Why Is a Sukkah on Stolen Land Kosher?

On Sukkot, we learn that the land we live on isn’t really ours. When we leave our homes, we re-enact the experience of being refugees.

Ilan Assayag

I once wrote about the Sukkot ritual in which we gather the four species central to the observance of the holiday in a practice known as "taking the lulav and etrog." The ritual requires that you actually own the four species before you take them and shake them. According to a moving Midrash dedicated to this theme, Vayikra Rabbah 30:3, when you own an object (including a lulav), you invest something of yourself into it. This gives rise to a new understanding of theft: When you steal an object, you really attack its owner, whose identity is somehow mixed up with it. 

I remember once sitting in a sukkah outside a restaurant. I appreciated that they had built it since during the festival many people won’t eat outside of one. However, this structure took up a great chunk of the side-walk. Pedestrians walking past were inconvenienced as they tried to negotiate their way around it. The owners of the restaurant didn’t own the sidewalk. The local authorities probably hadn’t given them permission to build this structure in this location. I couldn’t help wondering whether it could be kosher to build a sukkah on land that isn’t yours.

As it turns out, the Shulchan Aruch rules (O. C. 637:3) that "stolen" land doesn’t take on the same sort of legal stain when you steal it as does a lulav; it doesn’t invalidate a sukkah. In the words of Rabbi Moshe Isserlis, the great Ashkenazi gloss on the Shulchan Aruch, "One shouldn’t build a sukkah on somebody else’s land without their permission, and similarly regarding public land. However, if you transgress, then you still fulfil the commandment [of dwelling in a sukkah]." 

Thus, if you don’t rightfully own a lulav and etrog, you can’t perform the ritual, but if you build a sukkah on land that isn’t yours, against the wishes of the owner, you’ve done something wrong, but not wrong enough to invalidate your dwelling. So the laws of this festival encode a deep respect for lulav ownership, and yet in the same breath, they turn a blind eye when you to run roughshod over people’s land rights. What’s going on?

According to the Talmud (Baba Kamma 99a), if I own a piece of wood, and employ you to fashion a table out of it, then without spending any money, you become a co-owner in that piece of wood through your skilled labor. You put some of yourself into it, so to speak. When I pay you, I don’t pay you for your labor so much as to buy you out of your new share in the piece of wood. Thus, Jewish law acknowledges the intimate relationship with things we make and own, but doesn’t recognize that intimate relationship extending to our ownership over land.

Fundamentally, the real estate of this world belongs to God, and we are nothing but resident aliens on the face of His earth. At best, the law gives certain people exclusive rights to use land, but it never gets mixed up with their identity in quite the same way. Indeed, the Bible demands that every 50 years there be massive redistribution of land titles.

Maimonides (Laws of Shofar 1:3) rules that if you hear a stolen shofar on Rosh Hashanah, you still fulfil your obligation. His rationale is that the commandment concerns hearing the sound, not the object, and thus the fact that the object is infected does not affect the sound. The same rationale applies here – if you stole the walls or the roof, then there will be significant questions about the validity of your sukkah, but the land is no part of the commandment, because the commandment of the sukkah is about experiencing landlessness; God's commandment is to leave the comfort of our homes and re-experience what it means to live without being rooted to a particular plot.

So there are two answers to this question: one, land can’t be stolen in the same way as a lulav because land isn’t really owned by any human being; and two, the land on which a sukkah is built cannot determine whether or not the sukkah is kosher because the laws of a sukkah ignore its location.

When we start to look at the earth as a place that no human can own, how does it affect our politics and our relationship to "the promised land?" How does it shape the way we see the hundreds of thousands of refugees and migrants around the world, without a piece of land upon which to rest in safety, shut out by border police, fences and the like?

I don’t suggest that the festival of Sukkot has specific answers to these questions, nor do I mean to oversimplify the very fraught demographic and security issues that confront us. But we leave our homes in order to re-enact the experience of being refugees from Egyptian slavery. That experience is supposed to transform the way we look at the world around us. It is supposed to transform the ways in which we think that certain things are ours.

Dr. Samuel Lebens, an Orthodox Rabbi, is a Research Fellow at the Centre for Philosophy of Religion at Rutgers University.