Law and Justice in Israel and Palestine

by on May 11th, 2005

The Palestinian Authority is already confronting one of the challenges likely to complicate any future state of Palestine: How to emerge from the chaos of occupation to create a functioning, orderly society. Palestinian law schools explicitly seek to produce a cadre of lawyers trained to modernize the overlapping and contradictory systems of law and tradition that now constrain Palestinian life. But I wonder: Will new Palestinian law reflect the needs of the Palestinian majority, or merely those of the business class and political elites? Will everyday injustice be more bearable when imposed by Palestinians rather than by Israelis?

Prompting these thoughts, ironically, is a press release about the unjust workings of Israeli law:

An international human rights group warns that a two-state solution to the 57 year Israeli-Palestinian conflict has been made a practical impossibility due to Israel’s continuing expropriation of Palestinian property and denying Palestinian refugees the right to recover their original homes and lands. “Ruling Palestine: A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine”, a new report released by the independent Geneva-based Centre on Housing Rights and Evictions (COHRE) and BADIL Resource Center for Palestinian Residency and Refugee Rights, …  reveals in stark detail how Zionist leaders, and later successive Israeli Governments, manipulated key Ottoman and British laws and the Israeli legal system to dispossess Palestinians of their land and property. The report clearly documents how Israel has built a domestic legal framework which seeks to legitimise what are clearly discriminatory land and housing policies.

Beyond the report’s elaboration of issues that have made me conclude, over the past few years, that the “road map”, the Geneva Plan, and similar two-state schemes are unlikely to lead to a viable Palestine alongside Israel, what interests me in particular is its emphasis on Israel’s use of law:

COHRE’s Executive Director, Scott Leckie said: “Our research reveals that Israeli law, far from providing impartial protection and equal treatment to all those that it affects, has been fundamental to the expropriation of Palestinian land and property since the State of Israel was unilaterally declared in 1948.

Israel’s resort to law to rationalize oppression and maintain injustice is horrendous, but unfortunately it is not unique. As I’ve noted elsewhere at greater length, law and justice are two different things. Indeed, it’s neither pessimistic nor cynical to suggest that, despite often-present good intentions, law’s primary purpose is to maintain privilege for those who count and to prevent forces, democratic and otherwise, that seek to change the status quo. The US experience is but one example.

The clash between competing legal systems that survive past political arrangements, as in both Israel and Palestine, adds complications that strengthen those in charge, but even in a simpler, more “rational,” legal system justice is at best dispensable. The inherent nature of legal decisionmaking is to generalize rather than individualize, to prioritize logical thought over just outcomes. Principles count more than people. “The people” have little input into what those fundamental legal principles should be.

Israel’s routine use of law to justify its actions routinely elicits opposition from those who point to competing legal principles (see OrthodoxAnarchist’s account of one Israeli Bedouin man’s experiences). The clash between Israel’s self-proclaimed democratic values and its Jewish self-identity leaves the opposition some room to maneuver, but both “democratic” law” (if such a thing could be said to exist) and Jewish law share law’s inevitable blinders. Whether Palestinians can create a modern society less constrained by the traps of legal reasoning remains to be seen.

Dennis Fox