On the Morality of Land-Lease Discrimination against Non-Jews in the State of Israel

The recent passage, on preliminary hearing, of a Knesset bill that would explicitly prohibit land-lease to non-Jews of lands held by the Jewish National Fund has once again raised the question of historical patterns of discrimination in land-lease against the Palestinian minority by the Jewish majority in Israel. No one denies that such discrimination exists, has existed, and no doubt will continue to exist. The question here is whether land-lease discrimination is morally justifiable

On certain theories of morality, no discrimination on the basis of race, religion, ethnicity, is permitted. But this runs counter to common-sense morality, which would appear to allow for some manner of preferential treatment, provided that a reasonable justification is provided. For example, if a group’s survival and flourishing demands a certain amount of partiality, and the members of that group rely on their group-identity for their own survival and flourishing, then certain partialities and preferences may be morally defensible; especially if such partialities apply to all groups. Or, again: there may be historical reasons for favoring one group at the expense of another; affirmative action relies on this principle. Of course, all this is controversial, and part of the value of the debate is to probe the limits of defensible partiality, and to adjudicate conflicting values.

I am not a moral philosopher, so I cannot pretend to dig deep into these questions. What follows consists of claims more than arguments. But before I begin, I would like to offer two prudential rules-of-thumb that should guide us in moral inquiries of this sort. The first principle is that when one offers moral justifications for the practices of the group to which one belongs, one should be on special guard against employing self-serving arguments. Self-interest often produces tendentious moralizing, rather than honest moral justification. Defending the morality of a practice, is not, or should not, be like defending the innocence of a client in a criminal case. The purpose should not be to win using all legal means available to you, but to arrive at a position that accords with our best moral judgments or sentiments.

The second rule-of-thumb, and this is more controversial, is that morality is in part conventional, and that conventions change. I will accept this rule for the sake of my argument, because I think that it accords with common-sense morality.

For example, the conventions concerning the morality of discrimination on the basis of ethnicity and race in purchasing and selling housing and land have changed quite a bit over the last century in the United States. Before World War II, and certainly before the Civil Rights movements of the 1960’s, there was widespread discrimination in real estate; there was little, if any, open housing, and this was not seen by many to be morally improper. In fact, even today, many consider it to be morally defensible. If your home is your castle, then you should be able to sell it to whomever you want. If members of an ethnic group or race wish to live together, they should be able to, even if this means discrimination in practice. Certain private clubs until very recently discriminate against ethnic or religious groups; others refuse to admit women as members. The arguments in favor of these discriminatory practices should not be dismissed summarily; indeed, the ebb and flow of legislation reveals the changing values and attitudes of the society toward them, not to mention the clash of values they represent. The line must be drawn, but precisely where is always going to be a question of debate.

Part of the reason why the conventions on open housing changed was because of a greater sensitivity to the dignity and welfare of individuals and groups that were historically disadvantaged and in a weaker position. In other words, it was not always the fact of discrimination per se that began to offend people’s moral sensibilities but the fact that discrimination was practiced against disadvantaged groups. I daresay that if a poor African-American chose not to sell his house to a wealthy developer because he didn’t like wealthy white people, this would occasion less moral outrage than if the race of the buyer and seller were switched -- although it may still cause moral disapproval. Once again, the case of affirmative action shows that discrimination can be defended when that discrimination favors disadvantaged groups.

At the beginning of the twentieth century, a fund was established by the Zionist movement to purchase land in the Palestine for Jewish settlement. The fund was called the “Jewish National Fund,” and generally it leased land to Jews only. Given the paucity of Jewish settlement in Palestine, the moral acceptability of colonization in an age of empire, the ambiguous and shifting political aims of the Zionists, and the contemporary tolerance of discrimination when it came to transactions of private property, there seems to be little reason to find the establishment or practices of discriminatory land lease as particularly immoral at the time. And indeed, although these practices were increasingly seen as inimical to the goals of the Palestinian population, criticisms of them were generally not couched in moral terms, but in nationalistic ones (or in moral terms that derived from nationalist considerations.) The only ongoing moral issue of which I am aware was the purchase of land from absentee landlords and the subsequent eviction of the tenant farmers from lands they had worked for generations. While the Zionists may have had a legal right to do this, it was certainly morally questionable. The same may be said for the Zionist boycott of Arab labor; even it could have been justified, it was certainly a cause for resentment by the natives, and understandably so.

