The "law and order" fanatics in Israel accuse the settlers of the "crime" of building on "state land." But how did the land become "state land"? Simple: the Israeli government unilaterally gave itself title after the Six Day War. But, this is merely a modern version of the "divine right of kings to be the sole owners of all land in the realm" doctorine above. This doctorine, when applied to royalty, is utterly rejected today by the entire civilized world -- including Judaism (correct me if I'm wrong). But, when we resurrect this false belief and couch it in modern terms -- replacing the king with "the majority" or "the people" -- the concept of "state land" begins to sound reasonable to many of us.
I replied there
You're absolutely correct. Rabbi Emanuel Rackman, in his One Man's Judaism, discusses this issue.
He notes that whereas "dina d'malkhuta dina" (the law of the land is law) obligates Jews in gentile lands to do almost whatever the king demands, this is because, he says - citing Rabbi Nissim of Gerona, 14th century Spain, Drashot ha-Ran - the gentile king has permitted the Jews to settle there, the Jews being aliens and foreigners. But in Israel, he says, dina d'malkhuta dina doesn't apply, since the land belongs to all Jews equally.
Additionally, he notes, the Torah permits the establishment of a kingship in Israel only AFTER the ENTIRE land of Israel was conquered under Joshua. Why? So that the king couldn't make a feudalistic claim that the land is his; he was made king only subsequent to the conquest and partition of the land.
Furthermore, he says: there is an interesting legal technicality used in the laws of sales. According to halakhah, only land can be sold by money; to sell moveable property, the buyer must actually physically lift the property. But how does one reconcile this with modern economic need, where we must sell remotely? Simple, Rabbi Rackman says. For centuries, Jews utilized the method of "kinyan agav", where a bit of land is sold along with the moveable property. That way, when the land is sold remotely via money with no physically lifting of the property, the moveable property is sold along with it. But what if one has no land to sell? Simple: every Jew owns some land in Israel, and no one was concerned by whether one might sell all of his land via repeated uses of "kinyan agav". For centuries, then, Jews sold again and again and again via "kinyan agav", using this hypothetical undepletable bit of land that every Jew owns in Israel.
Uri further said
Do the Arabs or the State of Israel have any justification for expelling Jews from homes built on unoccupied hilltops?
First of all, Arab claims to property on barren, unused hilltops are simply spurious.
How do the Arabs think that they acquired title to the land? Do they think that they may claim title merely because their ancestors once grazed sheep on it? Or did they actually build something there, cultivate it, or fence it in? If so, where is the evidence?
Perhaps they claim that their grandfathers were Arab notables who once received land grants from the Ottoman Empire -- like William Penn who received "rights" to all of Pennsylvania from King James? But, this claim rests upon the assumption that the king is the sole owner of all the land in his kingdom, and that he may transfer ownership of large tracts as he sees fit.
...
In truth, neither nomads' grazing habits, nor imperial Ottoman land grants, nor the State of Israel's land-grabs can establish justifiable property rights. The fact is that UNUSED, UNALTERED land is UNOWNED land; and Jewish homesteaders have every right to settle it.
I replied,
I myself make two chief claims:
1) The early Zionist pioneers bought their land from absentee Arab landlors, fair and square.
2) For centuries, ever since the Roman era, Jews never gave up their claim to Israel. Several times a day, in our prayers, we'd reiterate this claim. So what if Arabs came and conquered the land? As Rabbi Tzvi Yehuda Kook used to say, "If squatters seize land, after how long does the owner lose that land to the squatters?". Now, this doesn't preclude our going beyond the letter of the law and paying the Arab "squatters" for the land, full price. After all, the Torah commands us that if a gentile living in Israel owns a Jewish slave, all Jews are obligated to pay full price to buy this Jewish slave from the gentile. The Torah could have said of the gentile, living in Israel, owning a Jewish slave, that the Jews should bust in and steal the Jewish slave away. But no, the Torah commanded us to pay the gentile slavemaster full price. But in the end of the day, the Jew belongs to us, and the Jewish land belongs to us. We'll pay full price if need be, but one way or another, the land is ours, and we'll take it back.
