Taking space seriously: Law, space and society in contemporary Israel

But this is no exercise in the application of universality of Brown v. Board of Education to the particular case of Israel. Rather it deals with the resolution of purported conflict between the universality of democratic principles and the particularism of the Jewish nation in the Jewish State.

Central to the author’s analysis is a concept of “Zionist space,” derived from basic ideological postulates, that restricts the implementation of liberal-democratic values with regard to inter-group relations within the society, while mandating the protection of individual rights – as long as they are the rights of the individual and not of the group. Serious scholars of Zionism, such as Ruth Gavison, claim that Israel does not differ from other liberal-democratic nation-states in its relationship to minority groups. They, therefore, dispute the author’s view that the triumph of liberal values in inter-group relations would require a “future post-Zionist jurisprudence” (p. 134.)

This need, suggests the author, follows from the “dominant contradiction that structures Israeli policy and society,” the product of “an inherent discrepancy between two conceptions of space, both constitutive of Israeli collective identity – the political space of the liberal-democratic state and the political space of the Jewish nation.” (p. 2).  The author describes his study as “a socio-legal essay on the historical production of political space” leading to a proposal for “the reform of local government law that attempts to achieve greater social equality through a conscious reorganization of political space “ (p. 3). The proposal: the establishment of metropolitan-based regional governments to replace the present diverse pattern of local jurisdictions that reinforce prevailing social disparities. “Coalitions across jurisdictional boundaries, and thus across racial and ethnic lines, would change the political division of power dramatically” (p.187).

This seems like a tall order, if the contradictions in Israel’s collective identity are indeed as fundamental as claimed. Moreover, the ills in Israeli society the author describes would appear to have their locus at the national, not the municipal level. At the national level Israel is a unitary state constituting a single jurisdiction, a single voting district. The benefits the author ascribes to regionalism do not appear to have been realized in the state’s even more radical determination of political space at the national level.

The hard core of the book, and in the opinion of this reviewer the most successful, is not in the ideological envelope or in the concluding prescription for reform, but rather in the three case studies of group relations, involving the post-independence Jewish immigrants from North Africa and the Middle East, the Bedouin, and the ultra-Orthodox. Rosen-Zvi relates the history of the segregation of this first group, whom he prefers to call Arab-Jews, acknowledging in a footnote that this is not the prevalent appellation (Sephardim or Mizrahim) and “might be offensive.” He prefers his choice, he explains “in cooperation with part of the said group that engages in a political project to rehabilitate an Arab-Jewish identity” (p. 39). The term “Arab-Jew” then is not a translation of the name used by most members of the group itself. Instead of a translation from the Hebrew, it should be considered, in my view, as a translation from the American “African-American.” While the author is surely aware of the polar differences, still the influence of the American model is clearly discernible.

In the case of the so-called Arab-Jews, Rosen-Zvi devotes a chapter to the problem of desegregation of education, limited to ethnic segregation in Jewish public schools. Hence, he excludes the separation-segregation between Jewish and Arab schools, desired not only by the Jewish majority, but also by the Arab minority, for whom the school system – in which Arabic is the language of instruction – is an important vehicle of cultural autonomy. Unlike the case of the Arab non-Jewish minority, the consistent objective of government policy with regard to Arab-Jews has been assimilation. Segregation has been the result of residential segregation, not consciously intended initially, a by-product of settlement policy and public housing construction, both primarily aimed at population dispersal, in the periods of mass immigration. The consequence of national policy in that period was to concentrate immigrants from North Africa and the Middle East in peripheral rural areas or in peripheral exurban areas, in both cases removed from the urban centers, primarily populated by middle-class European Jews.

Since the boundaries of local governments are congruent with the boundaries of school districts, residential segregation translates into school segregation. The “ethnic space,” created by residential segregation, to use the author’s terminology, is “transparent.” That is, it is not “visible” and hence not taken into account by policy-makers, including the courts. The judiciary has been generally supportive of attempts at desegregation. The Supreme Court has consistently thwarted the efforts of middle class European parents to escape integration by crossing the jurisdictional barriers. However, as the author points out, the court’s guardianship of the boundary lines can also work against integration, as in the case of Arab-Jewish students trying to cross jurisdictional boundaries in order to avoid segregation. Also unhelpful in the promotion of desegregation, the court has been generally supportive of the jurisdictional independence of kibbutz schools - that is, schools of the collective communities, elitist in origin and primarily populated by Europeans, located in rural areas that are heavily Arab-Jewish. Here the jurisdictional lines, providing space for the autonomy of the intimate kibbutz commune, are not purely administrative or “transparent,” but rather natural or “opaque.”  But whether the legal definition of space were simply a matter of administrative convenience or the product of historical development, whether “transparent” or “opaque,” the consequence was that ethnic residential segregation, the basis of school segregation, was ignored. “Residential segregation is the missing link in prior attempts to understand the failure of integration reform,” Rosen-Zvi claims. “While the persistence of residential segregation and its effect on school segregation is acknowledged by the United States Supreme Court, although not remedied, for the Israeli Supreme Court residential segregation is completely invisible.”(pp.28-29) .

