I was talking with a friend over Shabbos about the concept of right of conquest, kibbush milchomo, as it exists in Judaism. I don't really understand this concept personally. Why, if Bob takes from Joe something without permission, it's stealing, but if Bob and Joe are kings, it's a valid kinyan, transfer of property.
In general, among rishoinim two opinions exist:
1. Rashi and Tosfos rule that kinyan through kibbush milchomo happens as a result of yeush. If the flood destroys my house, I despair of owning the items inside it. If someone rescues one of the items from the flood, he may keep it: at the moment that I despaired of owning that item, I gave up the ownership of it. The item became ownerless. Hence, the rescuer can keep it.
Same way, when an advancing army seizes my house, I despair of ever owning it. (Certainly, if I am a king who lost territory.)
Nuances may apply in both cases (for instance, we have to establish that the yeush really happened, that the war ended for good, etc.), but overall, this explanation makes sense to me. Nor does it defy my intuitive understanding of property as being natural. Nor does it somehow deify governments or put it on the pedestal of representatives of the society. The war happened; the owner was meyaesh; the kinyon happened.
2. Rambam and Rashba disagree. They say that kinyan through kibbush milchomo happens in its own right. I won't give the evidence that they do so; suffice it to say that I got it from Dr. Bleich's "Sotheby Sale" article in Contemporary Issues of Halacha, vol. III.
It is this latter opinion that I do not understand.
My friend gave two possible explanations for the opinion. (I am summarizing and removing a lot of details):
1. Property is a physical concept. It is that which I have physical control over. If I live in a society and someone takes something from me by force, if the government recognizes this act as illegal, not all hope is lost: I can still go to the government which will take the item back from the thief and give it back to me. This scenario explains, by the way, why there is no yeush in this case. But here, we are not worried about yeush; the point is: in terms of who will control the item, the game is not over. It is still under my (eventual) control.
But, when one government takes some land or items from another government: what are you going to do? There is nothing to do. The physical control is that of the winner. In other words, might makes right.
Similarly, in the case when we are in a wilderness, where there is no law (and please don't call this anarchy), whoever at the time has control over some item -- that's his property.
What's my problem with this explanation? Somehow I can't believe it to be the view of property al pi Halacha. I haven't asked a shayla, but it seems to me that if I asked a rav whether I can legitimately take something from someone by force on a deserted island, he would say "no".
Plus, why not say that as long as I am in actual physical possession of an item, even under the government, it's my property? If the government decides to give it to someone else back, it's his property.
I will give one more problem I have with this explanation a little later. But first, I will give my friend's second explanation:
2. Property is a normative concept. It is something that people agreed upon. So, in order for property to exist, you need society; or, rather, the concept of property exists only within the context of a society. But which society? What if two different societies exist next to each other? Then, whatever the society is in charge of the particular plot of land, that's the society that will "create" the concept of property on this particular land.
So, whenever there is a war, and one country conquers land belonging to another country, the property of the land changes hands. (Note that my friend does not approve of wars in general, or wars of conquest in particular. He is merely looking at the reality of what happens, in his opinion, to the status of property. The act of war that led to this change should be condemned and avoided at all costs according to my friend.)
Why doesn't this happen when private individuals steal from each other? Because there is a society "above" them. So, if Joe steals from Bob, then the item still belongs to Joe, since the society in which both live has determined (or, rather, defined it) it so.
But there is no society "above" two countries, since each of them is an independent society. So, there is no "international" context in which to define the idea of property. In other words, just like "weight" is a concept that makes sense within confines of a particular gravitational field, "property" is a concept that makes sense within confines of a particular society. Plots of land changing control of societies is like an object moving from one gravitational field to another (and thus acquiring weight due to another set of circumstances).
What about anarchy (a society with "private" courts of law), I asked? He answered that if a given plot of land is inhaibited by the people who belong to an anarchic society, then the concept of property is created by common laws of that society. If members of another society, for instance, monarchy, conquer that land, then another society gives context to property on that land. This is what happened when England conquered medieval Ireland.
But in a situation of no society at all (i.e., total lawlessness), no concept of property can exist, even if people are around. In that context, again, "might makes right".
He added that the right of conquest works when no international law exists. If such law exists, like today, and defines defines property and prohibits its transfer through conquest, then right of conquest could not be a way to transfer property.
I personally see these problems:
1. It's true that society gives context to property. But that may mean that property makes sense to speak of when people live in a society (i.e., when there is more than person around). It's not the case that society of people decides what property is. It simply means that we need to start using the concept of property whenever we need to have a society.
