10 Mass Immigration, Housing
Supply and Supreme Court
Jurisprudence of Land
Expropriation in Early
Statehood
YIFAT HOLZMAN-GAZIT
Introduction
One of the distinctive features of population dynamics in Israel is the major
demographic change that Israeli society experienced in its five decades of
independence. From a country with 872,000 inhabitants at the end of 1948,
the population of Israel increased to 6 million by the end of 1998. The most
conspicuous population growth occurred in the Jewish population component. The Jewish population in Israel increased almost sevenfold during
these years, from 700,000 in 1948 to 4.7 million in 1998. This dramatic
growth in population size is attributed mainly to the influx of Jewish
immigration. As of 1998, immigration accounts for about 42 percent of the
total growth of the Jewish population in Israel.1
As in any other country, population growth leads to increasing
demands for the supply of land. In Israel, the demand for houses and public
services for the growing population was originally supposed to be treated
by the tenure system of nationally-owned land. Israel runs a system of land
tenure which is quite unusual for a democratic country with a highly
developed economy.2 Of Israel’s territorial area of approximately 21,500
square kilometers, only 7 percent is privately owned. The rest is held under
national ownership and cannot be sold to individuals under law (The Basic
Law: Israel Lands of 1960). Zionist ideology and its socialist leanings
played a central role in the formation of Israel’s tenure system. However,
beyond the social ideals were practical concerns. From a practical point of
view, the regime of national land ownership aimed to facilitate immigrant
273
274 The History of Law in a Multi-Cultural Society
absorption and to expedite the growth rate of the Jewish population.3 The
idea was to use nationally owned land for urban and regional development
and hence to bypass the difficulties associated with building new towns
and neighborhoods on land owned by a large number of individuals.
There is no doubt that the tenure system of national ownership
simplified the planning and settlement process. This was especially
noticeable in regard to the village settlements and medium-sized towns that
were established in the rural regions of the country during the 1950s and
1960s. Yet, as a result of internal patterns of migration, more than half of
Israel’s population chose to reside along the narrow strip of the Coastal
Plain, particularly around the coastal cities of Tel Aviv and Haifa. 4 Since
much of the land in this area is privately owned, the process of population
growth inevitably involved the use of private land for public purposes.
In Israel, the common means of taking private land for public use is
the State’s power of expropriation. Expropriation powers are regulated in
Israel under the Land (Acquisition for Public Purposes) Ordinance of 1943
(hereafter: the Acquisition Ordinance) and the Planning and Building Law
of 1965. The Acquisition Ordinance which stands as the general enabling
law was introduced in Palestine during the period of British colonialism
(1918-1948) and conferred upon the Minister of Finance (under the British
Mandate, the High Commissioner of Palestine) extensive powers to
expropriate land. Section 3 of the Acquisition Ordinance vests the Minister
of Finance with the power to order the acquisition of any land if he is
satisfied that the land is “necessary or expedient” for public purpose.
“Public purpose” is defined in Section 2 of the Ordinance as “any purpose
that the Minister of Finance confirmed to be a public purpose”.
The Acquisition Ordinance also expressively limits the compensation
requirement. Section 20 of the Ordinance allows that up to 25 percent of a
plot may be taken with no compensation provided that the land is
designated for construction or widening of roads, playgrounds or recreation
areas. The uncompleted compensation requirement is a dominant feature of
Israel’s land expropriation law and under the Planing and Building Law, it
has been expanded to apply to up to 40 percent of a plot.5 Nevertheless, in
this paper, I have chosen to focus on the Court’s policy in reviewing issues
related to the public purpose definition and the choice of the specific land
to be expropriated. The fact that the rule of no compensation has been
routinely utilized by acquiring authorities to its maximum amount of 25
percent of a plot should be borne in mind when assessing the policy of
Immigration, Housing and Jurisprudence of Land Expropriation 275
judicial non-intervention against the harshness of the Israeli practice of
expropriation.
The Israeli case law of land expropriation reveals a dominant mode of
judicial deference at the forefront of the Supreme Court jurisprudence. 6
Throughout most of the country’s history, the Supreme Court of Israel
deferred to administrative declarations of public purpose and refused to
inquire into the considerations regarding the choice of the specific land.
Judicial interpretation of the Acquisition Ordinance has suggested that the
scope of review of expropriation decisions is very narrow. In 1952, the
Court declared that:
It belongs to the Minister of Finance to determine what is a ‘public purpose’
and which land is suitable for implementing the public purpose. The Court
does not have the jurisdiction to interfere with the public use definition or
with the choice of the land to be expropriated, unless these decisions involve
misuse of powers.7
As a result of the policy of judicial non-intervention, landowners’ rights
remained with no substantive protection against the extreme power of the
State to appropriate private land.8
From a jurisprudential perspective, the hands-off posture that the
Court adopted in expropriation cases is puzzling. The Supreme Court of
Israel has the reputation of being a powerful, influential and activist court.
Although Israel does not have a formal constitution that protects civil
rights, the Supreme Court has succeeded, over the last three decades, in
developing what is commonly known as a “Judicial Bill of Rights”. This
refers to judicial protection that is granted in Israeli law to basic civil
liberties such as freedom of speech and association, freedom of religion,
freedom of movement. While these are not wholly safeguarded against
repugnant legislation, the Supreme Court took an active stance in
protecting these fundamental rights against government violations.9 Such
activist rulings that rendered protection to basic individual rights were
sometimes based on interpretation of quasi-constitutional provisions
included in Basic Laws enacted by the Knesset (the Israeli Parliament).10 In
many other cases, however, the rulings were founded on a creative
interpretation of general constitutional principles that the Court derived
from the concept of Israel as a liberal democracy. In the context of land
expropriation, this concept suggests that Israeli law recognizes the need to
set limitations on the power of the State to coerce appropriation of private
276 The History of Law in a Multi-Cultural Society
property.11 Yet, as described above, the Supreme Court traditionally failed
to apply strict scrutiny of expropriation powers and thus did not give
effective judicial protection to landowners of private land. Even the one
celebrated judgment that the Court delivered in 1993 and in which it
substantially restricted the exercise of expropriation powers was overturned
in a Further Hearing.12
This paper focuses on the early case law of land expropriation that
was adjudicated during the 1950s. Adopting a socio-historical perspective,
I wish to illuminate the social forces that may have shaped the initial
posture of judicial deference that later became a prominent feature of the
Supreme Court land expropriation jurisprudence. In the case law of the
period – which was characterized on the whole by formalistic reasoning –
“linguistic” justifications were produced for the restrained judicial policy.
The Court suggested that the wording of the Acquisition Ordinance
mandates the conclusion that the Minister’s definition of a permissible
public purpose and the choice of a specific plot are within his absolute
freedom of decision and thus immune from judicial review.13 However, as
one scholar pointed out, this formalistic reasoning is not very convincing.
The Court of the late 1950s was willing to intervene in administrative
decisions even when the wording of the statue in question granted the
administrative authority “absolute discretion”.14 Hence, the language of the
Acquisition Ordinance can not account for the Court’s refusal to substantively review expropriation decisions.
A different type of rationalization focuses on the Court’s institutional
perception of its own role in Israel’s system of government.15 In the early
years, so the justification goes, the Supreme Court of Israel took an
overwhelmingly conservative approach in its relations with the executive.
It did not assume for itself the task of determining the content of Israeli
constitutionalism and refused to closely scrutinize administrative judgments about the legitimate functions or purposes of the newly-established
State. Yet, even in the case law of the 1950s one can find a double standard
in the judicial protection of basic rights, such as freedom of movement, and
that of private property rights. The double standard became more apparent
in the case law of the 1970s when the Court succeeded in establishing
social legitimacy and began to intervene more frequently in administrative
decisions that infringed on civil rights.
As I see it, the Supreme Court’s perception of its own constitutional
role in Israel’s system of government played an important part in shaping
Immigration, Housing and Jurisprudence of Land Expropriation 277
the pattern of judicial deference in the rulings of the 1950s. But general
institutional considerations cannot provide a comprehensive explanation
for the failure of the Court to intervene on behalf of private landowners.
The jurisprudence of land expropriation has also been shaped by social
forces that acted in the realm of private property rights. These included the
long-standing Arab-Jewish struggle for control over the land; the Zionist
ideology regarding the institution of private ownership of land, and the
centrality given by Israeli society to the demographic process of Jewish
population growth. In this paper I shall focus on the immigrationstimulating policies of Israel that were implemented during the period of
mass immigration (1948-1951) and included the State’s commitment to
supply housing to all immigrants. I believe that the prevalent and wellsupported conception of that time which tied the future of Israel to the size
of its Jewish population and the sense of emergency that characterized the
housing crisis of the 1950s were important factors in shaping the judicial
posture of non-intervention. Combined with the Zionist ideology of public
land ownership, these factors converged to yield a hostile setting for the
protection of private land ownership.
I begin with a reflection on the posture of judicial deference that
characterized the early case law of land expropriation and the standard that
distinguished the attitudes of the Court toward protection of property and
that of non-property rights. I than discuss the unique period of less than
four years of mass immigration (1948-1951) when the Jewish population of
the country doubled from 700,00 to 1,400,000. I examine the housing crisis
that resulted from this mass immigration and the paramount importance
that was attributed to the issue of immigrant absorption in the public
discourse of the 1950s. After analyzing the extreme measure of apartment
confiscation that was exercised in the early years in order to provide
temporary shelter for the newcomers, I focus on the practice of land
expropriation for the purpose of regional development and permanent
housing. I suggest that the close connection made in the 1950s between
security interests and the process of rapid Jewish population growth, and
the lack of ideological support for the institution of private land-ownership
played a central role in shaping the policy of judicial non-intervention.
Finally, I comment on the land expropriation jurisprudence of the 1970s
and on the demands to provide housing to immigrants and to low-income
groups that dominated the social discourse of that period.
