, of

Constitution, and the lost their

Chicanos

in

most

great

of

a for the

Stare mission

spying

originally left Palestine

who

tioner on a

adjudication? of deal

the

it due American

Court's 49

to

absentee)

categorized

s•

his

who Israel

but

as an

was

upon return

Similarly,

favour while ruled of Samara, the District Gourt

the

in

the CAP,

granted

the in

Notwithstanding

the

years

to

potent powers

Supreme

reversed the decision and endorsed the

Court

CAP's

pro-

of craft

managed

following the Court immediately War, the

canons

to

According

that the absentee

land

the

property. nouncement

to compelled

was

him and discretion CAP'S the limited

that

to constructions

Supreme

the intend offer Court, Rhodes vil- did the Agreement

to

not

Arab,

Christian blind

Ashkar,

Thus,

exemption.

desired

the

suc-

a

grant

lagers rights they enjoyed

before

additional their

those

argued any ro annexation

that

of absentee. He himself from

the releasing

ceeded

in

categgry

emphasized

by Israel) The also

that the Court

s°

to agreement

was received no

that

he and

absentee groundlessly classified

he

never

an

as

was

signed judicial

subject the between

The

treaty to powers.

classificanon. means was

two

this

purporting

evidence

the

refute

chance support the

ro

to

obligations solely

rights for and and forth the the

it

governments

set were laws

acknowledged

the absentee that

the petition, Court the accepting

In

involved enforce,

tsl

to states

hour this

'as

provided with

authorities emergency the

power

extensive

produce 'legal

Moreover, dominant belief that jus-

structures'

groups

legislator

by granted the

the extensive

demands'? However,

6°

powers

professional tify

dispossession discourse'

which

claims abstract

with

'an

of

attitude

with and

with

compel

authorities the

'to

an composure

act

judges Simultaneously, regularly 'neutrality and

outcome', ls2

in

process

might

Even they

understanding of the

and honesty cause.

consequences

ow•

deny ideological

interpretation and

their choices in

attempt

obstinacy

pro-

to

iustif3'

arbitrariness

authority does

the

extensive

or

not

most

legal adjudication? of ject rhetorical effect their

necessity

It s3

is

trenchantly

to

a not

wrangling.'161

The Court

feeling

of

of

stubbornness

or a out Judge decision, surprising reversing that, therefore the Berinzon in

judges claimed the 'understand Supreme

that and

appreciate the Court

regulations

(27fa)

of the

according 28(a)

his

obliged

He

to powers

goal judges

human

of the and wish the

recognize

District Gourt

of that

opinion is

Custodian

ro ff the

stated

that

Regu of

the

28(a

S.

of the

Statute).

at

ons

rights

equal judges

respondents' left his

d•fined of the 1(b)(1)(III) iv- However,

citizens.

accord 'as

absentee

could be

who

ng to s.

certain as

we are

person,

(2)

him,

harm would

Israel of

enemies of not tt,e

fear that

place--(1) free rendering because from of refrain the

interpretation

the law ing

not

correct

to

his

that

give

Custodian

the them,

of

fear

military person, on of actions must

because

unsatisfactory'

or just because the might

result the Court

to

seem us con-

absentee.

he certificate

that is

demand,

written

cluded

and decision,

the lower Israel. reversed

of Arabs court's in

ls4

maiora'y dominant the Muslims

by

absentee

denounced

apparently

who

Arab

adjudication by

blind

Christian Another line of encountered the Supreme as an

Court was tsv

e.g.,

of Absentee

Inspector The

Asbkar

43/49 shop.

BGZ his

See coveted

neighbour who

litigants asking exempted of involved from

be absentees.

the

BGZ

In concurring). Zilberg

status Ulghan, to and

Dunkelblum

by (decided

PD 926 2 Property,

Justice

by July they These had left their petitioners

admitted residences, habitual

(decided

that 1950

in

654 The PD CAP,

Kauerand Others 4

Emili

3/50

mentioning by

opinion

began

its

the Court

concurring) Zilberg and

therefore

qualified formally Dunkelblum

argued and

they Ulshan,

However, 'absentees'.

as

of the

Mandate.

