Rav Avi: Hi, and welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times! I'm Rabbi Avi Killip, and I'm here with Rabbi Ethan Tucker, Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. So, if you are listener of this show, you know by now that I like to categorize our questions that come in into different conceptual categories of where the question is coming from. This next question we're gonna look at is not a "how do I" or "can I" or "when should I" — this question is in a category I'll call "I was wondering whether the Talmud has anything to say about it." The questioner is gonna present a situation that he looked at and had an opinion about, and wondered to himself, this seems like something that the Jewish canon might have something to say about, and he's presenting it to us to hear your thoughts on that.
He says: "There are rules in the United Kingdom about the compensation of property owners when the state needs to acquire their land or business property. The compensation is unaffected by the purpose of the acquisition, whether it's for sporting, transport, security, or other needs. As far as I and many others are concerned, the U.K. law is unfair: the land, in this sort of compulsory purchase, can be varied at a price that doesn't take into account the fact that the government's subsequent actions in the area may raise the value of the land significantly. Why should the government reap this benefit?" He writes, "I was wondering whether the Talmud has anything to say about how compensation could be addressed in such a situation where land and property is compulsorily acquired by the state."
Rav Eitan: Alright!
Rav Avi: So, I would break this question into two pieces that I'd love to hear from you on: one is, what does the Talmud or any other text have to say on this topic? And two is, how should those interact with the way that the United Kingdom government is acting, or are they unrelated?
Rav Eitan: Yeah, okay. Great. So, you know, you started with how do we categorize a question — I'll offer another categorization of this question, which is, this is the sort of question where not having been a sovereign nation — running a country, a monarchy, a military — for most of the years in which our texts were generated, most of the texts we talk about on this show, really leads you to have to be sort of creative and to think about other ways of using different parts of the canon to get to an answer around this. And it means that sometimes you will feel that there's gaps, and the case law just isn't going to be as rich or, to the extent it exists, it's gonna be sort of the perspective of a critic from the outside, as opposed to someone really running a bureaucracy and knowing, you know, how that needs to play out. But what that also means is that some people, I think, look at questions like this and they'll say oh, halakhah is not equipped to handle that, it's just not a genre that developed with that responsibility.
And I have a strong instinct to the contrary: here I think I line up much more with some of the creativity of contemporary religious Zionists and thinkers in halakhah, which is, no, it's actually an opportunity for us to go back, perhaps, to parts of the canon that hasn't been fully plumbed, to think through, creatively, actually, and sort of much more first-principle way, how we might attack a question like this.
So, often what happens, and this is where I'm gonna start — you actually have to go back to the part in our canon that does have a context of sovereignty and power, which is the Tanakh, the Bible, and to see what goes on there. And here there's really, I would say, two passages that have to command our attention for thinking this through. One of them is a speech that Shmuel, the prophet Samuel, gives to the people when they come and demand a king. Right? Shmuel is basically the last shofet, he's the last judge, he's at the end of a period where there has been leadership, but there is also some degree of anarchy. And there's certainly not any kind of dynasty that can be relied on to lead the people generation after generation. And finally the people have had it with this, and there's various external military threats that have made them feel insecure, and they feel a monarchy will be the answer to their problems. And they demand a king. And Shmuel is deeply, deeply opposed to this, and gives a long speech which seems to be a description of how horrible the monarchy is, and how corrupt it will be.
And I want to just, actually, read it for our listeners. The whole people are gathered together and he says, here's gonna be the way the king who will rule over you will work. He's gonna take your sons and appoint them as his charioteers and horsemen, and they'll serve as runners for his chariots. He'll appoint them as chiefs of thousands, of fifties — they'll have to plow his fields, reap his harvests, make his weapons, the equipment for his chariots. He'll take your daughters to be perfumers, cooks, and bakers. He'll seize your fields, your vineyards, your olive groves, and give them to his servants. He'll take a tenth of your grain and your wine and he'll give it to the people who serve him in the palace. He'll take your male and female slaves, your best, young people, your animals, and put them to work for him. He'll take a tenth of your flocks, and you shall become his slaves. And finally, there will be a day when you will cry out because of the king whom you yourselves have chosen, and the Lord will not answer you on that day. Okay? Now, this seems like, just a full-on indictment of the monarchy.
