There is no right more important to the lawyer-economist than the right of property.

Without it, people steal rather than pay for things, and resources flow to the unscrupulous instead of to those who place the highest value on them. When resources fail to flow to those who place the highest value on them, the economist’s great nemesis appears: inefficiency.

So it is peculiar that one cannot find a rejection of Israel’s right to exist anywhere in the vast corpus of law and economic writing.

There is little dispute among scholars that the Zionist movement has for more than a century been engaged in killing or forcibly expelling the native inhabitants of Palestine and replacing them with a Jewish population drawn from the rest of the world—and that Israel is the outcome of that project.

Israel’s creation is probably the most important challenge of the postwar period to the view that land should be sold and not taken. And yet the lawyer-economists who are the high priests of this view have remained silent.

That is a shame, because Israel—and the problem of colonization more generally—is one of the few areas in which the teachings of law and economics, which have often been criticized in the domestic context for advancing the interests of wealth and power, are consistent with justice.

Application of doctrinaire law and economics not only establishes that, as a trespass to property, the Zionist project is a threat to global efficiency, but also that the proper remedy is ejectment—that is, ending Israel—and that arguments that Zionists have used the land more productively than Palestinians might have done provide no economic justification for the taking.

Doctrinaire law and economics also rejects as inefficient the Zionist claim to Palestine based on Jewish control over part of the territory thousands of years ago.

Israel as a Trespass

To bring law-and-economic concepts to bear in considering the problem of Israel—and colonization more generally—it is necessary to translate the international context in which the question of Israel arises into the private law context in which law-and-economic analysis is most often carried out.

That is not hard to do.

The principle of self-determination in international law suggests that peoples own territories. Peoples have locations. And when peoples self-determine, they govern themselves, and by extension the disposition of the territory upon which they sit. If someone can tell you to get out, you do not govern yourself.

It follows that colonization—when outsiders deprive a people of control over a territory—is trespass. It interferes with a people’s right of possession of its territory.

Decolonization is, then, ejectment—the normal remedy for trespass. Decolonization restores control over the territory to the people having a right to self-determination upon it. The trespasser’s interference in the people’s right of possession is brought to an end.

Finally, the principle of non-intervention established by the UN Charter amounts to a rule against trespass. Non-intervention says: no more colonization.

So, does Israel represent a trespass in Palestine? The answer seems obviously to be “yes”.

There is a lot of ambiguity to the definition of a people. But no reasonable definition would treat the Jewish people envisioned by the Zionist movement and the Palestinian people as one and the same.

Zionists themselves reject such a view, which is why they have been ethnically cleansing Palestine of Palestinians for nearly a century. It is not a Zionist position that the Palestinians whom Zionists are slaughtering are Jewish people.

The Zionist movement was founded in Europe, virtually all of the initial wave of Zionist colonizers of Palestine came from Europe, virtually all of the leaders of Israel have been of European descent, and Israel is entirely dependent for security and trade on Western powers.

The Zionist movement eventually took a page from the standard colonial playbook and bolstered its numbers by importing additional colonizers from non-Western areas. In particular, Zionists uprooted Jewish communities from around the Arab world and transplanted them into Palestine.

But this did not change the colonial character of Israeli society. The percentage of the Jewish Israeli population having ancestors who lived in Palestine immediately prior to arrival of the first Zionist colonizers in 1882 is vanishingly small.

It is hard not to conclude that Zionism in Palestine consists of a foreign people taking land from the native Palestinian population.

Law and Economics Does Not Like Trespass

What should we think about the trespass that is Israel? Law and economics has an answer.

Law and economics advocates for vigorous enforcement of laws against trespass because when people cannot take things by force they trade for them instead, and trade is efficient in the view of lawyer-economists.

In the view of lawyer-economists, a seller will only sell to a buyer if the buyer places a higher value on the land than the seller. Otherwise the buyer would not be willing to pay a price that the seller would accept.

Voluntary transactions therefore cause resources to flow from those who place less of a value on them to those who place more of a value on them.