278 The History of Law in a Multi-Cultural Society
Featuring the Jurisprudence of Land Expropriation: The Case Law of
the 1950s
The early jurisprudence of land expropriation has been characterized by a
judicial posture of overall deference. In hearing petitions against land
expropriation, the Court of the 1950s routinely upheld the Minister of
Finance’s definitions of permissible public purpose. It refused to interfere
with the decision to expropriate a specific plot, neither did it choose to
inquire into the substantive question of the choice of expropriation powers
as an appropriate means to achieve the public purpose. As a direct result of
the judicial policy, the early rulings failed to render effective protection to
private property rights. This failure was notable especially in regard to the
Court's basic role of assuring that proper procedures are adhered to. The
early Court, as one scholar pointed out, not only excluded substantive
issues from the scope of judicial review, but it also failed to grant
landowners some limited procedural or formal defenses that may temper
the harshness of the expropriation measure.16 In Dwiak v. The Minister of
Finance, for example, the Court dismissed a petition to impose a duty on
the Minister of Finance to specify the public purpose designation of the
expropriated land.17 Landowners, thus, were deprived from the right to
know whether the proposed expropriation fulfilled indeed the condition of
“publicness”. The early Court also discharged the Minister of Finance from
the duty to give fair hearing to an adversely affected landowner before
exercising the power of expropriation (Yunes v. The Minister of Finance).18
The failure to constitute procedural defenses was evident also in the
judicial refusal to set a precedent condition for the exercise of expropriation powers and to require planning authorities to prepare a building
plan designated to implement the public purpose (Salomon v. The Attorney
General).19 Finally, the Court of the 1950s was unwilling to treat protracted
delays in implementation of the public purpose as a basis for judicial
intervention (Kalmas v. Local Committee for Building and Planning).20
A prominent case which may serve as an example of the early discourse
of land expropriation adjudication and of the discrepancy between the
judicial protection of property rights and that of non-property rights is Dor
v. The Minister of Finance.21 In that case, the petitioners’ land was originally
confiscated under the mistaken assumption that the petitioners, Arab Palestinians, were deemed to be absentees according to the definition of the
Absentees’ Property Law of 1950. That law allowed the State of Israel to
Immigration, Housing and Jurisprudence of Land Expropriation 279
take possession of the property of persons who were considered absentee
and to hold it in custodianship. When the authorities became apprised of
the mistake, they decided to expropriate once again the petitioners’ land
according to a different statutory source, namely the Acquisition Ordinance. In the notice which was sent to petitioners, no details were given of
the purpose of the expropriation. However, an investigation conducted by
the petitioners disclosed that their land was designated for building a
housing project for new immigrants.
In their petition to the High Court of Justice, the petitioners raised two
legal arguments. The first referred to the decision of the Minister of Finance
to recognize the purpose of housing immigrants as a public purpose in
terms of legitimizing the exercise of expropriation powers. The purpose of
building housings for immigrants – the petitioners claimed – could not be
regarded as a “public purpose”, as it was not a purpose which benefited the
public as a whole, but rather directed at expropriating the land of one
person in order to give it to another. In addressing this argument, the Court
dismissed the invitation to review the Minister’s definition of a permissible
public purpose. The wording of Section 2 of the Acquisition Ordinance,
the Court contended, does not leave any room for doubt that the question
of recognition of a public purpose was conferred, absolutely, to the
discretion of the Minister of Finance. The Court would thus refrain from
examining whether there were indeed grounds for the conclusion that a
housing project for immigrants was one of the public purposes which the
Acquisition Ordinance was enacted to implement.22 While judicial deference
to public use definitions could be explained by the general philosophy of
legal formalism that characterized the jurisprudence of the 1950s, this explanation cannot account for the Court’s response to the second argument of
the petitioners in Dor v. The Minister of Finance.
In their second argument, the petitioners attacked the legality of the
expropriation at issue more specifically and raised the suspicion that it was
executed in lack of good faith. The primary purpose of the second expropriation, the petitioners argued, was to retroactively validate the illegal
building of the housing project, which had been carried out on the
mistaken assumption that the land belonged to absentee landowners. The
circumstances of the expropriation did indeed give rise to a real suspicion
of improper use of legal powers. However, the Court decided to reject the
submission and to refer to the matter in a forgiving manner. In responding
to the petitioners’ argument, the Court explained that even if
280 The History of Law in a Multi-Cultural Society
the authorities erred from the beginning, and that everything they did at the
time, they did unlawfully, there was nothing wrong in correcting the illegal
action retroactively. Instead of continuing to break the law or instead of
stopping the important work, the authorities rethought the matter and, desiring
to validate their action from then on, directed their actions in accordance with
the law.23
As I shall show below, the unwillingness of the judiciary to intervene in
the expropriation order that was tainted by unlawfulness and bad-faith
stood in contrast to the general policy of the early Court to provide procedural protection to basic civil rights.
The early protective decisions of Israel’s Supreme Court were not
active in nature.24 The Court of the 1950s tended to affirm the policies and
decisions of the executive, particularly in matters related to security.
According to the conservative view of the early years, the role of the Court
was limited to the assurance of the formal legality of government actions
and it was not within its jurisdiction to carefully examine the substance,
i.e., the reasonableness of the positions and solutions taken by State
authorities.25 In accordance with this institutional perception, the Court of
the 1950s frequently refused to review violations of civil rights by security
agencies when its intervention would have required an evaluation of the
fairness and justice of the infringing action. However, when the injury to
individual rights was caused without all the necessary legal conditions
having been met, or when it involved misuse of powers, the Court did not
hesitate to intervene.26
For example, the Court quashed a detention order which was issued
by the Minister of Defense not in accordance with all the requirements set
by the law. In Al-Karbutli v. The Minister of Defense, the suspect, a
Palestinian Arab, was detained under the Defense (Emergency) Regulations of 1945 for more than a month without knowing the reason for his
arrest.27 In handling the arrest, the authority-in-charge failed to follow the
requirements of the Defense Regulations to give a suspect the opportunity
to appear before an advisory committee and instead issued the detention
order before such a committee was established. From a practical point of
view, the failure did not have immediate implications for the suspect. The
advisory committee was not empowered to act as an appeal court and all it
could do was to give its recommendation to the authority-in-charge. Yet,
despite the seemingly technical nature of the fault, the Court refused to
Immigration, Housing and Jurisprudence of Land Expropriation 281
view it as a mere mistake. In ordering the release of the suspect, the Court
explained that
since the rule of law is one of the greatest foundations of the whole State,
there would be grave damage to the [public interest] if authorities could use
the powers conferred by the legislature, even temporarily, in utter discharge
of [statutory restrictions].28
The same ardent concern for formal legal rules drove the Court a year later
to release an administrative detainee, on the grounds that the detention
order did not state the place of detention, as required by the law (Al-Couri
v. The Chief of Staff).29 The Court of the 1950s also refused to carry out a
deportation order that was signed by the Military Commanding Officer of
the Area instead of the Minister of Defense and it set aside an area closing
order that had not been published as required by the law (Al-Rachman v.
The Minister of Interior; Aslan v. The Military Governor of the Galilee).30
Insistence on the compliance of government organs (including
security agencies) with formal legal requirements, and consequently on
prevention of misuse of powers, was thus a dominant feature of the
protective jurisprudence of the 1950s. Surprisingly, this policy was not
reflected in the case law of land expropriation. The ruling in Dor v. The
Minister of Finance was not the only incidence in which the Court
approved the validity of the expropriation decision despite misdeeds. In
Svorai v. The Minister of Labor and Construction, for example, the
acquiring authority failed to issue an expropriation notice as required by
law before taking possession of the petitioner’s land.31 Disregarding the
omission, the authority began constructing a road on the petitioner’s land
and ignored the landowner’s protests against the illegal action. Then, three
weeks before the case was scheduled for hearing, the authority retroactively issued the required notice. In its judgment, the Court criticized the
manner in which the administrative authorities ignored the formal requirements of the law, but refused to intervene on behalf of the landowner. In a
two-page decision, the Court explained that since the illegal action was
corrected retroactively, there was no reason to undo the expropriation at
that stage. Similarly, in Dwiak v. The Minister of Finance, the Court
dismissed a petition to set aside an expropriation order that was issued
without first obtaining official authorization of the expropriation’s budget,
as required by the law. Authorization was received a short period after-
282 The History of Law in a Multi-Cultural Society
wards, and the Court preferred to treat the delay as a mere technical fault
which did not undermine the legality of the expropriation.
It seems to me that these rulings illustrate the fact that in handling
expropriation petitions, the early Court failed to follow the principle of the
rule of law laid down in the celebrated civil rights cases. It is also clear to
me that the divergence between the protective jurisprudence of property
and non-property rights cannot be explain solely by institutional concerns
regarding the shaky status of the judiciary in the social context of the
1950s and the influence of political theory which trusted the executive to
promote the common good.32 While these concerns may account for the
general policy of judicial deference in reviewing the content and substance
of administrative decisions (such as in cases involving the issue of public
purpose) they do not explain the failure of the Court to intervene in
expropriation decisions that involved misuse of powers. This judicial
behavior may be interpreted by reference to other social forces, more
specific to the realm of private property rights. I now examine the
influence which Israel’s pro-immigration policies had on Supreme Court
jurisprudence.
Mass Immigration: Policies and Motives
Jewish immigration and settlement both in Palestine and later in Israel has
been long-emphasized by Zionist ideology. The Zionist movement grew
out of the conviction that living in the Diaspora (galut) constitutes a dead
end for the future of Jewish collective life. The goal of Zionism, thus, has
been to encourage as many Jews as possible to immigrate to Israel and to
build a Jewish State. Until the attainment of sovereignty, the immigration
policies of the Zionist movement were controlled by the country’s
governors, the Ottomans and later the British. With the establishment of
the State of Israel in 1948, the issue of Jewish immigration to the national
homeland was finally under the control of Jewish leadership.
In the Declaration of Independence, the founding fathers expressly
stated that Israel shall be open to Jewish immigration and its foremost
mission is kibbutz galuyot, the “ingathering of the exiles”, meaning
absorption, integration and unification of Jews from diverse countries into
a single nation that spoke and thought in one tongue, bore one culture and
was rooted in the soil of the ancient land. The call of Zionism to renounce
the Diaspora and immigrate to Israel received a legal cast in the Law of
Immigration, Housing and Jurisprudence of Land Expropriation 283
Return of 1950. This Law established an open-door policy and provided
that every Jew has the right to immigrate to Israel and automatically to
become a citizen.
