The Faculty of Jewish Studies
The Office of the Campus Rabbi
Dr. Yisrael Zvi Gilat
School of Social Work and
School for Legal Studies
Many verses in the Bible contain extensive narrative and lyrical description; others are legal formulations which as a rule are brief and require further clarification. Verses from the first type, found in Biblical stories, are clearly intended to impart wisdom and moral underststanding, but there are some narrative passages where the text is lengthy and seems entirely superfluous.
The sages were aware of this point and gave it picturesque expression. Thus we are told in Genesis Rabba in the name of Rabbi Acha, "The washing of the feet of the Patriarchs' servants must be more important than the Torah of their descendants, for even such as a thing as washing their feet is set down in writing whereas although the fact that a sheretz (creeeping creature) is ritually an essential halachic principle, and yet we learn that the blood of a sheretz is not, like it's flesh, a source of uncleanness only from an extra word in the Torah" (Gen. Rabba 60:32). Nor does this apply only to the laws in connection with a sheretz, for we read in the Mishna that "[the laws enabling us to] annul vows float in the air, without any text to support them. The laws of Shabbat, the festivals and improper use of sacred things (me'ilah) are like hills suspended by a hair, for very little appears about them in the text of the Torah but the laws dealing with them are numerous" (Haqiqah 1,8).
In particular, the sages emphasized those narrative verses whose literary contribution is doubtful, and gave them legal meaning. Thus verse which appears in our portion, "For Heshbon was the city of Sihon, King of the Ammorites, and he fought against the former king of Moab and took all his land from him" (Numbers 21:26), is counted by the Sages among those passages "which (at first glance) deserve to be burnt [that is, to be discarded as meaningless], but which are actually essential principles of the Torah" (Hullin 60b). What "essential principles" are concealed in this verse, which simply recounts the history of heathen wars?
The Sages wrested this verse away from its simple meaning (peshat) and connected it to two legal areas: relations between foreign counrties (known today as public international law) and relations between individuals who are citizens of different countries (private international law).
As for the first, the Sages held that the conquest carried out by the children of Israel could be durable only if it were just; and it could be just only if Divine permission had been granted for it. Otherwise the various countries attacked might justifiably claim that Israelites had no right to attack them and take over their land. This point is made in sources like Midrash Tanchuma, Hukkat 53 (and, Differently formulated, in Numbers Rabba 19:30):
"And Israel took all these cities" (Numbers 21:25). Note that the text says, "For I the Lord love Judgment, hating robbery with iniquity" (Isa. 61:8). God said to Moses, "Do not be hostile to Moab" (Deut. 2:9) -- but Heshbon belonged to Moab, as we know from "For Heshbon was the city of Sihon, King of the Amorites, and he fought against the former king of Moab and took all his land from him" (Num. 21:26). Israel came and took Heshbon from Sihon, together with everything that he had taken from Moab. Had they (Israel) taken it from Moab directly it would have been robbery, but since Sihon took it first and they took it from him they did not commit any dishonest action, as the text makes clear: "For Heshbon was the city of Sihon".
Hence Divine permission to conquer Heshbon from Sihon was based upon recognition of Sihon's conquest of Moab as legitimate, as the Talmud points out:
"For Heshbon was the city of Sihon, King of the Amorites,
and he fought against the former king of Moab...". What difference
does it make if he did or not? The Holy One [had previously] said
to Israel, "Do not be hostile to Moab" (Deut. 2:9).
The Holy One said, "Let Sihon come and take it from Moab,
and then Israel may come and take it from Sihon". Rav Papa
therefore said, "Ammon and Moab were purged through Sihon"
[that is, the prohibition upon Israel's taking their land did
not apply to territory which had passed into Sihon's hands]. Hullin
The recognition that conquest must be legally justified recurs in the issue of David's wars against the neighbouring states. David does not invade the Philistines, since long before, Abraham had sworn to Abimelech not to conquer his land, "bbut the Holy One said, Let the Caphtorim dispossess the Philistines, and Israel will dispossess the Caphtorim". Similarly David does not attack Aram-Naharayim (Mesopotamia or present-day Syria) because of Jacob's oath to Laban not to cross Gilead with hostile intantions. But "at once the Sanhedrin was convoked ... and they said, 'Certainly that is how it was, but they (the Syrians) have violated the oath first. The wicked Balaam was brought from Aram-Naharayim to curse Israel (Numbers 23:7), and a king of Aram-Naharayim, Cushan-Rishatayim, later enslaved Israel for eight years (Jud. 3:8); they committed these two pieces of wickedness against us'. Since the Sanhedrin court instructed him in this way, David at once attacked Aram-Naharayim...".
The second legal aspect of the verse from Numbers as interpreted by the Sages relates to the effect of conquest upon personal law. Here is the debate in the Talmud:
Resh Lakish said, "How do we know that one idolator can buy the labor of another non-Jew in a halachically acceptable transaction [one recognized by Jewish law]? Because of the passage, "And also of the children of the residents who live among you, from them may you buy [bondservants]" (Lev. 25:45): you may servants from them but they shall not buy from you, nor from one another [in a halachically acceptable transaction] ... Explained Resh Lakish, "They may not buy from one another: this refers to buying the actual body of the slave. But does it include not buying the labor? On the contrary, if an idolator can buy an Israelite [in a halachically acceptable transaction], cannot an idolator buy an idolator? Perhaps, though, such a transaction can be effected legally through the payment of money, but not through hazaka [a form of acquisition in which the purchaser indicates possession by making use of the thing aquired?" Rav Papa offered another answer, "Ammon and Moab were purged through Sihon". We find here that an idolator may take legal possession of another idolator [i.e. Sihon took their land and became it's legal owner]. What is the source for saying that an idolator can take legal possesson of an Israelite? Because it is written, "The Canaanite, the king of Arad ... took some of them [Israelites] prisoner" (Num. 21:1).