Rav Avi: Yeah, I'm curious whether you read this as anti-government or anti-monarchy.
Rav Eitan: Yeah. I think that's a fair question. It's certainly anti- the king, and then the question is how generalizable is it to any kind of centralized power that has the ability to perform takings, right? The formal, legal word for what the questioner's talking about is a taking, where the government comes in and seizes property for some kind of, at least stated, public good. That's, I would say, not clear from this passage, but one would think that the overall picture here is one where the king is bad, and you could even read it as, to the extent there was going to be a king, the king should not do these things. That is to say, Shmuel's speech here can be reasonably read as, he's describing the unfortunate, corrupt reality of the monarchy, and you might read this passage as a kind of playbook for, if you wanted to be a righteous king, you would not do any of these things.
Fascinatingly, in the Talmud in Sanhedrin — so now we're gonna get to the Talmud — Shmuel, the rabbinic sage, not the prophet but perhaps influenced by some degree of affinity with his Biblical forebearer, says everything that's written in this passage in the book of Samuel about what the king will do, the king is actually allowed to do. In other words, when Shmuel comes out and warns the people about what the king is going to do, he's describing, actually, what the legitimate practice of the king is such that once they appoint the king, there's gonna be nothing that he or G-d can do, particularly, to stop this process, because truth be told, it's legitimate. It would be like giving a speech about, you want a government, you know what's gonna happen? They're gonna take away 30 percent of your income in tax. Right? Which is legitimate of the government to do, but you won't like it.
Rav Avi: Right. I was gonna say, when you think about politics today, again, you know, I'm not so up on the United Kingdom political conversations, but at least in America, there does feel like a difference between people who say, I want the government to be just, and people who say, I don't want there to be government. You know? Or, the borders should be open and reasonable, versus we shouldn't have borders. You know, those kinds of — it feels like a very significant difference, and it sounds here like the Talmud is saying yeah, this is what it means to have a monarchy, and you can still try to be a good monarch, but being a monarch means sometimes taking people's property.
Rav Eitan: That's right, it means a centralization of power in a meaningful way. Interestingly, Rav, who normally argues with Shmuel in the Talmud, comes along and seems to disagree with Shmuel's assessment, and to say, no no no, that whole passage, it's only basically to scare the living daylights out of them, in the sense that Shmuel wants to prepare them for, it's a big deal to take on a king, and if you do have a king, you're going to have to serve him and revere him. But it doesn't grant legitimacy to every action that he's describing here.
So already with Rav and Shmuel, I think you have a kind of core tension as to whether deciding to move to a monarchy or maybe, as you're suggesting, some sort of centralized government, actually does sign away all kinds of rights for that government, that monarchy, to function. Or whether, you know, what seems to be more on Rav's end of the spectrum here, no — there's a sense of, like, not just the king is not above the law, but the king is actually supposed to be far more limited than this list would suggest. And therefore the king is not allowed to come along and take someone's field and take someone's vineyard. Right? And that, on some level, would be the basic question here: is the king allowed, and for what purposes, to come in and to seize property, which is what our questioner is asking about in the context of a contemporary government.
Rav Avi: Just in case anyone hasn't looked at that story recently, it's, I think, worth noting that for Rav's definition of the speech was meant to scare, it's not a very effective speech, right? Because the people are actually going to say, sign us up, we want a king anyway, even after all of this warning. So even if you read it as about government in general, it's not obvious that the end result is then don't have a government, just as it was not obvious to the people in the context of this story that they didn't want a monarch.
Rav Eitan: That's actually a great point, which I hadn't thought of before, which is you could imagine Shmuel's assertion that everything on this list is fair game actually being predicated on the fact that after the people hear it, they nonetheless continue to ask for a king. Which means, essentially, thye signed on the dotted line. Maybe, you know, if after hearing this speech they had said oh, no way, we don't want it, maybe then a subsequent king who was appointed anyway would not have those rights, but they kind of, you know, got them into this mess.