Voila efficiency.

The situation is different absent a rule against trespass. A buyer who can trespass will take even when he places a lower value on the land than the seller—because he doesn’t have to pay for the land. In that case, the land will go from a seller who values it more to a buyer who values it less.

Which is why law and economics hates trespass.

The implication for the international system is that law and economics is very much against colonization. If one people wants territory belonging to another, the prospective colonizer must negotiate for the land.

Armed conquest is not an option.

From which it follows that Israel’s creation in 1948 was not OK.

Indeed, from a law and economic perspective, it was not only not OK, but a threat to basic ground rules regarding the disposition of territory that are needed to ensure the efficient use of the world’s resources.

In the private law context, the remedy for trespass is ejectment—the expulsion of the trespasser from the property.

The international equivalent is decolonization—the dissolution of the colonial government. That is not a novel remedy. The international community has applied decolonization to Western colonial governments at least eighty times since World War Two.

That means ending Israel.

Doctrinaire law and economics suggests that the world must compel the Israeli government to submit Palestine, from river to sea, unconditionally and permanently to the control of the Palestinians—or to the control of whatever people to which the Palestinians belong, such as the Arab people.

If the Zionist movement wants Palestine, it needs to make an offer to buy, just as it did in 1901 when Theodor Herzl proposed to buy Palestine from the Ottomans in exchange for the cancellation of Ottoman debt.

And if Palestine won’t sell, as the Ottomans refused to do in 1901, then the Zionists will have to live with that—like every other economic agent who can’t find a seller under an efficient property rights regime.

(Whether the Ottomans, as non-Western colonizers with a claim dating to the 16th century, would have had a right to sell Palestine is an interesting question that is irrelevant to the law and economic argument for ending Israel.)

Law and Economics Does Not Like Efficient Trespass, Either

Zionists sometimes acknowledge that they are trespassing in Palestine, but argue that the remedy of ejectment is too severe.

They would prefer to preserve Israel but have her pay damages in the form of recognizing a rump Palestinian state, granting more political rights to Palestinians, or even providing financial compensation.

In private law terms, these Zionists are arguing that damages would be a better remedy for trespass than ejectment. In effect, they wish to legitimate a forced sale.

To make their case in law and economic terms, they need to argue that allowing the trespass to continue in some form would be more efficient than putting an end to it.

That is, they need to argue for a doctrine of efficient trespass—that colonizing Palestine is OK because the Israeli government can put the land to more productive use than the Palestinians.

Zionists do make such arguments, although often in a muted form in the American context because of the racist overtones.

They argue that Israel “made the desert bloom” when others had failed. They accuse Palestinians interned for decades in Gaza of having failed to seize the opportunity to create a “Dubai on the Mediterranean“.

They have been making these arguments for decades. In 1948, Israel’s founder, David Ben Gurion, told an international committee that Palestine was like a large house. There were some Palestinians living there, but Zionists could move into the empty rooms and do something the Palestinians hadn’t: repair them.

Of course, the view that Zionists are more productive than Palestinians has no basis in fact. The contribution of law and economics is to show that even if one grants the argument, it lends no support to the Zionist cause. Law and economics opposes trespass even when the trespass would be efficient in the sense of placing land under the control of someone who will use it more productively.

The Law and Economics of Efficient Trespass

Law and economics opposes efficient trespass because a government capable of administering a regime of efficient trespass would be capable of successfully engaging in central planning. But lawyer-economists are ideologically committed to rejecting such a possibility.

To permit efficient trespass, government must know which trespassers are productive and which are not. Only then can government punish the inefficient trespassers while allowing the efficient trespassers to carry on.

Given that everyone is a potential trespasser on every bit of land, government would need to know the productivity of each person with respect to each bit of land in order to administer a regime of efficient trespass. But if government were to know all that, then government could become a central planner, directly allocating and reallocating land to those who will use it most productively.

Law and economics as a field takes the position that governments lack the capacity to do that effectively.

