Here's a great tip:
Enter your email address and we'll send you our weekly magazine by email with fresh, exciting and thoughtful content that will enrich your inbox and your life, week after week. And it's free.
Oh, and don't forget to like our facebook page too!
Printed from chabad.org
Contact Us

Eminent Domain in Jewish Law

Eminent Domain in Jewish Law

Can the government take private property?

 Email

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 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

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. As Rabbi Schneur Zalman of Liadi explains, eminent domain is only permissible if it is a law that applies to all equally without singling out any individual. And even then, it needs to be for the king’s benefit or a national need—“not to transfer from one individual to another.” Otherwise, it is robbery.13

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.14 And with G‑d’s help, we will succeed!

Footnotes
1.
Talmud Gittin 10b, Nedarim 28a.
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.
Shulchan Aruch Harav, Choshen Mishpat, Hilchot Gezeliah 19.
14.
See for example Likkutei Sichot vol. 18 p. 36.
Rabbi Yehuda Shurpin responds to questions for Chabad.org's Ask the Rabbi service.
Artwork by Sefira Ross, a freelance designer and illustrator whose original creations grace many Chabad.org pages. Residing in Seattle, Washington, her days are spent between multitasking illustrations and being a mom.
© Copyright, all rights reserved. If you enjoyed this article, we encourage you to distribute it further, provided that you comply with Chabad.org's copyright policy.
 Email
Join the discussion
1000 characters remaining
Email me when new comments are posted.
Sort By:
Discussion (12)
February 6, 2017
Jewish law
We all try to abide buy our Jewish laws and customs . In 1967 Israel agreed to gave up certain land . Now they want it back so that they can build on it. Is that their right to proclaim as their land ? This has caused fighting and peoples lives . According to the case of Kelo s vs New London we transfer from land from private owner to another owner .I shall return to my opening story of Israel's agreement in 1967 .
Malka Libe
Brockton Ma
February 1, 2017
eminent domain
I was afraid this article would not end well.
For the benefit of the unlearned, can you elaborate upon the final two references? Thanks
bill drev
penna. usa
January 29, 2017
King and War

Please articulate the Laws regarding "King", and "War".
Anonymous
Los Gatos, CA
January 28, 2017
In times of war.
It would seem that eminent domain is restricted to the urgency necessitated by war. It's natural to put your life above a vineyard, but it is still right to make reparations for the vineyard afterwards. Makes perfect sense.
Ross
Bay Area, CA
January 28, 2017
Thanks for the thought provoking article as it really makes you think.Theres also the question of the dignity of the owner of the land as the halachas definately covers this aspect of compensation in other aspects.
sunil subba
India
January 27, 2017
Question
Thank you for your lovely analysis. Can you clarify the Law regarding King, and Go to War. The Jewish laws regarding both would add greatly to this discussion.
Scott Williams
Los Gatos
January 27, 2017
I read something entirely different
"This will be the manner of the king who will reign over you; " This is the sort of thing monarchs -- especially supreme/unlimited monarchs -- do.
I see Samuel's words as meaning, "You really don't want a king. He's just going to take your lands and liberty as a matter of self-aggrandizement. He's going to wreck your lives, your families, and your livelihoods." Nevertheless, people see the best of other polities and wish for the same (with themselves "at the top of the food chain", so to speak) and push for those sorts of changes -- leading, eventually, to King Ahab not seeing his behavior as extreme.
tmana
North Plainfield
January 26, 2017
Eminent domain
Can't tell you how good it is to see Jewish law backs up my own uninformed, but strongly held, opinion about this topic. The Kelo case was especially egregious, since the alleged "public benefit" building project never occurred!
Jo in Newberg
Newberg OR
January 26, 2017
Interesting story - Can you also tell us about Adverse Possession?
Ahab sure acts like a spoiled brat, flopping on his bed, sulking, refusing to eat until his mommy (I mean, wife) promises to get him what he wants. Such underhandedness, using the king's seal, writing letters in his name, establishing a phony new fasting day and not advising Naboth until her agents have watched him consume food after which he is immediately accused of violating the fast and is taken and stoned to death. Despicable! Ahab and his wife were shameless lying cheating murderous thieving covetous idol worshipers! Well, I'm clear his wife was but I'm not sure how much Ahab knew. Since there was no law against selling family land, Naboth could have spoken/acted more respectfully to Ahab, maybe suggesting the king buy part. It's stupid not to show respect to one's king especially when the king arrives personally to propose business. Yes, Nabby definitely dissed Ahab and his wife was probably dirtier than he. Maybe that's why when Ahab repented G-d impose curse after his life.
M. Diane
Flushing, NY
January 26, 2017
I do not believe a king has the G-d-given right to steal personal property. The people in the Bible were not yet enlightened. They were still ancient people who had not developed modern concepts of individual human rights.
Anonymous
CT