Monthly Archives: January 2017

Eminent Domain in Jewish Religious Law

Here is an interesting article on how eminent domain is viewed in Jewish religious law, not Israeli secular law. If you are interested in the latter, there is a book on the subject, Yifat Holzman-Gazit, LAND EXPROPRIATION IN ISRAEL (2007) ISBN 9-780-7546-2543-8.

Much of this article is based on the Bible. Unfortunately, it misses what in our opinion is the most important biblical story of eminent domain: King David’s acquisition of the site for the Ark of the Covenant, which just happened to be Ornan’s threshing floor. See I Chronicles 21:18-26.

We do not vouch for the accuracy of this article, but it seems to us that our readers with an interest in the law of eminent domain may find this of interest

Anyway, here is the article in question:

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Eminent Domain in Jewish Law

Can the government take private property?

By Yehuda Shurpin

Eminent domain traditionally refers to the power of a state or a national government to take private property for public use. However, in the controversial 2005 U.S. Supreme Court case known as Kelo v. New London, the court ruled that the power of eminent domain extends to the transfer of land from one private owner to another private owner for the sake of furthering economic development.

So what’s the Jewish take on these two interpretations of eminent domain?

(As a disclaimer, according to Jewish law, one is generally obligated to adhere to “just” civil laws of the land one resides in.1 It is nevertheless insightful to understand the Jewish perspective on this topic.)

Let’s start with the classic definition of eminent domain, which is first mentioned in the Book of Samuel.

Eminent Domain in the Bible

When the Jews first approached the prophet Samuel asking for a king, he warned them:

“This will be the manner of the king who will reign over you; he will take your sons, and appoint them to him for his chariots and for his horsemen . . . And he will take the best of your fields, your vineyards, and your olive trees . . .2

Samuel foresaw eminent domain as being part of the modus operandi of a Jewish king and his government. In the words of Maimonides:

[A king] may take fields, olive groves, and vineyards for his servants when they go to war, and allow them to commandeer these places if they have no source of nurture other than them. He must pay for what is taken.3

Maimonides continues in a related law that not only can the king take the fields for food, he can run a highway through them:

The king may burst through the fences surrounding fields or vineyards to make a road, and no one can take issue with him. There is no limit to the road the king may make. Rather, it may be as wide as necessary. He need not make his road crooked because of an individual’s vineyard or field. Rather, he may proceed on a straight path and carry out his war.4

Clearly, Jewish law recognizes the concept of eminent domain. But what are its parameters? And does Jewish law condone the seizure of private property in order to transfer it to another private entity, merely to further economic development?

For the answers to these questions, we turn to an episode that happened several generations after Samuel’s time.

King Ahab and the Vineyards of Naboth

Adjoining the palace in Jezreel that belonged to King Ahab (a ruler of the breakaway Northern Kingdom) was a beautiful vineyard belonging to a man named Naboth. One day, Ahab asked Naboth to sell him the vineyard because it was very close to the palace, and he wanted to use the land as a vegetable garden. But Naboth refused to give up his property for any amount of money, or even for better land elsewhere. Seeing that her husband was upset over the vineyard, Queen Jezebel arranged for Naboth to be killed.

When King Ahab went into his ill-gotten vineyard. he was confronted by the prophet Elijah, who proclaimed, “Have you murdered and taken possession also? Thus says G‑d: ‘In the place where dogs licked the blood of Naboth, shall the dogs lick your blood . . . And Jezebel also shall be eaten by the dogs in Jezreel.’ “5

As the commentaries point out, based on the established law of eminent domain, it was seemingly King Ahab’s right to take Naboth’s vineyard. And by refusing to give it, Naboth was rebelling against King Ahab and deserved death. So where did King Ahab go wrong? Let’s analyze this episode to determine the limitations of eminent domain according to Jewish law.