Two

during

the

civil

served

petit,oners of

the

that

servant

as that the they should non-absentee certificate one CAP them left

since

grant abroad.

a

and

Englishmen live

married

daughters

to

were

International,

Ph.D.

their military for fear

operations, residences

because of of them

Israel le Droit

'not Minorit•s Ramadan,

Les et Abu See M. nor en

2001.

Aix-en-Provence,

Dissertation,

Aug.

Landau Judge 21

by (decided

837 PD CAP, 7 The Palmoni on BGZ 99/52

concurring). Asaf and Ulsnan 1953,

935. above, 43/49,

157

BGZ

Luna, blind Christian 146 above

Ashkar, 72.

Dunkelblum. Judge

by

above, 935,

at n.

43/49,

157

BGZ

participated Complexities

Colors: of the 'Beyond/Bevxeen Luna, See G.T. The On

in

Race:

and

card

identity

possessed Israeli

Haifa,

of legal resident

and

Arab

Guadalupe

of village

Sanford' Hildago of

northern Treaty Untversity

11999)

Fassutah, and Drcd Scott 53 Miami

temporarily moved

he

1948

national elections, in

to

the

an.

Haifa

returned Law Review 691.

but

occupation),

Israeli

under

(which then

Galilee

the

in

yet

not

being

the

belonging

land located that, claimed protection therefore did The

extend

Ashkar

Hagana.

by

the of city the

terr,tory to to before the

1948,

Mar.

conquest

gangs'

'foreign prior Israel the

of

of fear annexation. Haifa

left neighbourhood, had

he

to

his

only

Christian out in

25/55, above, of Arab AC

inspector 142

the 1829-31. after

1948,

forces). prop-

•rregular In Dec

Arab

n. (probably

meaning

forces,

Jewish

Gordon, above,

by above,

Minda, 110. 47

649, 35 blaifa

left its

since had

conquest Ashkar

established

that

had

not

erry

the shop Kennedy,

above,

collect

34 in •s• lease Haifa

19.

from his home

permitted in

n. ann to a Ashkar

was

rent

to

problem.

legislature

above, such the the

address who In Salum could AC

25/55,

142 by G'eris

absentee denounced

cases, afterwards, Ashkar n. Shortly one city. was 1834.

432 (Sandy) Alexandre Kedar Settler Etbnocratic 433 States

'domineering

criticized

the

applied

methods'

the refusal the petitioner the CAP's issue that

and the

petitioner ruled convince Court

to to

must

favour. his in Likewise,

though

during 16z

its

circumstances 'logically the intervention certificate untenable that fitted War

is

to

•t warrants

our

so

nearly

the

letter

legal

the definition 'absentees', of certifi-

the the and compel Court

[the petitioner's issue believe' the to

CAP] version

neverthe- to

less

released Christian family

with close silently

British

instituted. been of

has from

Thus, connections

that construction

a •s

cate.

new canon

a

The Court 163 conceded that the discretion

decisions rested absentees'

the status. challenging grounds the authorities

in in for The CAP be 'to

were

of the opinion'

that justified the discretion circumstances with their the interference of the

hardened, certificate. issue while Court's the

was

Nevertheless,

ruled

legislator that

it

supply diminished the protection did with landholders leaving the Arab severely limited,

CAP

with

not

'magic immunizing words'

from judicial him interference. dispossession. their against

164

long

Before

however

the

from manifested

retracted other Court this line of liberal

in of

shift the The construction

in

areas as

was

prece- canon

dents.

The particular

•s offered lim-

El Fahum early

The circumstances Supreme Custodian

of in example, the

Court

wel 1.

For in

very a v. case,

an

Absentee

Property

apparently

legal

The

Property

the the Absentee Act. of decision

CAP's

ited

interpretation section 17

sec-

support gave

to

to

El Fahum

non-absentee if the

by certificate. the CAP effectuated CAP legalized However, transfers dismiss- in 16• grant not

to

tion

a

property even

ing Et

Fahum's

absentee.

also greatly

expanded the of It

Court the the and the

of made mistake

the

request,

IS property

not was

an

scope

owner

a

discretion. CAP's

advanced The that, equitable decided interpretation

Court 1•7 order that the in succeed,

Court's the

important

was now

to to note

by

transferred mistakenly

involving

whose

Jew

in

property

coveted shop

the was

and argued

Ashkar had that procured

a

a case his

false

under

contract

pretences.