A field that sees itself as defending capitalism could hardly take any other position. It is not the lawyer-economist but the revolutionary socialist who argues for efficient trespass in the private law context in which law and economics makes its home.

Let the poor seize the means of production, argues the socialist. The poor would put capital to more productive use than the capitalists if only property law did not deny them access to it.

The lawyer-economists’ rejection of efficient trespass is a rejection of such a radical politics.

When translated into the international arena, however, the political valence flips. The lawyer-economist’s rejection of efficient trespass becomes a rejection of right-wing colonialism rather than left socialism.

In the international context, the concept of self-determination gives the poor automatic ownership over the land upon which they sit—something that the poor lack in the private law context, where tenancy and ownership are bifurcated.

As a result, in the international context, the problem of enriching the poor ceases to be a matter of encouraging trespass and becomes one of preventing it. (This is reflected in the emphasis placed by the states of the Global South on the doctrine of non-intervention in international law.)

The Contrast with Efficient Breach

True, lawyer-economists are rather more enthusiastic about permitting contracting parties to engage in efficient breaches of contract—the counterpart in contract law of efficient trespass in which a contracting party chooses to breach a contract and pay damages because he has found a more valuable use for the resources that he had pledged under the contract.

But law and economics is able to entertain efficient breach only because relatively few transactions are actually concluded using contracts.

Every transaction in the economy needs property rights to function because you cannot sell what another is able to take. So under a regime of efficient trespass, every transaction might potentially become a trespass and courts would, as already observed, be required to review every transaction in the economy for efficiency.

By contrast, only a very small subset of transactions are carried out pursuant to contract. When you put some money down at the 7-11 to buy a stick of gum, property law is at work, but no contract governs the transaction. It follows that even if breach were to occur for every contract, the courts would be asked to review only a small corner of overall economic activity.

So law and economics does not need to accept that courts can do a good job of valuing everything in order to encourage them to impose damages in cases of contract breach in lieu of compelling performance of the contract.

The relative importance of property law in economic life explains why finds almost no discussion of efficient trespass in law and economics.

What this means for Israel is that claims that the country has made better use of Palestine than the Palestinians are not the economic defense of colonization that Zionists think that it is.

You Can’t Run a Property Regime without Invalidating Ancient Claims

The Zionist’s response is: unclean hands.

No people today can show continuous presence on any particular piece of land stretching back to the emergence of the human species 300,000 years ago. Every people is likely guilty of an act of colonization whether more or less remote in time.

Historical geneticists are inferring the existence of what they call “ghost populations” from human genomes around the world. Those are peoples who once dominated life in particular regions and then ceased to exist—wiped out, perhaps, by subsequent waves of colonization.

Why single Israel out for condemnation?

More pointedly: the ancestors of some non-Palestinian Jewish people were expelled from Palestine thousands of years ago. Their descendants are, therefore, victims of ancient colonization. Why can’t their return to Palestine today count as a legitimate act of decolonization?

There are some significant historical flaws in this argument—not least the genetic evidence that present day Palestinians descend from the same ancient population as diaspora Jewish people, suggesting that Zionist ethnic cleansing of Palestinians represents the ethnic cleansing of the same community that Zionists purport to be returning to the land.

But let’s ignore these flaws for the sake of argument.

Law and economics provides an answer to the question of unclear hands as well.

For Property Rights to be Well-Defined, You Must Cut Off Ancient Claims

It turns out that trespassers can also charge unclean hands in the private law context. Follow the chain of any owner’s title to a particular plot of land far enough into the past and you will eventually come across a theft.

In America, you don’t need to go back particularly far. The chain of most American title runs through theft from Native Americans starting in the late 1700s.

Lawyer-economists stress that in order for a property system to function efficiently, property rights must be well-defined—meaning that people need to know who owns what. Otherwise they cannot transact, and resources stop moving to those who value them the most.

So, what to do with the problem that all property is, well, theft?

The answer is to quiet title. That is, to ignore old thefts in the chain of title. States often do this by treating any claim recorded in an official database as legitimate even if prior owners acquired the land by force.