Having said that, it is important to realize that the Law of Return
comprises only the formal aspect of Israel’s immigration policy. From the
early days of its independence and to the present day, Israel has not only
kept its gates open, but it has actively assisted, supported and encouraged
waves of immigrants. Between 1948 and 1992, 2.3 million Jewish immigrants came to Israel in four major waves. The first and most dramatic of
these occurred immediately after independence when within the short
period of less than four years (between May 1948 and the end of 1951), the
Jewish population of the country doubled from 700,000 to 1,400,000.33 As
many have pointed out, the common narrative to the effect that hundreds of
thousands of Jews from all over the world eagerly rose and hurried to
immigrate into the country upon its establishment, is unfounded.34 The tidal
wave of immigration in the 1950s was mainly the result of deliberate
stimulating actions taken by heads of the Yishuv and by the Zionist
leadership. Thus, in many countries such as Hungary, Rumania and Bulgaria,
the State and various Jewish philanthropic organizations paid local governments for each Jew allowed to leave for Israel. In Yemen, for example, the
State hired an American airline to bring the Jewish community of 50,000
intact.35
The efforts that Israel invested shortly after its establishment in
promoting immigration partially derived their justifications from the principle of Jewish solidarity. After the horrible experience of the Holocaust,
Israel arguably had a moral responsibility for helping Jewish communities
in distress.36 Not less influential, however, was the prevailing belief that it
was in Israel’s best interest to promote Jewish immigration. David Ben
Gurion, the first Prime Minister, who was the chief proponent of the opendoor policy of immigration, suggested that the future of Israel and, in
particular, its security were related to the size of its Jewish population. In
his view, support for immigration was not only a moral obligation of the
State of Israel towards the Jews of the Diaspora but, first and foremost, a
major strategy of nation-building.37 Ben Gurion saw a close connection
between national security and the process of rapid Jewish population
growth. Hence, in tabling the Defense Service Law of 1949 in the Knesset,
Ben Gurion referred to immigration and absorption as the central civilian
component in Israel’s national security strategy.38
284 The History of Law in a Multi-Cultural Society
The ties between immigration and national security in the 1950s
revolved around several themes. On the most basic level, mass immigration
aimed to improve the ability of Israel to cope with its demographic
imbalance. The population ratio between Israel and the five Arab countries
that fought in the War of Independence (Egypt, Syria, Lebanon, Jordan and
Iraq) was 1 to 50 in 1948.39 While it was clear that no considerable rise in
Jewish immigration could seriously alter the disparity in numbers between
Israel and its sworn foes, mass immigration that would expedite the growth
of the Jewish population nevertheless carried important implications for
wartime. Given its negative demographic balance, Israel adopted the concept
of a “nation in arms” shortly after independence. Under this concept, in
military emergencies, a reserve force of men serving until the age of 55
was available for immediate call.40 The size of the Jewish male population
between the age of 18 and 55 was, thus, virtually equal to the size of
Israel’s military manpower.
Another connection between immigration and security concerns existed
in the internal domain and related to the lack of symmetry between the
Jewish and Arab populations within the land of Israel. On the eve of Israel’s
independence, the Jewish population of Palestine was only about 30 percent
of its total population. Then as today, attaining a Jewish majority was
perceived in the Zionist vision as the most decisive factor for ensuring the
character of Israel as a primarily Jewish State.41 The exodus of hundreds of
thousands of Arabs during the War of Independence created a unique opportunity to achieve the desired goal. As a result of the extensive movement of
Arab refugees and the stream of Jewish immigration immediately afterwards, the proportion of Jews in Israel’s total population increased to 81
percent.42 To retain the majority status, the government planned to launch a
large-scale settlement program in abandoned Arab villages and towns.
However, this task required Jewish population growth by means of
immigration. As David Ben Gurion explicitly stated in 1949, “Conquered
territories without settlements have no decisive value, not in the Negev, nor
in the Galilee, nor in Jerusalem. Settlement is the real conquest”. And since
for settlement you need immigrants, said Ben Gurion, “the fate of the State
depends on immigration”.43
Jewish immigration was also advocated as a counterbalance to the
high birth rate of the Arab population. Although in the early 1950s Ben
Gurion initiated a program of prenatal incentives, it appeared more likely
that Jewish immigration would maintain the desired majority-minority ratio
Immigration, Housing and Jurisprudence of Land Expropriation 285
between Jews and Arabs in Israel.44 Finally, the importance of immigration
was emphasized in relation to achieving the target of economic growth.
Given Israel’s lack of natural resources, human resources have formed the
main potential for economic expansion. In the eyes of the founding generation, the development of an independent industrial sector was an important
component of the doctrine of national security. The idea was to create a
mechanism of economic growth that rested on demographic increase,
superior quality of human resources and inflow of capital.45
These concerns, which reflected the paramount importance that Israel
attributed to Jewish population growth, led the State to adopt immigrationstimulating policies that sought to bring Jews to the national homeland.
Israel’s pro-immigration policy included assistance in arrival to the
national homeland as well as the State’s commitment to provide immigrants with jobs, education and health services, and adequate accommodation.
The first application of this policy occurred in relation to the massive
number of immigrants who arrived in Israel shortly after its independence.
The immigrants of the 1950s came from two areas: Eastern and
Central Europe (48.6 percent) and Arab countries (50.7 percent). Since no
selection was exercised, the immigrants came as they were, old and young,
sick and healthy. Among the remnants of European Jewry, for instance, a
large number of immigrants were chronically ill after the traumatic experience of the Nazi concentration camps.46 Inability to be self-supporting
was evident also among immigrants from Arab countries. Many of them
were illiterate and they arrived to Israel totally destitute, after being
compelled to leave all their possessions behind.47
The social composition of the immigration of the 1950s only aggravated the general difficulties associated with the task of absorbing a large
number of new arrivals in a short period of time. Indeed, for any country,
an immigration rate as huge as that of Israel would be an ambitious
absorption challenge. For Israel of 1949, a fledging State, poor in resources
and attempting to recover from a year of fighting in the War of
Independence, the absorption of the masses brought the economy to the
verge of collapse. First, the rapid demographic growth caused shortages of
essential supplies such as food, clothing, fuel and building materials.
Second, the influx of immigrants coupled with the demobilization of
thousands of soldiers at the end of the 1948 War of Independence resulted
in high levels of unemployment. And finally, the demographic revolution
286 The History of Law in a Multi-Cultural Society
also demanded an expansion of loans for public investment which, in the
absence of effective monetary policy, resulted in inflationary processes.
At the beginning, public opinion was enormously impressed by the
rate of immigration. Newspapers wrote enthusiastically about saving Jews
from the Diaspora and accomplishing the goal of “ingathering of the
exiles”. However, as the masses continued to arrive, complains about the
economic and social hardships imposed by immigration began to be heard.
In the summer of 1949, public opinion polls showed that although the
majority of the population supported the policy of open-door immigration,
about 82 percent of those questioned expressed the opinion that the
government should regulate the pace of immigration according to the
economic capacity for absorption.48 Yet, despite the call for regulation, the
government decided to continue its aggressive policy of assisting and
subsidizing immigration. As a result, an acute crisis was created in the field
of housing supply.
The Dilemma of Shelter in Early Statehood: Temporary
Accommodation and the Practice of Apartment Confiscation
One of the major problems resulting from the mass immigration was lack
of a proper residential infrastructure to accommodate the large volume of
newcomers. Initially, the government planned to construct additional rooms
in existing kibbutzim, establish new agricultural settlements and direct a
large proportion of the immigrants to those localities by offering them
vocational training. Between 1947 and 1956, the number of rural settlements increased almost two and a half times, from 260 to 620. Yet the
construction effort failed to keep pace with the furious rate of immigrant
influx, and screening of the immigrants revealed that many of them were
unsuitable or did not opt for absorption in agriculture.49
Upon their arrival, the first immigrants in late 1948 and early 1949
were given temporary shelter in huts in former British Army camps. After a
few weeks, most of them were able to find permanent housing in vacated
Arab villages and urban neighborhoods. About 124,000 new immigrants
and thousands of discharged soldiers densely settled abandoned Arab
housing in Acre, Beit-She’an, Haifa, Jaffa and Tiberias.50 As the influx of
immigration increased in the spring and summer of 1949 and all usable
space in Arab housing was taken up, it was decided to house the immigrants in tents. By October 1949, a record number of 90,000 immigrants
Immigration, Housing and Jurisprudence of Land Expropriation 287
lived in tent camps in overcrowded conditions and without adequate sanitary
arrangements. Since public opinion could no longer ignore the housing
crisis, the government decided in early 1950 to close the camps and to
replace them with a different form of temporary shelter called Ma’abarot
(‘transit camps’ or ‘places of transition’). The transit camps of the 1950s,
made from canvas and sheet metal, were located adjacent to main
population centers in order to enable the immigrants to enter the labor
market. Their establishment did not require the exercise of expropriation
powers, since most of the transit camps were erected on public land on the
outskirts of the cities. Still, it is impossible to interpret the practice of
apartment confiscation for temporary housing and land expropriations for
permanent housing without alluding to the context of the dilemma of
shelter in early statehood.
The practice of apartment confiscation prevailed in Israel between
1949 and 1952. It involved direct violation of private property rights and
was carried out under emergency legislation that State authorities promulgated to serve it. During the first months of independence, State authorities
resorted to the British Mandatory Defence Regulations of 1939 and of
1945 that conferred on them emergency powers to confiscate private
property. Later on, the government promulgated the Emergency (Requisition
of Property) Regulations of 1948 which were transformed into a statutory
arrangement, in the form of the Emergency Land Requisition (Regulation)
Law of 1949.51
The language of the Emergency Land Requisition (Regulation) Law
of 1949 reflected the prevailing view of the time to the effect that the
existence of the State depended on the expedited process of Jewish
population growth. Alongside the incorporation of clear-cut security considerations as factors in the discretion of the requisitioning authority, the
Law cited the goal of immigrant absorption as grounds justifying the
issuance of confiscation orders. Section 3 of the Emergency Land Requisition
(Regulation) Law provided that a non-elected administrative officer may
take immediate possession of private property whenever it appeared that
this action was necessary for “defense of the State, public security, the
maintenance of essential supplies or essential public services, absorption
of immigrants and rehabilitation of ex-soldiers and war invalids.”
The Emergency Land Requisition (Regulation) Law regulated two
types of orders: land requisition and housing. In the original version of the
Law, the legislature mandated that land requisition orders shall not be
288 The History of Law in a Multi-Cultural Society
issued for a period exceeding three years. Later, however, the initial period
was extended to six years and then to ten years. In regard to housing
orders, the legislature did not specify an expiration date, but in practice
these were issued as a means for providing temporary shelter. 52 Between
1949 and 1952, the government made extensive use of the Emergency
Land Requisition (Regulation) Law. More than 1,250 housing orders and a
similar number of land requisition orders were issued under the terms of
the Law. Of these, 412 targeted housing immigrants; 421 were intended for
provision of essential public services; 2 for national security and defense;
and 420 for rehabilitation of discharged soldiers and war invalids. 53
Requisition orders as well as housing orders dramatically affected the
value of private property. Housing orders, for example, typically applied to
apartments or rooms offered for rent by their owners. Their effect was to
‘catch’ an evacuated apartment in the transition phase and to give it to a
‘benefited tenant’, instead of a tenant chosen by the apartment owner. A
benefited tenant who entered an apartment under the terms of a housing
order immediately gained the status of a statutory tenant. As such, the
tenant only had to pay fixed minimal rent fees and was protected against
evacuation.54
A large number of the issued orders were annulled by appeal
committees before physical possession took place.55 Interestingly, however,
even landowners whose private property was actually seized did not hurry
to bring their claims before the Court. The tolerance that the affected
property owners showed towards violations of their property rights may
relate to the fact that land requisition and housing orders were issued for a
limited period of time and applied only to apartments not needed for the
personal use of their owners. Yet, in addition to the “easing effect” of these
factors, the absence of petitions against the confiscation practice seems
related to the social mainstream of the time.