'exceptional

that The ruled Custodian 17 of section

Absentee

decision, the Court

this taking Property, the

CAE In hear the

Ashkar's

time

version, issued not was

to

certificate declaring

him

ordering

absentee

and

shop. him civilized

nation'. his

established legal

Ashkar •9

a

in

from the

deviated and

an

to

evacuate

any

norms

requested the Supreme

order Court issue requiring the

Custodian

the

annul

to

the lay

outside to that

the

action invalidate

(an While

did section

it

tificate, con-

his

cancel

absentee,

not

and allow reclaim him

ownership

shop,

his of

status

as an to

would

'restrict decided

that period), with regard it the

Court of which the st•tutional had he rules

obligation. contractual

Justice Dunkenblum

decided

that

to

the evidence

against Ashkar

had unsubstantiated. been words

Furthermore, distorting the the of Custodian

without

feasible..,

much

the

express

sectaon

as

as

Absentee Property

could

declanng certificate

issue absentee

without

not

person

of the xT° statute',

hearing

first

from

the of Ashkar,

question. the in

could

if he

In

that

be

person

case

prove

relied

the

Arab had later, left Nonetheless, decade when Haifa

fear

of

of

obliged

Israel's

Custodian

the enemies,

prece-

issue him

with on

woman out

an

a

to

was

certificate

stating that

he

though she absentee.

transferring

her

for

attack

the CAP dent was not

property was

even

to

that 'It

the

Absentee for- Custodian of

Property

of the impress,on

different construction opted that the

for

seems

absentee, the

Court

was

very

a

not

an

[Absentee]

regulation

gives him

unlimited

violate binding

cancel

precedent, power

to

or recognized

it

formally agreements,

its

While Court

the mula.

17•

and,

simultaneously,

own

lend

legal

by

issuing this

action

sanction

favorable verdict

to

to

weight

relative

demonstrated it the himself':

that

BGZ

restricted 43/49, above,

its in

decided

The 157

Court

937.

gave Ashkar's first

scope way

n.

a to accept

two

that

is, ordered the

it classification

(Jewish) CAP annul

of collective. the

both

perceived of

Ashkar and his the

requests, and the

interest

private

to

property to

to

absentees.

dispute

left solution of the

shop the Yet

it regular the

the

property

as regular

doctrine

over to

Simultaneously, reliance the Court's

property

on a

COU-rts.

3/50, BGZ Ernili

Others

Kauer and The Undoubtedly, CAP, PD force-

654.

4

v.

ful of

Arabs

Jewish evacuation Haifa, the in effected of by

in Dec. Jews

who

1947

area

stated that

Arabs ground CAP,

would

hold that the

tolerated

be sufficient Jewish they had only if

longer interfere in judges

Jews would since

The

not

to

quarter

a

no

tolerated intelli-

of

in Arab could

easily 'did

be

attributed militarv refusing petitioner's

the

operations fear

by

of

common quarters, person

not act

as

vers,on,

to accept

to or

o(1947

Furthermore, them.

petitioner's BGZ

the version: of ground the family this

reject' circumstances reasonable

beginning the

and have end the did

and

at

to

not gence, a

forced

of

special

reinforced

the 1948

red

opinion they

that convince

also

peutioner from the

place Furthermore,

another 100/63

2276.

com-

atteml:

to

to move

to

at

because

military 100/63 of BGZ

2275.

of operations fear of absentee

family from

them. full the

of The his

the release

is

mittee property: a.t

story

or

status

property

more

com- to

plex. agricultural

ibid.,

See for

intended 655,658. land ground that the refused the

The Committee

at

unreasonable The this ordered that

the petitioner's requested certificate. the

of the (Jewish) issue

Rejecting would settlement. absurd', be 'It

argument

explained

the would decided Court, that only 'that the it

The which refused

could force

s:tuation in intervene. Supreme the ustification, the Court Custodian

court

to court

good adhere faith with the law

illegally, without

such performed would be

which acknowledged if Custodian function in the only the

he that is

believed to

to

intervene

the the

petitioner formal

but nevertheless refused

the stressed with that

him Committee

certificate': also the ibid., issue

The

discrimination. party

to 660-1. not

a

was to court

at

itself

100/63, BGZ

take EI-Fabum would

The

CAP, declared that it (decided has

PD this Court

by

17 2274 in occasions litigation.

