A Talmudic Precedent for a Just Solution to the Israel-Palestinian Conflict

“Two are holding a garment. One says, ‘I found it’; one says, ‘I found it.’ One says, ‘All of it is mine’; one says, ‘All of it is mine.’ This one swears that he doesn’t own less than half of it; that one swears that he doesn’t own less than half of it, and they shall divide it.” (Mishnah Bava Mezi‘a 1.1)

Commentary

The case cited in the third-century rabbinic law code is one in which two people claim exclusive ownership of an article of clothing. The claims are set forth in court. Each side claims to own the entire article by virtue of finding it. In Jewish law, one who finds an article has an obligation to return it to its owner. If the owner cannot be found, the finder can usually keep it. One can infer from the text that neither claimant is the original owner; in any case, the question of another owner is not considered. On the contrary, ownership of the garment cannot be established.

This last point is an important one. It may be that claimant A is indeed the exclusive owner, and claimant B is mistaken. The likelihood of their being joint owners (say, they found and grabbed the garment simultaneously) is remote, though not impossible. But all that is irrelevant. The court does not recognize anybody as an owner.

What is to be done in such a case? First, each claimant takes an oath. In Jewish law, as in other systems of law, judicial oaths are administered in order to prevent false testimony and frivolous claims. Because of the willingness to take the oath we can assume that each side genuinely believes that it is the exclusive owner of the garment.

Why does each swear that he does not own less than half of the garment? Why not have each swear that he is the exclusive owner, if that is what he believes? One answer is that this would involve a falsehood, for it is impossible for both to be exclusive owners. The sides have to swear to claims that are in practice reconcilable. However – and this is important -- the claimants do not swear that they own exactly half -- because they actually believe that they own the whole garment. So by swearing that they do not own less than half, they do not publicly renounce their claims to ownership of the whole. By accepting the division, and by advancing more modest claims under oath, they signal to each other and to the court that they are willing to accept half.

All this is done before a court because the claims are irreconcilable and the claimants cannot come to a reasonable compromise, even one brokered by the court. This is a case where an agreed-upon compromise is impossible or impractical; the final ruling is imposed by a court that is neutral and expert.

You see where this is going, don’t you?

The Zionist and Palestinian nationalist movements have appeared before the international community as claimants to Palestine for close to a century. Each has claimed the right to exclusive hegemony over the territory of Palestine/the Land of Israel. To this day neither side recognizes the justice of the other side’s claims. One side – Israel – has made the other side’s recognition of the justice of its claims a precondition of its willingness to sign a peace treaty. In all the proposed Israel peace plans, the Palestinians have been required to recognize that Jews have a right to a state in Palestine, or that Israel has a right to exist as a Jewish state. This differs from the principle underlying the Mishnah, where neither side is forced to renounce publicly its belief in its exclusive ownership.

To require of the Palestinian people, as a precondition of their statehood, that they recognize the right of Jews to a state in Palestine, is about as reasonable as to require of the Jewish people, as a precondition for living with Christians, that they recognize the messiahship of Jesus. It is sufficient that both Palestinian and Israel sign a peace treaty. Neither has to yield its most cherished – and incommensurable – beliefs.

Second, we learn from the Mishnah that when two sides are unable to come to a fair agreement, an agreement is imposed. I say “fair” agreement because sometimes the balance of power is so lopsided that any mutual agreement perpetuates inequities. That is one of the reasons why I oppose Israeli-Palestinian bilateral negotiation – in the past, Palestinians, because of their relative weakness, have agreed to Israeli positions that do not begin to meet the demands of fairness, and hence, foster bitterness and hostility, the breeding grounds of terrorism and extremism, which in turn sow the seeds of the breakdown of the agreement.

Finally, the Mishnah rules that both sides divide the garment equally. Any peace settlement or agreement that favors one side at the expense of the other, or perpetuates existing inequities, is unjust – and bound to fail for the reasons mentioned above. And even without these bad consequences, an unfair agreement is wrong. Whether we are talking about two states, a binational state, or a federation, neither side can dominate the other. “Neither to rule or to be ruled” -- this was the leftwing Zionist slogan when the Jews constituted a fraction of Palestine’s population – and at the time it was dismissed by the Palestinians. As soon as the Zionists got the upper hand, they dismissed it as well. It is time to make that slogan a reality.

I have lived in Israel for over thirty years, and to this day, I know of virtually no Israeli within the so-called national consensus who favors a genuine two-state solution. Don’t believe what Benny Morris, Ehud Barak, Ehud Olmert, Tom Segev, Amos Oz, Shimon Peres, or any of the so-called Israeli “moderates” or “leftists” tell you. They are all in favor of a one-state/one-“state” solution, where the former is a powerful state with an independent economy, foreign affairs, and military, and the other is a “state-minus,” in which the Palestinians are allowed a certain degree of autonomy provided that they don’t pose a threat to the first state. Even the much-vaunted Geneva Initiative perpetuates inequities when it proposes that a Palestinian state be left without a modern Palestinian defence force, without making a similar demand of Israel – even though one hundred years of Zionism teaches us that the Palestinians have much more to fear from the Zionists than vice-versa. Only one side has ever actually wiped the other’s country off the map – and it wasn’t the Palestinian side.

Better we should go back to the Mishnah. An imposed solution of an equal division of territory, with neither side giving up its narrative or its most cherished beliefs, and with neither side coming out with more hegemony than the other – that is the ethical archimedian point from which we should begin to examine the situation.

I am not offering the Mishnah here as a practical legal precedent for international relations. Rather, I am using it to illustrate how one can bring Jewish tradition and precedent to bear upon this case. If one is concerned with a just solution, then there are certain minimum requirements of fairness. To see how those requirements stand behind elements of the Jewish legal tradition is of relevance in doing Jewish ethics. Some people learn those minimum requirements in kindergarten; others in cheder.

It seems to me that Jews who care about their Judaism should seek to invoke Jewish precedents as well as non-Jewish precedents when discussing the morality of the decision which calls itself Jewish. I am not saying that they have to – I don’t need to find a verse from the Torah to justify my ethical beliefs – but it looking for Jewish precedents is a legitimate exercise for those who value their tradition..

Of course, if you come up with the same solution via a different route, that is fine with me, too!