2.1. The General View of Mosaic Legislation on Land. The Supremacy of the Theocratic Principle as Opposed to the Principle of Natural Seizure. Equal Distribution of Land Holdings. The Natural Process of the Development of Economic Inequality and the Laws Limiting It. The Inalienability of Land Property

The general view of Mosaic legislation regarding land as the primary object of ownership is purely theocratic in character. Here, instead of the natural principle of ownership expressed in seizure—by virtue of which, as Rousseau says, a person arbitrarily fences off a piece of land and declares “this is mine,” without regard for whether others receive as much as he has seized, although they possess equal right—here in Mosaic legislation the theocratic principle prevails, excluding any seizure whatsoever. Land, according to this legislation, is the property of Jehovah alone, as the fully authorized master of it by right of Creator in general and by right of the donor of Palestinian land to the chosen people in particular. “My land,” says Jehovah, “and you are strangers and sojourners with Me” (Lev. 25:23). If land is the full and exclusive possession of Jehovah alone, then the possibility of unauthorized seizure of it as private property is thereby excluded. It can become such only with the consent of its fully authorized proprietor, and in that case the injustice that is natural under arbitrary seizure is already removed. A similar view of land as the exclusive property of some common authority appears also in certain other legal systems—for example, the Egyptian, where land likewise did not constitute anyone’s private property but belonged to the pharaoh alone (Gen. 47:20–21). Based on this apparent similarity, Michaelis supposes that Moses’s law concerning the exclusive ownership of land by Jehovah is an imitation of the Egyptian social order to which the Israelites had been accustomed from childhood. But in this opinion of Michaelis, apart from the deficiency common to all explanations of the beliefs or institutions of one people as borrowed from another, one notices an effort to compare phenomena that are in substance incomparable, however similar in outward appearance. Between the Egyptian social order and Mosaic legislation there exists a fundamental difference. Among the Egyptians, the social order in question is the result of natural-historical conditions—the offspring of national calamity, which gave the pharaoh the opportunity to seize the land as his own property, to dispossess smallholders, and to become the absolute, sole owner of all Egyptian lands. Consequently, this order is from its very origin an abnormal phenomenon. Furthermore, this abnormal phenomenon led to other abnormalities: the dispossessed smallholders were of necessity reduced to slave dependence on the pharaoh, surrendered themselves entirely to his will, became his slaves “from one end of Egypt to the other,” and this slave dependence expressed itself in a heavy tax in favor of the pharaoh equal to a fifth of income. Since, moreover, land was leased out to farmers, it was naturally distributed unequally to each according to his means. Hence a new abnormality arose, by virtue of which the more prosperous farmers could in turn seize land, leaving the less prosperous either entirely without land or with a very insufficient amount of it, thereby plunging them into every possible misfortune of poverty. Thus the Egyptian social order of land tenure, as the result of national calamity, led to still greater national calamities and to the terrible development of poverty. Of a completely different character is the view of Mosaic legislation on land tenure. According to this view, the land is the property of Jehovah alone not by virtue of its seizure from former owners, but by right of Creator. This his eternal property Jehovah by free choice bestows upon the people of Israel, laying upon them in exchange certain obligations specified in the covenant. In giving the land to the people of Israel, Jehovah does not leave it to all the contingencies of personal seizure—as was the case with the Egyptians—seizure that necessarily brings with it inequality and injustice, but introduces a proportional distribution of the land “according to the number of names” of males (Num. 26:53). Thus, just as the social order of land tenure among the Egyptians is governed entirely by the natural-historical law of seizure with all its injustices and calamities, so, in contrast, in the Mosaic law the theocratic principle prevails, by virtue of which the highest idea of justice subordinates the natural-historical law and replaces arbitrary seizure with the principle of proportional distribution of land for possession. The essence of the theocratic principle in this case consists in the equal right of all members of the Mosaic state to the land.

When the people of Israel were numbered according to their generations and families in the male line, Jehovah said to Moses: “To these shall the land be divided as an inheritance according to the number of names.” “According to lot shall the land be divided; according to the names of the tribes of their fathers they shall inherit” (Num. 26:53–54). In these commandments lies the essence of the agrarian laws of Moses, which determine the economic position of the people. A more specific determination of this general law is expressed in the following commandment: “To a larger group give a larger inheritance, and to a smaller group give a smaller inheritance; every one shall be given its inheritance according to those who were numbered” (Num. 26:54 [cf. 54–55]).