President

1963

upon 'In

v.

many

Utshan, BGZ 100/63

2277. of the Susman and

Cohen state':

found published imposed H. concurring). by have law institutions

of decis,ons the

functions

at

various

on

no

Supreme .decided

1954 Court Nov. subject the

Binkovsl•y, 146I, decided 1465 between PD 8 and Avra•arn

Mtrza

1963. 1953 131/53, AC

on

EI-Fahum,

citizen, Israeli July Zilberg,

have left of for Israel Berinzon

and concurring). in by Goytoyn Lebanon. 1948

appears

ibid.,

expanded':

be where rather than

'limited credibility until remained of 1949. should be El also decided

The that Fahum's it he that Ibid., It eft bad 1468

content*on

for Israel

medical

therefore reasons--and entitled certificate--was

non-absentee

1467.

Landau, shaky

(decided by Justice

100/63 See Vasbfia

BGZ

Piad The CAP, 20(4) 433

2274-5. PD 170/66,

AC

•7• m

one. at

what he offered distinguished The her Supreme Custodian

Court

earlier limiting The concumng). Cohen specific fact and

Halevi H. in it

1966,

Oct. pay

to

case,

to •cs

circumstances: returned

BGZ land be her. 100/63

2276. her demanded that she received for her but had to at property,

435

Settler States

Ethnocratic

Alexandre (Sandy) Kedar 434

Adjudication

and

Acquisition Land Act good-faith helped concerning absentee legisla- the integrate transactions

general framework

within tion law, of the

and 'normalized'

of land.

large

seized

property authorities the Israeli Following War,

the

tracts

it.172

legislation,

absentee

the

based

takings

of

these

not While

on

were

I•gislation,

many

Thus,

of decisions other like absentee just its in in

land Additional

legislation.

segments grounded that

appropriation

all

upon

was

the

Court from earlier

retracted favour

its

of interventionist in

without well provisional

laws,

of other

any

basis canon seized

the

as a as

on

was

deferring

Furthermore, attitude.

rhetoric of the appropriated

decision only the

simultane-

provisional

laws

of these justification.

legal

Most

•Ts

professes ously

of Conquerors, legit- limits the of the of

while Courts the question it

the

address

did They

and possession

rights of

the not

use.

only

defined deviating imizes provision decade

original earlier 'from the

with their remained

formally

therefore a a as

ownership, which

own-

legal

established

civilized Land

the

nation'. in

1953

enacted

Israel in

the conclude any

norms To

xT6

process,

ers.

The Finance

Compensation) •77

Act.

and

of (Validation

Acts

Acquisition

legisla- This should wisdom Court justice of this

the question

in

not extent

or

explained

that

its

law, presented draft

the purpose

to

long who was

solution,

Minister,

the of the clear. meaning tive In is

event, any statute as

as

one

following

it'.

•Ta and

the during

done

legality should the Absentee adSress remember that Property

whole 'instill in

inci-

Act

war

acts

to some

came

authorized

mechanism.

&curring It

essential dents the of properties

that time--with the abandonment of the

Statute

2 Section

occurrmg

at out

set on

the

be

large in land

for stating scale and

need these the of the properties Olim certificate

aim

issue

to

not

Mintster pressing to the a

Finance

use

to a

assigned

for

(Jewish

development land Immigrants) settlements and these the New cir- tn that proclaiming

and prolects, of

possession

its

was

owners

difficult due

of infor-

mistakes lack

May it between

security

settlement, cumstances development, prevent occurring

was to to essential

of

or

purposes

always

mation-as the demonstrates--and is it

transferred

the

automatically

present easy not

to certificate reverse case April Such own- 1952. and

1948

the

situation. 173

conferred

The

Authority.

t79 Development

the

land statute ership of the

to

undervalued

normally

compensation, examples place

monetary shift These

limited demonstrate similar that and took in right receive

a

to

a

of alter-

plot

modest

of

also absentee doctrine.

earlier demonstrate opinion and The that in

indemnification, in grant •74

a a

cases my

some

cases

legal

different of existed Israeli within the

construction land.

