Behar בהר
Parashat Behar consists of a single chapter that, despite its brevity, had a transformative impact on the social structure of ancient Israel and provided a unique solution to the otherwise intractable conflict between two fundamental ideals: freedom and equality. Much of human history has illustrated the fact that you can have freedom without equality (laissez-faire economics), or equality without freedom (communism, socialism), but not both. The powerful insight of the Torah is that you can have both, but not at the same time. Therefore time itself has to become part of the solution, in the form of the seventh year and, after seven sabbatical cycles, the Jubilee. These become periodic corrections to the distortions of the free market that allow some to become rich while others suffer the loss of land, home, and even freedom. Through the periodic liberation of slaves, release of debts, and restoration of ancestral lands, the Torah provides a still-inspiring alternative to individualism on the one hand, collectivism on the other.
The first of the essays that follow is about the principle that underlies the social legislation here and elsewhere in the Torah, the legal principle known as eminent domain. This sheds fascinating light on the connection in Judaism between creation, redemption, and law. The second is about the difference between the politics of revolution and those of evolution and why the Torah prefers the latter. The third is about a key term in Judaism, “redemption,” and explains why it is a concept of both history and law.
The fourth is about what I call the chronological imagination – a way of thinking about truth as something that unfolds through the medium of time, as opposed to the logical imagination of the Greeks that sees truth as essentially timeless. The fifth is about the Torah’s solution to the conflict between freedom and equality, and the sixth about its pioneering statement of minority rights.
Eminent Domain
The vision of a just society, set out in Parashat Behar, brings to the fore with exceptional clarity two instances of a fundamental principle of Judaism. Once we understand it, we will see the Torah and Judaism itself differently. It will shed new light on the creation narrative in Genesis 1. It will help us understand one of the most beautiful of Jewish laws, that of making a blessing over the things we enjoy: over food, drink, beautiful sights, and so on. And it will suggest a surprising answer to the question: What difference does religious belief make to the moral life?
The principle is simply this: God is the ultimate owner of the universe. What we possess, we do not own, we merely hold in trust, and there are conditions to that trust, most fundamental of which is that we must show concern for the good of all. We find this principle set out twice in Leviticus 25, in different contexts.
The first has to do with the land. The context is the Jubilee, the fiftieth year in which land that people were forced to sell because of poverty returns to its original owners. This raises the obvious question: How can a valid sale be revoked at some later stage? The Torah gives the following answer:
The land may not be sold permanently, because the land is Mine. You are strangers and temporary residents as far as I am concerned. Therefore, there shall be a time of redemption for all your hereditary lands. (Lev. 25:23–24)
Because the land of Israel belongs to God, there can be no permanent freehold. God grants the Israelites possession of it on certain conditions, one of which is that the original owner can buy it back for a fair price at any time he has the money and wishes to do so. The other is that in any case, it returns to the original owner in the Jubilee year.
The second example has to do with the treatment of Israelites forced to sell themselves into servitude. They are not to be treated as slaves, but rather as hired workers or temporary hands. Nor should they be treated ruthlessly in a way that breaks their spirit. And they must go free in the Jubilee year. Explaining why, the Torah twice invokes the principle that Israelites are, first and foremost, God’s servants. Therefore no Israelite may enslave a fellow Israelite:
Because the Israelites are My servants, whom I brought out of Egypt, they must not be sold as slaves. (Lev. 25:42) For the Israelites belong to Me as servants. They are My servants, whom I brought out of Egypt. I am the Lord your God. (Lev. 25:55)
On what are these two statements – God’s ownership of the land, and His prior claim to the service of the Israelites – based? The answer to the second is that God redeemed the Israelites from slavery in Egypt. Geula, redemption, is a legal as well as religious term. It means “to buy back.” Thus God, redeeming the Israelites, became in legal terms their owner.
That is the meaning of one of the phrases in the song the Israelites sang at the Red Sea: “until Your people pass by, Lord, until the people You acquired [kanita] pass by” (Ex. 15:16). The passage of the Israelites through the sea is construed here as a legal act of acquisition on the part of God. The people pass from Egypt, the domain of Pharaoh, to the desert and thus into the domain of God.
On what specific legal basis does God own the land of Israel? To answer this, we must turn back to Genesis 1, the biblical account of creation. This has been understood throughout the ages as one of three things. Some read it as a historical narrative, an answer to the question: “What happened?” Others read it as a kind of early proto-scientific account, an answer to the question: “How did it happen? How did the universe come into being?” Yet others have understood it as a philosophical statement about the relationship of God to the universe. He is the first cause, the prime mover, the necessity that underlies our contingency, the eternity that frames our existence in time. We are because He is.
