Taking community seriously: Lessons from the Israeli disengagement plan

Eminent domain, or the expropriation of private property, is among the most controversial of legal arrangements. The challenges and threats that it poses to private property make it the subject of debate and dispute. Surprisingly, however, most Western jurisdictions embrace a similar formula to address expropriation, both in terms of the purposes that justify such action and the compensation that should be awarded 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 by reference to the market value of the property. By exploring the case of Israel's 2005 disengagement plan, as a result of which 21 residential 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 for the legal arrangement to be efficient, fair and, of no less importance, to reflect the values embodied in the right to property, it should be constituted within a normative infrastructure that takes into account the values that the society wishes to endorse, and the inner meaning of these values.