The political culture of the 1950s strongly inclined toward
collectivism. The view of the individual as the bearer of collective goals,
and as subordinate to them, originated in the Labor Zionist image of the
pioneer (chalutz) and was also shared by the rightist Revisionist camp.
Each of these movements in its own way called on the individual to
sacrifice private interests and to place him or herself at the disposal of
national interests.56 In regard to immigrant absorption, the pioneering
ideology of personal self-sacrifice served to socially legitimize the high
degree of belt-tightening that the government imposed on the public. The
Immigration, Housing and Jurisprudence of Land Expropriation 289
austerity program that the government adopted in an attempt to ease the
severe scarcity in essential commodities, and Prime Minister Ben Gurion’s
proposal to solve the problem of high unemployment by organizing jobless
immigrants into “labor battalions” are good examples of the early collectivist
ideology.57 In the realm of housing, the political culture of self-sacrifice
made it legitimate to require apartment owners to temporarily give up their
property in order to provide accommodation for the needy. Although
apartment confiscation involved property-taking from one individual for
the benefit of another, property owners seemed to show understanding for
the link between immigration and national security and were willing to
sacrifice their resources in order to advance the collective goal of immigrant absorption.
While property owners did not challenge the constitutionality of
confiscation orders for the purpose of immigrant absorption, they showed
great dissatisfaction with the preferential treatment that often accompanied
the practice. Between 1948 and 1952, nearly 15 cases concerning
apartment confiscation reached the Court. Almost all of them involved
confiscation orders that were issued for accommodation of government
bureaucrats in circumstances that raise the suspicion of administrative
wrongdoing. Indeed, it was not uncommon for a government official to
approach the requisitioning officer and ask for the confiscation of a
particular apartment for the use of the official and his family on the
grounds that the services supplied by the official were essential for the
public.58 Personal connections with those in powerful positions most
commonly determined the chances of getting shelter.59 Nevertheless, in
reviewing these contested actions, the Supreme Court refused to intervene
on behalf of the affected property owners. It explained that subject to
specific limitations of arbitrariness or misuse of powers, it would treat
administrative definition of public interest in terms well-nigh conclusive
and not scrutinize the decision of the Requisitioning Authority with regards
to the need for expropriation or to its purpose.60
This pattern of judicial deference sharply recalls the statements of the
early Court in regard to the scope of judicial review in cases involving
infringements on civil rights by emergency powers. As mentioned earlier,
the Court of the 1950s narrowed the scope of its intervention when
handling violations of human rights carried out by military agencies and
involved security concerns. In those cases, the Court tended to focus on
procedural requirements and refused to extend its supervision over the
290 The History of Law in a Multi-Cultural Society
reasonableness of the action.61 The analogy between the judicial posture in
security matters and that in confiscation cases suggests that the governing
view of the 1950s, which attributed supreme national importance to the
immigration movement, was channeled into the judicial discourse. The
Court expanded its security code to the practice of apartment confiscation
that was perceived as designed to promote immigrant absorption. The
following discussion will show that the connection between immigration
and national security interests was reflected in the 1950s not only in
judgments concerning temporary accommodation, but also in the rulings
involving land expropriation for the purpose of building permanent
housing and enabling regional development.
Security Concerns, Zionist Ideology and Land Expropriation
for Permanent Housing and Regional Development
Construction of permanent housing was already under way when
temporary solutions provided shelter for the mass immigration of the
1950s. Yet, despite the intense efforts and large investments in new
housing usually at public expense, it took about seven years until the
backlog in the supply of permanent housing eased. The shortage in
permanent housing attained emergency status as the influx of immigration
increased in 1949 and living conditions in the “transit camps” worsened.
The tin huts gave little if any protection against winter rains and were
blazing hot in the summer. The structures were so small that families were
crowded into a single room, with the resultant lack of privacy and its
deleterious effect on family life. There was no electricity in the transit
camps and water was supplied through central faucets. 62 Because local
authorities refused to include the camps in their municipal jurisdictions,
the level of public services for residents of the camps was sub-standard and
unemployment remained relatively high. By the end of 1951, about
250,000 immigrants, representing 20 percent of Israel’s Jewish population
and 40 percent of the total number of immigrants, still lived in temporary
sheds.63 Each cold rainy winter was a nightmare for the residents of the
transit camps and underscored the urgency of the housing problem.
The process of regional development generated by the tide of
immigrants involved the exercise of expropriation powers in two different
realms. One was expropriation of Arab-owned land. As mentioned earlier,
the first immigrants to arrive in late 1948 and early 1949 were directed to
Immigration, Housing and Jurisprudence of Land Expropriation 291
permanent housing in vacated Arab villages and urban neighborhoods.
When the supply of existing Arab housing was exhausted, it was decided to
construct permanent housing projects on abandoned Arab land, adjacent to
existing settlements. This planning policy enabled savings in time and
resources, as the development of new, distant settlement centers would
have required large investments in infrastructure. However, beyond the
immediate advantages, the decision to build permanent housing close to
Arab towns was intended to create new political conditions in the long run,
and to prevent Palestinian refugees from returning to their homes. 64 The
wide array of legal measures enacted to allow the transfer of land from
private ownership (primarily Arab) to public ownership (under Jewish
control) rested on the widespread belief that viewed the Arab citizens of
Israel as a “hostile minority” who pose a threat to domestic security. Yet,
these security concerns were not expressively mentioned in the “special”
legal regime designed for the process of expropriation of Arab-owned land.
The Absentees’ Property Law of 1950, for example, seemed, at first
glance, like a “regular” enactment passed to cope with the problem of
managing the property of persons outside Israel. In practice, however, it
was exercised almost exclusively against the Arab population.65 The absence
of clear legislative statements concerning the relevance of security considerations to the dimensions of Arab-owned land made it easy for the ethos of
national security to also dominate the other realm of expropriation, that of
Jewish-owned land.
The prevailing conception in public thinking of the 1950s, which tied
the future of Israel to the size of its population and to its ability to attain
economic independence, was reflected in the case law of land expropriation
in a number of ways. In Salomon v. The Attorney General, for example, the
issue at stake was expropriation for the purpose of constructing a small
port in the Kishon river (near the coastal city of Haifa). 66 The petitioner,
who owned several tracts in the area, did not challenge the public purpose
determination. Rather, he raised an argument against the choice of his land
as “necessary or expedient” for implementation of the public project. The
petitioner pointed out that the Minister of Finance issued the expropriation
order notwithstanding the fact that planning authorities had yet to prepare a
complete building plan for the development of the port. In the absence of
an approved plan, the petitioner claimed, it was not certain that the land
designated for expropriation would be necessary for the realization of the
project.
292 The History of Law in a Multi-Cultural Society
Indeed, experience has shown that the practice of issuing expropriation
orders without taking into account the state of affairs of the planning
process leads to undesirable results. Often, land that was taken under the
terms of the Acquisition Ordinance is not utilized for the original public
purpose because of planning difficulties, and then the land-use designation
of the expropriated land had to be changed retroactively.67 Yet, despite the
arguments of the petitioner in Salomon, which pointed to these concerns,
the Court dismissed the petition. Resorting to a literal interpretation, the
Court explained that it could not intervene in the expropriation decisions
since the language of the Acquisition Ordinance mandated the conclusion
that the Minister of Finance had absolute freedom in deciding that land
was “necessary or expedient” for public purposes.
In support of this interpretation, the Israeli Supreme Court cited an
English precedent from 1942 in which the House of Lords was asked to
review a decision of the State Secretary to use his powers under Regulation
18B of the English Defence Regulations of 1939 (Liversidge v. Anderson).68
This Regulation empowered the State Secretary to issue an order holding a
person in detention “if he has reasonable cause to believe that the person is
affiliated with a hostile association”. Relying on the broad language of
Regulation 18B, the House of Lords held, by a majority, that it has no
authority to review the considerations underlying the detention decision.69
Interestingly, while the majority opinion in Liversidge attracted criticism in
English law,70 it became one of the most frequently used references in
Israeli case law of the 1950s involving infringements on civil rights by the
emergency powers of security authorities.71 This background raises a
question about the Supreme Court’s resorting to the English precedent in
Salomon. After all, the expropriation in Salomon did not appear to touch
on security matters.
As I see it, the reliance of the Court in Salomon on the majority ruling
in Liversidge was not a coincidence. Rather, it reflected the effect which
the social forces of the 1950s had on the discourse of land expropriation
jurisprudence. The worldview of the early Court was shaped in a social
atmosphere in which the political branches and public sentiment saw a
close connection between the future of Israel and the size of its Jewish
population. And while it is suggested that during periods of real emergency,
Courts could not take the role of deciding the appropriate ends of the
government, the same can be said in regard to the deferential judicial
stance that was adopted in the early land expropriation adjudication. 72 In
Immigration, Housing and Jurisprudence of Land Expropriation 293
light of the housing crisis that followed the wave of mass immigration, the
role of the Supreme Court in Israeli society did not enable it to scrutinize
the reasonableness of the considerations weighted by those responsible for
finding housing solutions and creating the infrastructure necessary for
developing the country. The paramount importance that 1950s Israeli society
devoted to the issues of regional development and provision of permanent
housing may also provide a partial explanation for the judicial failure to
grant procedural defenses to landowners. Thus, for example, there is an
interesting parallel between the refusal of the Court in the Dwiak case to
require that the Minister of Finance specify the substance of the public
purpose designation, and the judicial policy adopted in early cases
involving security matters. In the latter, the Court of the 1950s took for
granted the general statements made by the military authorities and
declined to require the exposure, and thus to evaluate, the security
considerations that underlined the decision to infringe on individual
rights.73 The feeling of emergency in regard to housing supply may have
also exerted influence on the decision to discharge the Minister of Finance
from his duty to grant fair hearing prior to issuing an expropriation warrant
in Yunes. This ruling was shaped, perhaps, as a response to the need for the
expedition of the process of building permanent housing.74
Finally, the broad consensus that existed in Israeli society concerning
the ties between Jewish immigration and national security interests
expressed itself in the legal arena by obscuring judicial discussion about
the constitutional ramifications of expropriation powers. Surprisingly, the
early judgments in cases involving land expropriation failed to emphasize
the importance of the right to private property as imposing limitations on
governmental powers to intervene in the existing distribution of resources.
One possible explanation for this lack of judicial discussion relates to the
fact that the issue of land expropriation has traditionally been raised in
Israeli public discourse in the context of the national struggle to ensure the
existence of Israel. The prevalent perception of land expropriation in
(Jewish) collective terms developed, of course, against the background of
the Arab-Jewish conflict and the widespread use of expropriation powers
as a device for repressing the Palestinian minority. Yet, this experience
also affected the judicial discussion of violations of property rights in the
Jewish sector. The tendency to conceptualize the issue of land expropriation
in collective terms obscured the constitutional implications of this extreme
measure on the relationship between the individual and the government.
