An `Irreversible Conquest'? Colonial and Postcolonial Land Law in Israel/Palestine

Published date01 September 2003
DOI10.1177/09646639030123001
AuthorRobert Home
Date01 September 2003
Subject MatterJournal Article
AN‘IRREVERSIBLE CONQUEST’?
COLONIAL AND
POSTCOLONIAL LAND LAW IN
ISRAEL/PALESTINE
ROBERT HOME
Anglia Polytechnic University, UK
ABSTRACT
The authoritarian and transformative character of modernist utilitarian law, as applied
in colonial contexts, has made it a key instrument of state control, and an arena for
intercommunity struggle. British colonialism under the Palestinian Mandate (1923–48),
deploying the complex land laws and regulations which it inherited and modified
from the Ottoman land code, passed to the successor Israeli state the tools for ethno-
cratic control, through which Israel came to claim public ownership over virtually all
its physical territory. The importation into Palestine of ready-made British-style law,
drawing upon British colonial experience, contributed building blocks for the Israeli
state. The colonialist dual construction of communal and individual land rights, and
the power of planning and other regulations for reshaping ownership and land use
patterns, are examined in the Israel/Palestine situation through certain rhetorical
keywords with shifting interpretations and meanings, i.e. settlement, transfer, parti-
tion and absenteeism.
INTRODUCTION
BEFORE BEING supplanted by suicide bombings and the ‘war against
terrorism’, the attempts at a peace process in Israel/Palestine were
epitomized by the slogan ‘land for peace’. Under the now-aborted
Oslo agreements Israel would surrender most of the territory gained by
conquest in 1967 and accept the creation of a Palestinian quasi-state, in return
for peace and recognition of the state of Israel (McDowall, 1994). While the
intifada (uprising) after 2000 has declared the Palestinians’ rejection of Oslo,
the ‘land for peace’ slogan still expresses the centrality of territorial control
to Jewish/Arab relations in Israel/Palestine. The Palestinian writer, Edward
SOCIAL &LEGAL STUDIES 0964 6639 (200309) 12:3 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(3), 291–310; 034848
Said, has characterized Israel’s aims differently, however, not as ceding land
for peace, but as ‘the irreversible conquest of Palestinian land and society’
(Said, 2002). That process has been facilitated by land law and regulations
inherited from the British Mandate.
For the Zionists Israel was ‘a land without people for a people without land’.
They claimed for themselves a historic and God-given mission to ‘redeem
the land from desolation’, and constructed a hegemonic self-perception of
Zionism as a story of settlers, pioneers and colonists (Shamir, 2000). Israelis
have been reluctant to acknowledge the role of the British Mandate in their
state-building project, until revisionist historians and lawyers (Said, 1993;
Morris, 2000; Segev, 2000; Strawson, 2002) have relocated the national story
of Zionism within a colonial narrative, and exposed the Israeli colonialist
assumption of cultural superiority over the indigenous (Arab) Palestinian.
The revisionist debate about Zionism can also be located within a discourse
of postcolonial legal theory and indigenous land rights. Colonial states
assigned legal rights and duties, attributed identities to individuals and
communities, and redistributed social and economic resources. Among
colonialism’s most enduring institutions are legal systems: the ‘authoritarian
and transformative character of law in the utilitarian rendition was perfectly
suited to colonial rule’ (Fitzpatrick, 1992). Colonial law functioned as an
instrument of control and an arena of intercommunity struggle, and engen-
dered a social process of legalization and professionalization through which
such struggles were mediated (Darian-Smith and Fitzpatrick, 1999). Pre-
existing legal structures were overlaid by received law from the colonial
power, and postcolonial nation states still carry a legacy of legal pluralism,
with conflicting sources of legitimacy, and unpredictable or contradictory
outcomes (McAuslan, 2003).
Land was central to colonial projects, as it has been to Zionism. Colonial-
ism (as also postcolonial Israel) demanded state control of territory, achieved
through an array of legal instruments. Recent academic work in postcolonial
theory, and law and geography is reappraising the place of differentiated
territorial jurisdictions in regulating social relationships (McAuslan, 2000;
Yeoh, 2000; Blomley et al., 2001), and in excluding and marginalizing
unwanted social groups (Sibley, 1995; Jacobs, 1996). European colonizers
expropriated land for their benefit, formulating a hierarchy of social and
spatial controls to justify and maintain their hegemony over indigenous
populations. The colonial state claimed land that was not (or apparently not)
in active use, and then transferred it through grant, sale or lease to individuals
of its choice (usually from the colonizing group). It guaranteed individual
land title through its own registry (the Torrens system) (Simpson, 1976), and
planned, built and serviced new settlements (Home, 1997). The indigenous
groups that were dispossessed from their communal and ancestral lands by
such processes are increasingly pursuing legal challenges and human rights
law to assert their claims (Stephenson and Ratnapala, 1993; Brody, 2001).
A recurrent theme in postcolonial theory has been those processes of
exclusion which express the tensions between colonizer and colonized, the
292 SOCIAL & LEGAL STUDIES 12(3)

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