by Yifat Holzman-Gazit. Aldershot, England and Burlington, VT: Ashgate, 2007. 218pp. Hardback. $99.95/£55.00. ISBN: 9780754625438.
Reviewed by Allan E. Shapiro, Kibbutz Degania Alef. E-mail: Shapiro [at] degania.org.il.
This is a very ambitious study, examining the complex interrelationships between legal doctrine and the court in Israel. The Supreme Court in Israel has, over the years, achieved international recognition as a champion of civil liberties. Real property rights, however, seem to be in a separate category. Their protection through judicial review or oversight of administrative decisions has been noticeable for its absence. Land expropriation in Israel flies in the face of general rules of both substantive and procedural due process, whether it deals with determination of a proper public purpose, compensation for the taking, or the right to a hearing. Judicial review did not exist in the original statutory scheme, which dates from the period of the British mandate, an ordinance absorbed unaltered into Israeli law with the creation of the state. Even administrative review, while provided for in the later Planning Law, enacted by the Knesset, Israel’s parliament, only developed gradually, over time, with regard to expropriation decisions.
Why has the general constitutional development in Israel, with its increasing emphasis over the years on the furtherance of the rights of the individual, not encompassed the protection of real property rights? Yifat Holzman-Gazit’s purpose is to provide answers to this question. The aim is not a rigorous examination of land expropriation law in Israel in the abstract. The emphasis is not on the injustices suffered as a result of judicial inaction, with particular emphasis on the expropriation of Arab land, although this receives extensive treatment. Holzman-Gazit claims to have uncovered “a long ignored fact” (p.4), the parallel effect of judicial doctrine, or more precisely, the absence of judicial review of administrative action, on the legal treatment of private land ownership and land expropriation in the Jewish sector. This, of course, as far as the violation of property rights is concerned, is relatively inconsequential, but in an examination of judicial behavior is significant.
To achieve her objective, Holzman-Gazit, after a survey of the statutory framework of expropriation and the land tenure regime in Chapter 1, proceeds to a summarization of Israel’s constitutional development, relating its successive stages to land expropriation adjudication of the period in question. Chapter 2 presents two problems to the reviewer in its very title, “Civil Rights and Land Expropriation: Double Standard in the Court in the Pre-Constitutional Era.” The designation “Pre-Constitutional Era” presumes the present existence of a constitutional era and the prior existence of a very different non-constitutional era. What, in fact, has changed? A written constitution is still missing. True, [*482] judicial activism has become pronounced in the last two decades. True, two Basic Laws in the general field of human rights, but general in character and lacking in adequate definition, enacted in 1992, have been interpreted as conferring a qualified judicial power of nullification of future contravening legislation. (This extension of judicial authority is still very much an area of professional and public dispute in Israel.) Surely judicial activism and constitutionalism are not synonymous, nor is the power of judicial nullification a sine qua non of constitutionalism. A standing committee of the Knesset, created by the First Knesset, the Constitution and Law Committee, continues to prepare a draft of a future written constitution.
A second problem is the origin of the “Double Standard.” The term is accurate in the sense that the court has not protected property rights in real property the way it has protected other personal rights. The author properly emphasizes the role of the 1953 decision in the KOL HA’AM case in laying the foundations of Israel’s judicial bill of rights (pp.42-44.) In that landmark decision, the court limited the discretion of the Minister of the Interior, derived from mandatory legislation, to suspend the publication of a newspaper for publication liable to disturb the public peace. The court adopted much of the Holmes-Brandeis judicial philosophy on freedom of speech and of the press, while, in Holzman-Gazit’s words, making “innovative use of Israel’s Declaration of Independence as an indirect source of law.”
The American born and educated (U. of Chicago) Justice Simon Agranat, who authored the opinion in the landmark case, pointed to the Holmes-Brandeis reliance on the American constitutional guarantee as the basis for their judicial protection of press freedom. But Agranat had no written constitution to which to turn. Instead, he relied on Israel’s democratic character, as defined by its Declaration of Independence, as the basis for his judicial legislation. Agranat was as his biographer, Pnina Lahav, emphasizes, a devoted disciple of Justice Benjamin Cardozo. The model for judicial law-making of this magnitude that he very likely had in mind was the Cardozo model for the absorption of rights guaranteed by the federal Bill of Rights into the due process binding on the states through the 14th Amendment. Israel’s democratic character provided the substitute for federal due process in the Cardozo model. What either American due process or the Jewish state’s democratic character included in “ordered liberty” and what was excluded was left in both cases for the judicial process to determine.
Hence, Agranat adopted a version of the Holmes-Brandeis First Amendment protection of freedom of the press, a human right that he, like Cardozo in PALKO v. CONNECTICUT, regarded as essential to “ordered liberty.” Holzman-Gazit cites approvingly Lahav’s view that Agranat’s opinion in KOL HA’AM vindicated ‘sociological jurisprudence’ (p. 43). More to the point, it essentially imported into Israeli jurisprudence Cardozo’s “adoption” test of “ordered liberty,” an ideal tool for the creation of Israel’s judicial bill of rights.
