Land Law and Policy in Israel

A Prism of Identity

Haim Sandberg

As one of the smallest and most densely populated countries in the world, the State of Israel faces serious land policy challenges and has a national identity laced with enormous internal contradictions. In Land Law and Policy in Israel, Haim Sandberg contends that if you really want to know the identity of a state, learn its land law and land policies.

Sandberg argues that Israel's identity can best be understood by deciphering the code that lies in the Hebrew secret of Israeli dry land law. According to Sandberg, by examining the complex facets of property law and land policy, one finds a unique prism for comprehending Israel's most pronounced identity problems.

Land Law and Policy in Israel explores how Israel's modern land system tries to bridge the gaps between past heritage and present needs, nationalization and privatization, bureaucracy and innovation, Jewish majority and non-Jewish minority, legislative creativity and judicial activism. The regulation of property and the determination of land usage have been the consequences of explicit choices made in the context of competing and evolving concepts of national identity. Land Law and Policy in Israel will prove to be a must-read not only for anyone interested in Israel but also for anyone who wants to understand the importance of land law in a nation's life.

1

THE FINGERPRINTS OF HISTORY IN LAND INVENTORY

THE GOVERNMENT OF A NEWLY ESTABLISHED STATE OFTEN faces dilemmas posed by the older regime. Resentment at bygone evils and the aspiration to independence may motivate the new regime to cast off the legacy of the past, while efficiency and equity considerations and the search for continuity may permit the past to influence the present and the future. The formulation of Israel’s land inventory reflects three such dilemmas: First, the Israeli government had to decide whether to discard land laws created by centuries of Ottoman rule and thirty years under the British Mandate and transform them into an independent legal system consistent with the independent Jewish-Zionist character of their newly established state or to preserve the legacy of the past to maintain stability and avoid infringement of existing property rights. Second, the State of Israel had to contend with tremendous demographic changes brought about by the War of Independence, which left hundreds of Palestinian villages and towns uninhabited. The question of whether assets should be returned arose, along with the problem of what to do with them until a final determination could be reached. Third, the shift from land purchase under foreign rule to a situation in which the Jewish state holds the full inventory of government land raised the issue of whether the Jewish National Fund (JNF), which during the British Mandate was the Zionist movement’s central arm for the purchase of land and Zionist settlement, had a valid reason to exist following the establishment of the state and, if so, what role it should play in the management of its large inventory.

In principle, Israel chose to abolish the Ottoman and Mandatory heritage, to deny the return of the refugees and the transfer of their assets, to take over the management of the JNF’s assets, and to convert the fund’s purpose from “redeeming the land” to “redeeming the wilderness.”¹ These matters were not resolved all at once. The legacy of the Ottoman and British past, the refugee problem, and the redemption of JNF land are on Israel’s agenda to this day and continue to exert significant influence on the structure of state land reserves. The long reach of legal history is still disrupting the Israeli real estate market in the twenty-first century.

The chapter before us will examine how each of the three dilemmas left a prominent fingerprint on Israel’s land inventory and how they reveal the impact of the past in the identity of the State of Israel.

The Dead Hand of the Ottoman Legacy

The Ottoman Heritage Dilemma

In 1982, Professor Joshua Weisman, an eminent scholar of land law in the State of Israel, published an article entitled “How Long Will the Ottoman Land Laws Govern Us?”² The article criticized Israel’s legal system for a failure to disengage from the Ottoman land laws a decade after their formal annulment and for its laxness in transforming them into an independent Israeli system. The gradual process of abolishing Ottoman land laws began with the appointment of a professional committee to “amend the land laws.” The committee, headed by then district court judge and later Supreme Court president Moshe Landau, submitted its opinion in January 1950,³ but the process apparently ended in 1969 with the Knesset’s enactment of Land Law, 5729–1969, and its nearly complete annulment of the Ottoman land laws.⁴

Supporters of the annulment believed that Ottoman land laws reflected an obsolete system that was essentially irrelevant to the State of Israel. Thus, for example, immediately after the enactment of the law, Justice Landau’s wife, Leah, herself an expert in real estate law, wrote that most of the provisions in Ottoman legislation “were necessities of the economic and social reality of the Ottoman Empire that struggled with backwardness and neglect and the remnants of a feudal social order.”⁵

Little more than a decade after the formal annulment of the Ottoman laws, Professor Weisman was surprised to discover the extent to which Ottoman land laws still affected the lives of Israelis. Although Ottoman land laws have disappeared almost entirely from Israeli law in the three decades since then, they still affect the structure of the country’s public and private land inventory. Indeed, more than a century after the end of Ottoman rule and seventy years since the establishment of the State of Israel, the long arm of the Ottoman administration, with help from the British Mandate, reaches into the future. Let us try to understand how this miracle occurred.