This passage makes the point that the acquistion of property through warfare resembles hazaka as a form of legal acquistion. Just as it was permissible for the Israelites to conquer (acquire) Heshbon although it would previously have been forbidden to them when it was a possession of Moab, since in the meantime it had been conquered by Sihon, so on the personal level any Jew might make a halachically valid purchase from a slave -dealer who had made a hazaka acquisition of a Jewish slave (eved ivri), together with his land and movables. What kind of contract (kinyan) is warfare?
The Rishonim (commentators who lived before the Shulchan Aruch) seem to differ on this point. Ritba* indicates that in time of war a special ruling relates to seized property, for "although land as such caanot be stolen, a hazaka effected through war is a complete hazaka: and Israel, having territory from Sihon, acquired it in a valid way, for Sihin had previously made a valid hazaka acquisition of it through war." But according to Tosafot Ha-Rid*, military conquest does not give one any special right to acquire territory (contrary to international law up till the last century). Anysuch acquistion falls under the laws of ye'ush (literally, "despair": property which someone has despaired of recovering, and hence reverts to the possessor), and these laws apply in all times and places. Here is Tosafot Ha-Rid:
Rav Papa said, "Ammon and Moab were purged through Sihon". This means that the territory of Ammon and Moab was forbidden to Israel, but because Sihon came and took it away from it's owners it became permitted. Sihon took away their land by force and Ammon and Moab despoaired of getting it back, and Israel came and took it from Sihon. It follows from this that a Canaanite can make a hazaka acquisition from another Canaanite.
According to this explanation we can say that the rule of "Ammon and Moab were purged through Sihon" which, according to Rav Papa, illustrates the legal situation in connection with personal acquistions made from a heathen slave-dealer, also was illustrated by personal law. That is to say, the acquisition of land by nations is but a wider application of personal acquisition through "despair" (ye'ush). Heshbon did not become legally available to Israel because of a special contract effected through war, but because it's owners despaired of recovering it, thus allowing new ownership to step in.
*R. Yomtov al-Ashbili of Seville, Spain
*R. Isaiah de-Trani of Italy
In responsum 209 (Blau ed., pp. 379-371), Maimonides adopts an interesting approach. Asked whether someone who bought religious books which had been plundered from a synagogue does in fact own them, or whether he can be compelled to return them, Rambam says, "If they plundered by order of the Sultan, then the sale is genuine and the law of hekdesh (consecrated articles) is void -- even if articles used in the Temple were plundered, their sanctity is annulled ... but if they were not plundered by order of the Sultan, let the purchaser swear how much he paid and this amount shall be returned to him and he must return the books...". It would thereforre seem that Rambam extends ownership by conquest and the validity it confers to every seizure carried out by the authorities, even when their actions are arbitrary.
An opposite view seems to arise from a responsum of Rabbi Yosef Halevi ibn Miggash when, like Rambam, he was asked if it was permissible to buy religious books stolen by order of the authorities, and (if so) whether the purchaser was obliged to return them to their original owners. His reply indicates that everything depends on the attitude of the original owners: "Even though the robbery was carried out by the king's order, which cannot be annulled", the owners do not despair of recovering their property "because the books are of value only to Jews snd can be sold only to them". The original owners will therefore "expect that if a Jew encounters them he will check to whom they belong and return them". We see that expropriation does not "purge" property from it's previous ownership.
Some interesting formulations with regard to military conquest can be found in the Acharonim (later commentators who wrote after the Shulchan Aruch). In Piskei Halachot, II (38:2) Rabbi David of Karlin sees conquest as "one of the types of acquisition ordained by the Torah" inasmuch as it constitutes a uniqye way of ending previous ownership that does not derive from the laws of Ye'ush (despair). Another halachic arbiter, Rabbi Avraham Duber Shapira (who served as rabbi of Kovno at the beginning of this century), relies on Rashba for the argument that title property acquired by conquest continues "as long as the conqueror holds the land ... but after the conquest ceases the conqueror's right lapses" (Responsa Dvar Avraham 1:11). Again, both anchor their opinions in the verse we have discussed, Numbers 21:26.
With the rise of the State of Israel, the debate about the validity of conquest was rejuvenated when Arab property-owners abandoned their fields, leaving behind abundant crops. The State established a department within the Treasury to act as custodian. Through it the abandoned property was administered by Jewish groups and Arab workers, who harvested and processed the very considerable produce.
The question arose as to whether, like the produce of Jewish-owned fields, the friut and vegetables of these fields had to be tithed (that is, if terumot and ma'aserot had to be taken), and whether they were subject to the laws of the Sabbatical year (shemitta). The then Sephardic Chief Rabbi, Rabbi Uzziel, and Rabbi Pesach Zvi Frank, head of the rabbis of Jerusalem, took issue with each other on this point. Among the many complex points in debate was the question of the degree to which acquistion of property through military conquest should be recognized.
Rabbi Frank thought that the property administered by the Custodian
ranked as Jewish property, since it could be claimed by the State
of Israel on the grounds that "Ammon and Moab were purged
[lost their claim] through Sihon". Rabbi Uzziel, however,
felt that the Israeli conquest of our own day could not be compared
to the defeat of Sihon, since "there is no doubt that they
[the Arab owners] will require the government of Israel to compensate
them for their property, and until compensation is paid all the
property and its produce are as if in their ownership, since it
is customary in international law that until peace is signed assets
which belong to the enemy, and all the more assets of people who
have fled or have been captured, remain in their ownership".
We have here an example of how a "text that deserves to be
burnt" because of its insignificance becomes in the hands
of the Sages a magnet for "essential principles of the Torah".
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