Introduction: Claiming Property, Claiming Palestine

Abstract

“Capital does not know its father!” is a common saying often invoked by Palestinians during moments of anguished reflection on the question of land and property in Palestine. The Palestinian struggle for liberation, self-determination, and sovereignty is all about belonging to the land and the land belonging to the Indigenous people. But long before colonial conquest and rule, land was the primary site of social conflict, and control over access to immovable property was the most important form of social power. Over the past century, ownership of land in Palestine was the only private individual investment guaranteed to increase in value. It has also become the most important symbol of claiming homeland as collective patrimony in the face of Zionist settler-colonial encroachment. The former (individual ownership) is not necessarily bound—morally, socially, or politically—to the latter (collective claim to a homeland). Rather, it tends to slip and slide along money-greased paths away from those with multigenerational roots and into the hands of “strangers,” whether they are other Palestinian individuals, real estate companies, or, at worst, Jewish Israeli buyers. Thus, in a context where collective claims of ownership over land is unquestionably the very essence of overcoming a settler colonial condition, the saying “capital does not know its father” acquires an even greater ironic potency.

A crucial point here is that private land ownership in Palestine is not, historically, a product of colonial rule. It existed for centuries before the founding of the first Zionist colonies in the 1880s and the British colonial conquest in 1917. In ways far more similar to the histories and social formations of South Asia and North Africa than to other regions of the world, Palestine had a rich and complex system of land ownership and access rights, including private property within built environments (villages, towns, cities) and in the green belt of gardens, orchards, and groves surrounding them. After the 1858 Ottoman land law (and arguably decades before), private property relations also spread to the agricultural lands between these built environments. This means that the practices and paradoxes of Palestinians claiming property temporally exceeds the colonial condition and spatially exceeds the land of Palestine as defined by the British Mandate. It is precisely these practices and paradoxes that have deeply informed how Palestinians made claims to land and immovable property in the twentieth and twenty-first centuries, whether as subjects of colonial rule, as stateless refugees, or as citizens of a settler colonial state.

With this in mind, the New Directions in Palestinian Studies Initiative at Brown University held its 2019 annual workshop on the question of “Who Owns Palestine?” This special section of CSSAAME, “Claiming Property, Claiming Palestine,” features three articles from that workshop and a commissioned article (by Heba Alnajada), all of which explore how Palestinians make ownership claims to agricultural land and urban real estate. Moving beyond the binary of settler/native, and dedicated to putting Palestinians at the center of research projects, the articles foreground the Palestinians who are making claims, and they show how attention to the granular processes of claim-making rooted in the particularities of time and space trouble dominant assumptions about ownership, property, and sovereignty. Put more forcefully, claim-making allows for a critique of critical frameworks in Palestinian studies, and points to generative avenues for comparative history and theory-making between Palestine and the global South.

The case studies foreground Palestinian claim-making both in Palestine as defined by the British Mandate and in exile after the Nakba of 1948. Munir Fakher Eldin offers a historical account of private Palestinian investors who tried to develop capitalist farms in Beisan's fertile plains during the Mandate period (1918–48). The gamble failed with disastrous consequences as these investors ended up selling many of these lands to Zionist buyers. Heba Alnajada provides an ethnographic and historical study of how stateless Palestinians claim land and buy and sell houses in the legal gray zones of Amman's contested refugee camps. Drawing on a long Ottoman history of urban real-estate transactions, they created new legal forms based on Ottoman-era categories that allowed for a system of property transfers. Paul Kohlbry offers an ethnography of surveyors titling land across the overlapping jurisdictions of the West Bank highlands, and identifies the paradoxical forces this process generates as it seeks to stake a national patrimony while reinforcing private property relations. Lucy Garbett provides a dramatic ethnographic account, focusing on infighting between Palestinian families over a property outside of Jerusalem. The legal dispute, as it travels over time and across several courts, reveals the multiple legal worlds that must be simultaneously negotiated.

Claim-making is a process that draws on multiple sources of power and legitimacy. The articles illustrate the range of actors that are involved in making a claim: those with rights to ownership, access, and use; experts like lawyers, architects, and surveyors who make practices and documents legible to relevant institutions; and the various local and state authorities who can offer legitimacy and force. Making a claim takes time and a lot of work. Thus, even when making claims as individual owners, people never operate in isolation. They do so as members of families, residents of a place, and subjects of a political community. They move across multiple legal codes and courts, and they creatively gather and create documentary evidence. Less tangibly, but no less importantly, they also draw on agrarian moral economies—especially the collective arrangements of musha’ and the ethical-legal institution of the waqf—to imagine and formulate practices that regulate access rights. Broadly put, Palestinians work within an ecology of land rights, uses, and relations that includes absolute private property but also exceeds it.

