Comments

Forthcoming in Eduardo Penalver and Gregory Alexander, eds., PROPERTY AND COMMUNITY (Oxford University Press).

Abstract

The phrase “creating facts on the ground” is commonly used to refer to Israeli settlement policy in the occupied territories. What does it mean? Intuitively, we understand that it connotes the establishment of de facto possession with the aim of attaining de jure possession, but how exactly does the conversion of de facto into de jure possession come about? And what are to make of it when it does? In addition to the myriad empirical effects it produces, the practice of creating facts on the ground generates two orders of normative consequences: the “first-order” normative effect consisting in the pressure that the status quo ground exerts on dispute-resolution; the “second-order’ normative effect consisting in the various moral and political judgments we make about the achievement of such first-order effects. This essay undertakes to provide a deeper understanding of how the practice of creating facts on the ground achieves such normative effects, and to tease out the kinds of first-order normative effects achieved – whether moral, pragmatic, or some fusion of the two. Drawing insights from the law of adverse possession, this essay proposes that the practice of creating facts on the ground serves to (a) respond to (and/or instigate) an abnormal situation or “state of emergency” in which the conceptual distinctions on which the ordinary rules of justice depend collapse, and then (b) to “normalize” that abnormal situation. Israeli settlement policy exemplifies three different concepts of normalization: (1) the Foucauldian conception of normative ordering, in which norms are derived from empirically observable statistical realities; (2) Schmitt’s conception of the permanent state of emergency, in which the conditions of the state of emergency, governed by the laws of exigency and necessity, supplant the ordinary rules of law, and become permanent/normalized; (3) the Zionist conception of political normalization, offered by early Zionist thinkers as a prescription for the “abnormal” condition of Jews in the Diaspora. The conceptual analysis offered in this essay suggests that the term applies to a significantly broader range of practices than is commonly assumed, not limited to the practice of establishing illegal settlements in the occupied territories, but extending to Zionist land settlement policies first developed in pre-state mandatory Palestine to thwart limits placed on Jewish settlement by the British authorities, and extending to land settlement practices outside the context of Israel/Palestine as well. That broader conceptual understanding serves as a corrective to the disturbing tendency to exceptionalize Israeli land settlement policy, whether the normative judgment is critical or apologetic. Indeed, the practice of creating facts on the ground describes a much wider set of practices by which nations and sub-state groups seek to overcome practical and legal impediments to the establishment of a territorial base for exercising the rights of individual and political self-determination, and thereby converting property into sovereignty (even as property and sovereignty are wrested from another group).

(The first 30 pages of this document contain a new introduction for a revised version of this work. Page 31 outlines the projected revisions, which the author is still working on. The ensuing pages are the unrevised, original essay as posted earlier.)

Disciplines

Human Rights Law | International Law | Land Use Law | Law and Society | Property Law and Real Estate

Date of this Version

June 2009