Ignoring old thefts does not, however, mean ignoring new thefts. Quite the contrary: new thefts must be vigorously prosecuted. Title will not be clear, and property rights will not be well defined, if people are free either to assert ancient claims or to carry out new trespasses.

What this means for Israel is that arguments about unclean hands are not going to save the colony.

The foundation of the contemporary international security system is non-intervention: The notion that peoples must be secure against dispossession by outsiders.

In order for peoples’ title to their territory to be secure, however, it is necessary both to quiet title against ancient claims and to provide an ironclad guarantee against contemporary trespass—to extinguish the claims of peoples ousted through aggressive war in the past and to rollback any contemporary attempts to seize territory via aggression.

Thus, Israel will not be able to appeal to appeal to an ancient claim to justify a contemporary trespass. Or to argue that because all peoples were once colonizers no objection to colonization can be made.

In Search of “Year Zero”

But Israel’s claim is not exactly done yet.

Israel’s ancient claim survives only if Israel retook possession early enough to give Israel good title under the modern system of international property rights. That is, Israel’s claim survives only if the claim is not actually an ancient claim but rather a legitimate modern claim.

In other words, if all peoples are colonizers, but only claims for which title has been quieted are legitimate, then Israel survives if Israel’s title has been quieted.

In the private law context, that means that Israel would need to have been in possession when the modern property rights recording system was inaugurated or to have obtained title via a chain of sales that could be traced back to an owner who was in possession at that time.

In the international law context, that means that Israel would need to have had possession at the moment in history for which the international community treats possession as giving rise to title.

Claims by peoples that had possession before that time but lost it are ignored by the international community. And claims by peoples that subsequently obtain possession by trespass rather than purchase are rejected by the international community.

Call that date the “year zero” of the international property rights regime.

What exactly is that date?

One candidate is 1945, the year that the UN Charter came into force. If it were that year, then all peoples would have a right to the territory upon which they sat in 1945. Any claim by a people displaced before this year zero could be ignored.

That would not help Israel, however, which was founded later—in 1948. But, in fact, year zero is not 1945. Year zero falls earlier, putting legitimacy even further out of reach for Israel.

In 1945, vast parts of the earth, including much of the Middle East and Africa, were colonized by Western powers such as Britain and France. Over the ensuing decades, national liberation movements tore these empires to shreds.

The international community could have responded by refusing to recognize the right of newly independent peoples to reclaim territory from colonial governments. And if the year zero were 1945, the international community would have had to do that. After all, in 1945, the colonial powers were in possession.

Instead, dozens of decolonized countries gained admission to the United Nations.

The message was clear.

Title was not quieted in 1945. Colonies founded long before 1945 could be illegitimate.

For example, Western peoples had colonized most of sub-Saharan Africa between 1882 and 1900. If the “year zero” of the international property rights regime were 1945, the claims of Western peoples to all of those colonies would have been legitimate.

Instead, the international community recognized the claims of African peoples to all of this territory and approved the ejectment of the West from all of it.

The West had similarly colonized virtually all of North Africa and the Middle East between 1800 and 1917. The international community recognized the claims of the peoples of these lands to virtually all of this territory as well.

In some cases, Western claims to territory that the West had colonized centuries ago—such as parts of India—were invalidated as well.

But if “year zero” was earlier than 1945, when exactly was it?

The international community has never specified a formal year zero, but one can infer roughly where it must lie based on decolonial practice.

No Western colony created in Africa or the Middle East after 1882 remains in existence—save Israel. That sends a pretty strong signal that year zero falls before that date.

Israel as Colonial Also-Ran

As already noted, the year zero implied by decolonial practice doesn’t help Israel.

The first Zionist settlers arrived in Palestine from Europe in 1882. Their numbers grew slowly until Britain wrested control over Palestine from the Ottomans in 1917 and threw open the doors of the territory to Zionist immigration.

But the colonists did not wrest control over any part of the territory from Britain—or Palestinians—until 1948, when Zionist armies committed the act of extermination and forced displacement known as the Nakba, seized control of more than half of Palestine, and declared the State of Israel. Israel did not seize control of all of Palestine until 1967.