294 The History of Law in a Multi-Cultural Society
The absence of judicial rhetoric endorsing the institution of property
rights may also relate to the fact that the Court of the 1950s acted in a
cultural context which did not include ideological support for the ethos of
private ownership. This aspect of Israeli society and of Zionist ideology
may also have influenced the failure of the Court to grant landowners
procedural guarantees and to intervene in expropriation orders that did not
comply with formal legal requirements.75
The opposition displayed by Zionist ideology to a regime of private
ownership of land stemmed from a number of reasons, the majority of
which related to the political goals which the national Jewish movement
aspired to achieve. One of the major concerns of the Zionist leaders was
the fear that the institution of private property might impair the fundamental national goal of encouraging Jewish settlement in Palestine. Since
Jewish settlement in Palestine during the pre-State period depended on
land purchases in market conditions (from a willing seller to a willing
buyer), the Zionist movement sought to preserve a stable level of prices.
The assumption was that private property rights would lead to a widespread phenomenon of speculation in land and consequently to soaring
prices, and would thus undermine the national goal of allowing the transfer
of the greatest possible amount of land from Arab ownership to Jewish
hands.76 A land regime of private ownership was labeled an impairing factor
also because it posed the danger of resale of land from Jews to Arabs that
could undermine the goal of expanding Jewish settlement in the outlying
areas of the country.77 As settlement of this type required large resources, it
was assumed that private capital holders would prefer to invest it in builtup areas, and this would damage the Zionist interest to determine, already
at an early stage, the borders of the Jewish State which would eventually
emerge.78 On the dimension of social aspirations, the institution of privateland-ownership contrasted with the goal of Zionism to establish the new
Jewish society on principles of equality and the working of the land. The
Zionist leadership, suffused with the ideology of equality, viewed private
property as a land regime which would create a strata of estate- owners that
could lead to the exploitation of the Jewish worker.79
The cumulative effect of these considerations motivated Zionist
leaders to favor the principle of public land ownership as the basis for the
land regime in Israel. In the pre-State period, this choice was expressed by
the 1901 establishment of the Jewish National Fund (JNF) [Keren Kayemet
Le’yisrael] that collected donations to buy land in Palestine and keep it
Immigration, Housing and Jurisprudence of Land Expropriation 295
under the collective ownership of the Jewish people.80 With the establishment of the State of Israel, it was decided to apply the principle prohibiting
the sale of land belonging to the JNF to all the land which had been seized
by the State during the War of Independence.
Bearing in mind the central role of the JNF in the shaping of Zionist
values,81 and adding to this the fact that the JNF and its principle of
national land ownership were granted legal recognition with the establishment of the State of Israel, one can sense that the institution of private
land-ownership did not gain ideological support in the social context of
early statehood.82 The negation of private property rights in the social
ideology of early Israel may have influenced the jurisprudence of land
expropriation, as the Zionist goals of the expansion of Jewish settlement
comprised an important component of the worldview of the Court. Indeed,
the justices of Israel’s Supreme Court perceived their judicial activities as
detached from politics, but they did not detach their worldview from Zionist
thinking and activity.83 In the context of land expropriation adjudication, it
is also noteworthy that some of the earliest justices of the Supreme Court,
in their professional lives as lawyers, took an active part in the efforts of
the Jewish National Fund to “redeem the land”.84 The lack of judicial
rhetoric in favor of the institution of private property was thus wellintegrated with the personal ideology of the justices and with the
influential Zionist principle of national land ownership. Moreover, it seems
to me that the negligible weight given to the right to private property in the
social context of the 1950s also explained the failure of the Court to set
aside expropriation orders that did not comply with all necessary legal
requirements.
Indeed, when the early Court decided to release an Arab detainee who
was unlawfully deprived of his personal freedom, the celebrated judgment
reflected, in my opinion, the outweighing sentiments of Israeli society. 85
On one hand, the political culture of the 1950s favored the value of personal
freedom and viewed it as having important social merits for the new
Jewish State. On the other hand, judicial intervention in the detention order
could have led to a relatively small security risk, limited to the possible
ramifications of releasing one Palestinian detainee. However, in the realm
of land expropriation, the social forces that dominated the public discourse
of the 1950s presented the conflicting interests in a completely different
light. There, the right which was in danger of being impaired (the right to
private land ownership) did not receive social recognition and ideological
296 The History of Law in a Multi-Cultural Society
support; while the project of immigrant absorption and land redemption
was viewed as a considerable security issue on which the future of the
Israel depended. The divergence of the Court of the 1950s from assuring
the principle of the rule of law in the context of land expropriation thus
reflected the social biases of the period. These viewed the right to personal
freedom as more important than the right to private property, and the
damage to national security in consequence of the release of an individual
detainee as smaller than that caused by intervention in land expropriation
for the purpose of building permanent housing and enabling regional
development.
Continuing Trends: The Case Law of the 1970s
Examining case law in the 1970s, one readily notices that the formative
policy of judicial non-intervention continued to dominate the jurisprudence
of land expropriation. The Court of the 1970s, like the Court of the 1950s,
preferred to defer to expropriation decisions and failed to render substantive protection to landowners’ rights. Hence, for example, in Spolinski v.
The Minister of Finance, the Court declined to intervene in land
expropriation whose public purpose designation was changed
retroactively.86 In that case, the petitioner’s land in southern Jerusalem was
originally taken for the purpose of building a new quarter composed of
5,000 housing units for immigrants, low-income population and young
couples. After the land was taken, the landowner discovered that while a
major part of her land was used for low-income dwelling units, a small part
of it was designated for construction of cottages for wealthy immigrants
and foreign investors.
In her petition, the landowner asked the Court to set aside the notice
of expropriation referring to the land on which the luxury cottages were
situated. Housing for wealthy immigrants and foreign investors, the
landowner contented, deviates from the original purpose for which the land
was expropriated and can not be deemed a permissible public purpose
justifying the use of expropriation powers. Alternatively, the petitioner
asked the Court to order the State to allow her to become the entrepreneur
of the housing project, instead of granting that right to a private construction company. In dismissing the petition, the Court invoked its early
deferential stance. It stated that even if one deemed the changes in the land
designation to be incompatible with the original purpose, in view of the
Immigration, Housing and Jurisprudence of Land Expropriation 297
absolute freedom granted to the Minister of Finance to define permissible
public purpose, the Court could not intervene in the expropriation. Having
said that, the Court added, there was also nothing wrong in the decision to
designate a small part of the expropriated land for housing for the well-todo. Previous experience shows, the Court elaborated, that neighborhoods
consisting exclusively of low-income residents are likely to be sources of
social and economic problems. It is thus in the public interest, the Court
explained, that wealthier populations be integrated into low-income communities. Referring to the means question, the Court concluded that expropriation powers are an appropriate means to achieve the public purpose, since
granting the landowner the right to develop her land may slow down the
process of building 5,000 housing units on a large number of plots.
Judicial deference to changes in land use designation was also evident
in Benin v. The Minister of Finance.87 In that case, the petitioners’ land in
the Talpiot neighborhood of Jerusalem was initially expropriated in 1961 for
the purpose of establishing a military base. Then, in 1971, the petitioners
discovered that the State planned to evacuate the army base and build a
residential housing project on their land. In their petition to the High Court
of Justice, the landowners claimed that the change in the public use
designation mandates the State to return the land or alternatively to
expropriate it anew and pay compensation according to the higher value of
the land at the new expropriation. While criticizing, in obiter dicta, the
failure of the legislature to protect landowners against misuse of expropriation powers, the Court maintained that the language of the Acquisition
Ordinance was decisive in defining the scope of judicial review. Since the
Acquisition Ordinance did not require the acquiring authority to return
land upon changes in land use designation, it was not within the authority
of the Court to intervene in the expropriation, even if justice might require
doing so.
This reluctance to restrict the ability of State authorities to exercise
their expropriation powers and to harm landowners’ rights stood in
contrast to the growing willingness of the Supreme Court of the 1970s to
interfere with infringements on non-property rights. As mentioned above,
this distinction between the attitudes of Israel’s Supreme Court toward
protection of property and non-property rights became obvious in the case
law of the 1970s. And while institutional concerns can illuminate some of
the reasons for the policy of judicial deference that was adopted in the
1950s, they became irrelevant in regard to the discourse of land
298 The History of Law in a Multi-Cultural Society
expropriation adjudication in the 1970s. The rights jurisprudence of the
late 1970s and early 1980s reflected an agenda of an activist Court that did
not hesitate to closely scrutinize governmental actions in order to protect
civil rights. The hands-off policy in land expropriation cases cannot thus be
attributed to general institutional accounts. Rather, it should be interpreted
in light of the social forces that acted in the realm of private property rights
in land. A detailed analysis of the social grounds that underlay the mode of
judicial deference in the 1970s is beyond the scope of this paper. I will
therefore present only general remarks on the pressing needs in the
dimension of housing demand.
At the end of the 1960s and beginning of the 1970s, Israeli society
had to contend with new exigencies in the area of housing. These ensued
from the 250,000 immigrants from the Soviet Union and Western Europe
who arrived in Israel after the Six-Day War, and from the demands for
housing assistance made by veteran sectors of the Israeli society. 88 The
marked increase in the percentage of Westerners among the immigrants of
the 1970s brought about changes in absorption policies. Those immigrants
were no longer sent to transit camps or to rural settlements which offered
affordable housing, but lacked appropriate employment opportunities.
Instead, they were offered high-standard housing in the urban network.
Improvement in housing conditions offered to the immigrants of the 1970s
was reflected not only in the location of the dwellings, but also in the
quality of housing and the standard of living. The average apartment area
in public housing nearly doubled: from 40 square meters in the 1950s to 75
square meters in the 1970s. Density decreased from 2.2 to 1.6 and the
number of rooms per apartment increased from two to three.89 The improved
housing conditions offered to the immigrants of the 1970s within the
framework of public assistance, and the high social and economic status of
veterans of European origin accentuated the low social standing of those of
North-African origin who had immigrated to Israel in the 1950s. Families
from the earlier wave of immigration did not succeed, by and large, in
improving their housing conditions and remained in overcrowded apartments situated in poverty-stricken areas. The feelings of deprivation among
these veterans erupted in the early 1970s in the form of growing social
protest.
Two groups of veteran residents made demands for improvement in
housing. The first was a group of young people of North-African origin,
the second generation of immigrant parents, who, following the example of
Immigration, Housing and Jurisprudence of Land Expropriation 299
American blacks, called themselves the ‘Black Panthers’. Drawn predominantly from the metropolitan slum belts, the Black Panthers demanded
“better housing conditions, slum clearance, more jobs, better education and
an end to all ethnic discrimination”. Comparing themselves to new
immigrants, the Black Panthers hung posters in the streets of Jerusalem
that read “New Immigrants get Housing – We Get Nothing”.90 The other
protest group was the ‘Young Couples’. This sector of the population – a
large proportion of which was composed of children of families of North
African origin – demanded that the government provide them with public
housing aid on the basis of their characterization as lacking a starting point
which could form the basis for improving their living conditions. The
‘Young Couples’ protested the soaring housing prices; their recurring
demand was to have housing subsidies for Israeli-born young people equal
to those of new immigrants.91
At the beginning, government authorities ignored the anger and
frustration. Prime Minister Golda Meir stated publicly that if a choice had
to be made between social equality and immigration, the latter had priority.