However, these are all misreadings of the creation narrative. We know this because of the name of the book. Torah means not history or science or philosophy but law in the widest sense of the word. The Torah is primarily a legal and moral text. It is an answer to the question: How shall we live? Genesis 1 is first and foremost a foundational statement about law itself. It is a jurisprudential text: that is, it sets out the basis of divine authority, God’s right to issue the laws and commands that are the principled bases of human existence. It is there to provide an answer to the fundamental question of any legal system: By what authority does a legislator legislate? What is the source and justification of sovereignty? By what right does X rule over Y?
There is a principle in Jewish law that states that a craftsman acquires title to a work he has created1See Kiddushin 48b.
– the same principle that, for example, underlies the idea of intellectual copyright. We own what we create. That is the point of Genesis 1. God created the world. Therefore He owns the world.2This is the meaning of the description of God in Genesis 14:19, 22, as “owner of heaven and earth” (koneh shamayim vaaretz). There are those who argue that the word koneh in other ancient Semitic languages also means “creator” as well as owner, but that is just the point. Legally, the creator of something is its owner.
Therefore He can lay down conditions under which He allows others to live there.
This is not a historical, scientific, or philosophical point but a legal one, and it applies generally, not just in the case of God or Judaism. It arises, for example, in the context of the rule attributed in the Talmud to the third-century sage Shmuel, known as dina demalkhuta dina, “the law of the land is law.”3Nedarim 28a; Gittin 10b; Bava Kamma 113a.
As exiles in lands not their own, under a legal and political order they did not initiate, Jews nonetheless accept the authority of the law of the land. The Talmud states this as a rule, and in the Middle Ages the commentators asked: What was its basis?
Several suggestions were offered. The most fundamental, argued by the Rosh (Rabbenu Asher) and cited by Rabbenu Nissim in the name of the Tosafists, is that the king is the ultimate owner of the land within his jurisdiction. He is therefore legally entitled to specify the conditions under which he allows others to live there. This is called the principle of eminent domain, whereby the head of state or the state itself holds a prior title to the land within its borders, and can thus, for reasons of state, order the compulsory purchase of land even against the will of its owners.
The Torah opens with a creation narrative to establish the principle of eminent domain as the legal relationship between God and the universe. This is remarkable. What it tells us is that God rules by right, not might. Even though God is the force of forces, who turns the sea into dry land, sends bread from heaven and water from a rock, He rules not as a tyrant by virtue of power4Avoda Zara 3a. but as a constitutional monarch answerable to the claims of righteousness and justice (“the ways of the Lord,” Gen. 18:19). That is both a revelation and a revolution. It represents the first and most systematic attempt in the history of human thought to ethicise the universe and all that is therein.
The Torah lives with the fact that in its time – and in ours – this is not how politics is normally constructed or societies shaped. They are usually the result of the distribution of power, political, military, or economic. Hence the decision of God, after the Flood and the Tower of Babel, to reveal His sovereignty through one people – a people who completely lacked any political, military, and economic power of their own, namely the Israelites. What Leviticus 25 makes clear is that God’s sovereignty over Israel, the people and the land, is rooted in the principle of eminent domain. God’s ultimate ownership of both is the basis of the biblical vision of the just society.
Ideally, people should care for one another because of benevolence, empathy, sympathy, and compassion, the “better angels of our nature.” Leviticus 19 sets out just such a code based on the love of neighbour and stranger. Ideally too, people should see society as an extended family and thus help one another out of a sense of kinship and fraternity. That is why Leviticus 25 repeatedly uses the word aḥikha, “your brother,” when it actually means “your fellow Israelite.” But such feelings are too fragile a basis for a gracious social order. Kinship and neighbourliness are for relatives and friends. We rarely extend them to complete strangers, especially when our own interests are at stake. Therefore Leviticus 25 grounds its vision of social justice on a fundamental legal principle: the ownership of God.
According to the sages, it is this principle we reiterate every time we make a blessing over something we enjoy. The Talmud points to the apparent contradiction between two verses in Psalms.5Berakhot 35a.
On the one hand, “The earth is the Lord’s and the fullness thereof” (Ps. 24:1). On the other, “The heavens belong to the Lord, but the earth He has given to the children of men” (Ps. 115:16). The Talmud resolves the contradiction by saying that the first applies before we have made a blessing, the second after we have made a blessing. In other words, every time we say a blessing over food or drink, we are doing more than thanking God. We are acknowledging the ownership of God. The food we eat and the wine we drink are His. We “redeem” them, that is, buy them back for secular use, by means of the benediction.
This extraordinary integrated vision, extending from the creation of the universe to the laws of land ownership and employment law in biblical Israel, to the blessings we say over bread and wine, derives from and constantly rehearses the law of eminent domain. God is the ultimate owner of all and we are mere strangers and temporary residents on earth. That is a vision more likely in the long run to produce societal beatitude than any secular political ideology in the history of human thought.