Jewish Dominion over the Land of Israel

From the beginning. noted a modern rabbinic thinker, Judaism included both the
possibility of exile as well as the certainty of redemption.
154
It is a uniquely Jewish
concept. No other nation entertained the view that it may be vanquished, and that its
people may be taken into exile and scattered throughout the four corners of the globe.
Certainly, no other people made a national commitment that in such an eventuality they
will surely return to their ancestral territory and reestablished their kingdom.
155
This
concept rests on two concerns. First, the awareness that in a world ruled by Pharaohs and
Caesars, a nation based on Law, espousing the ideals of limited sovereignty and
individual freedom, is vulnerable to both psychological and military warfare. Second,
confidence that the Jewish people will not acquiesce to be ruled by absolute sovereigns
and that they will return home to reestablish their own government. Since a state such as
the Jewish nation will never find acceptance in a world of Pharaohs and Caesars, its
stands to reason that it would not find permanent security until the Messianic Age (Pax
Hebraica, in contradistinction to Pax Romana, see below Chapter 34).
God is the Supreme Sovereign of Israels territory (see above Chapter 17). In
agreement with the exclusionary principle, it postulates that the land cannot pass to
another sovereign, no matter what. Hence the fundamental principle establishing that
military conquest, banishment of the people, etc. does not extinguish Jewish rights over
the land of Israel. A fundamental aspect of Galut is that the Jewish people did not forfeit
their rights over their homeland, and that they intend to return and establish there their
government, again and again. This doctrine rests on six principles.
First, real state forcibly seized belongs to the original owners and legal heirs,
never those who robbed the land, nor squatters and the like. This principle is applicable to
the land of Israel as well as the real estate owned by gentiles outside the land of Israel.
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Second, the people of Israel alone are the legitimate proprietors of the land of
Israel.
Third, the families of nations gave international recognition to Israels right over
its territory by the fact that they continuously designate their territory the land of Israel
even after banishment of the people from the land. This is particularly true after the
spread of Christianity and the Hebrew Scripture.
157


154
Eliezer Berkovitz. Essential Essays on Judaism (Jerusalem: Shalem Press, 2002), p. 184.
155
Some of the Biblical sources were cited in Yehudah Elitzur, Israel and the Bible (Heb.) (Ramat-Gan:
Bar-Ilan University Press, 1999), pp. 280-293.
156
See Sukka 30a-b and Tosafot on Sukka 30b s. v. ve-qara.
157
Palestine is an anti-Semitic designation designed to extinguish Jewish title from their homeland. It
was introduced by Imperial Rome in late antiquity to extinguish Jewish rights. Concerning this fact,
Yehoshafat Harkabi, The Bar Kokhba Syndrome (Chappaqua, N.Y.: Russel Books, 1983), p. 48 writes:
The suppression of the rebellion was even given verbal symbolism: the name of the country
was changed from Judea to The Syrian province of Palestine (derived from the earlier
inhabitants of it by the Philistines), a move tended to obliterate the last traces of the Jewish
settlement from memory.
With the same purpose in mind, it was reintroduced by Imperial England in the 19
th
century. The parroting
of this name by illustrious Jewish leaders is another example of the mental alertness and political
sophistication of the enlightened Jewry. For an informative overview of the history and connotations of
this designation, see Israel and the Bible, pp. 415-417.
Fourth, Scripture explicit prohibits the transfer of real estate in perpetuity.
Accordingly, the land of Israel could not be transferred to non-Jewish ownership even
with the explicit consent of the people.
Fifth, the Biblical principle, the earth is the Lords (Ps 24:1) rejects the pagan
ideology, whereby territorial ownership is established by military conquest. (See above
Introductory Remarks and n. 8).
Sixth, the Jewish people never relinquished their claim to their land, and they
intend to return and take possession of it.
These principles were brought together in a responsum issues by R. Nahshon
Gaon (who served as head of the Academy at Sura, 871-879). It was issued in connection
with a special kind of transaction known as conjointly ( ). According to Jewish law
one may transfer movables and other valuables cojointly with real estate property. It
would appear that such a transaction should be restricted to a seller owning land.
However, the practice of the Court had been to avail this form of transaction to all Jews,
regardless of weather they were landowners or not. The legal basis for such a transaction
is the principle that every Jew owns four cubits of real estate in the land of Israel. Here
is the responsum issued by the Gaon:

Rabbinic authorities maintain that there is no Jew who does not own four cubits [of land] in
Israels territory. Were you to object: [but] the Gentiles have taken possession of it and we
are in Exile! [1] It is a well-established rabbinic doctrine that real state property cannot be
tortuously possessed, [2] and therefore it [the land of Israel] remains under Israels tenure.
[3] Moreover, the land of Israel is called by the name of [the people of] Israel. [4]
Furthermore, even at the time when [the people of] Israel possessed their land, they had no
authority to sell their fields in perpetuity, as it is written: And the land shall not be sold in
perpetuity [because mine is the land] (Lev 23:25). [5] In addition, it is written, To God
belongs the earth and what is contained therein (Ps 24:1). [6] And lastly, we intend to return
to it and take possession of it.
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The doctrine of Galut determined the standing of Jews in the Diaspora. Central to
Galut is the principle that a nation is constituted by the people, not by its territory. Hence
the supreme political authority of the Jews needs not necessarily reside in the land of
Israel. After the destruction of the second Temple, and following Roman genocide of the
Jewish people and subsequent Christian hounding intended to extinguish the rights from
their homeland, the majority of Jews took up residence in Babylonia. In accordance with
the principle that authority is of the people, the supreme political authority of the Jews
was the Exilarch in Babylonia, where the majority of Jews resided, not the Patriarch in
the land of Israel.
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Since a people in exile cannot establish permanent residence in the
host country, the status of the Jewish nation outside Israel was that of a tribe ( ) a
nation without territorial claims over its place of residence.
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A further consideration

158
In ed. B.M. Lewin, Osar ha-Geonim, vol. 9, Qiddushin (Jerusalem, 1939), #146, pp. 59-60. See
Teshubot ha-Geonim (Harkavi), #199, p. 90; R. Judah al-Barseloni, Sefer ha-Shetarot, ed. S.J. Halberstam
(Berlin: Mekize Nirdamim, 1898), p. 43. For an analysis of the dissenting opinion, see The Legal Status of
the Jewish Real Estate outside Israels Territory, p. 779 n. 150
159
A judge appointed by the Exilarch in Babylonia had judicial authority in the land of Israel, but not the
other way around; see Sanhedrin 5a-b and MT Sanhedrin 4:14. Cf. MT Melakhim 5:12.
160
This explains why, although Jews were well established in many areas throughout Europe, Asia, and the
Middle East, they never laid territorial claim over the territory in which they lived. Hence, Jewish real
estate outside territorial Israel has the status of movable property. See following note.
concerning the status of real estate owned by Jews outside Israel will clarify this point.
Jews recognized only limited sovereignty. However, outside Israel, land acquisition
implied the recognition of a hierarchic system at the top of which stands an absolute
sovereign (see below). To avert this problem, a Talmudic decision issued between the
years 259 and 279 declared that Jewish landed property outside Israels territory has the
status of chattel not real estate.
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A major problem regarding Galut was the fact that Judaism recognizes only
limited sovereignty (see above Chapter 18). Pagan rulers, however, claim unlimited
sovereignty (see below Chapter 23). Jews in the Diaspora insisted that the ruler of the
host country could exercise only limited sovereignty over them. The issue is clearly
exposed in the Book of Daniel, Chapter 3. There are matters, especially those regarding
cult and worship, which lay beyond the authority of a monarch. Jews fully recognized
limited sovereignty in the realm of taxation and the like, but did not concede subjection to
a Rex. Therefore, they refused to obey a direct order of Nebuchadnezzar to bow down to
an idol. According to the rabbis, they explained their position as follows: Whichever
taxation you may want to impose on us, we shall obey. But what you are demanding of
us, to insubordinate against Gods [sovereignty] we shall not obey!
162
Another source
offers a slightly different version: You are our sovereign (in matters of taxation), but to
us, in the matter that you are ordering us to do (to worship the idol), you and a dog are
one and the same!
163


Faur, Jos. The Horizontal Society: Understanding the Covenant and Alphabetic
Judaism, Vol. 1 (Boston: Academic Studies Press, 2008), pp. 143-146.

161
See Arakhin 29a; MT Arakhin 8:11. For a comprehensive treatment of the subject, see The Status of
Jewish Real Estate Property outside Israels Territory, pp. 743-791.
162
Midrash Tanhuma, ed. S. Buber, 2 vols. (Vilna, 5645/1885) Noah XV, p. 20.
163
Vayyiqra Rabba, XXXIII, 6, vol. 4, pp. 769-770. See Salomon Schechter, Aspects of Jewish Theology
(New York: Schocken, 1961), p. 106; Israel Abrahams, Studies in Pharisaism and the Gospels, p. 62; In the
Shadow of History, p. 185. Popular wisdom notwithstanding, the principle, a law of the civil government
is binding, applies only outside Israels territory, and it is restricted to taxation and nothing else; see MT
Gezela 5:8-18. It is interesting to note that a Christian Greek martyr addressed his judge as dog; see Ernst
Robert Curtis, European Literature and the Middle Ages (Princeton University Press, 1973), p. 427.