Taking Community Seriously: Lessons from the Israeli Disengagement Plan
47(1) Israel Law Review (2014) (Forthcoming)
24 Pages Posted: 9 Feb 2013 Last revised: 1 Jan 2015
Date Written: February 6, 2013
Eminent domain, or expropriation of private property, is among the most controversial of legal arrangements. The challenges and threats that it poses to private property render it debatable and disputable. Surprisingly, however, most western jurisdictions embraced a quite similar formula to address expropriation, both in terms of the purposes that justify such action and the compensation that should be granted to property owners.
This article challenges the prevailing eminent domain formula, according to which, regardless of the circumstances of the expropriation, compensation to the property owner is determined according to the market value of the property. By exploring the case of Israel's 2005 disengagement plan, as a result of which 21 geographical communities were uprooted by expropriation, this article argues that loss of communality should be taken into account in expropriations that uproot entire communities. However, in order that the legal arrangement be efficient, fair and, not less important, constitute a prospectus of the various values embodied in the right to property, it should be constituted on a normative infrastructure that takes into account the values that the society wishes to endorse, and the inner meaning of these values.
Keywords: community, eminent domain, disengagement plan, society, expropriation, takings law, property, premium, remedies, resettlement, compensation
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