December 12, 2007

The Legal Claim to Eretz Yisrael in the Torah

THE TORAH, the book of law, takes great effort to establish the Jewish legal claim to the property of Eretz Yisrael. Rashi explains that the Torah began with creation because it anticipated the argument that would be made by the nations of the world – “listim ahtem,” you are robbers who stole the Land from the native inhabitants.

Creation establishes God’s ownership over the universe and, implicitly, His legal right to convey title in Eretz Yisrael to the Jewish People. Rashi’s commentary has proved prophetic. Almost one thousand years later, this is exactly the claim made by Israel’s critics.

Though God promised Eretz Yisrael to our forefathers many times, parties throughout history have competed for land and claimed divine right. So, practically speaking, claim of divine right alone would not suffice to successfully claim a country.

The most effective, albeit controversial, claim on land is conquest. The U.S. Supreme Court case Johnson v. M’Intosh (1832), involving competing titles to land from the Piankeshaw Indians and the U.S. government, is illustrative. The Court held that first, the English title, by conquest, superseded the native’s title. Title then passed to the U.S., which conquered the land from the English.

Similarly, the Jews had to conquer Eretz Yisrael under Joshua (though the task was completed under David). Thousands of years later, during World War I, many nations recognized the Jewish right to Eretz Yisrael. But not until the Jewish Legion – as a significant part of the British Army – conquered Palestine did the international community recognize the Jewish title in the form of the Palestine Mandate.

(As the historian Howard Sachar has noted, “In truth, [the Jewish Legion’s] role in the conquest of Palestine eventually signified as much as the ordeal of the early Zionist pioneers, and hardly less than the Balfour Declaration itself, in reinforcing the Jews’ claims to their national home.”)

Thirty years later, a Jewish state was only recognized after the Irgun forced the British out of Palestine and the Haganah, with the Irgun, defended it.

Purchase is another method mentioned in the Torah for acquiring property. In Parshat Chayei Sarah, for example, Avraham refused to accept Ma’arat Hamachpelah, where he sought to bury his recently deceased wife Sarah, as a gift. He insisted on purchasing it for the full value, which was a more solid ground for legally establishing the first Jewish connection to Hebron.

The Torah is careful to establish a line of succession for the inheritance of Eretz Yisrael, which is important legally. Although Avraham had eight children, God told him that “through Yitzchak will offspring be considered yours” (21:12). Even before Yitzchak’s birth, God said, “I will maintain My covenant through Yitzchak whom Sarah will bear to you by this time next year” (17:21). After the Akeidah, God called Yitzchak Avraham’s “only one” (22:16), despite the existence of Yishmael. Finally, “Avraham gave all that he had to Yitzchak” (25: 6).

In Toldot, Yaakov inherited Eretz Yisrael, but not through the blessing he received from Yitzchak by posing as Esav. If he had, a layperson might view this as a fraudulent act that could invalidate the inheritance. But Yitzchak later intentionally designated Yaakov as heir to the Land, saying, “May [Hashem] grant you the blessing of Avraham to you and to your offspring with you, that you may possess the land of your sojourns which God gave to Avraham” (28:4).

Sometimes title can rest on whether or not the owner is present on or using the property. John Locke, in his theory of private ownership of property, said a person acquires property because when he works the land he mixes his labor with it.

The Avot initiated the mixing of the Jewish People with the Land. In Lech Lecha, the first commandment given to the first Hebrew, Avraham, is to settle the Land. After Yaakov worked for Lavan, he elected to return to Eretz Yisrael. But Avraham was a stranger, a Hebrew (evri), because he came from ever hayardein. Practically, his claim against the inhabitants of the Land was not very formidable. Further, both Avraham and Yaakov left the Land in times of famine as well as for other reasons. Resting on their actions alone, the Jewish claim to Eretz Yisrael would be significantly weakened.

Enter Yitzchak.

Yitzchak is described by Rashi as a korban (sacrifice). Indeed, he is a figure who does not take many positive actions. Avraham had tests, fought in wars, was visited by angels, saved Lot from Sodom, etc. Yaakov also lived an eventful life: He fought with his brother, dealt with Lavan’s trickery, wrestled with an angel, etc.

Yitzchak, however, does not have many adventures. He is a more passive figure. But Avraham was born outside Eretz Yisrael. And Yaakov’s departure to Egypt began the chain of events which led to the Exodus and the necessary events that followed. Yitzchak, who was born in and never left the Land, solidified the Jewish claim to it. Without him, the Land might seem a mere temporary stopover in Avraham and Yaakov’s sojourns.