Principles of Ottoman Land Laws

The Ottoman legal system was based primarily on the Muslim land laws in force across the entire Ottoman Empire. Thus, Israel’s land inventory is similar in structure to those found in other countries that were under Ottoman control.⁶ The normative system that affected the constitution of Israel’s land inventory was a product of the last fifty years in four centuries of Ottoman rule. Its main component was the Ottoman Land Code of 1858.⁷ This was mostly a codification of preexisting laws, yet it also initiated a number of reforms. While the land code’s main concern was defining the status of, and administrative procedures for, government land, it also laid the foundation for the privatization of those lands.⁸ The Ottoman system defined land status as either private or public on the basis of its nature and use. Built-up lots in urban or village settings were regarded as privately owned (mulq, waqf) while urban areas intended for public use were regarded as publicly owned municipal lands (matruka). There were two classes of open land: first, smaller, cultivated or cultivable plots (miri) surrounding developed land that were formally owned (raqabe) by the regime inasmuch as agriculture was the main source of income for both the ruler and his subjects; and second, a more common class of government-owned land that was rural but non-agrarian and that was located in outlying areas (mewat).⁹ Figure 1.1 illustrates the definitions of private and public ownership under Ottoman law.

Privatization of Governmental Land: The Ottoman Version

Toward the end of the Ottoman Empire, government-owned lands underwent a process of privatization. Individuals were primarily granted only limited rights to cultivable lands (miri), including rights of possession and use (tassaruf), which could be neither transferred nor inherited and which had to be returned to the government if the owner departed or ceased to cultivate the land (mahlul).¹⁰ By the end of the nineteenth century, a deeper gradual process of privatizing cultivated land had begun, and full ownership rights to miri lands were slowly transferred from the government to private hands.¹¹ From a legal standpoint, the process led to a blurring of distinctions between ownership and usage rights: usage rights could now be commercially traded, and the government did not always enforce the obligation to return land that was left uncultivated. The British Mandate government and then the State of Israel registered full ownership to those who had cultivated lands for more than a decade or in certain cases for fifteen and even twenty-five years.¹² Israel had completed this process early in its third decade with the formulation of Land Law 5729–1969, which states that “the ownership of immovable property which . . . belonged to the Miri category shall be under full ownership.”¹³

Fig. 1.1 Private and Public Ownership under the Ottoman Law

The other avenue for privatization, in force until 1921, pertained to uncultivable government lands (mewat) on the outskirts of settlements. The Ottoman Land Code recognized the possibility of reviving such lands (ihya; “Revival”).¹⁴ During the British Mandate, the court decided that revival constituted “conversion from the unfruitful to the productive”¹⁵ and, as such, turned those lands into miri land, which led to the privatization of the “revived” areas. Two famous cases of revival of mewat land toward the end of the Ottoman period involved the sand dunes west of the settlement of Rishon Le-Zion (with the permission of the governor, Jamal Paha)¹⁶ and the sand dunes south of Jaffa.¹⁷ In 1921, the British abolished the option of acquiring mewat lands through “revival”¹⁸ to retain ownership of the full inventory of wastelands, thereby meeting the obligation in article 6 of the Mandate for Palestine, granted by the League of Nations, which required them “[to] encourage . . . close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”¹⁹

The State of Israel did not change the British ordinance forbidding the revival of mewat lands but ordered registration of these lands as state lands.²⁰ Today, some Israeli Bedouin are attempting to substantiate litigation, suing for ownership of lands in the northern Negev, on the basis of their claim that they revived those lands before 1921.²¹ Israel’s Supreme Court has thus far adopted the approach that the Negev is mewat land, rejecting claims of revival.²² In any event, the accumulation of “dead” land as governmental land was frozen in 1921. Most of the undeveloped territory in British Mandate Palestine became governmental land that year, thus making it impossible to acquire private ownership via revival.

The Registration of the Ottoman Heritage during the British and Israeli Eras

Ottoman rule in Palestine officially ended in 1917, but Ottoman law remained in force for many years thereafter. The British Mandate government adopted the majority of Ottoman laws, including the Ottoman Land Code of 1858 (excluding the above-mentioned changes in the mewat category).²³ The British Mandate’s most important contribution to the development of Israel’s inventory of public and private lands was its institution of a modern land title registration mechanism. Although land records did exist during the Ottoman period, they lacked demarcation and documented only a tiny percentage of lands, both public and private.²⁴ The British filled in the gaps by instituting a systematic process of land title registration and by opening a modern land title registry based on the Torrens system. According to this system, every plot of land went through legal examination: if a private owner proved ownership to the plot of land, the government registered the land in the name of this owner. If no one proved ownership for a given plot of land, the government registered it as state own...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Notes on Translation and Internet Hyperlinks
• Introduction: Land Law and Land Policy: A Prism of Identity
• 1. The Fingerprints of History in Land Inventory
• 2. Culture, Nation, and Socialism in the Administration of Public Lands
• 3. Privatization of Public Lands: A Slow Maturation Process
• 4. National Land Planning in a Small Country: Challenges and Innovation
• 5. Jewish and Democratic: Land Policy and the Arab Minority
• 6. Creative Judiciary: Equitable and Constitutional Safeguards to Property Rights
• Epilogue: Identity in Flux
• Bibliography
• Index
• About the Author