Wednesday, July 13, 2016

The Israeli (and Ottoman and Islamic) public trust doctrine

Chapter heading from the Hebrew translation of the Mejelle by Frumkin
Zafrir Rinat, Haaretz's environment reporter, recently wrote about the story of Moshe Puterman's arrest for entering a municipal beach without paying the admission fee, and the court decision which might be thought of as a foundational document of an Israeli public trust doctrine:
One day in 1959, Puterman and a few friends went to the seashore in Herzliya. As was usual at that time, the municipal attendants demanded that they pay in order to enter. But Puterman was fed up with paying, and he snuck in – with the attendants hot on his heels.
“There was a scuffle and I escaped, but they caught me and I was taken into custody,” he recalled recently. “I told the attendants that this was a public area and that they were acting like thieves. It upset me to pay for something that should have come to me by right.”
Puterman was convicted in Tel Aviv Magistrate’s Court for refusing to pay and for resisting the attendants with force. He was ordered to pay a fine. But he did not let the matter rest there.
“My lawyer was the late Avraham Socholovsky, who was also a personal friend,” Puterman told me. “As we left the courtroom, I asked him, ‘Do we keep going?’ ‘Of course,’ he replied.”
Socholovsky appealed, and Tel Aviv District Court Judge Jacob Gavison overturned the earlier conviction. [see excerpts of the decision below-DS]
The ruling became a precedent that enshrined the public’s right to free access to the seashores. According to attorney Amit Bracha, executive director of Adam Teva V’Din: the Israel Union for Environmental Defense, the verdict led to legislation, in 1964, that prohibits charging an entry fee to beaches where only basic services – lifeguards, toilets, showers – are provided (though a fee can be charged for parking near a beach). It also led to the High Court of Justice decision in a petition filed by the IUED against the Interior Ministry more than 10 years ago. The court then instructed the ministry to order local governments to uphold the law concerning free entry to beaches. Nevertheless, there are a few beaches that still charge an entry fee.
I've translated below some excerpts from Judge Gavison's decision, which, it is worth noting, predates the well-known line of New Jersey beach access cases by a decade (see here, pp. 17-22). (I'd also like to note that Gavison taught law at the Tel Aviv extension of Hebrew University, the predecessor of the institution at which I teach.) Two points of contact with the American public trust doctrine seem interesting:

First, I've noted before the odd cultural practice by which American discussions of the public trust begin with Justinian, as if the Digest were an authority in a legal system which takes pride in its indifference to foreign (let alone Roman) law. The Israeli case similarly makes heavy use not only of the Ottoman Civil Code (the Mecelle or Mejelle, as it's known in Israel), which was in force in Israel at the time, but of the Sharia and its commentators, sources in no way typical for an Israeli decision on property or criminal law. There seems to be something about the issue of public rights that calls for grounding in sources with an ancient pedigree.

Relatedly, Article 1234 of the Mejelle, on which Judge Gavison relies, actually speaks not of water, air, and light as in the quote below, but of water, grass, and fire. Gavison may have accidentally conflated art. 1234 with 1264, which compares water to air and light, but it is also noteworthy that Gavison's version is closer to the passage from Justinian often quoted as being the source for the public trust doctrine, stating, "By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea." Might Gavison have been quoting Ottoman law but thinking Roman?

And now for the translated excerpts of Gavison's decision (Crim App (TA) 851/60 Puterman v AG, PM 30, 7 (1962), emphases in the original):
It is a fundamental rule of the the civil law of the country--the Mejelle, based on the Sharia Muslim law, that "Water, air, and light are free to all, and all people are joint owners in these three things" (art. 1234 of the Mejelle).*
This rule applies to seas and large lakes (art. 1237) and many rivers such as the Nile, Euphrates, and Danube (art. 1238); and just as a person enjoys air land light, so he may enjoy from the waters of the seas and large lakes (art. 1264). Any person may make use of any thing that is free provided that in doing so no injury is inflicted upon any other person (art. 1254). All persons and animals have a right of drinking from water, possession of which has not been taken by any other person (art. 1266)....
In an action brought in respect to places free to the entire public, any member of the public can serve as plaintiff and the action shall be heard and judgment given against the defendant (art. 1644). While it is true that the section itself mentions a public highway as an example of places free to the public, in Salim Baz's commentary on this section (p. 955) he adds other examples such as use of a river or pasture.
The fact that someone possessed places free to the public even for a very lengthy period, even undisturbed, gives him no right, and an action shall be heard by one harmed by such possession, as per art. 1675 of the Mejelle. This section explicitly treats public highways as identical to rivers and pasturing grounds.... Article 16(c) of the Palestine Order in Council grants the High Commissioner power to change any metruke [public] lands, such as the seashore, a highway, or village grain silo into land of another category, on the condition that he is convinced that such a step is necessary for the public good, and as long as instructions are given that the rights and benefits previously deriving from this land are replaced by other benefits or rights that appear to him to be equal in value to those taken.
The upshot of all these sources is that every individual of the public has the right of free access to the seashore considered metruke, dedicated to public benefit, and no person (including a local council or any other body) has permission to fence off the shore and block free access to it, and that if someone does fence off the shore, even holding it undisturbed for many years, he acquires no possession, and is to be ejected.
The result is that this divine gift of the seashore, the enjoyment of its clear air and the splendor of its view, and bathing in the sea, are not things that can be conditioned on any payment, and are not to be denied even from refugees, the penniless, or large families, who cannot afford such a payment.
Therefore the appellant was entitled--when the attendants of the Herzliya Council initiated the use of force against him and attempted repeatedly to prevent him from exercising his right of free access to the sea--to use reasonable force in order to allow him to make use of said right...

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