The Israeli Supreme Court issued a ruling today that overturned a law remaining on the books from the Ottoman period allowing settlers to claim ownership of land that they did not previously own if they have farmed it for at least ten years. Law students will immediately recognize the parallel to adverse possession, which is a common law concept relating to property that allows someone who openly, notoriously, and continually possesses someone else’s land to gain ownership of it after a set amount of time (I have blocked most memories of law school from my mind, but I seem to recall seven years as being the minimum). This Supreme Court ruling does away with the use of adverse possession in the West Bank, and it should be applauded for two reasons.
One, there is a distinction to be made between settlers who have used the law to gain possession of farm land and the type of adverse possession law that exists in the U.S. The reasoning behind adverse possession in U.S. common law is that we want to maximize the efficient use of property, and so if the adverse possessor is using the land in a productive manner and the land’s true owner is neglecting it, utility maximization dictates that the person using the land should get to continue to do so legally. There is an important component to this, however, which is that the adverse possessor does so openly and notoriously, which gives the land’s owner adequate notice and opportunity to challenge the adverse possessor. In the West Bank cases, the original Palestinian owners have largely not been afforded the opportunity to evict the settlers farming the land or have been blocked from challenging the settlers in court due to the military’s jurisdiction over the West Bank. Today’s ruling rights what is a clear wrong, and does not allow settlers to, in the words of the court, invade land rather than honestly take it.
Two, that the Israeli Supreme Court stepped in to overturn this law on behalf of Palestinians in the West Bank is an important reminder that Israel is indeed a democracy and even in matters pertaining to the West Bank the rule of law can prevail. The usual caveat applies, which is that Israel’s actions in the West Bank do not befit a democratic state and its use of military law there should be ended as soon as possible. Nevertheless, those who loudly proclaim Israel to be an authoritarian polity across the board are wrong, and today’s decision illustrates that in a meaningful way.