The articles open new lines of inquiry for exploring the relationship between property ownership and state power. Alnajada shows us how Palestinian refugees in Amman buy and sell property, build homes, and access public services through documents fashioned after Ottoman Islamic (sharia) property transaction cases (hujaj, sing. hujja). Under Jordanian law these documents are technically illegal, but their use is recognized by various Jordanian government institutions in Amman. The hujaj provide a tenuous sort of recognition which draws on historic legal practices that allowed private property ownership of structures erected on waqf lands. This practice allows refugees to access public services and maintain ownership of the buildings of the camp, but not the land upon which they are built. Garbett's study of a legal conflict over a plot of land investigates a searing irony: for Palestinians, property deeds issued by the Israeli state are understood (and sought after) as the most secure guarantee of private ownership rights. Garbett shows the less obvious ways that the settler state inserts itself into Palestinian social relations and the implications this has for struggles between Palestinians for land.

Palestinian claim-making under settler colonial rule troubles the politics of private and public ownership. The critique of private property often takes public property for granted as a political and moral good. For Palestinians excluded from citizenship rights as colonial subjects or refugees, the public—public land, public space, public safety—is turned into a weapon used against them. As both Fakher Eldin and Kohlbry explore for different times and places, the result is that collective projects to prevent colonial land dispossession are channeled through private ownership, allowing both state and class forces to elaborate practices and ideologies that fuse anti-colonialism to private accumulation. These are more than cynical attempts to disguise profit as national interest. Instead, these are part of a larger struggle over how best to protect territory, and over the place that private ownership should have in anti-colonial projects.

Palestinian claim-making problematizes assumptions that property is somehow contained within the sovereign territory of the state. This was never the case; it was through corporate property ownership and land purchases, after all, that Zionist settlement took root. Land purchases often run ahead of official sovereignty, and settler-colonial ownership often pulls the powers of law, government, and military into new territory. But Palestinians also attempt to assert control, and even claim sovereignty, through property making. New projects to title land and create markets allow those in the right position to access wealth, but at the same time introduce unknown buyers and suspicious brokers who have been a perennial fear and object of critique. Property ownership is not neatly nested within a defined territory in Palestine; instead, claiming property is always testing the limits of sovereignty.

For Palestinians, capital shaped the politics of sovereignty long before the advent of neoliberal privatization. Fakher Eldin's case study is not only a story of colonial powers using property law to dispossess Palestinians. Instead, as he demonstrates in his accounts of the failures of banana farms in the Beisan Valley, Palestinian private property and capitalist development induced a double loss: of Indigenous relations and ecologies, and of national sovereignty. As Kohlbry shows in the highlands of the West Bank almost a century later, similar debates return as Palestinian Authority land titling opens up more land to private investors. Capital shapes how ownership mediates relations between settler and native. It imbues mundane transactions and conflicts—demarcating, inheriting, investing, and selling—with great, and often unforeseen, political consequences.

Palestinian claim-making illustrates how property is never a straightforward assertion of a right. Instead, as Garbett, Kohlbry, and Alnajada show, claims are cobbled together across different government institutions and legal regimes. They involve slowly changing urban space and agrarian landscapes by obtaining an address, getting a water bill, adding a road, cultivating a plot of land, or building a house. People are actively involved in collecting, translating, circulating, and tactically deploying documents. In these and other ways, claim-making is a historical practice that can transform which part of the past is meaningful. Litigating, mapping, and titling all involve gathering up documents, local knowledge, and material remains and forging them into a story. People become deeply invested in gathering evidence for their narratives, hoping to establish an explanation that grounds their rights historically. What the past means is not stable. Being able to fix one's interpretation in law promises to have lasting effects, even if in appearance such claims are informal, illegal, or partial.

Palestinian claim-making allows us to examine the counterintuitive ways that property structures and channels agency. As the authors make clear, Palestinians make claims both within and against dominant orders of law and power. Their expressions of individual and collective action emerge through negotiation, refusal, substitution, and argumentation that produce ambivalent political discourses and projects. They also illustrate how agency is a question of temporality. Conflicts over property can drag on for years and decades, lying dormant and then reappearing with a new generation or the rising prices of property. Over these extended periods, Palestinians confront moments of institutional change that force them to rethink their tactics, foreclosing some options and making others possible.

Property ownership is one window into the social relations of land, which are shaped by collective attachment, belonging, and antagonism. Through that window, the articles offer a critical perspective on settler colonialism, both as a project and as a scholarly framework. They explore limits, foreclosures, and openings to shed light on the aspects of the Palestinian story that have been passed over, and on what still might be written. That is, the articles point to what can be learned when Palestine and the Palestinian life is not understood solely in terms of what has been taken from Palestinians or inflicted upon them. The point, as we see it, is not only about asserting that Palestinians exist and resist, but how they exist and resist. In that sense, these articles on land and property also contribute to a comparative research approach that looks to Africa, South Asia, and the Middle East more than it does to the United States, Canada, Australia, and New Zealand. This is not only because Palestine and the Palestinians share with the former a more direct and contemporaneous history of colonial rule and (post) colonial law. More important, they share similar precolonial agrarian and urban structures, shaped by long-standing linkages between peasant producers, merchants, and landlords and relations of trade, ownership, and debt that created urban centers and rural peripheries. They also share complex property regimes that are heavily influenced by Islamic law and its regional vernaculars and adaptations. Research and theory making in this comparative configuration offer ways of understanding precolonial land-based relations and how they continue to shape struggles over ownership today.