Thus the fundamental principle of the agrarian laws of Moses is the proportional distribution of land “according to the number of names,” free from any partiality in favor of influential classes or individuals. But despite this clarity of the general principle of land distribution, certain difficulties arise in determining how the distribution was carried out in particular detail. The law expresses itself as “according to the number of names.” What is to be understood here by “name” and what is their “number”? The law is evidently connected with the census that had been taken of the people of Israel, and therefore its meaning must be determined by the manner in which the census itself was conducted. The census, as is evident from (Num. 26:2), was commanded to be carried out by “families,” or literally “by the house of their fathers” (ad domum patrum suorum), while in practice it was conducted, as appears from subsequent verses, by tribes and clans, naming first the ancestor of the tribe and then enumerating the clans (mischpachat) descended from him. The families—the very units by which the census was commanded to be conducted—are not named in the law. It is difficult to explain this incongruity between the command and its execution, and yet such an explanation would shed considerable light on the subject under consideration. Apparently this difficulty can only be explained by the supposition that the census was also conducted by families, but they are not named in the table due to their inconveniently large number for a genealogical table: instead of families, only the larger units—tribes and clans—are indicated, each of which encompasses several families. Such a supposition finds confirmation in the fact that among the clans certain families are mentioned that had attracted attention for one reason or another. Thus, among others, the family of Zelophehad is mentioned, belonging to the clan of Hepher—a family that became known on account of the well-known case brought by the daughters of Zelophehad. And that Zelophehad was indeed the ancestor of a family rather than a clan can be concluded with sufficient grounds from (Num. 27:4), where his daughters say: “Why should the name of our father disappear from his clan?” From these words it is evident that the clan or generation (mischpachath) to which Zelophehad belonged could exist without Zelophehad and his heirs; consequently he was not the ancestor of this clan but merely the representative of one of the families belonging to it. The census, therefore, one must suppose, was conducted according to all degrees of the division of the national organism—by tribes, clans, and families—with the names of the representatives of all of them called, although the table recorded only the names of representatives of the first two degrees. If now the law, after the census, declares “to these shall the land be divided as an inheritance according to the number of names,” it is clear that what is meant here is that “number of names” which entered into the census taken—the number of names of tribes, clans, and families. The smallest degree of division of the national organism in this census is the family; consequently the family was also accepted as the lowest unit down to which the division of land descended. This order of division is again confirmed by the case of the daughters of Zelophehad. They ask for “an inheritance among the brothers of their father” (Num. 27:4), that is, the inheritance that falls to the family of Zelophehad among the other families belonging to their uncles who, as is evident from the text, received allotments for their families. Since the law indicates no other units in the division of land, one may suppose that the division was limited to these three alone, and the allotment determined for the family, as the smallest unit, should be counted the lowest land unit, beyond which the division specified by the law did not extend. But this does not mean that division did not extend further in practice. The land unit indicated is the lowest only in the civic-legal sense and was established in correspondence with the lowest degree of division of the national organism—the family. But since the family naturally divided into several individual households, there is no reason to deny that the family’s allotment was also divided according to the number of these households, although at the same time, just as these individual houses or households were not taken into account by the legislation, so also these smaller allotments distributed to individual houses or households from the common allotment belonging to the family were not taken into account by it. Such private division the law leaves to the discretion of individual communities and to customary law, and it could descend to the very lowest unit—an allotment for each individual person. References to personal land ownership in the law are numerous. For example, personal land ownership is presupposed by the law concerning the jubilee year, which speaks of the sale and redemption of private holdings belonging to individual persons (Lev. 25:25–28); and since persons organically enter into families, clans, and tribes, land ownership, composed of a series of plots constituting personal holdings, properly takes shape into land units constituting the communal estate of families, clans, and tribes. But these latter, with their right to the land, were meant not to restrict the rights of personal ownership but, on the contrary—as social units more stable than individuals—to serve as a guarantee of personal ownership by strictly maintaining the integrity of their holdings. The integrity of tribal holding is legalized by the provision “that