Rav Avi: Right. Which I think, actually, is part of the underlying premise of a country like the United Kingdom, feeling that they can take property from people. Again, different because they're compensating you in some way, and the questioner here is raising a flag that it might not be fair compensation. But to some extent, you assume that the government buys into the idea that most people believe that the government should be able to take land, and it's sort of unfortunate when it falls out on you, but when it happens to other people, you think it's very reasonable.
Rav Eitan: Okay, great. So, let's hold this tension right now, that there are these two different voices, one of which seems to just say the king has all these powers, and the other which is at least a little cagey about it, and try to see where it goes forward from here.
To understand where it goes forward, we have to appeal to another Biblical story, which is the story of Achav, melekh yisrael, the king of the Northern Kingdom, part of a dynasty of four generations starting with Omri. This is after the kingdom had split, so we're talking about the 10 northern tribes being ruled from Shomron, and Achav is the king at the time, and this is around the time when Eliyahu is serving as the main prophet up north. And Achav has a palace, a winter palace, in Yisrael, which for those who know Emek Yisrael, sits just at the foot of the Gilboa, just to the west of the bottom of the hills there, overlooking the valley — and they've actually found remnants of a First Temple period palace there, and we pretty much know exactly where it was. Achav's palace was there, and right near him lives a modest farmer whose name is Navot. And he has a vineyard. And this too, if you've ever been in the area, actually the junction that the main roads where they meet in that area, is called tetzomet Navot, is called actually the Junction of Navot, after Navot who lived there and had a vineyard there.
And here the story is that Achav, seemingly out of nowhere one morning, gets up and says to Navot, give me your vineyard. This is the king speaking to a common citizen: give me your vineyard, I want it as a vegetable garden, it's right next to my palace. I'll give you a better vineyard in exchange, or if you prefer, I'll pay in money the value of the land.
Rav Avi: Wow, this sounds very relevant!
Rav Eitan: This is exactly the case, right? So he says I'm gonna do a taking — he seems to make him a fair offer, right? Achav does not seem to presume that he has either the moral right or the political power or both to simply seize the vineyard, but he does want it. And he offers him money for exchange. Navot answers, G-d forbid that I should give up to you my ancestral inheritance, meaning this isn't just some vineyard that he bought; this is part of his ancestral plot of land, probably knowing the basic boundaries of the tribes of Yissachar.
Achav goes home very depressed because of what Navot said to him, he really wanted the vineyard, says he lies down in bed, he won't eat. His wife, Izevel, Jezebel, who is Phoenecian, she's not Israelite, she is a through-and-through wicked character in Sefer Melakhim, in the Book of Kings, and, you know, asks, basically, what's going on, and he tells her the story, I offered him money in exchange, he wouldn't do it — and she says it's time for you to start acting like a king and establish the kingdom. You sit here, have yourself a nice meal, and I'm gonna take care of this. And she then basically goes and trumps up charges against Navot, getting a bunch of witnesses, a bunch of scoundrels to basically offer false testimony that Navot was heard cursing G-d and cursing the king, things that never happened, just total false testimony, there's a kind of kangaroo court trial, Navot is sentenced to death, he is executed, and after he's executed, Izevel comes to Achav and says, go take, as an inheritance, this vineyard — you wanted to pay for it, now you get it for free. And this sets off — this leads to the total meltdown where Eliyahu comes and says not only did you murder someone but you took their ancestral plot of land, and this really leads to the ultimate condemnation of Achav and seals his fate as one of the wicked kings of Israel.
But what is relevant for our story is the question of why didn't Achav just take the field, take the vineyard? If Shmuel's speech back earlier in the earlier Book of Samuel includes a warning that the king is going to come in and take fields, and there's a rabbinic tradition that says all the powers enumerated in that list are in fact legitimate powers that have been arrogated to the king, then how can it be that Achav is sort of meekly offering payment or exchange to Navot for the vineyard he really wants?