Attitudes, however, changed shortly after. Acknowledging the connection
between ethnic protest, social turmoil and the threat to the established
political order, and seeking to prevent the emigration of veteran residents,
the government decided to treat low-income young couples and families
living in substandard conditions as deserving housing assistance. The
subsidy programs developed in the 1970s to address the housing needs of
these groups diverged from the housing policy of the mighty hand of the
State that ruled in the early years of statehood. As mentioned earlier, the
major problem in Israel’s housing environment in the 1950s was the lack of
a suitable residential infrastructure to accommodate the large volume of
newcomers who arrived in the country within a short period of time. To
address the serious shortage in the supply of permanent dwellings, the
government allocated extensive funds for housing construction and was
involved in the initiation, planning and building of about 80 percent of all
housing units between 1951 and 1959.92 In the 1970s, however, due to a
drop in the flow of immigration and changes in the social composition of
immigration after the Six-Day war, the government reduced its direct
involvement in planning and financing housing construction.93 Instead of
implementing a centralized policy of publicly sponsored housing, the new
policy sought to lean on private capital for housing construction and to
shift the focus of subsidy programs from the side of housing supply to the
300 The History of Law in a Multi-Cultural Society
side of housing demand. Hence, in the 1970s, budgetary resources were
allocated to establish grants and mortgage assistance programs and these
were offered to young couples and low-income families in order to enable
them to purchase a house.94
Yet, the new structure of housing assistance in the 1970s did not
divert from the basic goal of Israel’s housing policy in the first decade of
statehood. Agreeing with the perception that a Jewish majority in highly
populated Arab areas is an essential condition for the future of the Jewish
State, the housing policy of the 1970s was designed to attract families to
purchase a dwelling in such locations, and particularly in Jerusalem.
Indeed, the annexation of East Jerusalem with its dense Arab population
into Israel after the Six-Day war, and the proclamation of a unified Jerusalem
as the capital of Israel, induced massive efforts to expand and strengthen
the Jewish presence in the city. One of the means to achieve this goal was
to ensure a sufficient supply of housing units in the city and to design the
eligibility criteria for mortgage assistance so as to encourage Jewish
households to purchase homes in the metropolitan area of Jerusalem.95
These social underpinnings of Israel’s housing policy in the early
1970s formed the background for the expropriation orders reviewed in the
Spolinski and Benin cases. Both cases concerned land located in Jerusalem
and, in both cases, the purpose of the expropriation was to enable the
construction of housing units for young couples and other needy sectors in
the population.96 As I see it, the social forces that acted on the housing
market of the 1970s contributed to the decision of the Court to continue its
formative policy of judicial non-intervention. As in the 1950s, so in the
1970s, the processes of Jewish population growth and population dispersal
were perceived in terms of national security. And although it is true that
the security importance attributed to these processes was not conceptualized in the 1970s with the same forcefulness as it had been in the 1950s, in
regard to expropriation in sensitive locations such as Jerusalem, it
continued to exert significant influence on the discourse of land expropriation jurisprudence.
Notes
1
Statistical Abstract of Israel, vol. 50, 1999. In 1998, the breakdown of the country’s
population by religion was 79.4% Jews, 14.8% Muslims, 2.1% Christians, 1.8% Druze
and the rest unclassified as to religion.
Immigration, Housing and Jurisprudence of Land Expropriation 301
2
3
4
5
6
7
8
9
Rachelle Alterman, “Who Can Retell the Exploits of the Israel Lands Authority? From
the Aspect of Justifying the Continuation of National Ownership of Law,” Tel Aviv
Univ. L. Rev. 21 (1998): 535 (Hebrew).
Ibid.
Alan Kirschenbaum, “Migration and Urbanization: Patterns of Population Redistribution and Urban Growth,” in Population and Social Change in Israel, ed. C.
Goldscheider (Boulder, CO: Westview, 1992), 65. In 1998, 13.1% of the total
population resided in the Haifa District, 18.8% resided the in Tel Aviv District and
22.5% of the population lived in the Central District. This district includes cities in the
Tel Aviv metropolitan area such as Ra’anana, Herzlia, Petach-Tikva and Ramat
HaSharon. Statistical Abstract of Israel, 1999.
The Planning and Building Law allows local authorities to take up to 40% of a plot
without paying compensation providing that the land is taken for one of the following
purposes: constructing or widening of roads, playgrounds, recreation areas, or construction of buildings for educational, cultural, religious or health services. Resort to the
expanded rule of no-compensation depends on the state of affairs of the planning
process. Under the Planning and Building Law, a precedent condition for the issuance
of an expropriation order is the existence of an approved planning scheme which
designates the expropriated land for public purpose. It should be noted that in recent
years, expropriations for urban and regional development have often been issued in
accordance with the terms of the Planning and Building Law, after the preparation of an
approved planning scheme as required. The statutory source of the Acquisition Ordinance is saved for problematic cases which involve creative definitions of a permissible
public purpose.
Disputes concerning land expropriation make their way to the judicial system, most
commonly to the Supreme Court of Israel in its function as a High Court of Justice.
Israel’s Supreme Court serves in two different capacities: as a court of civil and
criminal appeal; and as a court of first (and last) instance of judicial review over the
decisions and activities of State authorities.
H.C.J. 85/52 Cornelius A. Cohen v. The Minister of Finance, 6 P.D. 363; Motion 33/53
Salomon v. The Attorney General, 7 P.D. 1023.
Arie Kamar, Israel’s Expropriation Law (Tel Aviv: Meirav Press, 1995), 153-157
(Hebrew); Irit Haviv-Segal, “Coordination Problems and the Question of Public Goal
in Real Estate Expropriation,” Tel Aviv Univ. L. Rev. 21 (1998): 449 (Hebrew).
Yitzhak Zamir, “Administrative Law: Revolution or Evolution,” Israel L. Rev. 24
(1990): 356-67; Martin Edelman, Courts’ Politics and Culture in Israel (Charlottesville, VA: Univ. Press of Virginia, 1994); David Kretzmer, “Forty Years of Public
Law,” Israel Law Rev. 24 (1990): 341; Menachem Mautner, The Decline of Formalism
and the Rise of Values in Israeli Law (Tel Aviv: Ma’agaley Da’at, 1993, Hebrew);
Menachem Mautner, “Law and Culture in Israel: The 1950s and 1980s,” this volume;
Dafna Sharfman, Living Without a Constitution: Civil Rights in Israel (Armonk, NY:
M. E. Sharp, 1993). During the last two decades, the Court has become involved also in
almost every aspect of political life in Israel. It struck down nominations of senior
government officials and high military officers on the grounds that the nomination was
motivated by party calculations rather than professional considerations (H.C.J. 6163/92
Eizenberg v. The Minister of Housing, 47 [2] P.D. 229). The Supreme Court ordered
the Prime Minister to dismiss cabinet members following charges that they were
302 The History of Law in a Multi-Cultural Society
10
11
12
13
14
15
16
17
18
involved in scandals of bribery and fraud (H.C.J. 4267/93 Amitai v. The Prime Minister
of Israel, 47 (5) P.D. 441; H.C.J. 3094/93 Movement for the Quality of Government v.
The Government of Israel, 47 (5) P.D. 404) and intervened in both internal parliamentary procedures and political party activity (H.C.J. 1601/90 Shalit v. Peres, 44 [3] P.D.
353; H.C.J. 652/81 MK Sarid v. Chairman of the Knesset, 36[2] P.D. 197; H.C.J.
73/85 “Kach” Party v. Chairman of the Knesset, 39 [3] P.D. 141).
While Israel has no written constitution, the Knesset preserves the power to enact
“Basic Laws” which are considered, according to the prevailing view, superior to
regular legislation (C.A. 682/93 Bank Hamizrachi Hameuchad Ltd. v. Migdal Kfar
Shitufi, 49 [4] P.D. 211). Some fundamental civil rights are included in two Basic laws
enacted by the Knesset in 1992: Basic Law: Human Dignity and Freedom, and Basic
Law: Freedom of Occupation. No Basic Law enacted before 1992 dealt with the issue
of human rights.
Indeed, section 3 of the Basic Law: Human Dignity and Freedom of 1992 provides that
private property shall not be impaired by the State or its agencies.
In the Nusseiba cases, H.C.J. 5091/91 Nusseiba v. The Minister of Finance (Unpublished) Tak-Al 94 (3) 1765 (hereafter the Nusseiba case); F.H.C. 4466/94 Nusseiba v.
The Minister of Finance, 49 (4) P.D. 68 (hereafter Nusseiba F.H.), the issue at stake
was the ability of State authorities to change the public purpose designation of the
expropriated land retroactively.
H.C.J. 1/57 Irani v. The Minister of Finance, 11 P.D. 783; H.C.J. 180/52 Dor v. The
Minister of Finance, 6 P.D. 908.
Haman Shelach, “Judicial Review of Land Expropriations,” Tel Aviv Univ. L. Rev. 7
(1980): 618 (Hebrew); H.C.J. 241/60 Kardush v. The Registrar of Companies, 15 P.D.
1151; F.H.C. 16/61 Registrar of Companies v. Kardush, 16 P.D. 1209. In the Kardosh
case, the issue at stake was the refusal of the Registrar of Companies to register a
company suspected of gathering for the purpose of acting against the Jewish State. The
Court held that although the Companies Ordinance grants the Registrar “absolute
discretion” to register a company, this discretion is not immune from effective judicial
review. Hence, the Court ordered the registration of the company since the Registrar
took into account considerations that are beyond his authority. The ruling was approved
in a further hearing.
Mautner, Decline of Formalism.
Haviv-Segal, “Coordination Problems.” Limited judicial intervention was also evident
in early cases that involved deportation orders against Arab infiltrators. For an interesting analysis, see Oren Bracha, “Unfortunate or Perilous: The Infiltrators, the Law and
the Supreme Court 1948-1954,” Tel-Aviv Univ. Law Rev. 21 (1998): 333 (Hebrew).
H.C.J. 124/55 Dwiak v. The Minister of Finance, 10 P.D. 753.
