Ilan Saban, Theorizing and Tracing the Legal Dimensions of a Control Framework: Law and the Arab-palestinian Minority in Israel?s First Three Decades (1948?1978)

• Citation: Vol. 25 No. 1
• Publication year: 2010

THEORIZING AND TRACING THE LEGAL DIMENSIONS OF A CONTROL FRAMEWORK:

LAW AND THE ARAB-PALESTINIAN MINORITY IN ISRAEL’S FIRST THREE DECADES (1948–1978)

Ilan Saban*

INTRODUCTION 301

1. LAW AND MINORITIES IN DEEPLY DIVIDED SOCIETIES— OUTLINING A STRUCTURE FOR ANALYSIS 302

2. THE CONTROL FRAMEWORK: THE SOCIO-POLITICAL STATUS OF THE ARAB-PALESTINIAN MINORITY IN THE FIRST THIRTY YEARS

   OF ISRAEL’S STATEHOOD 308

   1. Background on the Minority’s Socio-political Status 308

   2. The Control Framework 316

3. LAW AND THE COMMON RIGHTS OF CITIZENSHIP AND THE WAYS

   IN WHICH THEY WERE WEAKENED 318

   1. Common Rights of Citizenship 318

   2. How did the Potential Inherent in the Common Rights of Citizenship Lose its Potency? 321

      1. Allocation of Sweeping State Powers Accompanied by Extensive Discretion 321

         1. The Role of Majoritarianism 322

         2. The Difficulties of Battling Discrimination Under Israeli Law During Military Rule 326

         3. Military Rule and the Appropriation of Land 329

      2. The Weakness of Supervisory Bodies, such as the Courts,

         in Protecting the Minority 332

         1. The Ambivalent Role of the Israeli Supreme Court 334

         2. The al-Ard Movement as a Case Study 339

            * Assistant Professor of Law, Haifa University, Mt. Carmel, Israel. I am deeply grateful to Moussa Abou Ramadan, Ceren Belge, Gidon Cohen, Eitan Fluger, Tammy Harel-Ben-Shachar, David Kretzmer, Amir Meltzer, Liav Orgad, Emily Schaeffer, Revital Sella, Gilat Visel-Saban, Oren Yiftachel, and Raef Zreik. Many thanks also to the staff of the Emory International Law Review, who contributed greatly to the final version of this Article. An earlier version of this Article was published in Hebrew in Bar-Ilan Law Studies.

4. LAW AND THE POVERTY OF GROUP-DIFFERENTIATED RIGHTS OF THE ARAB-PALESTINIAN MINORITY MEMBERS IN THE FIRST

   THIRTY YEARS OF STATEHOOD 343

   1. The Group-Differentiated Rights of the Arab-Palestinian Minority—What Was Granted and What Was Withheld? 346

      1. The Predominance of the Accommodation Type of Group-

         Differentiated Rights 346

      2. Centralism and the Depletion of the Minority’s Self- Government Rights 351

      3. The Non-existence of Special Representation and Allocation Rights 353

   2. The Role of the Law in Perpetuating the Social Separateness

      of the Ethno-National Communities in Israel 357

5. LAW AND THE STABILITY OF THE CONTROL FRAMEWORK 359

   1. Involvement of the Law in Mechanisms to Fend off Minority Motivation to Change the Existing Order 360

      1. Disguise and the Law 361

         1. Preferring the Circuitous to the Explicit 361

         2. The Course of Divergent Paths 364

         3. Constricting the Information Market and Diverting It .. 365

      2. Law and the Production of Legitimacy 367

   2. Involvement of the Law in Mechanisms to Curb the Translation of a Motivation into Action Aimed at Changing

      the Existing Order 368

      Dependence, Deterrence, and Cooptation, Mixed with Legitimization—Arab-Palestinian Teachers as an Illustration 369

   3. Involvement of the Law in Mechanisms to Render Actions Ineffective to Promote Change 372

Law and the Internal Division of the Minority 372

CONCLUSION 375

INTRODUCTION

This Article analyzes the main ways in which Israeli law was involved in the lives of Israel’s Arab-Palestinian minority in the first thirty years of Israeli statehood—from its establishment in 1948 until the period soon after the first Land Day in 1976. This is a detailed and complex story, which requires a theoretical or analytical key to cut through the complexity and sort out the abundance of data by relevancy and importance. The potential theoretical contribution of this Article derives from the effort to develop such a theoretical or analytical key, and from an attempt to gain a deeper understanding of the ways in which law is involved in the intriguing stability of certain exploitive intercommunal relationships.

First, the Article asserts that the study of law’s involvement in the minority’s life should be conducted through an understanding of its function in the socio-political framework of the intercommunal relationship in society. Hence, if we identify this framework and understand its aims and needs, we are provided with a map that helps us comprehend and sort out the various legal norms by relevancy and impact. Furthermore, this map assists in answering the question of whether the legal system or certain legal norms act or acted as a servant to or a subversive element against this socio-political framework.

