Volume 6 Number 83
Subjects Discussed In This Issue:
Conquest of Land in Erez Yisrael
[Shaul Wallach]
----------------------------------------------------------------------
From: Shaul Wallach <F66204@...>
Date: Mon, 29 Mar 93 13:00:15 -0500
Subject: Conquest of Land in Erez Yisrael
More than a month ago, Danny Skaist <DANNY%<ILNCRD@...>
responded to my questions about the legality of the expropriation of
Arab lands in Israel. His answer was that there is no question of
theft involved since the lands were obtained by conquest, which is
itself a valid qinyan (title). Since then I have checked out the
sources on this point and wish to communicate here some of the
material I have found. Not unexpectedly, opinions seem to be divided
on the basic issues, and I do not feel that Danny's argument removes
all doubt on the particular matter at hand. What follows, however,
is only a preliminary discussion, and in any case one should rely
only on a competent authority for a practical decision.
Danny wrote as follows:
>>1) Does land in Erez Yisrael fall under the prohibition of gezel
>> hagoy (stealing from a non-Jew)?
>
>Conquest of land is a valid kinyan (change of ownership). So there is
>no question of gezel. The issue is discussed in relation to the
>question of cutting your own 4 species for Succoth. Since all land is
>considered, by Halacha to be stolen, by virtue of kings having taken
>land from one subject and given it to another (not a valid kinyan),
>unless we know the entire history of the specific land in question, from
>the time of the previous conquest, even legal ownership cannot be
>accepted, so you have to let someone else cut them. He now has legal
>possession (even if he stole them) and you can take them from him.
Danny is referring here to the ruling in the Shulhan Arukh (Orah
Hayim 649:1, in the gloss by R. Moshe Isserles) that a Jew should not
cut by himself any of the 4 species in the lulav for Sukkot, because
land cannot be acquired by theft, and since ordinary idolaters steal
land, cutting the lulav from land belonging to an idolater would be
taking it from a thief and therefore itself an act of theft. On this
ruling the Magen Avraham (note 5) comments "... and one who stole
by conquest of war gains possession, as it is in Gittin, folio 38".
The plain sense of the Magen Avraham seems to be that when it is
known that his land was acquired by war, then it is legally his and
the Jew may accordingly cut his lulav himself from the non-Jew's land.
It follows similarly that if a Jew acquires land from a non-Jew by
war, then it also rightfully belongs to him. This is, I believe,
essentially what Danny is saying above.
Let us look at the passage in Gittin 38a that the Magen Avraham
cites. After establishing that non-Jews acquire possession of slaves
(either Jewish or non-Jewish) by payment of money, the Talmud asks
whether hazaqa (taking hold, i.e. a captor who holds a slave until
the former owner gives up and abandons him, according to Rashi) is
also a valid means of acquiring a slave by a non-Jew. On this
question the Talmud answers:
Said Rav Papa, "Ammon and Moav were made pure by Sihon".
Rashi explains as follows: Sihon took possession of land from
Ammon and Moav and in doing so annulled the title of the latter,
so when Israel later took possession (Numbers 21) they did not
violate the prohibition (Deuteronomy 2) of taking land from
Ammon and Moav. It follows that non-Jews acquire legal title
of land from each other by conquest, as the Magen Avraham
commented above.
From this interpretation of the passage in Gittin (on which the
Rashb"a and the Ritb"a agree as well) it does appear at first sight
that the wars of modern Israel would likewise confer to it an
automatic title to all the lands it has conquered. However, there
are difficulties in such an application since several crucial
questions arise. Among these are the question of who is authorized to
wage war and what kind of wars may be waged. If it should turn out that
not all acts of war are allowed, we will also have to determine the
legal status of the lands acquired by Israel from the Arabs since 1948.
Let us first deal with the first two, interrelated questions.
As to who may wage war, the Rambam writes in his Sefer Ha-Miswoth
(Introduction, ed. R. Yosef Qafeh, Mossad Harav Kook, 5731, p. 57):
And it is known that war and conquest of "al-bilad" (other
readings: "al-mudun", i.e. the cities) are only by the king
and the Great Sanhedrin and the High Priest, as it is said
(Num. 27:21): "And he shall stand before Elazar the Cohen."
And since all these matters are well known to most people,
every positive commandment or negative commandment which is
dependent on the commandments, or the (Temple - S.W.) services,
or the death sentences of the court, or the Sanhedrin, or a
Prophet or king, or milhemet miswa (commanded war), or
milhemet reshut (optional war), I will not have to say
about them "and this commandment is not in force except
in presence of the Temple", since this is clear as I have
mentioned.
R. Qafeh translates "al-bilad" as "the land", although another
possible translation of the Arabic is "the places". Whether we
understand this as conquest of the Land of Israel or not, it
appears clear to me that the Rambam's general statement means
that no war may be waged except by a king, who must be appointed
either by a Prophet or by the Sanhedrin as the Rambam ruled in
his Mishne Torah (Laws of Kings and Their Wars 1:3, Sanhedrin 5:1).