Rav Avi: Right. It's not a simple story, but I do actually think that story could be used to make a case for why it's important that there be legal ways for the government to seize your land. Because it's the same way that, it's like, you know, we want to have an election so that we can have a way to turn over power without a revolution, is that you actually want there to be a legal way for the king to seize your land so that the king doesn't have to kill you in order to take it. You know? It's like, it's possible that if he was a little bit more headstrong on his, you know — and again, you know, you have this sort of wicked character stepping in here, which makes it a much less simple and straightforward story, and a much more complicated story. But there is a feeling that I'm left with at the end of the story which is, well, if you could just bring it to a court and have the court rule that you have the right to take it, that maybe the sort of trickery and deceit and murder is not necessary at the end of this story. I mean, of course there's another reading where he just doesn't get the — where he doesn't take the land at the end, you know, I feel the need to at least acknowledge that.
Rav Eitan: Right, but it sounds like what you're suggesting is, there's really no such thing as a limited government. There's no such thing as really having an entity that has the power to assert itself over people that won't — the most you can hope for is some kind of due process, some sort of procedure that will rein it in. And that's an interesting way to understand what's being navigated here.
But the question, which ultimately is raised most explicitly by the Tosafot in commenting on the Talmud, is how do we square a normative reading of Shmuel's list of enumerated powers to the king with Achav's both, sort of, weakness and, you know, being punished, on some level, for wanting to have, you know, Navot's vineyard. And this triggers a whole bunch of attempts to resolve it, which, whether or not they're the sort of actual, factual resolution of what happened in these different texts, give windows into different values that might animate when is the government sort of empowered to use eminent domain and to take property, and when is it not just, you know, inappropriate, but perhaps wildly inappropriate to the point that it gives us, you know, a villain like Achav?
So maybe I'll just sort of run through a few of these here, and then we can kind of comment and work through them, and then at the end I want to get to one larger point about what is sort of the restraint that might be in place with government. So, the Tosafot actually offer five very different resolutions — very different, a lot of times they'll offer, you know, one, two, maybe three. You get a sense of dealing with a really tough problem. So, you know, one of the critiques of Achav, they'll say, is the king is allowed, according to Shmuel, to seize fields and give them to his servants, but not to himself. That is to say, this is noting some notion of if the monarch or the sovereign is acting for some sort of larger set of people, where there is an interest and there is a good that is not personal, that is quite different than someone trying to, you know, pass through a law that is basically going to directly and disproportionately benefit just them. That's one resolution.
Another is, actually, he did have the right to seize it for free, but once he offered Navot the right to be compensated and Navot turned down the possibility of compensation, then Achav was obligated to basically stand by his word and to say I'm not gonna try to take this, because even though I could have, once I decided not to exercise that power, I'm not allowed to anymore. Other resolutions play into — Navot's field was particularly valuable, there might be a limit on, you know, what degree of taking you can actually engage in, as opposed to something that a field that was farther away from the palace, maybe it's more legitimate for the king to take that because it's a dime a dozen, as opposed to one that's closer in. Another suggestion that actually may be what is bothering Navot and Sefer Malakhim is that this is an ancestral plot of land — that is to say it's not just something I bought, it's not just a commercial interesting; it's like the homestead that has been in my family for four generations, that's a factor…
Rav Avi: Yeah, that's the piece I was gonna pick up on, actually, as something that feels different between that story and the question that was presented, is that the question that was presented to us, he thinks of land as something worth money, and his concern that it's not fair is not that he needed that land in particular, it's that maybe the government's gonna get money from that land that he is entitled to, that he somehow doesn't get. Which I think is just fundamentally different from thinking about land as an ancestral right or connection in the way that I understand the story as him, you know — it's not that he's saying I don't want to sell because the price isn't high enough or that I'm stubborn; he's saying I don't have the right to sell this land, it doesn't really belong to me — it belongs to my ancestral history.
Rav Eitan: And/or on some level, it's priceless.
Rav Avi: Right. Right. I mean, I think — but even priceless is like, it's worth more money than you can have, which is sort of a fundamental switch from it's not mine to sell.