But why does residential segregation persist, despite the consistent policy of assimilation and the absence of legal restraints? The author’s answer (“Arab-Jews: The Unfulfilled Promise of Assimilation,” (pp.134-139) requires a redefinition of the Jewish nation, the particularist component of Israeli identity. The Zionist claim is that its aim us to provide a homeland for all Jews, but in reality it is a liberation movement for European Jews. The Arab-Jews (“The Jewish Victims of Zionism”) carry with them the cultural heritage, non-Western and pre-modern, of their countries of origin. Changing the status of the Arab-Jews from “strangers” to friends turns out to be a no-win game. Even when they succeed in turning themselves into European (Ashkenazi) Jews, prejudices born of a relationship of domination remain, along with residential segregation, perpetuated by both economic forces and individual prejudices. “The gap between ideology and reality, vision and praxis, explains the conspicuous reality of ethnically-based spatial segregation on the one hand and its complete erasure from legal texts on the other.” (p. 135)

But, turning from the thesis of this study, to which this explanation relates,  to its title, is the author “taking space seriously,” or is he taking it too seriously? Suppose the pattern of residential segregation had never been created, suppose there had been no policy of population dispersal and all the rest, would the Arab-Jews have been any less non-European or pre-modern? Would they have been any less in need of “resocialization,” according to the Zionist narrative? The explanation that Rosen-Zvi provides for the persistence of ethnic separation, despite its contradiction to the accepted ideology, in large measure diminishes the importance of space. Indeed, he acknowledges that “spatial reform will not solve the acute problem of inequality among the various ethnic groups in Israel, nor will it by itself solve the problem of inequality in education “(p. 38.) The full benefits of desegregation, he goes on, depends on what happens within the schools – fair treatment, teacher attitudes, grouping - all factors unrelated to where the jurisdictional lines are drawn.

If Arab-Jews is the proper term for immigrants from North Africa and the Middle East, perhaps the Bedouin should be called Native Israelis. In the case of the Bedouin, space plays a very special role. The Zionist narrative does not envisage the assimilation of the Bedouin, although the declared objective of public policy has always been to advance the Bedouin by providing the infrastructure and public services necessary for their adoption of modern, sedentary living patterns. Large scale land expropriation and resettlement in a limited number of planned communities have accompanied the carrying out of this policy. Today a large number of  Bedouin of the Negev’ the southern desert, who are the subject of Rosen-Zvi’s attention, live in unplanned, and therefore unrecognized, settlements, and many form an under-class of unskilled labor in the Beer-sheba metropolitan area.

Here Rosen-Zvi performs a distinct public service by describing and analyzing the discrimination and exploitation that the Bedouin have suffered and the complicity of the legal system in this sorry history. The courts have legitimated “spatial cleansing,” the demolition of Bedouin houses constructed beyond the jurisdictional lines of existing or planned settlement areas. In effect, the courts have cooperated – in the name of modernization and the welfare of the Bedouin – in transforming the Bedouin from claimants in a land dispute to criminal defendants threatening state-owned land. Again, jurisdictional lines have been determinative in the courts. “The Supreme Court sided with the Bedouin only when they requested to be assigned housing in the planned townships and the state was not responsive to their request” (p.66.)

However, ideology, rather than history, takes over, when the author deals with cases in which the Supreme Court has supported the Bedouin position, when the state has denied public services, such as education, health, welfare or electricity,  to Bedouin living beyond the jurisdictional boundaries. Is the court taking space seriously? The author’s answer: “The culture characterizing Israeli law is deeply embedded in the colonial legacy it inherited from the colonial powers… (p.72.) True, to the “civilizing mission,” the court has refused to accept state attempts to deny public services. In this way, it “paradoxically helped the state to sustain its legitimacy…By refusing to vindicate state policies designed to deny public services to Bedouins who lived outside the planned townships, the courts were able to maintain their own legitimacy as autonomous from state power” (p.73.)

Court defense of jurisdictional lines was not only part of the “rule of law.” The judicial line has been that the court also contributed to the cultural autonomy of the Bedouin. As the author amply documents, “the cultural identity of the Bedouin was foregrounded at the expense of the reality of discrimination and economic exploitation (p.79.)” Similarly, Rosen-Zvi takes to task the multicultural left for failing to realize that its “politics of difference, and its spatial expression – jurisdictional autonomy…can be either liberating or subordinating” (p.80.)   The reductio ad absurdum is reached in the Avitan case, in which a high-ranking Jewish police officer, with many Bedouin friends, was denied the right to move into a Bedouin township. The court upheld his exclusion, pointing to the organic nature of the Bedouin community and its cultural particularity, protected by the lines of the organic jurisdictions established for their exclusive benefit.  To protect the Bedouin, not from cultural extinction, but from oppression and exploitation, the author, in keeping with his central proposal, proposes regional integration, the integration of the Bedouin in the economy of Beersheba and its surroundings.

The third case study involves the ultra-Orthodox community and centers around a bitter dispute the result of an ultra-Orthodox attempt to protect Sabbath observance by closing the Bar Ilan Road to traffic on the day of rest, where it traversed an area heavily populated by ultra-Orthodox. This is a major Jerusalem thorough-fare connecting the entrance to Jerusalem with its northern neighborhoods. The split court decision revolved around an attempt to balance the competing interests of the ultra-Orthodox, the non-observant motorists, and the non-observant inhabitants of the area, according to accepted liberal judicial doctrine. Rosen-Zvi regards the dissent as inspired by a multicultural ideology that recognizes the existence of a communal sphere, intermediate between the public and the private. From this the author derives an alternative conception of political space, based on communal solidarity. In Rosen-Zvi’s discussion of school segregation in kibbutz schools, this concept is sadly lacking.

The concluding chapters on Zionist ideology and political space and the author’s regionalist reform proposal tie matters together and conclude this rather complex and in parts highly controversial study, in which social science insights applied to the judicial outcomes – which are the author’s professional forte – .provide new perspectives in legal interpretation.


To the article published by the University of Maryland

Vol. 14 No. 9 (September 2004)

Reprinted in Israel Law Review, Vol. 37, pp. 622-628 (2004).