•8°

native

system.

canon a

village

inhabited

Minister

applied judges changed

The Finance

Sometimes,

by that later

the

the

it

petitioner Younes

a in The

same

was v.

lay land

of Younes'

portion

place covertly. iudges A transformation 'closed This area', did xs• proclaimed The out- took

military

canon. not

a

area,'but

did receive

he

since cultivate acknowledge it could the shift. transformation has result of this been that he

The not

closed

side the

not

Land

of the

aftcr the

village.

gradually chances Soon absentees of the

the securing their dimin- enactment leave permission

property were

to

through legislation, place ished. changes This took but in

process

not

58-9.

above,

I00

Kretzmer,

effectively through

seemingly adjustments,

unimportant, technical but

apply.

did

Act Property

of

Absentee

the

not 17 that

For

tT•

reason, s.

12"Knesset 1952}. June dispossession

hardening

Record, (3 amounting judicial

of Israeli Arabs• of 2202 The

1953}. Mar. {20 to SH 58 122

a

stated: iudicial began roughly third of the section second attitude The the 1950s.

in It coin-

hand--

his certificate

under

by

certifies

legislation,

cided of Minister with Land which the another important piece the of Acquisition

in Property '2(A}

respect

and

of

possession its

the

April,

owners;

1952

it

that

1st

(t} not

m

was

Act.

on

used April,

it

1952 and

1st

1948 May, 14th period was

between

within the

that {2}

and

security; settlement

development,

essential

of assigned or for

purposes

of these required for

still

purposes-- is

that it

{3)

any

charge,

from

regarded free

be

and Authority any

Development the

shall

thereof."

possession

forthwith

take

Development Authority

the

and

may

'Indeed, right

of land, easily

should therefore and inlure

property

one not m

Masaad

member

Arab Knesset

the law

the debate however, parliamentary narrowly

need the Sometimes, the interpret

IT(a).

Sec. the

proper

comes

e.g.

He.explained

that

(1950). land of the

value the

setting for

before of chosen important protection right the of consideration. date criticized should the

Kassis

property

retract

more

JNF.

only

the

selt

could

Arabs

the closed,

had to been offices prefers purchase right good

Such faith of for example, for

consideration the

land

the

registrar*on

since

of State, the

creation

before

the

offered

that it

offer the right s•me of Absentee

Property continued value the of the the the Likewise, real

sections JNF

prices

The

to

over

owner

for

price going

The

Pounds.

British

of

instead

Pounds

Israeli

prefer

legislator's

clearly of offered

indicate the

security the it in

transactions Act only intentton

it this

time

con-

to

10 times

be

real

value

estimated

the

he

while

dunums,

to Pounds good

only by cluded faith of the reached

protection

the Custodian of

the 25 Property

Absentee

land

per

over

will-

by

paid

the

price

the

would

law

it

changing

one right suggested

the The above, Vasbfia Piad

of

to

of the real CAP set

17I higher. 436.

owner': He

so

property

This

certificate.

of the

of suggestton

was

issuance

the

date buyer appellant

willing from Ibid., therefore that barred the

The 17

Court concluded

seller ing 436.

on

at s.

to a

Authority

offered accepted.

regaining the her alternative land Development

The

property.

to

not

rule,

and

military

formally under

many were villages appellant

should be concluded. Arab

the the and settlement Until

recommended that such Court In 1966,

were

restricted.

imposed

appellant.

rejected

appeal the the where meantime,

the and Court closed declared

movement was

expenses

areas, on

analysis Israeli Kedar, detailed above. For 100 Law,

437 Settler States Etbnocratic

(Sandy Alexandre 436 Kedar

procedural

and

adiudication

of absentee

the

Thus,

in

property

case Acquisition as

the Statute

(1953), issued Finance Minister

'Section Two

land

possibility a of

the

minimum restricted rules evidentiary

posses-

to a

Certificate'. proclaimed

certificate The

that the petitioner's land

not

was

land.