Rav Eitan: Right. That's right, that's right. You know, we could talk about each of these resolutions at length — again, I think what's so interesting here is they're sort of trying to figure out that there's clearly a different competing set of values at work in these two stories, or at least how they're being read. The last one they offer, I think, is really interesting also — they say, well, what's Shmuel talking about? Shmuel is talking about the king over the united kingdom, which is of course what Shaul, David, and Shlomo, the first three kings of Israel are — David for most of the time is the united king — that king has the rights to do all these kinds of takings. Once the government, once the monarchy splits, you've got the Northern Kingdom and the Southern Kingdom, well, then Achav is not a king over Yehuda, he's only a king over Yisrael, over the Northern tribes. And this, I think, is their way of sort of groping towards the difference between a leader or a government that feels like it is sort of legitimately sovereign over an entire population, as opposed to one that's essentially like a warlord or, you know, in charge of a local faction and does not have the buy-in of everyone in the society. That may affect that government's ability to legitimately possess someone's property.
On some level, the most dramatic rereading of this happens in Maimonides, who does so just sort of by the by in codifying a number of these details along the way, where every time Rambam enumerates something that the king can do that relates to the seizure of property, he always adds phrases like "when the king is going to war," "when the king is involved in a military operation," then he can seize, he can seize olive groves, he can seize vineyards, he can exercise eminent domain to break through people's property without consulting them, and he certainly doesn't have to pay them. And that is a complete dramatic reining in of the king's power, essentially saying the king's power is nearly absolute when it comes to security and military issues, and almost nothing when it comes to private property rights in peacetime. And that I find extremely interesting — we can question whether that's fully workable, but that's an attempt not to talk about the difference between Shmuel's king and Achav's king and whether it's an ancestral plot — it's the context. The context is basically, Shmuel is appointing a king in a time when people are feeling militarily threatened, and he then enumerates the kind of absolute power you have to give someone who's going to lead you in war, and Achav is basically just trying to scam a vegetable garden off of someone's private property for his own preference. Or even, potentially, to make some sort of economic investment for a larger society — that he doesn't have the right to do in peacetime.
Rav Avi: You might break that down as, does he need it, or does he just want it?
Rav Eitan: Yeah, and does he need it for sort of the general welfare of the society? Now, this is where I think obviously — and I am not holding in all of the common law bits here and, you know, how this should all play out, certainly on the civil plane. But there is some effort here to delineate a line which even if you don't go with Rambam's strict security line, is very clearly trying to move it away from the king's power because he is the king, or the government's power because it is the government, as opposed to the government acting in some kind of clear, necessary public interesting. And I think the real controversies in takings law recently, both in this example that's given and also, from what I know, in the context of U.S. law, is whether overriding economic interests can actually qualify as that sort of almost quasi-security need. Is the government allowed to take, you know, a bunch of private homes in order to develop a major commercial-economic complex which it thinks will create 20,000 new jobs? That's where the controversy, you know, has really lain, and I think these sources are sensitive to the fact that that power can quickly run amuk.
Rav Avi: So, I would love to hear your thoughts on sort of a broader question of — maybe all the texts we looked at would help us make the law if we were making the law, but does what the Talmud thinks have anything to do with what the U.K. is doing in their practice right now?
Rav Eitan: Yeah, so here's where I think I want to maybe bring us to a conclusion with kind of a general principle. Shmuel, who we encountered earlier, who talks about the king having certain, you know, generalized powers, is also the one who was quoted as saying in a number of places in the Talmud that the law of the land is the law. Dinah d'malkhutah dinah. And it fits sort of a basic approach of saying governments have a certain basic domain over the property that they rule over, and within reason, you know, basically what they say goes. I think the rub is in that "within reason" — are there no limits on the principle of dinah d'malkhutah dinah? Even if, let's say, the halakhah is somewhat agnostic, which I think it is, on the question of what ought the U.K. takings law look like, that doesn't mean it's completely agnostic on what sort of power is it appropriate for a government to have. Or in the language of some later people who discuss this, when do we say dinah d'malkhutah dinah, the law of the land is the law, and when do we say gazlanutah d'malkhutah lav dinah, the theft of the government, governmental theft, is not legitimate, and is not the law. And that's the tricky piece. Now here, I think you can point to a few interesting texts that actually try to play this out.
Rav Avi: Right. So is there really no limits on that at all?
