Unbundling Property in Welfare

Abstract

In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.