their securing

his sors possession in and transferred the Development

the

property

to

Authorit): The rejected Court claim as-" the petitioner's that the of issue

quasi-judicial certificate such Conclusion therefore and and

he Summary entitled

act was

a

was to

his

before he issued certificate.

the

the version Minister The

present

legal

to

the

preliminary

observations

offered geogra- chapter

This

on

some

certificate itself Court decided that

of

the the constituted elu-

issue

'con

of

the

short revie.w

began with

settler It phy

of ethnocratic

a societms.

evidence' of that the

fulfilled. conditions the had been sive

The

183

statute political

developed

by

that settler

societies

of ethnocratic

was concept

rejected

long the

nobody also Court

that petitioner's

else

argument of

as

division as

the

how

Specifically;

focused

Yiftachel. it

geographer

Oren

on

took possession (which of his land

the remained he

sole its

case),

was pos- 'immigrants',

'founders', of

that major

three

such socienes

groups,

taro

preferred interpretation agreeable The

Court

the

sessor. The

to

more

an

settler societies.

of in organization

the influences

'natives',

and

space

authorities. Israeli

ruled that this 'possession'

It actual

in

statute meant

law, that

exist

them

mechanisms,

pointed

several

also

chapter

among

to

physically

and possession, land,

the did the since

possess

possessor discrim-

not

the

legitimate

and

facilitate, and

such socmties within

preserve,

legal. transfer Authority

Development the its

Moreover, the 1s4

to

the

was

order

in

and However, of

preserve allocation

inating to

power.

space

effectively decided

of that

interpret Court the

section in

2

deliver

to way

statute a

society

ethnocratic the

of the dominant

must

hegemony

groups,

barred judicial

subject. Thus, interference

the choice the Court's in

any

internal

tensions the

democracy:

Hence and

lustice claims

of

its

to

some of beyond

far interpretation deferred the authorities and the

to went

of such instability societies.

and

evidentiary

words of increased

granted

the the

written

It

dis- statute. power of

pointed

the

chapter

of the second

emergence new

a The

to

part

transforming by

the certificate irrefutable the in

into

trends

statute:

arising pre-

reviewing an

geography. After

legal of

cipline, that

some

attempted

of the

sumption.

the image project time, Court At

of outlook

to

critical same an highlighted

the chapter many

field, the

this

within

found certificate necessity

lack of The 'that accord- and choice. Court

Legal Studies Critical

of

a

influence

the

focused

geographers and

legal

on

ing of the facts

conclusive evidence mentioned While 2,

is section

in it'.

to the

of

CLS

focus

The

Geography

(CLG).

Legal Critical con-

on

(CLS)

on

explicitly', legislator did the

conceded this Court 'that the

it

term not the analysing

helpful intercon-

use

especially

in

legitimation

of

seems

cept

legislator's

legisla- decided

nevertheless the clear. 'The that

role purpose

in plays

was important

law While

and law between

nections

an

space.

did

of the facts

objection

contradiction mentioned

in

conceals simultaneously tor not

want any

or

inequalities,

it of

organizing and creating

spaces

certificate.'

precludes

the

result, Court, concluded the 'the

As

professional

dis-

statute and neutral

a

beneath

inequalities

these

legitimizes

and

a

possibility appeal practical

facts certifi-

the mentioned the in

strategic rules, of any

formal

to technical

allegedly

of production

The

course.

challenge precluded

effective

decision of the

The

•cate'.

lss Court

selective

to any the legal

distinctions,

meticulous

of

categorization, of

acts

the

of such certificates. Thus, unlimited the

issue Finance it

background

of

power

to gave

omnipresence

the

accepted

'facts' of in screening

courts,

define of

of land the possession

Minister

in its

fundamental

to

any tract not as owner discussed

that assumptions

and

rules as

serve

never

are

dispossess and

him result without

ls•

hierarchies.

inequalities and any recourse, as a of legitimation spatial-legal

of pillars the

ethno-

the from

insights

chapter drew

of

the

third

The upon

secnon

{decided

5/54,

The BGZ Minister, 314, in Mar. 1954 Younes Finance PD 8 318

offer

order

and CLG in

from CLS

well pre- some model

to

cratic

Zilberg by

Ulshan. Landau, and

curiam).

as

as

per

societies

settler

ethnocratic

Ibid., above, in and Kretzmer, 59.

reflections

317. 100

liminary

taw

space

at

on

good people

if the

BGZ added that would have been The 5!54. 317-18. such it

of

societies establishment

family.

