By Aaron Lang. What kind of polity gives rise to a system of law that defines the status of people, property and acts? We compare the basis of sovereignty in common law countries with a commonwealth in halacha.

Title to land in America follows a chain that originates from an original grant by the state. Heirless intestate land escheats to the state and does not become הפקר.  The law of escheat is blind as to whether the state is governed by the many in their corporate capacity, by the few in partnership, or by a single ruler. In proprietary colonies, land escheated to the proprietor. The holding of the proprietor eventually escheated to the Crown, as most colonies become royal colonies. Today, in England, ownerless land still escheats to the Crown, whereas in America, land escheats to the State, which replaced the Crown.

In the 1600’s land in Virginia escheated to the Virginia Company. Land in Massachusetts escheated to the Massachusetts Bay Company. Every colony maintained sovereignty over its territory and taxed with the aid of an elected council, whether they were owned by public corporations whose owners bought and sold their shares on the market, by a single proprietor, or by the Crown. Today, the state is owned by the people in their corporate capacity. It exercises at least the same degree of sovereignty as the joint-stock companies exercised almost 400 years ago.

It is settled law that one who bought land directly from an Indian tribe will not prevail against a third party that bought the same land from the government at a later date.^[1] Ultimately, the chain of title has to trace to the state. Land ownership in America, therefore, is not a שותפות without a sovereign, but founded upon a substratum of sovereignty over the land, in this case of the people in their corporate capacity, above which the individual holds his fee.

The power of the purse historically correlated with political power. Monarchies that failed to convene Parliaments were limited to established revenues. Nations that devised legislatures to tax under the consent of the governed to meet their needs avoided violent revolutions. Societies that developed the principal of taxation by representation have thrived.

The temporal power of sovereignty over the land did not exist in biblical Israel. The right to the land did not rest with an earthly sovereign. Ownerless land did not escheat to the government but became הפקר. The implication of this halacha, as found in the writings of Talmudic scholars before Magna Charta, is that government cannot legislate or tax without consent.^[2] People owned land in their own name, not on top of the title of their rulers. The people also held land in complete equality.

 If a person became indebted, he could not be forced to pay interest. If he could not pay back at all, and if his land was not encumbered by the loan, the loan was forgiven in the seventh year. If the lender took encumbered land, it was returned in the year of Jubilee. Note carefully. The loss of land has been the source of disenfranchisement, oppression and revolution throughout the ages. Since land in ancient Israel was inalienable, there was no escheat, no original acquisition by a sovereign. Without the power of escheat, government lacked legislative capacity over the people and their property as a sovereign. Authority remained with the people requiring their consent to taxation, providing a fundamental political blessing and bulwark for liberty.

An employer offering a job to a worker is bound to pay the agreed wages, even without a kinyan. He is גמר ומשבעד to pay the wages under the law of arev.^[3] A party entering into the reciprocal relationship of a partnership is גמר ומשעבד  to share the דבר שלא בא לעולם profits without kinyan. ^[4] However, without the reciprocal relationship of a partnership, the loss of ownership of labor for a period of time would amount to slavery, requiring a different kind of kinyan, which has long been abolished.

The majority in a partnership or in a trade guild can bind the minority to rules governing or restricting the work product of all members. The collective has a claim and a compulsion against the individual by virtue of their coming together in mutual society. In the same manner, all people living within a city are bound to one another for their protection and benefit.^[5] This is the origin of the consent of majority, the power to tax and govern without a sovereign. It is the true social contract ^[6].

This distinction is great. A nation in which the people in their corporate capacity own the land, as in the אמות העלום including modern democracies, has the power to tax and legislate over every aspect of property. The government is the original possessor of the land.  It has power of escheat and hence a claim to the individual and his property.^[7] In a tax dispute, the government can seize the property of a taxpayer placing the burden of proof on the individual. The government and its courts can regulate contracts and the relationship between contracting parties since דינא דמלכותא דינא. By contrast, in a nation in which the individual owns his land by way of right, as in Israel, there is no rule of דינא דמלכותא דינא, the power of the state to tax and legislate derives purely from the consent of the majority. The commonwealth has the burden of proof in a case against an individual taxpayer, although the taxpayer still has the burden of providing security for his case.^[8]

Conclusion

Duty in halacha is guided by the requirement of a ma’asa. Liability is evaluated by the commission of a ma’asa. This requisite differs from the actus reus element of the common law. The common law is essentially utilitarian, looking toward social policy, measuring prudence with respect to consequences. Halacha, by contrast, is an intrinsically moral system of law, evaluating the universal act, maintaining exacting logical consistency in defining relationships between people and their property.