The "rule of restitution" as a paradigm for resolving conflicts

by Pinchas Leiser
JERUSALEM - The Mishna, the Talmud and Halachic literature all mention a legal innovation by the Sages, contradicting a Biblical Law, which stipulates that a person must restore that which he took by robbery to its original owners (Leviticus 5, 23). This ruling, also called the “rule of restitution”, states that while a person who has used a stolen beam to build his house is not obliged to destroy the building he has built in order to return the stolen beam to its original owner, he does have to compensate the owner for the damage he caused him.

As the term “restitution” suggests, the intention of our sages in passing this ruling was to underline the importance of enabling a person who wishes to repent to do so. Nevertheless, one must presume that “repentance” cannot be complete unless the person who stole the beam admits what he did, apologises, and acknowledges the feelings of the injured party.

The ruling embodies the message that it is necessary to achieve a balance between the principle of justice on the one hand, and consideration for the facts on the ground, on the other; even when the facts are created through an act of injustice.

It would be interesting to explore how this ruling could be applied to political and territorial conflicts.

Take, for example, the issue of “the right of return”. The demand by Palestinians to return to houses that they had left in 1948 within the borders of Israel is understandable when viewed from their perspective of what constitutes absolute justice. But its implementation would entail the dispossession of the current tenants from these homes, something which is unthinkable. In this case, alongside a recognition of the suffering of those forced to leave their homes, provisions must be made for appropriate compensation. Similarly, it is unthinkable to expel residents of Sheikh Jarrah in East Jerusalem from their homes, something we have seen more and more in recent months, even if there are Jewish families who can prove that they had owned these houses prior to 1948.

Perhaps, if the Jewish-Israeli public were able to let go of their existential fears of losing the home(land),we would be able to recognise our responsibility for the suffering of Palestinians and think of appropriate ways of compensating them.

At the same time, we must also understand that from the point of view of the settlers of Gush Katif, and those who adhere to the vision of a Greater Israel, Jewish law dictates that “absolute justice” does not permit “uprooting of Jews from their homes”. However, a democratically elected government, with the support of most Knesset members, decided on the disengagement plan that obliged these people to leave their homes. Although it may be impossible to compensate the uprooted settlers for what they perceive as an undermining of absolute justice, everything must be done to ensure that they receive appropriate compensation that will allow them to rebuild their lives within the borders of Israel. Along with financial compensation, there is a need to relate to settlers’ feelings of injustice upon being ordered to leave their homes contrary to their wishes, even by those who think that they shouldn’t have settled there in the first place.

I believe that the “rule of restitution” in its broadest sense, can balance each side’s “absolute justice” with the possibility for peaceful co-existence. We must acknowledge the fact that from the perspective of the Palestinian people, the land of Israel as a whole is stolen land, just as adherents of Greater Israel consider all parts of Israel that have not yet been “redeemed”, as stolen by the Arabs.

The first condition for co-existence is, therefore, an acknowledgement of the other side’s point of view and basic assumptions. Empathy for the suffering of the other is necessary if we are to reach a viable solution to the conflict, without destroying the homes of either party.

The Midrash (Bereshit Raba Ch. 22 v.7) extrapolates on the original story of Cain and Abel, and describes it as a conflict over the world’s resources, which led to the killing of Abel by Cain: “About what did they quarrel? ‘Come,’ said they, ‘let us divide the world.’ One took the land and the other the movables. The former said: ‘The land you stand on is mine,’ while the latter retorted, ‘What you are wearing is mine.’ One said: ‘strip’; the other retorted: ‘fly’ (off the ground). Out of this quarrel Cain rose up against his brother Abel.”

According to this Midrash, the conflict could have been resolved and Abel’s murder preempted, had the brothers understood that an absolute distribution of the resources would not have solved the problem as it would have created an impossible situation: both were in need of both land and belongings. Clearly a solution based on absolute justice is not enough. Beyond it, each party must also be considerate of the other side’s needs.

Perhaps the “rule of restitution” could serve as a valuable paradigm for political negotiations. It would, of course, necessitate a commitment by both sides to place the goal of resolving the conflict as the highest priority. Time will tell if we and the Palestinians are prepared to do so.


* Pinchas Leiser, born in Belgium, is a Jerusalem-based psychologist. He is also editor of “Shabbat Shalom”, where he contributes a weekly peace-oriented commentary on the Torah section. This article was written for the Common Ground News Service (CGNews) and is the first in our series on politics and religious interpretation and its implications for the Arab-Israeli conflict.

Source: Common Ground News Service (CGNews), 9 December 2010,
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Other articles in this series

Engagement, not isolation, as the way to a moderate Hamas by Chrystie Swiney
Religious interpretation and the Arab-Israeli conflict by Michael M. Cohen
Hamas: A never-ending debate over peace by Mahmoud Jaraba
Learning from Miriam and Pharaoh’s daughter by Naamah Kelman
Jerusalem’s potential to bring Jews and Muslims together by Aziz Abu Sarah and Mairav Zonszein