H.C.J. 5/54 Yunes v. The Minister of Finance, 8 P.D. 314. In refusing to recognize a
right to fair hearing, the Court failed to followed the ruling in Berman v. The Minister
of Interior (H.C.J. 3/58 Berman v. The Minister of Interior, 12 P.D. 1493). In that case,
the petitioners sought to reverse a decision of the Minister of Interior to detach their
district from the Tel Aviv Municipality and to attach it to the Municipality of
Giv’atayim. The Minister appointed a commission to inquire into the question and this
forum refused to hear those residents who were in favor of retaining the connection
with Tel Aviv. The Court held that according to a well-established rule of the common
law, a citizen whose person, property, status and the like were liable to be effected,
Immigration, Housing and Jurisprudence of Land Expropriation 303
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
must be given a fair hearing. The Court maintained that the Minister’s behavior in this
regard was defective and thus his decision should be reconsidered after hearing the
affected residents.
Salomon v. The Attorney General, 1023.
H.C.J. 75/57 Kalmas v. Local Committee for Building and Planning, Tel Aviv-Jaffa
Municipalities, 11 P.D. 1601.
H.C.J. 180/52 Dor v. The Minister of Finance, 6 P.D. 908.
One may argue that, from a comparative perspective, the deference of the Supreme
Court in the Dor case is not puzzling. After all, even American courts have treated the
public use limitation as a dead letter (Poletown Neighborhood Council v. City of
Detroit, 304 N.W. 2d [1981]; City of Oakland v. Oakland Raiders, 646 P.2d 835
[1982]; Hawaii Housing Authority v. Midkiff, 467 U.S. 229 [1984]). Yet, there is an
important difference in this regard between the Israeli expropriation law and its
American counterpart. Whereas in American law, the issue of public use is a matter of
legislative definition and thus represents majoritarian decision-making, in Israeli law
the definition of public purpose is handled by an administrative authority, e.g., the
Minister of Finance. As such, the public use definition, like any other administrative
decision, is subject to judicial review.
Dor v. The Minister of Finance, 911.
See generally, Ron Harris, “Israeli Law,” in The First Decade: 1948-1958, ed. Z.
Zameret and H. Yablonka (Jerusalem: Yad Yitzhak Ben-Tzvi), 243 (Hebrew).
Kretzmer, “Forty Years of Public Law,” 555-557; Mautner, Decline of Formalism, 4044; H.C.J. 46/50 Al-Ayubi v. The Minister of Defense, 4 P.D. 222.
Pnina Lahav, “The Supreme Court in the First Decade of Independence,” Tel-Aviv
Univ. L. Rev. 14 (1989): 479 (Hebrew). Infringements on civil rights during the 1950s
were often associated with the military regime that was established to govern areas
where a large Arab population resided. The military regime lasted until 1966. Within its
framework, the use of emergency powers by military commanders often resulted in
violations of the basic civil liberties of the Arab population.
H.C.J. 1/48 Al-Karbutli v. The Minister of Defense, 2 P.D. 5.
Ibid., 15.
H.C.J. 95/49 Al-Couri v. The Chief of Staff, 4 P.D. 34.
H.C.J. 240/51 Al-Rachman v. The Minister of Interior, 6 P.D. 364; H.C.J. 220/5 Aslan
v. The Military Governor of the Galilee, 5 P.D. 1480.
H.C.J. 85/49 Svorai v. The Minister of Labor and Construction, 2 P.D. 887.
Kretzmer, “Forty Years of Public Law”; Mautner, Decline of Formalism; Pnina Lahav,
“Rights and Democracy: The Court’s Performance,” in Israeli Democracy Under
Stress, ed. E. Sprinzak and L. Diamond (Boulder, CO: Westview, 1993), 125.
The second wave of immigration took place between 1955 and 1957 when about
165,000 immigrants from North Africa arrived in Israel. The third major wave followed
the Six Day war (1967-1972) and included 250,000 immigrants, mainly from the Soviet
Union, Western Europe and the United States. The latest wave (1989-1992) brought
475,000 immigrants, mostly from the countries of the former Soviet Union, but also
15,000 Ethiopian Jews who were airlifted to Israel in what was called “Operation
Solomon”. Calvin Goldscheider, Israel’s Changing Society (Boulder, CO: Westview,
1996), 48-51.
304 The History of Law in a Multi-Cultural Society
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
Dvora Hacohen, Immigrants in Turmoil: The Great Immigration and its Absorption in
Israel: 1948-1953 (Jerusalem: Yad Yitzhak Ben-Tzvi, 1994, Hebrew); Tom Segev,
1949: The First Israelis (New York: The Free Press, 1986).
Hacohen, Immigrants in Turmoil.
Michael Brecher, The Foreign Policy System of Israel (New Haven, CN: Yale Univ.
Press, 1972), 229-233.
Segev, The First Israelis, 105-122.
Moshe Lissak, “The Civilian Components of Israel’s Doctrine of National Security,”
Iyunim bi-Tkumat Israel (1991): 191 (Hebrew).
Brecher, Foreign Policy System, 69.
Lissak, “Civilian Components”; Yisrael Tal, “Israel’s Doctrine of National Security;
Background and Dynamics,” Jerusalem Quarterly 4 (1977): 44.
Sammy Smooha, “Part of the Problem or Part of the Solution: National Security and
the Arab Minority,” in National Security and Democracy in Israel, ed. A. Yaniv
(Boulder, CO: Rienner, 1993), 105.
Goldscheider, Israel’s Changing Society, 61-64.
Segev, The First Israelis, 97.
Goldscheider, Israel’s Changing Society, 204-207; Dov Friedlander and Calvin
Goldscheider, The Population of Israel (New York: Colombia Univ. Press, 1979), 26.
David Horowitz, The Enigma of Economic Growth: A Case Study of Israel (New York:
Praeger, 1972); Yoram Ben-Porath, “The Entwined Growth of a Population and a
Product 1922-1982,” in The Israeli Economy, ed. Y. Ben-Porath (Cambridge, MA:
Harvard Univ. Press, 1986), 27.
Ernest Stock, Chosen Instrument: The Jewish Agency in the First Decade of the State
of Israel (New York: Herzl Press, 1988), 144-149.
Many among the immigrants who arrived from Arab counties also had a family
structure which made social mobility and economic independence difficult to achieve.
Nearly 40% of the immigrants were children under the age of 14. In terms of economic
independence, there were 75 dependants (including 66 children) per 100 Asian and
African immigrants of working age. In addition, illiteracy was prevalent among these
immigrants. About 60% of the women who arrived from Arab countries had received
no formal education in their country of origin. See Roberto Bachi, The Population of
Israel (Jerusalem: Scientific Translations International, 1974), 110.
Ben Halpern, The Idea of the Jewish State (Cambridge, MA: Harvard Univ. Press,
1969), 244.
Dov Weintraub, Immigration and Social Change (Jerusalem: Israel Univ. Press, 1971).
Noah Lucas, The Modern History of Israel (London: Weidenfeld & Nicholson, 1975),
273-75; Stock, Chosen Instrument, 84-90.
Palestine Gazette (Hebrew ed., Supp. II, 1949), 87; Laws of the State of Israel (1950), 3.
Menachem Hofnung, Israel: Security Needs vs. The Rule of Law (Jerusalem: Nevo
Publishers, 1990), 164-174 (Hebrew).
15 Knesset Records 336 (1954), hereafter: KR (Hebrew).
Recent works suggest that the formation of the Israeli land system played a central role
in creating the Ashkenazi-Mizrachi stratification that has come to characterize Israeli
society. I thank Sandy Kedar for pointing out that it is worth considering the practice of
apartment confiscation in the early 1950s in these terms. Oren Yiftachel and Alexandre
(Sandy) Kedar, “Landed Power: The Making of the Israeli Land Regime,” Theory and
Immigration, Housing and Jurisprudence of Land Expropriation 305
55
56
57
58
59
60
61
62
63
Criticism 16 (2000): 67-100 (Hebrew); Dan Rabinowitz, “The Squashed Option:
Collective Urban Housing”, Theory and Criticism 16 (2000): 101 (Hebrew).
Of the total of more than 2,500 requisition orders and housing orders issued during that
period, the appeal committees annulled 144 orders and the requisitioning authority
itself reversed 451 orders (15 KR, 336 [1954]).
David Horowitz and Moshe Lissak, The Origins of Israeli Polity (Chicago Univ. Press,
1978), 131-33.
Hacohen, Immigrants in Turmoil, 160-176; David Horowitz and Moshe Lissak,
Troubles in Utopia: The Overburdening Polity of Israel (Albany, NY: SUNY Press,
1990), 149-153. The austerity program, known in Hebrew as the Tzena regime, was
exercised in Israel between 1949 and 1951. It included price controls and the rationing
of food, clothing, shoes, building materials and foreign currency. The success of the
program depended on the willingness of the public to stand in line for hours in order to
obtain, in exchange for coupons, frozen codfish and dehydrated eggs. During 1949,
expectations of self-sacrifice matched reality and most Israelis complied with the strict
rationing program. Shortly afterward, however, an extensive black market in food,
goods and currency developed, signifying that the public was tired of complying with
collective demands. See Chaim Barkai, The Beginnings of Israeli Economy (Jerusalem:
Bialik Institute, 1990), 37-41 (Hebrew). Another example of the influence of the selfsacrifice ideology was Ben Gurion’s proposal to employ immigrants in a quasi- military
system “without private profit” and in this way to pursue “national works” without
needless expenditure. Although the proposal did not materialize into a concrete
program, its very elaboration points to the types of demands imposed on individuals in
Israel of the 1950s. See Segev, The First Israelis, 152-154.
H.C.J. 10/49 A.S. Co. Ltd. v. Gubernik, 2 P.D. 157; H.C.J. 29/49 Sheinin v. Gubernik 2
P.D. 654; H.C.J. 5/48 Leon v. Gubernik, 1 P.D. 58.
Hence, in some instances, requisition orders were issued in order to prevent eviction
proceedings that the apartment-owner had commenced against tenants who were close
to power-positions (H.C.J. 11/48 Meizel v. Competent Authority (Gubernik), 1 P.D.
133; H.C.J. 38/49 Zenbar v. Official Responsible for the Haifa District, 2 P.D. 794.
Leon v. Gubernik; Meizel v. Competent Authority (Gubernik); H.C.J. 31/48 Yakamovitch v. Competent Authority for the purpose of the Defence Regulations, 2 P.D. 198.
While deferring to confiscation decisions on the practical level, the Court commented,
on the rhetorical level, on the need to change the confiscation practice. It suggested that
the prevailing practice created the impression that the apartment was taken for the
personal benefit of the official, rather than for the purpose of supplying essential
services of the State. Sheinin v. Gubernik, 42; Zenbar v. Official Responsible for the
Haifa District, 800.
Hofnung, National Security, 93-100; Baruch Bracha, “The Protection of Human Rights
in Israel,” Israel Yearbook of Human Rights 12 (1982): 110; Shimon Shetreet, “The
Scope of Judicial Review of National Security Considerations in Free Speech and
Other Areas: The Israeli Perspective,” Isr. Y.B. Hum. Rts. 18 (1985): 35.