The Torah therefore twice mentions that Yitzchak was confined to Eretz Yisrael. First, in Chayei Sarah, Avraham prohibited Eliezer from taking Yitzchak out of Eretz Yisrael, even if the woman whom Eliezer finds for Yitzchak were to request it. Avraham exclaims, “Beware not to return my son to there,” and continued to cite God’s promise “to your offspring I will give this land” as justification (24:6-7).

Then, in Toldot, when there was a famine in Eretz Yisrael, God commanded Yitzchak: “Don’t go down to Egypt,” but “dwell in the Land ... for to you and your descendants I will give these lands” (26:2-3). By twice mentioning that Yitzchak was forbidden to leave Eretz Yisrael and by rooting this prohibition in the inheritance of the Land, the Torah recognized the importance of Yitzchak’s lifelong residency in Eretz Yisrael to the Jewish claim to the Land.

The underlying conclusion to draw from the Torah’s emphasis on the legal claim of the Jews to Eretz Yisrael – as grantees, conquerors, purchasers, inheritors, possessors, and ultimately rightful owners – is the necessity of asserting that claim.

By returning to the Land and struggling for it, the Jews have continuously buttressed their legal claim to Eretz Yisrael. This is important because of the principle of “adverse possession,” according to which someone can acquire title to land by taking up residence there if the original owner does not challenge the squatter’s claim after a certain amount of time set by the statute of limitations.

The Gemara states a similar principle. If an owner gives up his claim to stolen property by abandoning hope that he will ever get it back, the property becomes hefker and he loses title. When Rav Kook testified before a League of Nations commission in 1930 about the Jewish right to the Kotel and Eretz Yisrael, the commission’s chairman argued that the Jews had not controlled the Land for almost two thousand years. Rav Kook responded that “if a person steals someone else’s land, and the rightful owner continuously protests the theft, he retains ownership....”

In many cases, however, the original owner cannot make a claim to his property. In New York State, for example, if a painting is stolen and its whereabouts are unknowable, the statute of limitations will not begin to run against the original owner’s claim until he can discover the possessor/location of the painting, which would enable him to bring his claim.

After the expulsion following the Bar Kochba revolt, a plurality of the Jewish People would not live in Eretz Yisrael for nearly 1,900 years. Of course, this was not possible because the empires occupying the Land would not allow it.

But the Jews refused to abandon their claim. They prayed for and toward the Land from the time their prayers were set. They became like the original owner of stolen art who does not know who currently possesses the art and has no one to sue.

Emancipation, however, afforded Jews the opportunity to restate their claim to the Land. As individuals, they could, and did, immigrate to Eretz Yisrael. They were also able to organize the Zionist movement, which, as Herzl wrote in The Jewish State, aimed to make the Jewish question “a political world-question to be discussed and settled by the civilized nations of the world in council.”

The movement eventually obtained the League of Nations’ “recognition ... to the historical connection of the Jewish People with Palestine and to the grounds for reconstituting their national home in that country” in the Palestine Mandate. This ultimately led to the creation of the Jewish state.

If, however, the Jews had not asserted their claim to Eretz Yisrael following the liberalization of Western society, the nations of the world and the Arab occupiers would have been able to undermine the Jewish claim by saying: “If you are really the rightful owner, why did you not bring your claim as soon as your were able?” The Jewish claim would have been severely damaged. Therefore, contrary to the belief that Zionism was premature absent Moshiach’s arrival, it was important, in light of the Torah’s emphasis on the Jewish legal claim to Eretz Yisrael, that the Jews bring their claim as soon as possible.

This goes for the individual as well. Every Jew who fulfills the mitzvah of aliyah is declaring for the historical record: “This Land belongs to the Jewish People.” Those who do not make aliyah, even though they are able to do so, effectively relinquish their claim and weaken the Jewish national claim. Although the lifestyle may be different, the prize is worth minor discomforts. According to the Otzar HaChaim, when Yaakov slept at Har HaMoriah and rested his head on a rock, he said to himself: “A stone of Eretz Yisrael is more precious to me than the pillows and cushions of other lands.”

The Torah’s emphasis on the legal claim also indicates the responsibility of the Israeli government to maintain Jewish possession of Eretz Yisrael. Banning Jews from parts of the Land – by disengagement, convergence, Oslo agreements, division of Jerusalem, or any surrender of Judea and Samaria – is a repudiation of the Jewish claim.

Later generations of Jews will have a harder time claiming Eretz Yisrael if their forefathers so readily abandon it. The government of Israel is the Jewish People’s legal guardian and advocate. If it is to represent the Jews before the world court, it must assert their claim to Eretz Yisrael on an absolute basis regardless of political convenience or another party’s claims.

Originally published in The Jewish Press under the title The Torah on the Jewish Legal Claim to Eretz Yisrael (Dec. 12, 2007).