The Politics Of Equality: The Limits Of Collective Rights Litigation And The Case Of The Palestinian-Arab Minority In Israel

Jabareen, Yousef T.

Human and civil rights organizations have long used litigation in an attempt to advance a particular cause, to bolster a certain right, or to bring about social change. A prominent example is strategic litigation filed on behalf of minority groups–including national and indigenous minorities. Such cases typically seek remedies from the government or public institutions due to discrimination or neglect experienced by minorities, or stemming from limitations on their ability to express or enjoy their culture and practices. In many cases, however, litigation fails or only partially succeeds in creating the kind of sustainable, widespread, and group-based change that the petitioners seek. Focusing on Israel and the Palestinian-Arab minority, which constitutes nearly one-fifth of the country's population, this Article explores the limitations and shortcomings of litigation as a strategy for obtaining collective rights. The Article examines three different kinds of collective rights that Palestinian-Arab petitioners have attempted to achieve through legal action in Israel: the right to political representation (in decision-making bodies); linguistic rights (in public accommodation); and equitable (group-based) allocation of public resources. The significance of these rights for national minorities is explored, along with the specifics of each of the cases highlighted and their outcomes. This Article demonstrates that while the outcome of each legal case was a ‘success’–on a technical level–the judgments failed to achieve the substantive equality and group-based rights that the petitioners sought. Worse still, some of the judgments actually may have led to setbacks. Accordingly, this article argues that litigation has thus far been an insufficient tool for protecting the collective rights of the Palestinian-Arab minority, as the courts have failed to draft meaningful and sustainable frameworks for action and enforcement into their judgments. The article concludes by suggesting that given the challenges and political and social constraints faced by national minorities in legal and other public spheres, the law is dependent on the will of the courts. Thus, the courts must view their role more broadly and take a more expansive–and perhaps even activist–approach in rendering its rulings.

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Columbia Journal of Race and Law

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March 13, 2015