Dvora Bernstein, “Immigrant Transit Camps: The Formation of Dependent Relations in
Israeli Society,” Ethnic and Racial Studies 4 (1981): 26; Segev, The First Israelis, 123154.
Hacohen, Immigrants in Turmoil, 298.
306 The History of Law in a Multi-Cultural Society
64
65
66
67
68
69
70
71
72
73
74
75
Arnon Golan, “The Transfer to Jewish Control of Abandoned Arab Lands during the
War of Independence,” in Israel: The First Decade of Independence, ed. I. Toren and
N. Lucas (Albany, NY: SUNY, 1995), 403; Baruch Kimmerling, Zionism and Territory
(Berkeley, CA: Institute for International Studies, 1982), 122-124.
Hofnung, National Security, 159-174. Other legal measures that were enacted for the
purpose of facilitating expropriation of Arab land included the Emergency Regulations
(Cultivation of Waste Lands) of 1948 and the Land Acquisition (Validation of Acts and
Compensation) Law of 1953. Worth mentioning also is the effect of the law of adverse
possession on Arab landholders’ property rights. This law was statutorily and judicially
designed in the early years so to decrease the opportunity of Arab farmers to prove their
ownership rights after a ten year period of cultivation. Sandy (Alexander) Kedar, “The
Jewish State and the Arab Possessor: 1948-1967,” this volume.
Salomon v. The Attorney General, 1,023.
A disconnection between the planning process and the acquisition process may occur
only under the Acquisition Ordinance. The Ordinance does not require an approved
planning plan as a precedent condition for the exercise of expropriation powers. The
Planning Law, on the contrary, stipulates the legality of the expropriation in the
existence of an approved planning plan.
Liversidge v. Anderson (1942) A.C. 206.
Lord Atkin, in a minority opinion, held that the Court had jurisdiction to investigate
whether the State Secretary had reasonable cause to believe that the detainee was
affiliated with an enemy organization.
Carleton L. Allen, “Regulation 18B and Reasonable Cause,” L.Q. Rev. 58 (1942): 232.
Shetreet, “Scope of Judicial Review”; Baruch Bracha, “Judicial Review of Security
Powers in Israel: A New Policy for the Courts,” Stanford J. of Int’l. Law 28 (1991): 39.
Ruth Gavison, “Forty Years of Constitutional Law,” Hebrew Univ. L. Rev. 19 (1990):
628 (Hebrew).
H.C.J. 288/51 Atzlan v. Military Commander of the Galilee, 9 P.D. 689; Bracha,
“Judicial Review”.
An additional explanation for the discharge given the Minister of Finance from granting
a right to fair hearing refers to the norms of administrative behavior that developed in
1950s in relation to violations of private property rights. These norms were shaped in
light of the prevailing practice of massive expropriation in the Arab sector. Indeed, the
discharge concerning the right to a hearing under the Acquisition Ordinance, was
granted to the Minister of Finance following a hearing on expropriation procedures that
were issued under the Land Acquisition (Validation of Acts and Compensation) Law of
1953. This statute was widely implemented within the Arab sector. On the influence of
the prevailing practice of land expropriation from Arabs on the practice of land
expropriation in the Jewish sector, see Yifat Holzman-Gazit, Private Property, Culture
and Ideology: Israel’s Supreme Court and the Jurisprudence of Land Expropriation
(J.S.D. diss., Stanford Univ., 1997), 292-305.
I am aware that until now my analysis has not fully accounted for the double standard
in the willingness of the early Court to ratify expropriations despite the lack of full compliance with all necessary legal procedures. For, as already noted, in other contexts of civil
rights, the emergency situation and national security considerations did not prevent the
Court from insisting on compliance with the formal aspect of the rule of law.
Immigration, Housing and Jurisprudence of Land Expropriation 307
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
Avraham Granovsky, Land Policy in Palestine (Westport, CN: Hyperion Press, 1940).
It should be recalled that in the period preceding the establishment of the State, the
Zionist movement did not have sovereign power enabling it to decree legal measures
for preventing speculation in land.
Kimmerling, Zionism and Territory, 76. The Zionist fear of providing Jewish
individuals with ownership rights also motivated the establishment of agricultural and
urban settlements through co-operative associations in the 1930s. In the urban sector,
the system of housing through cooperative associations enabled the Labor movement to
grant benefits to its members and to control real-estate transactions by requiring the
cooperative association’s approval for the acceptance of new members. See
Rabinowitz, “The Squashed Option”.
Granovsky, Land Policy.
M. Rudensky, “Social Justice and the National Fund,” in Eretz Israel: Jubilee Volume
of the Jewish National Fund (New York: Jewish National Fund of America, 1932), 71.
In 1907, the JNF was registered in England as a private company under the ownership
of the World Zionist Organization.
Shmuel Almog, “Redemption in Zionist Rhetoric,” in Redemption of the Land in
Palestine, ed. R. Kark (Jerusalem: Yad Yitzhak Ben-Tzvi, 1990), 13 (Hebrew). The
JNF attached a wide-ranging system of symbols to its activity of land purchases in
Palestine. Thus, for example, land purchases were described in Biblical terms of
‘redemption of the land’ and different rituals were fixed to promote collection of
donations. The JNF was also deeply involved in the Jewish educational system and in
the youth movements that functioned in Palestine in the pre-State period. See Yoram
Bar-Gal, An Agent of Zionist Propaganda: The Jewish National Fund, 1924-1947
(Haifa Univ. Press, 1999, Hebrew). The symbolism that was associated with the JNF
acted to create identification between Zionist ideology of settlement in Palestine and
the principle of public (Jewish-nationalist) ownership of land.
Shortly after the establishment of the State, the legislature enacted the Jewish National
Fund Law of 1953, in consequence of which the Memorandum of Association of the
Fund was registered in Israel.
Lahav, “The Supreme Court”.
Thus, for example, Justice Yitzhak Olshan, who was the second Chief Justice of the
Supreme Court, comments in his memoirs on the legal techniques which he used to
employ as a lawyer when representing the JNF in real-estate cases. See Yitzhak Olshan,
Memories (Jerusalem: Schocken, 1978), 179-190 (Hebrew). Similarly, Justice Simon
Agranat, in his work as a lawyer, represented the JNF in disputes concerning land
requisition in Palestine. See Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon
Agranat and the Zionist Century (Berkeley: Univ. of California Press, 1997).
Al-Karbutli v. The Minister of Defense; Al-Couri v. The Chief of Staff.
H.C.J. 141/74 Spolinski v. The Minister of Finance, 29(1) P.D. 421.
H.C.J. 282/71 Benin v. The Minister of Finance, 25(2) P.D. 466.
Friedlander and Goldscheider, Population of Israel, 100-114.
Aliza Haber, Population and Building in Israel, 1948-1973 (Jerusalem: Ministry of
Housing, 1975), 46-48.
Erik Cohen, “The Black Panthers in Israeli Society,” Jewish J. of Sociology 14 (1972):
93; Eve Etzioni-Halevi, The Political Culture in Israel (New York: Praeger, 1977),
114-123.
308 The History of Law in a Multi-Cultural Society
91
92
93
94
95
96
Etzioni-Halevi, Political Culture, 116.
Naomi Carmon and Daniel Czamanski, “Housing in Israel 1948-1988: From Planned
Economy to Semi-Free Market Management,” Housing Science 16 (1): 470 (1992).
About 75% of all government-initiated housing starts in the 1950s were for immigrants.
Hubert Law-Yone and Rachel Kallus, Housing in Israel: Policy and Inequality (TelAviv: Adva Center, 1994), 6 (Hebrew).
Between 1965 and 1974, the share of government-initiated housing decreased to 43%
of the total housing starts, see Carmon and Czamanski, Housing in Israel. This change
in Israel’s housing policy related to changes in housing standards in the 1970s. The
large number of new arrivals from economically-developed countries created an
imbalance between the housing needs of the population and the quality of empty
apartments on the market. Most of the empty apartments of the public sector were in
development areas and of relatively low standard, while most of the demands for
housing were for accommodation in the central areas of the country and for higher
standard units, see Housing in Israel (Jerusalem: Ministry of Housing, 1969), 11-13.
From its outset, Israel’s housing policy preferred home purchase over rental, see Haber,
Population and Building, 35. This preference reflected the recognition that ownership
produces favorable social values in terms of strengthening the attachment of immigrants
to the new country and inducing them to enhance the value of their property. A more
practical reason for preferring home ownership over rental was the hope to use the
financial returns of house purchase for continuation of the subsidy programs. In the
1950s, the policy of house purchase was implemented by supplying highly favorable
mortgages to immigrants who bought a house in peripheral areas of the country. They
only had to pay 10-20% of the total investment as a down payment, and the rest came
from loans provided by the public sector. Approximately 2/3 of the loans came from the
government budget and 1/3 from mortgage banks, The Ministry of Housing, Housing in
Israel, 7; Chaim Drabkin-Darin, Housing and Immigrant Absorption in Israel (Tel
Aviv: Gadish, 1955, Hebrew). Yet, from a critical perspective, the housing policy of the
1950s that enabled many of the immigrants to purchase a house at the same time
contributed to the marginalization and exclusion of the Mizrachi population from
mainstream Israeli society. Given the fact that many of the immigrants from NorthAfrica arrived in Israel destitute, they could only afford to buy a house in slow-growth
areas and development towns. There prices were low because of the government policy
of public-sponsored housing and the availability of higher mortgages. However, these
locations lacked infrastructure for a modern job market and thus they did not offer the
Mizrachi immigrants appropriate job opportunities. See Rachelle Kallus and Hubert
Law-Yong, “National Home/Personal Home: the Role of Public Housing in the
Shaping of Space,” Theory and Criticism 16 (2000): 153 (Hebrew).
Hence a higher mortgage at a lower rate of interest and larger monthly repayment
subsidies was offered to immigrants, young couples and the poorly-housed for purchase
of a house in Jerusalem or in development towns, Housing Subsidy Program for Young
Couples (Jerusalem: Ministry of Housing, 1974, Hebrew); Ministry of Housing,
Housing in Israel, 20-21; Irwin Lithwick, Macro and Micro Housing Programs in
Israel (Jerusalem: Brookdale Institute, 1980), 89-91, 97-107, 122-130.
The cases mentioned dealt with expropriations in the Jewish sector. It should not be
forgotten, however, that the expansion of the Jewish presence in Jerusalem was
primarily achieved through extensive expropriations of Arab land and building new
Immigration, Housing and Jurisprudence of Land Expropriation 309
Jewish neighborhoods on this expropriated land. See Meron Benvenisti, City of Stone:
The Hidden History of Jerusalem (Berkeley: Univ. of California Press, 1996), 155-168.
For the influence of this practice on the legal norms that were shaped in dealing with
Jewish landowners, see Holzman-Gazit, Private Property, Culture and Ideology.