Is There a Historical Right to the Land of Israel?

By Chaim Gans

A philosophical approach to a century-old question.

Do the Jews have a historical right to the land of Israel? To many Israelis, the answer to this question is obvious. A divine promise is often invoked by many religious or traditionally oriented Jews in Israel in order to justify the movement advocating settlement in Greater Israel. Many more Israelis, who were raised according to the Zionist ethos, would tend to answer the above question affirmatively. However, this response emanates from early ideological conditioning rather than from a worldview which is the product of systematic reasoning.

Indeed, when viewed through the lens of universalistic moral discourse, rather than through that of religious or nationalistic dogma, the picture that emerges is far more complex. Several contemporary liberal thinkers have argued that, from a universalistic point of view, it is possible to justify certain versions of nationalist ideology of the ethno-cultural type, such as Zionism. According to the ideology of cultural nationalism, members of groups sharing a common history and culture have a fundamental and morally significant interest in adhering to their culture and sustaining it across generations. This interest warrants political protection by means of self-determination and self-rule.1

Many nationalist movements around the world have adopted positions of this kind. Yet what separates Zionism from all other nationalist ideologies of the ethno-cultural type—including even those historically championed by Jews, such as the Bund movement2—is its insistence on the idea that the Jewish people’s aspiration to adhere to its own culture and establish self-rule can be fulfilled only in the land of Israel, and not in any country in the diaspora, or on any territory without a direct link to Jewish history. As the leaders of the Zionist movement have reiterated time and again, Jewish self-determination is wholly dependent on the Jews’ realization of their “historical rights” to their homeland.
In the following pages, I will examine the nature of the Jews’ historical rights over the land of Israel and its role within the Zionist discourse. As I will try to demonstrate here, the Zionist movement’s employment of the historical rights argument in order to establish the land of Israel as the preferred location—or perhaps even the only possible site—for the fulfillment of Jewish national aspirations was, in fact, justified, especially in view of the various threats faced by the Jewish people in the first half of the twentieth century. Invoking this argument was justified particularly if it is understood to stem not from the primacy of the Jews in the land of Israel (henceforth, “the first occupancy claim”), but rather from the primacy of the land of Israel in Jewish history (“the formative territory claim”).
However, historical rights in themselves are not enough to justify the Jewish demand for territorial sovereignty over the land of Israel or even parts of it. Rather, historical rights may be considered in order to determine the specific geographical location in which Jewish self-determination may come to be realized. This fundamental distinction—between invoking the historical rights argument in order to justify demands for territorial sovereignty, and employing the historical rights argument in order to determine the specific geographical site for the realization of a nation’s right to self-determination—was not lost on several of Zionism’s most prominent leaders, such as Chaim Weizmann, David Ben-Gurion, and even Ze’ev Jabotinsky. In their statements, as well as in the declarations issued by prominent national institutions such as the Zionist Congress and the Jewish Agency, one can detect varying degrees of awareness of the complex nature of the historical rights argument and its limitations.
Unfortunately, when one examines the fierce political debate held within Israel on the issue of its borders after the Six Day War, the participants in this debate do not seem to exhibit any awareness of the complexity of the concept of historical rights. This applies even to those who purport to represent the legacy of the great Zionist leaders mentioned above. The conclusions of the analysis presented below are worth considering as long as the concept of historical rights remains on the public agenda.

It is important to distinguish between the determination of the geographical site of the right to national self-determination on the one hand, and, on the other hand, justifying the right itself, its institutional form, and its territorial scope. Unlike historical rights, which are acquired by virtue of specific events in which the specific claimant to such rights was involved, the right to self-determination could be said to be ahistorical. The groups that have it are entitled to it by virtue of belonging to a general category (namely, being a nation) and not by virtue of any particular events in their history.3 If historical rights alone constitute the justification for the right to territorial sovereignty, then they necessarily serve also to provide the answers to questions concerning the appropriate geographical site, territorial scope, and institutional form of the right to national self-determination. For if historical rights give rise to territorial sovereignty, they necessarily presuppose a statist realization of self-determination within the whole area with respect to which the historical rights are claimed. On the other hand, justifying the ahistorical right to national self-determination, for example, by means of the argument that it enables individuals to live their lives within the framework of their culture does not predetermine what the appropriate institutional framework of such self-determination should be (for instance, personal autonomy in various areas, territorial autonomy, or sovereignty in the framework of a nation state), what its territorial scope ought to be (assuming that it concerns territorial self-determination), or where the appropriate geographical site for the realization of this self-determination should be. Historical rights could constitute a solution to this third problem concerning the site of the territory designated for self-determination, without necessarily determining its institutional character and the scope of the territories in which self-determination is realized.4
The difference between using the historical-rights argument as the basis for determining the site of the right to self-determination, and invoking the same argument as the basis for asserting political sovereignty and engaging in territorial expansion is of great normative significance. Put simply, the latter is morally questionable. The historical-rights argument cannot justify the right to territorial sovereignty, and it also cannot serve as a basis for determining its scope. Given the scarcity of resources and space in the world, basing sovereignty rights and their territorial scope on historical rights could endanger the livelihood and autonomy of many peoples. Jean-Jacques Rousseau stated this point clearly in The Social Contract: “How can one man or a whole people take possession of vast territories, thereby excluding the rest of the world from their enjoyment, save by an act of criminal usurpation, since, as the result of such an act, the rest of humanity is deprived of the amenities for dwelling and subsistence which nature has provided for their common enjoyment?”5
Rousseau’s critique pertains to people physically present in the territories over which they seek to establish territorial sovereignty. It is all the more applicable to nations which attempt to renew their physical presence in territories where they lived many generations ago. If such nations invoke historical rights to claim territorial sovereignty, then accepting this claim would not only make it impossible for these territories to be used later to satisfy the basic and/or important needs of other people who might need these territories. It would also increase the risk of uprooting people already living there, and it would necessarily lead to their subordination to foreign rule.
In contrast, if a nation’s historical rights are not perceived as grounds for demanding territorial sovereignty, but rather only as a consideration for determining the location where its right to self-determination should be realized, then the fears expressed above lose a considerable measure of their weight. This is particularly true if considerations of substantive justice serve to determine whether nations are entitled to sovereignty or other territorial rights. Based on criteria pertaining to substantive justice, territories could be allocated to nations according to the size of their respective populations, the nature of their culture, the specific needs created by the culture, the degree to which any given nation is committed to members of the nation and how this nation treats those who are not members, or according to a combination of the above criteria as well as additional considerations. Historical rights could serve as a consideration for determining the specific geographical location where self-determination is to be exercised. If the territories of the world are divided between the nations in the world on the basis of these considerations, and if the role of historical rights is interpreted not as a basis for the right to sovereignty in and of itself but rather as grounds for determining the location where self-determination is to be realized, then these rights do not endanger the livelihood and autonomy of many people. People would only have to pay the price of being excluded from specific areas—the areas granted to other nations for the exercise of their own right to self-determination. These areas would not be any larger than those from which they would in any case be excluded, if the territorial rights accompanying self-determination were justly distributed among national groups.

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