However, times change, as do moral conventions. Nowadays, only extreme ultra-nationalists (and “mafia”-moralists) would attempt to justify discrimination against Palestinian Israeli citizens in the workforce.The Jews became the dominant ethnic-religion group in Palestine following the 1948 war, the expulsion of the Palestinians, and the increased immigration from Europe and the Middle East. Colonization on the basis of ethnicity fell out of favor in the eyes of the civilized world, discrimination in land sales were frowned upon, especially when disadvantaged minority groups suffered as a result. Although the importance of group survival and flourishing has been recognized by liberal political theorists and moralists, there are limits to the sort of discrimination that is morally justifiable. The argument that private individuals or corporations have the right to do with their property whatever they want is not as accepted now as it was fifty years ago; we live in an age where there is pressure on private clubs not to discriminate in their membership policies, much less to discriminate in disposing of their possessions. Given these considerations, and the fact that the most disadvantaged group in Israeli society, the Palestinian Israelis, have suffered greatly because of this discrimination, it seems impossible to justify the “Jews-only” policy that the Jewish National Fund has pursued, certainly in the way it has been pursued. One should also add that there is a significant difference between the actions of minority group that is attempting to gain a foothold, and a majority group in control of a country that discriminates against a minority group of citizens in order to maintain and deepen its control.

The above assumes a situation in which the government is in no way involved in the discriminatory land-lease, and where the land has been purchased voluntarily from the sellers. Under those assumptions it would be immoral for Jews to purchase land and refuse to sell or rent it to non-Jews -- not only in Israel, where they constitute a majority, but anywhere where they are free to live productive lives free of discrimination. I am not claiming that where Jews are discriminated against they are automatically allowed to discriminate against others, but rather that where they are not discriminated against, and where they live in a society that values non-discrimination, the justification of preferential treatment for “Jews only” becomes more difficult. Thus, for example, bumper stickers that proclaim, “I only buy from shomer shabbes Jews” are offensive in societies where non-discrimination is valued.

But the history of “Jews-only” land-lease moves from the frying pan of the morally questionable to the fire of the morally objectionable with the establishment of the State of Israel, and with the Israeli government's seizure of 3.5 million dunams of abandoned Palestinian land – one-sixth of the area of the state of Israel according to the armistice lines, and in choice locations. In December 1948, less than a week after the US General Assembly passed Resolution 194, which called for the return of the Palestinian refugees, Prime Minister Ben Gurion met with Yossef Weitz, the director of the JNF land department and proposed that this Arab land be transferred to the JNF, in order to relieve possible pressure on the government of Israel to return the land to the Palestinians. Ben-Gurion informed Weiss that one million dunams were to be sold by the State of Israel to the JNF for eleven million pounds. The attorney general was opposed to the sale which he felt was patently illegal, since at that time land could not be sold without the consent of the owners – a problem that was rectified later by the Absentee Property Law. But the sale went through. So land taken from Palestinians in order to prevent their return to their homes, contrary to Resolution 194, remained unavailable for use for the Palestinians who remained.

While one can justify some sorts of preferential treatment by a group toward its members on the basis of ethnic survival and flourishing, the notion that land can be expropriated by a government from a disadvantaged minority group against its will – it is immaterial whether members of that group were paid or not – and then transferred to the exclusive use of the advantaged majority group, has no moral justification whatever. It is no different from stealing from the poor and giving to the rich. Even if this practice had been performed at the height of the imperialism, it would be recognized as simply wrong and lacking of any moral justification.

Well, not any justification. There is always the justification that theft is morally permitted to ensure somebody’s survival. Philosophers talk about the permissibility of breaking into a pharmacy and stealing medicine when there is a life-and-death situation. But this is, of course, a dangerous analogy, and we should apply the first procedural rule I mentioned above. Is not such a defense patently self-serving? Aside from the point that the facts of the matter are notoriously difficult to establish, it is not at all clear that basic minority rights automatically should be suppressed for the sake of the majority. To put it bluntly, if a thriving Jewish state required the wholesale theft of land from Palestinians then what moral person could support the establishment of a Jewish state? Certainly not the great Zionist ideologues, who never ever informed a world that they would have to expel the natives and expropriate their land for the sake of Jewish hegemony. Had they done son, they would have been asked, why should the settler’s rights trump those of the natives – or, in our situation, why should the existential fears of majority settler group trump the property rights of the minority native group?

One can always answer that morality has nothing to do with it; that states and peoples know of no law besides the law of the jungle and that might makes right, etc., etc.. The fledgling Jewish state had the right to expropriate the land for what it considered to be its survival after it had won a bloody war of independence. Whether it assessed the situation correctly or not is immaterial. This answer is a powerful one, and I have no reply except to say that my question is not whether a majority group can or even should discriminate against a minority group if it feels insecure or threatened – the question is whether that discrimination is morally justifiable. And I have argued that it has not.

To sum up: I have argued that whatever moral considerations could be brought to bear for discriminatory land-leasing practices during the age of empire, they simply do not apply in the moral climate of the last half-century. On the whole, Jews have benefited from the zero-tolerance of discriminatory practices in housing and in land-lease and sales; it would be hypocritical to claim the right to discriminate where one is a majority, while benefiting from non-discrimination where one is a minority. However, the immorality of the discriminatory situation is compounded when one takes into consideration the motivation and goals of the discrimination – not merely to accord preference to one’s own, but to actively thwart the flourishing of a minority group, to keep them down in the dust, as it were. That is discrimination bordering on racism, and cannot be justified under any circumstances.