It should be added that the words "or milhemet miswa" in the Rambam's
passage are omitted in the standard translation, but are present in
the Arabic original.
The Rambam defines the categories of the two types of wars that
he recognizes. He gives 3 kinds of milhemet miswa (Kings 5:1): 1) the
war against the seven nations of Canaan, 2) the war against Amaleq,
and 3) aiding Israel against an adversary who has come against them.
Milhemet reshut is to enlarge the borders of Israel and to enhance
the king's greatness and prestige. According to the following
halacha (Kings 5:2), approval of the Sanhedrin is required for
milhemet reshut, but not for milhemet miswa. However, it is clear
from the context that only the king is authorized to wage any of
these wars.
It is noteworthy that the Rambam does not mention either conquest
of the Land of Israel or settling (yishuv) of the Land of Israel
among the 613 commandments of the Torah, either in his Sefer Hamiswoth
or in the Laws of Kings, even though he repeatedly stresses the duty
and importance of living in the Land of Israel (Kings 5). The Ramban,
on the other hand, counts Yishuv Eres Yisrael and its conquest as a
commandment of the Torah (see his Positive Commandment 4 in his comments
to the Rambam's Sefer Hamiswoth). The Ramban, however, agrees with the
Rambam that the waging of war requires the Sanhedrin and the High Priest,
and holds that this is true even for a milhemet miswa and for all
generations (see his comments after his Negative Commandment 16).
For these reasons; namely, the absence of a king, Sanhedrin and
High Priest, it follows that we have no possibility of waging war today.
Thus wrote R. Ovadia Yosef recently in almost as many words, regarding
the possibility in principle of returning occupied territories as part
of a genuine peace agreement with the Arabs (Tehumin, vol. 10 (5749),
p. 43):
And according to this we learn, that even according to the
Ramban there is no commandment in our time to go out to war and
to enter into danger to life in order to defend the control of
the territories that are occupied by us against the will of
the nations of the world.
To be sure, R. Ovadia Yosef's opinion expressed above generated
a lot of controversy (see, for example, R. Shaul Yisraeli, Tehumin,
op. cit., pp. 48-61). However, the main argument behind this view
remains our lack of a duly appointed king, who is the minimum
requirement for waging war. As far as I have been able to determine,
R. Yisraeli and others who hold that the State of Israel is
empowered to wage war all rely on the opinion of R. Avraham Yishaq
Hacohen Kook (zs"l) in his Resp. Mishpat Cohen (144:15-A). In this
responsum, Rabbi Kook wrote as follows:
But when a leader of the nation is appointed for all its needs
in a royal style, according to the general will and the will of
the Beit Din, he certainly stands in place of a king, as regards
laws of the kingdom, which apply to leading the whole.
Elsewhere in the same section Rabbi Kook explains that in the
absence of a king, all the royal privileges return to the nation, so
that when a judge rises up he has the status of a king as far as
leading the nation is concerned.
Rabbi Kook bases his opinion on the examples of Joshua, the
Hasmoneans and the Exilarchs, who all stood in place of the king.
With all due respect, I do not find these examples thoroughly
convincing. For example, the status of the Exilarchs in Babylon,
as mentioned by the Rambam (Sanhedrin 4:13), applied only to their
authority to compel people to adjudicate cases in religious courts
of law, but they did not have exclusively royal privileges.
In any case, even Rabbi Kook required consent of the Beit Din
in order to confer on the ruler the status of a king. Since the
modern State of Israel lacks this consent, I therefore fail to
understand the view of all those who, like R. Yisraeli, assert the
right of the state to wage wars. Of course, this does not mean that
in the face of physical danger we are not allowed to defend ourselves.
This positive commandment of piquah nefesh (saving lives) needs no
elaboration. It is possible, however, that the self-defensive wars
of the State of Israel fall into the halachic category of piquah
nefesh rather than into the category of milhemet miswa, since we
have no king by whom to wage wars.
We must now address the question of the status of lands acquired
by conquest. According to the Rambam (Kings 4:10), lands acquired by
the king belong to him, and he may do with them as he pleases. In
addition, if these lands are within the Biblical boundaries of the
Land of Israel (or even outside if all of the former has already
been conquered), and they were conquered with the consent of the
Beit Din and a majority of Israel, they acquire the sanctity of the
Land of Israel so that the commandments that depend on the Land come
into force on them (Kings 5:6, Teruma 1:2). However, lands conquered
by individuals without consent of the Beit Din or the majority do not
acquire the sanctity of the Land of Israel, even if they are within
the Biblical boundaries (Teruma 1:2); in other words, an individual
conquest is not considered a conquest.
