Is There a Historical Right to the Land of Israel?

By Chaim Gans

A philosophical approach to a century-old question.

Historical rights should be resorted to for purposes of determining the location of nations’ self-determination not only because there are no reasons for not doing so, but also because there are reasons supporting this. In cases of nations that have not lost their physical ties with the territories to which they could claim historical rights, this applies to historical rights under their two conceptions, namely, first occupancy and formative territories. If the nation that was the first occupant in a given territory still occupies the territory, then first occupancy should be the basis for determining the site for realizing that nation’s right to self-determination. Resorting to other grounds for determining this site would entail the re-location of entire peoples, which would be costly and would involve extreme discomfort to them. Furthermore, there do not appear to be any good reasons for exacting such high costs and causing such inconvenience. Under the formative territories conception, historical rights should not serve as grounds for determining the location of nations’ right to self-determination only for these pragmatic reasons. Put simply, for people that ascribe great significance to their national affiliation, it may be very important not to be torn away from their national group’s formative territories. Being away from their formative territories may arouse feelings of alienation and longing. In view of the importance of formative territories to people’s national identity, it can definitely be argued that the link between these territories and the right to national self-determination is an essential one. In contrast to first occupancy, formative territories not only are suitable grounds for determining the location of the right to self-determination but seem to be essential for the realization of this right.⁶

The pragmatic considerations due to which it is desirable to determine the location of self-determination in the specific territory where the particular nation was the first occupant or with which it has a formative link lose their validity once the physical connection has been severed. If a nation eventually ceases to occupy a particular territory, then it cannot be claimed that realizing its right to self-determination would prevent this particular nation and other nations from having to wander from place to place. In fact, quite the opposite is the case. Any such territorial restitution is likely to result in forcing people to wander from place to place.

However, the non-pragmatic considerations for which historical rights under the formative territories conception could serve as grounds for determining the site for the realization of self-determination do not necessarily lose their force if the physical link between the nation and the territory has been severed. The interest that the committed members of such a nation have in not being separated from their formative territories is valid both while they are occupying the territories and when they cease living there. This is certainly the case when, despite physical separation from their formative territories, members of the group have retained an emotional attachment to the place that still constitutes a part of their identity. In that sense, the physical severance of the group’s members from their formative territories does not really differ from the physical separation of people from their relatives. These connections usually continue to be a part of their identity and as such provide reasons for determining the site of self-determination in the formative territories even when the physical connection no longer exists.

However, the fact that the non-pragmatic reasons retain their validity for determining the location of self-determination does not make them conclusive reasons for actually doing so. There are two kinds of considerations that might militate against them. The first kind of considerations pertains to the demographic situation in these territories and the needs of those living there and those wishing to return to these territories. Consider the case of an Indian tribe, the descendants of which seek to return to Manhattan in order to reside there within the framework of their culture. However, due to the large non-Indian population currently living in Manhattan, if members of the tribe were allowed to fulfill their wishes, this would result in the imposition of unreasonably high costs on the other residents of Manhattan. For example, the population density of Manhattan would certainly make it impossible to allow members of the Indian tribe to live there within the framework of their culture, if this also means providing them with hunting grounds. In other words, when a territory is densely populated, this seems to give rise to considerations which must override the force of the formative tie as grounds for determining the site for the realization of the nation’s right to self-determination. However, with regard to areas that are less crowded than New York City and/or in cultures that do not require hunting grounds in order to realize their cultural identity, it seems that the return of ethno-cultural groups to such areas is something that such groups should be entitled to if they have a formative tie with those areas.⁷ Indeed, the claims of ethno-cultural groups to return to areas with which they have a formative connection in order to realize certain forms of self-determination was recently recognized in the rulings of both Australian and Canadian courts.⁸

That said, it must be noted that the return of native groups in Australia and Canada, in contrast to the Jewish return to the land of Israel, was conducted within the political framework of a state that has legislative and judicial institutions as well as law-enforcement agencies. These institutions can draft the principles that define the relationships among all the people or groups under their jurisdiction. These institutions can settle disputes which might arise and enforce these principles and any judicial decisions. The Jewish return to Palestine, however, took place in an international context in which such legislative, judicial, and law-enforcement institutions were and to a great extent still are in their embryonic stages.⁹ A second category of considerations could therefore militate against considering the formative connection as a conclusive consideration in determining the location for the realization of the self-determination of nations that are no longer physically present in their historical homeland. It should be remembered that the principle according to which formative ties should be considered in determining where a nation should realize its right to self-determination settles this specific question only pertaining to the justice of self-determination. There is a whole range of additional issues related to the justice of this right, such as the global distribution of political power and territorial resources among nations. However, in order for justice to be achieved in these matters, there is a need for most nations in the world to coordinate their actions by adhering to a comprehensive system of principles that would provide sufficiently specific answers to the above questions. One isolated action according to one principle only that should belong to a comprehensive and institutionalized system could well be compared to playing one isolated chord or drumbeat without the rest of the symphony to which it belongs. However, in the case of justice, as opposed to the analogy of music, the danger of playing one of the chords or drumbeats in isolation is not just that of creating a cacophony. Applying one isolated principle of justice to only one party may mean that this party alone might be forced to pay a price which ought to have been shared by all those subject to the aforementioned system of principles. This isolated action may also confer advantages to parties who may not be the only ones entitled to that advantage.¹⁰

Moreover, if the burdens and advantages of distributive justice are not divided between all those who are supposed to be subject thereto (in our case, the nations of the world), and only one of them pays the price (perhaps rightfully so, but others should also have to pay the price), and only one of them reaps the benefits (again, perhaps rightfully so, but others should also reap the benefits), then this will no doubt lead to instability and bloodshed.¹¹

In other words, even if the formative tie which a particular nation has with a given territory should ideally be a reason to make that territory the site for the realization of this nation’s self-determination, provided the geo-demographic conditions of that territory allow this, then, in our non-ideal world, both considerations of justice (the equal distribution of burdens and benefits to all subjects) and of morality (prevention of bloodshed) compel the suspension of any action according to this ideal.¹²

This last argument may indeed be a compelling one and under normal circumstances should convince members of nations wishing to return to their historical homeland to refrain from doing so. However, in the absence of real alternatives for realizing their self-determination, or at least in the absence of real alternatives for leading a reasonable life as individuals, it would not be unreasonable for members of a national group to nevertheless resort to the historical rights argument. It could be argued that they then have a remedial justification for seeking to protect their physical integrity and retain their dignity by means of realizing their right to self-determination in their historical homeland.¹³

I have so far defined the conditions and circumstances under which the historical-rights argument may be justly used for determining the site for realizing a nation’s right to self-determination. I am of the opinion that this argument provides a moral justification for the return of the Jews to their historical homeland, even though it is not sufficient in itself to serve as a basis for the Jewish demand for territorial sovereignty over the land of Israel. As I will show below, this was probably clear to several prominent leaders of the Zionist movement.

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