Property rights in real property, according to the traditional Israeli view, [*482] were not basic to “ordered liberty.” This is the narrow legal answer, absent in Holzman-Gazit’s analysis, to her search for the basis of what she denotes as the “double standard.” Why, in the socio-political sense, private property in land has a claim inferior to that of other human rights for judicial protection leads the author to a fascinating survey of the broader political, cultural and social factors that influenced judicial attitudes. This occupies the major portion of the book and is a significant contribution to an understanding of Israeli social and legal history, illuminating an area often clouded from view.
Zionism, conceived as a movement of national liberation of the Jewish people in the ancestral homeland, developed an ideology in which public ownership of land occupied a central role in the process of nation-building. This ideology, grounded in socialist theory and supported by the religious proscription against the alienation of the divine property of the Land of Israel, essentially negated the economic significance of land ownership. Instead, the emphasis was on encouragement of working the land, both as a determinative factor in its political future and as the path to the creation of a new Jew, rooted in the soil, earning his bread by the sweat of his brow. These ideals found institutional expression in creation in the early pre-State period of the Jewish National Fund, whose objective was to acquire land in perpetuity, and in its continued existence to this day as a legally recognized quasi-state institution. Private land ownership was a key element of the Jeffersonian ideal of agrarian democracy. The Israeli ideal was the liberation of the “new man” and the “new Jew” through communal ownership. “The expropriation case law of the 1950’s and in fact up until the late 1970’s,” Holzman-Gazit concludes, “was decided in opposition to the ethos of capitalism and private land ownership” (p.75).
Holzman-Gazit traces the sorry story of the expropriation of Arab land in the aftermath of Israel’s independence. Security considerations were unquestionably dominant, particularly in the early years, with their severity varying with the changes in the existential threat to Israel’s security. The borders of Israel were initially largely determined by the pattern of land settlement from mandatory times. Internal security has also been a consideration, not only in areas of concentrated Arab population, but in Jewish areas as well. Of the latter, the author, in a different connection, cites a decision denying on security grounds the right of an Arab to live in the Jewish Quarter in the walled Old City of Jerusalem, rebuilt after the 1967 war, whose population, before independence in 1948 and the subsequent Jordanian occupation, was mixed, with a substantial number of non-Jewish residents, including the petitioner.
Housing for newcomers, first the survivors of the Nazi Holocaust, later immigrants from the newly independent Arab states of North Africa and the Middle East, required at least temporary solutions. In later years, the massive immigration from the former Soviet Union renewed pressures for housing and helped to change attitudes about the economic value of real property. Suburban and exurban residential communities became common. [*484] Agricultural labor lost its social ascendancy. As economic considerations became a major factor in policy decisions, there were also signs of changes in judicial attitudes. Would Holzman-Gazit contend, as she did with regard to the early post-independence period, that policy was translated into culture? Or, perhaps both changed, simultaneously with a major change in the self-perception of the role of the court itself. The change in judicial thinking and action is particularly striking in matters of security, which cover manifold areas of the law. Typically, as Holzman-Gazit points out, judicial refusal to intervene in land expropriation matters follows the pattern of judicial non-intervention in matters involving the Defense (Emergency) Regulations, which, like the Land Ordinance, are a hold-over from the British Mandate. The court’s elimination of limitations on justiciability in security matters is a major feature in the changing judicial role. The final two chapters survey this change and the diffident movement in new directions of recent cases involving rights to real property, going beyond the expropriation issue, Hence, the book has a happy ending, qualified only by the factor of the uncertainty surrounding the general political situation.
In dealing with the place of the court in the Israeli system of government and the changes in recent years in the direction of judicial activism and value-oriented adjudication, Holzman-Gazit relies in great measure on secondary sources generally enthusiastic in their approval. There may be another side to the picture. One question Holzman-Gazit asks but does not answer is how the court could criticize the expropriation orders and at the same time approve them. In addition, she claims that the persistent judicial dismissal of petitions to intervene in land expropriation cases in effect provided legitimacy to executive action, which included egregious cases of injustice. The exact contrary may be true. Particularly where genuine security considerations were involved, with the responsibility clearly on the executive, judicial obstruction of executive action would have been institutionally impossible. On the other hand, judicial review that resulted in approval of the norms and procedures would have conferred legitimacy. The path the court chose, judicial refusal to review the challenged executive action on the merits, left land expropriation rules and procedures without the mantle of judicial legitimacy. As Justice Jackson observed in his dissent in KOREMATSU, the World War II Japanese internment case, without judicial review and approval on the merits executive action contrary to the basic norms of the society remains an incident in the history of a difficult period but does not become part of the nation’s constitutional lore. “But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.”
Lahav, Pnina. 1997. JUDGMENT IN JERUSALEM: CHIEF JUSTICE SIMON AGRANAT AND THE ZIONIST CENTURY. Berkeley: University of California Press.
H.C. 73/53, KOL-HA’AM CO. LTD. v. MINISTER OF INTERIOR, 7 P.D. 871, translated in 1 Selected Judgments of the Supreme Court of Israel 90. [*485]
KOREMATSU v. U.S., 323 U.S. 214, 248 (1944).
PALKO v. CONNECTICUT, 302 U.S. 319, 324-325 (1937).
© Copyright 2008 by the author, Allan E. Shapiro.