the inheritance of the sons of Israel should not transfer from tribe to tribe” (Num. 36:7), achieved by a law not allowing the possibility of an inheritance passing from one tribe to another. Likewise the clan was to keep strict watch over its holding (Num. 33:54), expressed in the special designation of goels—those responsible through redemption to preserve the integrity of the clan’s holding. Such a gradation of rights to land ownership admirably secured the inviolability of both communal and personal property. In such a state of affairs, and in view of the fact that the Mosaic state was to be preeminently agricultural and that, as was naturally presupposed, every Israelite would himself cultivate the plot of land that fell to his lot, the members of the state would consist of free farmer-proprietors and all inhabitants of the state—given the fertility of Palestinian soil—if they could not be very wealthy, could nonetheless enjoy a considerable and approximately equal degree of well-being and material sufficiency. But, as the learned investigator of Mosaic law Saalschütz observes, such is the nature of human relations that such an equality of condition and the personal independence associated with it cannot long be fully maintained. Natural disasters, family and personal misfortunes, the unequal degree of enterprise and thrift among different members of society, and a host of other causes rapidly bring it about that from equally prosperous people some begin to emerge as more prosperous and others as less so. As this relation further develops, among the less prosperous there appear individuals who, lacking sufficient means to properly cultivate the land and at the same time experiencing oppressive need in meeting their necessities, are compelled to sell their plot, which naturally passes into the hands of the more prosperous and renders them already wealthy. Thus, under the unrestricted rule of the natural-economic conditions of wealth distribution—or under the rule of the principle known in economic science as uncontrolled development (which has received the technical name of the principle of laissez passer, laissez faire)—the original economic equality is replaced by unevenness in the distribution of material goods. While some grow poorer and poorer, others accumulate wealth ever more and more, and in the end the striking extremes of poverty (pauperism) on the one side, and excessive wealth (plutocracy) on the other, appear. Such an abnormal distribution of material goods is the greatest social evil and serves as the cause of internal upheavals, the weakening and destruction of the state—as was the case, for example, in the Roman Empire, and as is to some extent observable in the states of Western Europe at the present time. Many legislators have tried to set a barrier against the development of this evil, but their efforts have for the most part been in vain. This great attempt is found also in Mosaic legislation, but there it has the character not merely of an attempt but of an operative law.

In order to prevent the development of the social evil described, Mosaic legislation restricts the right of exclusive personal property. This restriction is achieved through various legal provisions which, while granting considerable freedom to personal ownership, tend to set alongside it—without contradicting or harming it—within certain limits a common enjoyment of personal property. Such is the provision by which everyone is granted free enjoyment of the fruits from another’s field or vineyard, though this enjoyment is limited to personal consumption at the time, with a prohibition on making any store: “When you come into your neighbor’s vineyard, you may eat your fill of grapes as you wish, but you shall not put any in your container. When you come into your neighbor’s standing grain, you may pluck heads of grain with your hand, but you shall not put a sickle to your neighbor’s standing grain” (Deut. 23:24–25). This provision, of course, has in view strangers and the poor, but it could also serve as a counterweight to the tendency to accumulate excessive wealth. But this measure had only secondary significance in counteracting the development of extreme poverty. Of greater significance in relation to preserving economic equality and preventing the development of the extremes of pauperism and plutocracy is another legal provision, which also restricts the right of personal ownership. Such is the provision concerning the inalienability of land holdings. “The land shall not be sold in perpetuity; for the land is Mine,” says Jehovah, “and you are strangers and sojourners with Me” (Lev. 25:23). The theocratic meaning of this law is that Jehovah, as the sole proprietor of the land and its donor to the chosen people, does not leave the enjoyment of the land to all the contingencies of natural-historical conditions which necessarily lead to the social evil described, but subordinates these conditions to the principle of the highest justice, by which the initially established equality must be constantly upheld and developed. The theocratic principle in this respect corresponds to another political-economic theory—the theory of state intervention—according to which the state should take upon itself the task of regulating the economic relations of citizens. Mosaic legislation, as stated above, achieves this through the restriction of the right of personal property. A Hebrew owner could sell his plot only for a certain period, after which the plot, by law and without any compensation, was to revert to the original owner or to his heirs. Such a provision was practically realized in the famous institution of the system of sabbatical years.