Subsequently, I proceed to the core of the Article, which is an application of this structure of analysis to the case of Israel. Lustick’s pioneering work defined, theorized, and detailed the “control” model as the socio-political framework that operated during the first thirty years of Israel’s existence.1 This

Article finds that the legal system in this period acted as the efficient servant of this framework. Hence, this Article contributes to the understanding of the control model by tracing and analyzing its legal dimensions. Among other things, the Article attempts to answer the following questions: in what ways did the law serve to deepen minority dependence, to co-opt its elites and divide its community; and how did it partly disguise and partly legitimize this state of affairs?

This line of analysis opens the door for a comparative legal analysis of divided societies in which the control framework is or was imposed upon the minority. Obvious examples worthy of further exploration, which are beyond

1. IAN LUSTICK, ARABS IN THE JEWISH STATE: ISRAEL’S CONTROL OF A NATIONAL MINORITY (1980); see

   also Ian Lustick, Stability in Deeply Divided Societies: Consociationalism Versus Control, 31 WORLD POL. 325 (1979) [hereinafter Lustick, Stability in Deeply Divided Societies].

   the scope of this Article, are Northern Ireland and its Irish-Catholic minority from 1921 to 1968,2 Sri Lanka and its Tamil minority from the 1970s forward,3 and possibly also the Kurdish minority in Turkey.4

   
   

   The first two Parts of this Article (I and II) develop the theoretical and analytical key for unlocking the legal norms that were most pertinent to the minority’s status in Israel’s first three decades. The next two Parts (III and IV) provide a detailed analysis of the major legal norms and state practices that helped shape the minority’s vulnerability and exploitation. Part III discusses the ways in which common citizenship rights—the classic, basic rights—lost much of their potency to protect the minority. Part IV unfolds the poverty of the minority’s group-differentiated rights, which bore the same impact. The last substantive Part, Part V, tackles the issue of the potential stabilizing effect of the law, and, more concretely, how the law was integrated at the time into the stabilizing mechanisms of the “control framework,” thus enabling its prolongation.

   
   

   1. LAW AND MINORITIES IN DEEPLY DIVIDED SOCIETIES—OUTLINING A

      STRUCTURE FOR ANALYSIS

      
      

      Analysis of the involvement of the law in the lives of its subjects is more demanding than it may seem at first glance. A standard approach would focus on the legal arrangements addressing the minority citizens directly—conferring rights and imposing obligations—but that is not all that the law does.5 It also

      shapes a set of second-level norms—the meta-norms—which establish the powers and procedures by which the primary norms are enacted and which establish state institutions that adopt policies; regulate restrictions, freedoms, and allocations; and apply and enforce the norms.6 These institutions

      interrelate in a complex web of cooperation, competition, and mutual checks

      
      

2. See Sammy Smooha, Control of Minorities in Israel and Northern Ireland, 22 COMP. STUD. SOC’Y & HIST. 256 (1980) [hereinafter Smooha, Control of Minorities] (discussing and comparing the conflict between groups and application of the control framework in Northern Ireland and Israel).

3. ILAN PELEG, DEMOCRATIZING THE HEGEMONIC STATE 183–87 (2007); Maya Chadda, Between

   Consociationalism and Control: Sri Lanka, in MANAGING AND SETTLING ETHNIC CONFLICTS: PERSPECTIVES ON SUCCESSES AND FAILURES IN EUROPE, AFRICA, AND ASIA 94, 94–95 (Ulrich Schneckner & Stefan Wolff eds., 2004).

4. Umit Cizre, Turkey’s Kurdish Problem: Borders, Identity, and Hegemony, in RIGHT-SIZING THE

   STATE: THE POLITICS OF MOVING BORDERS 222, 222 (Brendan O’Leary, Ian S. Lustick & Thomas Callaghy eds., 2001).

5. See H.L.A. HART, THE CONCEPT OF LAW 91–95 (1961).

6. Id.

   and balances. In addition, the impact of the norms that these institutions generate is often unforeseen because these norms are employed by different social players in an attempt to bring about social change.7 The legal analysis aspires, therefore, to expose simultaneously how the law is involved in the

   mechanisms that conserve the existing order, as well as how it may become a lever for those wishing to modify the order of things.

   
   

   The reciprocal relationship between law and society as it pertains to a minority is compounded further by several issues, two of which are enumerated here. First, the law is but one of various social, political, economic, and cultural mechanisms that shape social reality. As such, its power should not be overestimated. The law may indeed at times render another mechanism superfluous, but likewise it may be replaced or be overshadowed by other

   social mechanisms.8

   
   

   Second, and from a different angle, a society is not merely an arena of social players competing to shape its direction by way of the law or other means, nor simply a framework of vying mechanisms of influence and guidance, of which law is one; it also has its exigencies. The legal system often serves several masters, and several social needs, of which the intercommunal

   relationship pattern concerning a specific minority is but one.9 Hence, for

   example, a state may be divided along more than one communal rift and contain more than one intercommunal relationship pattern. In such a case a variety of social demands are met through one normative framework, often yielding important and sometimes unpredicted results, a phenomenon that I shall call “peripheral radiation.” This term refers to the notion that it is difficult to design or apply legal norms selectively due to their...