On Libertarianism and the Jews’ 2,000 Year Old Claim to Palestine

Rafi Farber, whom I recently debated on the Tom Woods Show on the subject of the legitimacy of Israel’s establishment, writes on his blog:

In my debate with Jeremy Hammond on the legitimacy of the State of Israel from a libertarian perspective, the center of Hammond’s argument is that a 2,000 year old claim to previously homesteaded land is invalid because there is a statute of limitations in libertarianism….

So what is the statute of limitations in libertarianism? It is when a claim is entirely foregone. When a claim is foregone, that claim cannot be picked up by subsequent generations. Once someone gives up a claim, that claim is gone and can no longer be inherited.

He goes on to say that Jews have never given up on their claim to Palestine, therefore Palestine belongs to the Jews and any non-Jew on land once occupied by Jews “must leave”. This is an accordance with the defense of the ethnic cleansing of Palestine that Farber and his co-authors make in their paper “The Legal Status of the State of Israel: A Libertarian Approach”, published in the Indonesian Journal of International Law.

The first point I’d like to make here is that this point about the statute of limitations wasn’t my own. Rather, I was quoting none other than Rafi Farber, et al, in their paper, as follows:

But are there no statutes of limitation? Surely, two millenia and counting would more than qualify for any statute of limitations. There is such a thing, for the libertarian, as a ‘natural’ statute of limitations: the further back ones [sic] goes into the past, the more difficult it is to encounter any relevant evidence. Since the burden of proof always rests with he who wishes to overturn extant property rights, mere passage of time can serve as a natural limitation.

And I expressed my agreement with this. Next, I quoted Farber, et al, acknowledging:

First of all, possession is nine tenths of the law. He who now possesses the land is presumed to be the rightful owner of it. It is up to the one who wants the territory, but does not now occupy it, to make the case for transfer.

Well, in 1948, the Jewish community owned only about 7% of the land in Palestine, whereas Arabs owned more land than Jews in every single district. The UN Special Committee on Palestine (UNSCOP), the body that came up with the infamous UN “partition plan”, noted that “The Arab population, despite the strenuous efforts of Jews to acquire land in Palestine, at present remains in possession of approximately 85 percent of the land.”

So, by Farber’s own argument, the Arabs being in possession of most of the land, we must presume them to have been the rightful owners of it. The burden of proof was on the Zionists to make the case for transfer of these lands from their Arab inhabitants to the Jews.

Was such a case made? No, of course not. Israel was established not by legitimate land purchase, reclamation, and homesteading, but by force of arms and the ethnic cleansing of most of the Arab population from their homes.

During our debate, I provided a relevant quote from former Israeli Defense Minister Moshe Dayan:

We came to this country which was already populated by Arabs, and we are establishing a Hebrew, that is a Jewish state here. In considerable areas of the country we bought the lands from the Arabs. Jewish villages were built in the place of Arab villages. You do not even know the names of these Arab villages, and I do not blame you, because these geography books no longer exist; not only do the books not exist, the Arab villages are not there either. Nahalal arose in the place of Mahalul, Gevat—in the place of Jibta, Sarid—in the place of Haneifs, and Kefar Yehoshua—in the place of Tell Shaman. There is not one place built in this country that did not have a former Arab population.

After quoting from Farber’s own paper on the point about how the passage of time serves as a natural statute of limitations and how possession is nine-tenths of the law, I followed up by quoting a third excerpt from their paper:

We readily admit that there is no single Jew who can trace his ownership rights over any specific piece of land from 2000 years ago. And this, indeed, would be the criterion for transfer of land titles if we were discussing individual rights. But we are not now doing so. Instead, we are discussing tribes, not individuals…. We do so in order to perform a reductio ad absurdum: if we take the non-libertarian principles circulating in those environs and logically deduce from them, we can demonstrate that according to them Jews are the rightful owners of the terrain under dispute, and that all and any payments made by them in land purchases were supererogatory.”

Hence, we can plainly see that by Farber’s own admission, as a co-author of the above quoted paper, the argument that in 1948, Jews were the rightful owners of Palestine is one, a departure from Libertarian principles and, two, absurd.

I rest my case. The argument of Farber’s, et al, that Israel’s establishment was legitimate on the basis of a claim to land rights dating back 2,000 years can hardly be taken seriously and fails even on their own terms.