Rav Eitan: Okay, so the first sort of limiting power formulation also comes from the Rambam, from Maimonides, and he gives the following formulation: he basically says, look, if a king gets angry at one of this servants or one of the people who works for him, and he seizes his field or his courtyard, that's not considered theft. And if you later bought that from the king, it's perfectly valid sale and the original owner can't get it back. Why? That's the way all kings work.
Basically, if someone works for them, and they're their servant, their courtier, they have the right, when they anger them, essentially, to take all their stuff away. Everyone knows that, and that's perfectly fine. But if a king simply seizes the field of a common citizen, not in keeping with laws that are on the books, then that king is a thief and it is an illegitimate sale. And then, sounding remarkably like a clause in the U.S. Constitution, the Rambam says the general rule is that any law that the king passes which applies equally to all members of the population is a legitimate law, whereas if he passes a law directed at one specific person, what the Constitution calls a bill of attainder, then that is illegitimate. And the Rambam here is trying to name the difference between the king using his power to simply get something he wants, as opposed to the king using his power to legislate and create some kind of due process, which might indeed then seize things, but it does so in a way that is sort of equal and fair, and I think in our contemporary context of democracy, potentially is subject to appeal and review and all the other things that are part of a balanced and checked government.
So, I think for the Rambam — the Rambam does not clearly lay out a limit — if it's sort of a duly passed law and it's transparent and it applies to everyone, it seems for the Rambam that that's enough. That's simply part of the monarchic power. And the only time where the king can just come in and seize an individual's field would be in the context of security, but otherwise, yeah, societies can pass laws that disadvantage some people over others, as long as they don't target some people over others. The Ramban doesn't seem to feel that is sufficient. The Ramban says that the principle of dinah d'malkhutah dinah, the law of the land is the law, only applies to laws that basically have been well-established for a long time in that kingdom, such that the current king and all the kings who came before him abided by those conventions. They're written down in law codes, they're sort of understood to be a part of the fabric of society — they're what we would call the common law.
But, he says, if the king suddenly just comes and invents a new law or passes something new where it's just to fine the population — sure, in a fair way, but in a way that has no precedent of what was ever done at an earlier point in time — that's not dinah d'malkhutah, that's not the law of the land, that's chamsanutah d'malkah, that is simply the theft of the king. And he then offers a lovely justification of this where he says, note the principle is dinah d'malkhutah dinah, the law of the land, or of the kingdom, is the law — not dinah d'malkah dinah, the law of the king is the law. And here the Ramban — again, with all the limits of a sort of Talmudic commentary living in an exilic reality, but is still trying to formulate some notion of, it is illegitimate when it feels like a new law or a new principle has suddenly been passed, that has no clear precedent to the way things were earlier done — that just seems again to sound like government-legitimated theft.
Now in terms of our case again, I cannot say enough about how U.K. law works or should work. It strikes me that Talmudic input on this question is probably two things. One, as a broad principle, if there are sort of fair and established and well-known rules and procedures that are transparent and equally applied around takings, that's the kind of thing that the government has the right to do, and that there is legitimacy to that, and that thread laid out by Shmuel the prophet and following through Shmuel the Talmudic sage is sort of, if you will, derekh hamelekh, the sort of main path of the halakhic discussion. But, and therefore, the discussion should be worked out for lobbying to change the law if that's the way you want to do it, not sort of saying that it's illegitimate for the government to do so, but that when we think about how the law should be formulated, that's where it strikes me, the other thread here coming from the story of Achav and Navot, and then Rav's kind of, you know, deep concern about the abuse of power of the king and culminating in the Ramban saying you really shouldn't be dramatically shifting around economic conventions to suddenly benefit one group over another, those seem to me the beginnings of ingredients that might form an opinion of how we ought to lobby for such a law to look and potentially be changed as we go forward.
Rav Avi: Yeah. That's helpful. I think about it in terms of relating specifically to the case presented in this question, and also a lot of broader implications for how we think about the role of government in our lives, and how it might interact with what we feel like we're hearing from halakhah. Thanks.
Rav Avi: Have a halakhic question you'd like answered on the show? Email us at halakhah@hadar.org. Or you could leave us a voicemail message at (215) 297-4254.