The latter ruling leaves doubt in my mind as to whether lands
conquered by an individual in fact belong to him (but do not
acquire the sanctity of the Land of Israel), or whether they are
not his but considered stolen property. In the halachot in Kings
and Teruma cited above, the Rambam is silent on this point. But
in the Laws of Theft and Losses (5:18), he rules that a king who
is not recognized as the ruler of his country is considered a
strong-armed robber. The Vilna Gaon cites as a source for this
ruling the passage in Megilla 14b, in which Abigail told David
that he had no right to execute her husband Naval as a rebel since
Shaul was still alive, and therefore David, even though he had
been anointed, was not yet formally recognized as king. By this
logic it might conceivably be argued that the lands conquered by
the Hagana before May 15, 1948 were illegally acquired since the
British were still formally in rule. Against this it can be argued
that the territories allotted to the Jewish State by the UN
partition would have come under Jewish rule in any case, but
this argument would not apply to areas allotted to the Arab
State that the Hagana conquered, and a close examination of
the map and the chronology would be appropriate.
So far we have discussed the legality of land acquisition
by conquest. Practically speaking, however, many of the lands
were not acquired by force of conquest but were abandoned by
the Arabs who fled. There appears to be no disagreement that the
Jews who took these lands after they were abandoned acquired a valid
title to them. Thus R. Avraham Yeshayahu Karelitz (zs"l) in his
Hazon Ish (Demai 15:1) ruled that the olives from trees that were
left by the Arabs and taken by Jews after one third of their growth
were exempt from the tithes, in accordance with the rule of hefqer
(abandoned property). However, the Hazon Ish ruled that in order
to gain a legal title to the property, the Jew had to work the
land to demonstrate his hazaqa (possession). Since the Hazon Ish
made no mention of the Jewish conquest of the lands, while pointing
out that the conquest of the Land of Israel by the non-Jews became
void when the latter left, it can be inferred that the Hazon Ish
did not recognize the Jewish qinyan (title) by conquest,
presumably for the reasons discussed above. This is what several
rabbis in Benei Beraq familiar with the views of the Hazon Ish
have personally told me. In this the Hazon Ish differed with
R. Zvi Pesah Frank (zs"l), who ruled in his Har Zvi (Orah Hayim
74) that the conquest itself conferred ownership. In another
responsum (Har Zvi, Orah Hayim 87), however, Rabbi Frank agreed
that according to the Rambam the modern Israeli conquest was
not valid.
All the foregoing pertains only to those lands that were
abandoned by the Arabs or actually conquered during wartime.
But what about the lands that the Arabs continued to hold
after 1948 and that were expropriated only later on? Even
if we recognize the validity of the conquest, it would seem
that their continuing possession reconfirmed their previous
title to their lands. The question now becomes whether the
Israeli government has the right to expropriate private lands.
To answer this depends on whether we can apply the principle
of dina demalkhuta dina ("the law of the kingdom is law") to
the Israeli government. This issue, in turn, is the subject
of a basic controversy among modern scholars. R. Ovadia Yosef,
who affirms the principle in modern Israel, has summed up
the issue in Yehawwe Da`at, Vol. 5, Resp. 64, where he rules
that it is forbidden to evade customs and income taxes in
Israel. However, Rabbi Yosef treated the question only from
the aspect of whether the individual may cheat the government.
The government, on the other hand, may take private property
only according to its own laws, and if it transgresses these
laws, then what it takes is considered stolen property (Rambam,
Laws of Theft and Losses 5:13).
The above problem arises in regard to land that was expropriated
under the controversial Absentee Properties Law of 1950, which in
practice was used primarily to acquire lands for Jewish settlement
from former Arab tenants. It has been alleged that some of these
expropriations were carried out despite rulings by the Israeli
Supreme Court that they were in violation of the law (for details,
see Sabri Jiryis, "The Arabs in Israel" (1976) and Ian Lustick, "Arabs
in the Jewish State" (1980); books are not with me now). If these
charges are true, it would seem to follow that the lands involved are
to be considered stolen by all opinions unless the former tenants have
either waived their claims or reached settlements with the authorities.
To sum up, our discussion seems to point very tentatively to
the following practical consequences:
1) Regarding land that was willingly abandoned by Arabs, there
appears to be no disagreement that a Jew who takes possession
of it acquires a rightful title to it, at least by working it.
2) About lands that were actually conquered by force, especially
before May 15, 1948, there appears to be a difference of opinion
whether the conquest confers a valid title of ownership.
3) Opinions seem to be divided over whether the State of Israel is
empowered by halacha to expropriate land at all. In any case,
land that was expropriated in violation of Israeli law would
appear to be stolen according to all opinions, unless a
settlement has been reached with the former tenants.
In conclusion, since stealing from a non-Jew is forbidden by
the Torah, it would seem advisable for anyone settling on formerly
Arab land to check out in advance exactly how the land came into
Jewish hands, to be sure there is no remaining question of theft
involved.
Shalom,
Shaul Wallach <f66204@...>
----------------------------------------------------------------------
End of Volume 6 Issue 83
