The Torah, the book of law, takes great effort to establish the Jewish legal claim to the property of Eretz Yisrael. Rashi explains that the Torah began with creation because it anticipated the argument that would be made by the nations of the world – “listim ahtem,” you are robbers who stole the Land from the native inhabitants.
Creation establishes God’s ownership over the universe and, implicitly, His legal right to convey title in Eretz Yisrael to the Jewish People. Rashi’s commentary has proved prophetic. Almost one thousand years later, this is exactly the claim made by Israel’s critics.
Though God promised Eretz Yisrael to our forefathers many times, parties throughout history have competed for land and claimed divine right. So, practically speaking, claim of divine right alone would not suffice to successfully claim a country.
The most effective, albeit controversial, claim on land is conquest. The U.S. Supreme Court case Johnson v. M’Intosh (1832), involving competing titles to land from the Piankeshaw Indians and the U.S. government, is illustrative. The Court held that first the English title, by conquest, superseded the native’s title. Title then passed to the U.S., which conquered the land from the English.
Similarly, the Jews had to conquer Eretz Yisrael under Joshua (though the task was completed under David). Thousands of years later, during World War I, many nations recognized the Jewish right to Eretz Yisrael. But not until the Jewish Legion – as a significant part of the British Army – conquered Palestine did the international community recognize the Jewish title in the form of the Palestine Mandate.
(As the historian Howard Sachar has noted, “In truth, [the Jewish Legion’s] role in the conquest of Palestine eventually signified as much as the ordeal of the early Zionist pioneers, and hardly less than the Balfour Declaration itself, in reinforcing the Jews’ claims to their national home.”)
Thirty years later, a Jewish state was only recognized after the Irgun forced the British out of Palestine and the Haganah, with the Irgun, defended it.
Purchase is another method mentioned in the Torah for acquiring property. In Parshat Chayei Sarah, for example, Avraham refused to accept Ma’arat Hamachpelah, where he sought to bury his recently deceased wife Sarah, as a gift. He insisted on purchasing it for the full value, which was a more solid ground for legally establishing the first Jewish connection to Hebron.
The Torah is careful to establish a line of succession for the inheritance of Eretz Yisrael, which is important legally. Although Avraham had eight children, God told him that “through Yitzchak will offspring be considered yours” (21:12). Even before Yitzchak’s birth, God said, “I will maintain My covenant through Yitzchak whom Sarah will bear to you by this time next year” (17:21). After the Akeidah, God called Yitzchak Avraham’s “only one” (22:16), despite the existence of Yishmael. Finally, “Avraham gave all that he had to Yitzchak” (25: 6).
In Toldot, Yaakov inherited Eretz Yisrael, but not through the blessing he received from Yitzchak by posing as Esav. If he had, a layperson might view this as a fraudulent act that could invalidate the inheritance. But Yitzchak later intentionally designated Yaakov as heir to the Land, saying, “May [Hashem] grant you the blessing of Avraham to you and to your offspring with you, that you may possess the land of your sojourns which God gave to Avraham” (28:4).
Sometimes title can rest on whether or not the owner is present on or using the property. John Locke, in his theory of private ownership of property, said a person acquires property because when he works the land he mixes his labor with it.
The Avot initiated the mixing of the Jewish People with the Land. In Lech Lecha, the first commandment given to the first Hebrew, Avraham, is to settle the Land. After Yaakov worked for Lavan, he elected to return to Eretz Yisrael. But Avraham was a stranger, a Hebrew (evri), because he came from ever hayardein. Practically, his claim against the inhabitants of the Land was not very formidable. Further, both Avraham and Yaakov left the Land in times of famine as well as for other reasons. Resting on their actions alone, the Jewish claim to Eretz Yisrael would be significantly weakened.