On the other hand: if one says the land of Israel does belong to the Arabs, by dint of conquest in 600-700 CE, then why shouldn't Jewish conquest be legitimate? If Arabs can gain ownership and land title via military conquest, then so can Jews. You cannot have your cake and eat it too.
I'm very reluctant to unilaterally confiscate any land from Arabs, even if we do believe that we own we own it. Even if, as Uri claims, the Ottoman land titles are illegitimate, in that they hold that the king owns all, nevertheless, I'd be very reluctant to punish contemporary Arabs today for the illegitimate political notions of their ancestors. Therefore, I - like Rabbi Meir Kahane - advocate paying the Arabs fair and square, full price, for their land. But the land remains ours in the end.
Something else I added there
One thing I wish to study is the roots of democratic social-contract theory - Locke, Hobbes. After all, many of these thinkers were profoundly influenced by the Hebrew Bible. (See my Judaism/Torah and Democracy: My Reading List.)
For example:
-- The king is bound by the Torah, the same law as all Jews, and his commands are legitimate only when they are sanctioned by the Torah.
-- The king can be emplaced only with the popular will of the people.
-- The institution of a king is a concession (Deuteronomy and Samuel both make this clear, even though some authorities disagree with this interpretation), and the Torah prefers that each tribe be independently ruled by is own elders.
-- When rabbis pass Rabbinical decrees, these decrees are legitimate only if the people accept them. The only hierarchical legal institution in Jewish law is the Sanhedrin, and even it conditioned its own decrees on popular acceptance. According to Jewish law, if popular acceptance of a Rabbinical decree lapses - by those who are otherwise generally observant of Jewish law, however - then the decree is null and void (Rambam, Kesef Mishnah, Rabbi Haim Hirschensohn, Rav Kook). In the exile as well, each local Jewish community required the sanction of both the majority of men (okay, so they weren't feminist yet) and of the rabbi (his veto was limited to whether or not he confirmed that the measure did or didn't violate Jewish law in its strict narrow sense; otherwise, he had only one vote like the rest of the men) before most any measure could be passed. If the measure was purely and totally a question of technical Jewish law, a black and white question of law, such as the kashrut of the ritual slaughterer, then the rabbi had unilateral power, both to pass new decrees and annul old ones. But if the measure was some sort of communal ordinance that was tempered by Jewish law but not strictly required by it, such as a new tax for the poor, which is of course in consonance with Judaism but not strictly demanded by it, then the community's consent was demanded, and the rabbi could veto the ordinance only if it violated Jewish law considered narrowly. The community would often appoint officers (parnasim) to execute its will, but these officers had only the powers given them by the community, and they could be removed from power as soon as they ceased to keep the community's will properly.
Continuing the vein of democratic theory, I added,
See Rabbi Marc Angel's The Jews of Rhodes for an interesting discussion of the dynamics of communal ordinances in one specific Jewish community.
An interesting parallel to the question of majority tyranny (cf. the Federalist Papers) arises in Rabbi Angel's book. Rabbi Angel shows a distinction Rhodesian Jewry made between decrees made for the community as a whole, and those made regarding specific narrow sectors. For community-wide decrees, a simple majority of all the men was necessary, with the rabbi's approval as noted above. But if a specific narrow sector was singled out in the decree, then that specific sector in and of itself too had to approve the decree. For example, in the history of Rhodesian Jewry, many times, the community attempted to increase taxes on the rich alone in order to support the poor, but this was effected only if the rich themselves consented. Only once was this violated, when the rabbi unilaterally leveled a new tax on the rich for the sake of the poor, but as Rabbi Angel shows, the poor at that specific time were in especially desperate straits.
The solution was very different than that in the Federalist Papers - the Rhodesian Jews assumed a certain level of social consciousness by which they could expect the rich would often consent to taxes being raised on them for the sake of the poor, and no contingency was made for when the rich might refuse to consent to support the poor - but the basic fear - viz. tyranny by the majority - was the same.
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