2. Furthermore, it doesn't mean that a specific society determines or defines property. Society in general defines property.
3. I think my friend would agree that it is still immoral (and probably ossur) to take someone else's property if you're stranded on an island. One doesn't need to set up a legal system (monopolistic or anarchic) to know that what I have is property. We may have different ideas of what is moral or not in these circumstances, but "might makes right" would not be one of them.
4. If what he describes is right, then we have the strange conclusion in the following scenario: Bob and Joe live in England, and Bob takes a diamond from Joe. But, England is at war with France. Bob flees to France. He is now under a completely different society. There is no set of international relations between the two countries that recognizes each other's property (quite the opposite: if England takes one of France's territorial possessions, it will keep it, and vice versa). So, while he is still in England, he is a thief. While he is in the Channel, he is no longer a thief, but the diamond belongs to nobody. When he is in France, he for sure is not a thief, and the diamond is his.
Again, it seems that Halacha would not allow such "transfer of property".
5. As someone suggested online, in order even to recognize another state, a state ipso facto must respect the other state's claims to propertyl it becomes normative between those two societies at the moment of recognition.
I.e., when two states don't recognize each other's existence, that's one thing. But if they do (even though they are at war), as has happened in human history at some point (allowing for "rules of war" to develop), then it's problematic to say that they do not recognize each other's property. Hence, when state A is at war with state B, state A still considers B a society, and all the land under B's control is property, albeit according to B's, not A's rules. In such a situation, after the end of the war, A must return all conquered property to B.
In other words, my friend's model only works when two states don't recognize each other as legitimate societies. If they do, then a given plot of land has already been given definition as property by a society. Not necessarily my society, but so what? If I don't recognize the other society as a legitimate society, that's one thing. In that case I can never have negotiations with its leaders, as they are all a bunch of outlaws (in my view). The moment I started negotiations, however, I implicitly recognized the other side as a legitimate society and a legitimate source of the concept of property; hence, I shouldn't have a problem with recognizing that the plot of land I conquered was still property of the society to which it belonged beforehand.
6. In Judaism, there is a concept of Noahide Laws. The seventh law is "dinnim", setting up courts. The concept means that there should be courts of justice that will at least enforce the preceding six laws, one of which includes theft of property. But how should the courts determine what property is? Should courts in each society arbitrarily determine what they think is property and what isn't? (Perhaps this is where dina demalchusa dina comes in?) I asked my friend, and he said: "They should use seichel." To me that sounds like they should try to determine, objectively, what property is.
But if property is an objective (albeit normative) concept, then it is not defined by the context of a particular society. It is something that exists naturally. (See my post explaining this idea.)
7. What about Yakov and small vessels? Chassidus makes a big deal about Yakov going back to get his small vessels (and as a result encountering the angel), because tzaddikim value their property, since it has sparks of holiness destined for them to uplift. Was Yakov on anyone's jurisdiction, or was he in wilderness?
It seems that the latter is the case. In that case, in Judaism, property is not even a normative concept. Property is that which someone homesteaded, and he has rights to it, because Hashem recognizes his rights.
So, I still remain ignorant on a rational explanation of Rambam's and Rashba's shitta. I am interested to read suggestions (or sources) in e-mail or comments.
A simple explanation comes to mind: it was a sort of international minhog among the nations until the second half of 20th century. It was a sort of international dina demalchusa, the law of the land. When a property was conquered by an army, goyim considered it to be transferred. End of story.
To me, however, this explanation seems inadequate, precisely because it bases Halacha on the existing goyish customs. Halacha recognizes reality of existing behaviors by goyim, but it does not necessarily legitimizes them just because they exist. There must be an intrinsic reason why Halacha considers kibbush milchama a binding kinyon.
This especially comes to light when you consider the source of Rambam's opinion: he holds that the keilim stolen by Romans from Beis HaMikdosh are no longer consecrated. Normally, yeush would not remove the status of kadosh from an object. But kibbush milchomo did, since it was a legitimate kinyon, in Rambam's opinion. So, what does this have to do with international minhogim? Here we are talking about the intrinsic spiritual property of an object.
There could, of course, be always the possibility that Rambam and Rashba are wrong. After all, the concept of kibbush milchomo derives from one line in Torah. The explanation of yeush fits perfectly well with that line. But I want to explore the possibility that Rambam and Rashba are "equally right".
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