Only for Servants and National Security

As stressed by Maimonides in his Laws of Kings, eminent domain only applies to taking the property and giving it to the king’s armies or servants for national security purposes. Hence, it would not apply to Naboth’s vineyard.6

Fair Compensation

Ahab offered Naboth compensation—was that necessary? Some commentaries hold that it wasn’t, so once Naboth was offered compensation, he was under the impression that he had a choice. (Thus, his refusing was not an act of rebelliousness and didn’t deserve death.)7 Maimonides, however, rules that according to Jewish law, one must be compensated with the fair market value of his property.8

Further Limitations

There are additional limitations that some commentaries suggest, but that aren’t necessarily codified in Jewish law. Some explain that the right of eminent domain only applies to land acquired by the individual, but not ancestral land (as was the case of Naboth).9 Others say that the king only has a right to the fruits, but not actual land.10 Yet others posit that this right of eminent domain only applies to a king who rules over all of Israel, not a breakaway kingdom like that of King Ahab.11 12

[Comparison With] The Kelo Case

Although there is much discussion as to the exact parameters of eminent domain in Jewish law, it is clear that it would not extend to taking the land and transferring it to another private individual merely for economic development.

The King’s Highway

Chassidism teaches a profound lesson from the law of the king’s highway. In a sense, we are all part of G‑d’s army, enlisted to fight the powers of darkness and evil with light. Nothing can stand in the way of our march forward, and we need not make our road “crooked” just because of a “vineyard or field.” Rather, we may proceed on a straight path and carry out our mission in this world.13 And with G‑d’s help, we will succeed!

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Footnotes

1. Talmud Gittin 10b, Nedarim 28a.

2. I Samuel 8:11-15.

3. Maimonides, Laws of Kings 4:6.

4. Maimonides, Laws of Kings 5:3.

5. For more on this, see I Kings, ch. 21.

6. See Radbaz on Maimonides, Laws of Kings 4:6; See however Lechem Mishnah on Laws of Kings 5:3 that Rashi on Talmud Sanhedrin 20b seems to imply that it can be taken for other reasons as well, not only national security.

7. See Zohar, vol. I, 192b; Tosfot on Talmud, Sanhedrin 20b,

8. Maimonides, Laws of Kings 4:6.

9. Tosafot on Talmud, Sanhedrin 20b.

10. See Radak on I Kings 21:10; Lechem Mishnah on Maimonides, Laws of Kings 4:6.

11. Tosafot on Talmud, Sanhedrin 20b.

12. Zohar, vol. I, 192b, explains that in truth there was nothing wrong with King Ahab taking the field; the issue was that Naboth was killed without a proper hearing.

13.  See for example Likkutei Sichot vol. 18 p. 36.

 

California Choo-Choo – (Cont’d)

No comment appears necessary.

From today’s (1/14/17) on-line summary of news by the Los Angeles Times:

 “More troubling news about California’s bullet train. The project could cost taxpayers 50% more than estimated — as much as $3.6 billion more. And that’s just for the first 118 miles through the Central Valley, which was supposed to be the easiest part of the route between Los Angeles and San Francisco. A federal document outlines far-reaching management problems: significant delays in environmental planning, lags in processing invoices for federal grants and continuing failures to acquire needed property. Los Angeles Times (emphasis in the original).”

Click on the link for the entire article.

Richard Adams, R. I. P.

Do you know who Richatd Adams was? He was the author of the huge 1972 bestseller Watership Down. He recently passed away at 96 in England, where he lived. Though not relevant to our chosen subject of eminent domain and land use law, this event bears noting because Adams’ subject was and remains a gigantic achievement in clear thinking, and sound governance, even if was cast in the form of an allegorical tale about a band of rabbits facing the destruction of their community.

 We will let the New York Times tell the story:

  • “Facing the destruction of their underground warren by a housing development, a small party of yearling bucks led by a venturesome rabbit named Hazel flees in search of a new home. They encounter human beings with machines and poisons, snarling dogs and a large colony of rabbits who have surrendered their freedoms for security under a tyrannical oversize rabbit, General Woundwort.
  • “It was a timeless allegory of freedom, ethics and human nature. Beyond powers of speech and intellect, Mr. Adams imbued his rabbits with trembling fears, clownish wit, daring, a folklore of proverbs and poetry, and a language called Lapine, complete with a glossary: “silflay” (going up to feed), “hraka” (droppings), “tharn” (frozen by fear), “elil” (enemies).
  • “The pioneers realize that founding a new warren is meaningless without mates and offspring. With a sea gull and a mouse for allies, they raid Woundwort’s stronghold, spirit away some of his captive does and confront his forces in a pitched battle in defense of their new warren on Watership Down.”

If you can find a copy of Watership Down, read it and ponder its lesson