Land, Ownership, and Luck

I think I never fully understood why land property was always dealt with differently from other kinds of property. Of course, buying houses and such is always more expensive than buying many other things, but still... to actually have a different set of laws to deal with those things?
I think that, in a way, the latest concerns about Arab and Jewish settlement and demolition plans in Jerusalem make me understand that difference a bit better.
East Jerusalem has been subject to four different legal regimes in the past century. First Ottoman, then British, later Jordanian (in 1948) and lastly Israeli (as a result of the 1967 war). In '48, the Jewish population of East Jerusalem fled to the western side of the city. In '67, the Arab population did the same, fleeing to other Arab cities in the West Bank and neighboring states. While those people could, generally speaking, take most of their belongings with them one thing always stayed behind - real estate. That's the one thing no one can carry with them. So, when everything you own usually goes with you and is subject to the same legal regime you are subject to - that's categorically not the case with the land that you own.
In the specific case of Jerusalem, both Jordan and Israel have laws that nationalize deserted land. When Jews left their land behind in 1948, Jordan nationalized them and gave them to Palestinian new residents. After the 1967 war, when Israel took over East Jerusalem it applied an exactly similar law on the property that was now deserted and, recently, gave back the property nationalized by Jordan to its original Jewish owners.
I'm sure this isn't how real estate law developed, or their historic justification. But this makes it clear to what extent owning land is different from owning other kinds of property. Ownership is a result of legal schemes. Look at the same house through the eyes of one legal system - it belongs to one person. Look at it through the eyes of another - it belongs to someone else. Unlike other movable property, the owner of land has so little control on what's happening to his or her property, cannot protect it, and cannot take it with them. Most of the time, we don't realize it. Most places are subject just to one legal regime - not only at one time but even through (at least recent) history. Only in certain cases, some unfortunate people see behind this veil of state-law connection. Some property has the bad luck of being in those place where one legal system chases another. In those cases remain the same, and so do the houses, but not the links tying them together.

Muzzle the Watchdog

In the past few weeks the Israeli media has filled with obscure hints to the fact that something is going on. It wasn't clear what exactly that thing is, but if you knew how to read between the lines it was clear that something important has happened and that there's a gag order on it. Soon after, those bloggers who always know what's going on started letting out the details - a certain journalist was arrested in connection to some leak of army secrets. A few more weeks passed and the case was published in international media. After that, the gag order was lifted and most of the story exploded in Israeli media as well.
Gag orders are given by courts all around the world, all the time. What was so special about this one is that it involved journalists (which made it interesting for other journalists to talk about), and that the acts it referred to are illegal-but-maybe-moral (depending on your perspective, I guess). Either way, because it was easy to see how the story unfolded, there are two things to be said about it:
1. If 10 years ago a gag order would have prevented flow of information, it seems that now what it does is direct the flow of information in a way that gives room to unofficial and independent sources. Rather than looking at the leading newspapers (which are usually the main sources of information for most), people looked for information in blogs, indi-media websites, and social networks. Those website, that usually target only a very small audience, suddenly got a place on front stage. A cynic would say that in this sense, gag orders are actually the most democratic tool of the government to control the media. Thank god I'm not a cynic.
2. The specific gag order, as given by the magistrates court, did not only suppress the details of the affair, but also the fact that there is a gag order in effect. Official media could not even mention the fact that they are stopped from reporting something. It seems that this is the most outrageous part about the whole thing, since this part of the gag order does not even allow the public to evaluate the way media is treated by the authorities. Sometimes, there could be good reasons to muzzle the watchdog. But putting it to sleep without telling the owner is hardly justifiable.

The Rock It Cannot Lift

In his book, "The Concept of Law", H.L.A. Hart asks if a legislative body can bind itself and its successors by transferring legislative powers over specific issues to a new and different body:

"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)

Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.

It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.

Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.


Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).

Face, Race, and Impartiality

(I came to thinking about the following issue after reading the Goldstone report, but thoughts of this sort are running through my mind for quite some time now. I'm casting this stone into the cyber pond in hope that maybe someone would have something to add. As you will see, this is all just a beginning of a thought with no conclusion.)

The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.

I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.


and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.