The

court at

law

the

belonging

common

to

r•ght:

for ground

such

be that found concerned could the heard, but

it in

ot[.te.n,

statute

which

is regime, land con.-

of

construction

entails the usually

ibid., new 317. a

at

violent

The

ownership of of the land therefore

Ibid., natives. dispossession acqms•tmn concluded that the The violent la•

317.

is

structed

was

at

court

a

on

lawfully Salim The Development Authority. transferred

214/51, BGZ ethnocratic

the In

the

that

legal

to represent

translated

into

then

arrangements

by (decided Ulshan,

Agriculture

and Agranat 1951,

Minister, Nov.

PD 5 1655

in

This dispossession.

the

obscure

the and

transfer

Sharshevsky complaint summarily against the dismissed time

same the at

structures

cur•arnl power

per

court

land, of the and of established ground Kibbutz possession land the that

on

they

unless

litigate such the district

•herefore should the

go would in

to

arguments,

but Court

of his

court.

transfer petmoner

accept

not

property,

a

appeal.

AC suffered

from

certificate the

dismissed

refused The when the interfere Court

2

and

concluded

the Court

proce-

to of matter', the

even s.

the heart

Mar. accepted (decided by Vitkon in the Det•elopraent Authority dural the Dg'ani defects. The (1967) Court

365, 367 I•

Authority, 21(1)

Deuelopment PD

The Dg'ani

flawed, appellant's

nevertheless this would but decided certificate that the

argument and concurring}.

was Many

Agranat 1967,

help appellant. hold technical the appellant the

'The

prevent argument to not may any

legal complexities marshalling of provid- the ot legal-cultural force, burden legitimizes the the t•ore need order for direct and notaers reduces

the

ing

clear

evidence of their in position,

These burdens generally, unequal and ls7 ordering and Supreme Courts and of support Law society.

space

they

often

could

specifically,

Iss

play

hegemonic

Settlers' and project. law

crucial this

role onuses in

not

meet.

a

the At Israeli Supreme time,

judges

attempted

Court

of convince

and natural- necessity land attribute

the

same

to

system courts

to

an aura

new

themselves,

population Jewish the

Israel,

and in legal

the

international and tools

the

that founders' Intricate

interests.

cem-

conven-

ness secures

that,

notwithstanding munity changes radical the

defining altering land its in and laws

concerning regime, central

in tions

instruments

serve as

Israel

democratic is

State, based

administered of professional, rule law

heavy

rights. with dose of impar- saturated rules, These

natives'

a on a

a

tially by independent

equitable

and

language methods, To conceal these technical, and

the seemingly scientific convince and

an

system. court

audiences, varied

also and

persuade of

the inevitability neutrality. Arab

and of violent with citi- restructuring image

attempt

to

to

some

an

Israel,

of the had deliver

Court

of evidence, promises these especially

of such rules

jurisdiction, rules, Procedural of questions

zens

to

some

as

founding

the in

of the Israeli land Furthermore, regime. for legal

precedents and of proof, manipulation categories, of burdens of

moment

rea-

lie that

outside the

chapter, of this

that

the

it Israeli channelling the

of these legislators, the

deference

issues selective sons

scope

seems to

to

Supreme Court became much

harsher progressed.

abandoned

legal time It

landscape• legal and similar

boring

confines the

and

as

con-

remote

relatively

liberal of

devised first the construction it

few populations in its dispossessing indigenous and

of effect have the a

canon

structs

favour

of

shifting harsher

much in

Arab

behind the ethno-

questions

silencing fundamental simultaneously years the one, a

posses- onuses

on

abandoning

precedents

earlier

admitting

doing without

explained order

sections,

previous the in sors,

land

Yet, regime. in cratic

so.

two

as

chapter

this

examples

and these demonstrate, legal As

play

institutions

of promises. deliver

work,

legitimation its for project the

it

must

some

to

crucial

role chapter,

settlers'

reorganizing in this have

In

touched

judges' between

'equal Thus,

exists

law'. justice tension a for under space.

pro-

a

making

of the

settlers' land However, regime. justice

be

attention

'equal under

law'

such upon values

universal fessed

commitments

must

as

to

also

drawn

the legal transformation

of geography

the

of

settler

forming of the Conquerors'

of the to

attributes and their

'Courts

states.

part

as

Certain

settler

in look afresh their societies

land

courts

project. past to start ethnocratic at

policies.