From which it follows that the Zionist colonization of Palestine happened too late to benefit from regularization. Israel is a modern trespass based on an ancient claim—precisely the sort of intervention that lawyer-economists condemn.

There can be no question whether the world’s newest surviving Western colony has a right to exist.

It doesn’t.

Loose Ends

But don’t the Turks, as successors of the Ottomans, have a better claim to Palestine than the Palestinians, since the Ottomans colonized the territory in the 16th century, presumably long before the international year zero?

For purposes of the law and economic case against Israel, it doesn’t matter.

Seeing that it can get away with colonization and genocide in Palestine, the West will rediscover the colonial ambitions that millions of colonized people the world over died to stop during the heyday of decolonization in the 20th century.

To foreclose this dark outcome, the law and economics of deterrence teaches that the world must come down hard on Israel and her Western backers.

Needless to say, deterrence requires as a threshold matter that Israel be brought to an end immediately. Equally important, however, is that Israel and the West be made to disgorge any gains derived from the colonization of Palestine—just as, in a private law action for trespass, the victim is entitled to any profits derived by the wrongdoer from the trespass.

That means that when Israel is brought to an end, the assets of Israelis must, at a minimum, be titled over to the Palestinian people, including real property, personal property, and intellectual property. Attempts by Israelis to offshore assets in the run-up to Israel’s dissolution must be prevented or unwound.

A careful accounting would require that only so much property be taken from Israelis as represents the excess gains derived by them from the colonization of Palestine relative to what they would have enjoyed had they or their descendants remained in their native lands.

But such an accounting is impossible to undertake, even in the private law context, which is why the victim of trespass is usually entitled to disgorgement of all output derived by the trespasser from the trespass rather than only the trespasser’s gains relative to what the trespasser would have earned if the trespasser had stayed home. The information burden required to value gains is too great all them to be counted.

Moreover, requiring trespassers to pay out more than their gains helps deter future bad behavior. If payouts were to stop at disgorgement, then the colonizer would merely break even on the colonial enterprise and he would be indifferent between avoiding future entanglements and trying his hand at colonization again.

To be deterred, the colonizer must end up worse off than he would have been had he never undertaken the colonization project at all. One might argue that it is precisely because Western colonizers have never paid compensation for acts of colonization, and certainly not disgorged all gains, that the West thought so little of creating and maintaining a Postwar colony in Palestine.

From the West’s perspective, it’s heads I win, tails I don’t lose. If the West succeeds, the West gets a colony. And if the West fails, the West is no worse off than if she had never tried at all.

Deterrence can be achieved only through a combination of the dissolution of Israel, disgorgement of all gains derived by Israel and the West from Palestine, and additional punitive damages in the form of reparations.

Zionists and their Western backers must be made to pay sufficient reparations to ensure that the West will expect to pay a high price for attempting to colonize again in the modern era.

The efficient use of the world’s resources depends on it.

The Institutions of Law and Economics Must Reject Israel

Given that Israel’s creation can so easily be understood as a violation of the right to property, with attendant harm to allocative efficiency, one might have expected lawyer-economists to be at the vanguard of those calling for an end to Israel.

In practice, however, the major institutions of law and economics—the American Law and Economics Association and the European Law and Economics Association—maintain ties with Israel.

Both associations allow Israeli scholars to become members despite the documented complicity of Israeli academic institutions in the genocide and colonization of Palestine.

The European Law and Economics Association went so far as to hold its 2019 annual meeting at Tel Aviv University, which was built on the remains of a village (Sheikh Muwannis) that Israel ethnically cleansed of Palestinians during the Nakba. That was the third time the association had held its annual meeting in Israel.

Law and economics scholars must follow the dictates of their own intellectual method and call for an end to Israel. Until that end is achieved, they must participate in the global boycott of Israeli academics and institutions.

Of equal importance, they must start writing about ending Israel—and, more generally, about the need to protect the world economy against the scourge of colonization.