This article originally appeared in the Jewish Free Press, Calgary

On Solid Ground *

Much of biblical and talmudic law is rooted in the assumption that Jews are an agricultural folk who live on the land. Hence, the normal way of guaranteeing legal obligations was by pointing to a parcel of land from which the creditor could collect in the event of defaulted payment. So pervasive was this assumption that people who did not possess real estate, even if they held other forms of wealth, were considered "poor."

This agrarian social structure, and the institutions on which it was based, continued to prevail until well into the third century C.E. At that time, the Land of Israel was undergoing far-reaching economic changes. The oppressive burdens of Roman taxation were forcing many Jewish farmers to sell their ancestral lands to gentile landowners. By the fourth century, much of the land, even in territories with a predominantly Jewish populace, was in the possession of non-Jews; while the Jews were becoming increasingly urbanized.

These changes in economic status were reflected in several discussions about legal topics, as the rabbis pondered whether movable property could be assigned the same privileged status that had traditionally been given to land.

For example, according to classic Jewish law, creditors are entitled to collect debts from their debtors' heirs only if the estate includes land; but they cannot collect from movable property. In some communities, it was accepted that certain objects were so highly esteemed that they could be treated as virtual real estate: copper and plates in Syria, perfume in Arabia, and so forth. Such cases, however, were treated as incidental exceptions that did not alter the general policy.

By the early fourth century, individuals were inserting clauses in their loan contracts that specifically permitted collecting debts from movables. The rabbis at that time disputed whether such clauses should be encouraged, allowed, or recognized de facto. The conventional law held that the creditors could only collect those debts from land--an option that was becoming uncommon as Jews were increasingly relinquishing their rural estates and migrating to the towns.

The economy of Babylonian Jewry followed a different timeline. In the fertile valleys of the Tigris and Euphrates, agriculture remained a profitable occupation throughout ancient times. This situation ended not because of persecution or fiscal mismanagement, but rather on account of the opening up of lucrative new commercial vistas. With the rise of Islam and the transformation of Iraq into the hub of a mighty international empire, the Jews of the Middle East and the Mediterranean basin were actively caught up the entrepreneurial spirit that inspired that civilization.

Towards the end of the eighth century, this change in the Jewish economic structure was given official recognition in an enactment by the leadership of the Babylonian rabbinate. The Ga'on Rabbi Moses ben Jacob was asked concerning the possibility of collecting a ketubbah (the obligations stemming from a marriage contract) or other debts from movable property. In his responsum, he noted that, though most people did not insert clauses in their contracts that explicitly allowed collection from movables from the estates of deceased debtors, the rabbis had issued an enactment that allowed it in all cases. This was in recognition of the fact that most Babylonian Jews did not possess land, and the rabbis were determined not to limit the availability of credit, as well as to enhance the rights of women to their ketubbahs.

Recognizing that some conservatives would object to such a radical departure from the conventions of talmudic law, Rabbi Moses affirmed that the sages responsible for this revision "modeled this enactment on earlier legislation that was issued by the rabbis of old in each generation." He characterized the halakhah as a living entity that has continually been adapted to keep up with changing circumstances.

The Ge'onim were insistent that their enactment be enforced, and they threatened that any judge who refused to comply would be removed from his office.

A somewhat different solution to a similar problem may be found in several responsa of the same era. It is based on the premise that the procedures for transferring title to land are more flexible than those for movables, in that title to land can be transferred by means of written deeds, whereas moveables usually require a physical act such as lifting or moving it. However, talmudic law stated that movables can be viewed as "appended" to land for purposes of a transaction, enabling the parties to transfer the ownership of the movables by means of written documents. This option was crucial for merchants who could thereby buy and sell property by means of written directives--the pre-modern equivalent of writing a cheque--even when they were at a geographic distance from the merchandise. However, this convenience could only be applied if they actually owned land to which the wares could be appended.

Our ingenious rabbis found a way to extend the process even to individuals who are ostensibly landless--by invoking a principle to the effect that every Jew is entitled to at least four cubits of land. The medieval authorities suggested several different ways of understanding this concept. Some regarded the four cubits as a generic measure of personal space to which each body is entitled, while others understood it as an allusion to the area that will eventually be occupied by a person's grave. However, what emerged as the prevalent interpretation was the proposition "there is no Jew who does not own four cubits of land in the Land of Israel." The acceptance of this rule turned all Jews theoretically into land-owners. This formula was promulgated during the early Ge'onic era and it quickly gained acceptance throughout the Jewish world. Nonetheless, some Ge'onim found this legal fiction a bit too contrived and would not allow it; they still insisted that the parties must possess tangible and identifiable real estate.

A responsum by one Ga'on explored in fascinating detail the nature of the Jewish claim to a chunk of their ancestral soil. He vehemently rejected his interlocutor's suggestion that the reference was merely to four cubits that are set aside for eventual burial, and insisted that the reference is to actual territory in the Land of Israel. The sages had in mind land that is to be lived in, not just space for dying.

Our author anticipated somebody objecting that this abstract invocation of ancient land claims cannot be treated literally as a legal argument, inasmuch as the territory of Israel has for many generations been in the hands of foreign occupiers. To this objection he retorted simply that, according to Jewish law, robbery can never effect a transfer of title to land, and therefore the Jewish people have never relinquished their rights to their ancestral homeland.

In a speech delivered at a Jewish National Fund event in 1930, Chief Rabbi Abraham Isaac Kook appealed to those rabbinic sources as evidence of the Jewish people's inalienable rights to its homeland.

Nevertheless, Rabbi Kook conceded that ethical and political considerations should impel us not to rely solely on our mystical, historical or legal rights. He commended the JNF for making the effort to acquire territory by means of universally recognized modes of acquisition, by purchasing it from the current legal owners. By taking the moral high road, the Zionist movement would be fulfilling the words of Isaiah (26:2) "Open ye the gates, that the righteous nation that keepeth faithfulness may enter in."

Although hindsight shows Rabbi Kook to have been naïve in his confidence that world opinion would endorse the righteousness of the Jewish national claims, he was astutely correct in his perception that that the strength of a nation is ultimately rooted in the citizens' conviction that their country's policies are just and lawful.

This article and many others are now included in the book

For Signs and for Seasons
For Signs and for Seasons

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