Thus the Australian

Supreme

Court, the which last until

decade

theoretical brings this

chapter tentative the

of fourth

The

section

refused

rights

aborigines, land recognize began of recently reframe

examples

several

Specifically, to examines of Israel. it land framework

the

to

to

legal political the

laying by

and discourse

famous down Mabo its

Israel

of Palestinian

of dispossession

ordering citizens

legal of the of

the

v.

Queensland

and

Wi•: Queensland

Mabo, 189 decisions. the

In •9° Court

examples from

drawn

The of Israel 1948. after the in v.

creation

two

are

legal rejected

the

doctrine nullius, of categorized which Australia

legislation, the

Land and

property terra legislation: of absentee major

as

acts

continent, and

recognized Aboriginal instead

title. 'T.he

application Israeli nation by the empty

and

an

their construction and Acquisition Statute,

would whole

acknowledgment diminished

there remain

until of, is

demonstrate,

provided this

examples section

as

in a Supreme the As Court.

an

from,

and those explained

injustices' the provided Similar Court.

x91

has

settler retreat societies, past legal of other

taw, like

Israeli

an

systems

high

be observed

dispossession other

of

settler in

such

New socienes from the of Arabs

facilitated the moves can courts

legal tools

of

that

arsenal

as

Zealand and

Canada.

There

those 'Catalytic who

•gz them perceive

special of

role

opinion the

illustrates in they This

held. are land

section

as

my

Aboriginal decolonization in

manifestations of 'jurispru-

'.93

complex

role

the but events also indigenous of

dispossession or

law the

as

a

in

groups,

of dence Others

regret'. legal

limitations of •94 the

these

decisions.•gs

endeavours

that order

hegemonic stress

to attempting

law of

in to

construct

a

Israeli Supreme Court,

Thus, the

land regime. regularize the

espe-

new

Original

Independence, from The quotation following: Frickey

xs7 the 'The of benefit the

is

of following Israeli

the War immediately

cially

the

in state

gets

years

of

favor

presumption

i•

and the its sovereignty, opposing

bears the bur-

strong

a

party invalidated

them.

and

sometimes dispossession,

of

intervened

in

marshalling complexities den of legal

finding the

acts

and of cleat evidence congressional

sup-

of the

the authorities

reminded constantly

for Frickey, the above, it position': its time,

vast

At 88

416.

port

n.

same

also attitude This manifested :ss

of jurisprudence

the arsenal

in Court's the concerning the land from much

drew disposal.

forces

These

was

their

pro:

power

at

place settlement

that

took especially and the

the late

in 1960s the

I950s north-

in

process

shaped by

the often

and discretion

categorization,

cedure, evidence,

of

Israel the

Galilee. analysed elsewhere. depth have

this

Kedar, issue in See

part

ern

increasingly, Court

Supreme Israeli the Legal

Transformation',

'The Furthermore, itself. 100 above Court con-

n.

Queensland

Mabo

(No. •89 above. 2),

effective- enhanced the 67

that

evidentiary

and v.

interpretive structed n.

canons

Peoples

The Queensland,

Wit• Mabo, •o

above,

ALP. 129.

•9•

67 141 82.

v.

Israel.

of

instance, n. For

legal

the service tools

dispossessing

of

at Russell,

above,

See •2 247-76. ness

57

Ibid.,

258.

•9.•

n.

the

land regime,

of Israel's regularization

during and production Webber, J.

Jurisprudence 'The the

of

Regret: for The Standard Search

of Justice

in

Mabo' Sydney

(1995)

17 Review while Arab land- Law

favour, 5. See, presumptions

Daes, i9.s its above. in 62

benefited from

e.g., n. strong state