Can the government take private property?
Eminent domain traditionally refers to the power of a state or a national government to take private property for public use. However, in the controversial 2005 U.S. Supreme Court case known as Kelo v. New London, the court ruled that the power of eminent domain extends to the transfer of land from one private owner to another private owner for the sake of furthering economic development.
So what’s the the Jewish take on these two interpretations of eminent domain?
(As a disclaimer, according to Jewish law, one is generally obligated to adhere to “just” civil laws of the land one resides in.1 It is nevertheless insightful to understand the Jewish perspective on this topic.)
Let’s start with the classic definition of eminent domain, which is first mentioned in the Book of Samuel.
Eminent Domain in the Bible
When the Jews first approached the prophet Samuel asking for a king, he warned them:
This will be the manner of the king who will reign over you; he will take your sons, and appoint them to him for his chariots and for his horsemen . . . And he will take the best of your fields, your vineyards, and your olive trees . . .2
Samuel foresaw eminent domain as being part of the modus operandi of a Jewish king and his government. In the words of Maimonides:
[A king] may take fields, olive groves, and vineyards for his servants when they go to war, and allow them to commandeer these places if they have no source of nurture other than them. He must pay for what is taken.3
Maimonides continues in a related law that not only can the king take the fields for food, he can run a highway through them:
The king may burst through the fences surrounding fields or vineyards to make a road, and no one can take issue with him. There is no limit to the road the king may make. Rather, it may be as wide as necessary. He need not make his road crooked because of an individual’s vineyard or field. Rather, he may proceed on a straight path and carry out his war.4
Clearly, Jewish law recognizes the concept of eminent domain. But what are its parameters? And does Jewish law condone the seizure of private property in order to transfer it to another private entity, merely to further economic development?
For the answers to these questions, we turn to an episode that happened several generations after Samuel’s time.
King Ahab and the Vineyards of Naboth
Adjoining the palace in Jezreel that belonged to King Ahab (a ruler of the breakaway Northern Kingdom) was a beautiful vineyard belonging to a man named Naboth. One day, Ahab asked Naboth to sell him the vineyard because it was very close to the palace, and he wanted to use the land as a vegetable garden. But Naboth refused to give up his property for any amount of money, or even for better land elsewhere. Seeing that her husband was upset over the vineyard, Queen Jezebel arranged for Naboth to be killed.
When King Ahab went into his ill-gotten vineyard. he was confronted by the prophet Elijah, who proclaimed, “Have you murdered and taken possession also? Thus says G‑d: ‘In the place where dogs licked the blood of Naboth, shall the dogs lick your blood . . . And Jezebel also shall be eaten by the dogs in Jezreel.’ “5
As the commentaries point out, based on the established law of eminent domain, it was seemingly King Ahab’s right to take Naboth’s vineyard. And by refusing to give it, Naboth was rebelling against King Ahab and deserved death. So where did King Ahab go wrong? Let’s analyze this episode to determine the limitations of eminent domain according to Jewish law.
Only for Servants and National Security
As stressed by Maimonides in his Laws of Kings, eminent domain only applies to taking the property and giving it to the king’s armies or servants for national security purposes. Hence, it would not apply to Naboth’s vineyard.6
Ahab offered Naboth compensation—was that necessary? Some commentaries hold that it wasn’t, so once Naboth was offered compensation, he was under the impression that he had a choice. (Thus, his refusing was not an act of rebelliousness and didn’t deserve death.)7 Maimonides, however, rules that according to Jewish law, one must be compensated with the fair market value of his property.8
There are additional limitations that some commentaries suggest, but that aren’t necessarily codified in Jewish law. Some explain that the right of eminent domain only applies to land acquired by the individual, but not ancestral land (as was the case of Naboth).9 Others say that the king only has a right to the fruits, but not actual land.10 Yet others posit that this right of eminent domain only applies to a king who rules over all of Israel, not a breakaway kingdom like that of King Ahab.11 12
The Kelo Case
Although there is much discussion as to the exact parameters of eminent domain in Jewish law, it is clear that it would not extend to taking the land and transferring it to another private individual merely for economic development. As Rabbi Schneur Zalman of Liadi explains, eminent domain is only permissible if it is a law that applies to all equally without singling out any individual. And even then, it needs to be for the king’s benefit or a national need—“not to transfer from one individual to another.” Otherwise, it is robbery.13
The King’s Highway
Chassidism teaches a profound lesson from the law of the king’s highway. In a sense, we are all part of G‑d’s army, enlisted to fight the powers of darkness and evil with light. Nothing can stand in the way of our march forward, and we need not make our road “crooked” just because of a “vineyard or field.” Rather, we may proceed on a straight path and carry out our mission in this world.14 And with G‑d’s help, we will succeed!