Takkant ha-Shavim and Migron
It is taught in mGittin 5:5:
הֵעִיד רַבִּי יוֹחָנָן בֶּן גֻּדְגְּדָה עַל הַחֵרֶשֶׁת שֶׁהִשִּׂיאָהּ אָבִיהָ שֶׁהִיא יוֹצְאָה בַגֵּט. וְעַל קְטַנָּה בַת יִשְׂרָאֵל שֶׁנִּשֵּׂאת לַכֹּהֵן, שֶׁאוֹכֶלֶת בַּתְּרוּמָה. וְאִם מֵתָה, בַּעְלָהּ יוֹרְשָׁהּ. וְעַל הַמָּרִישׁ הַגָּזוּל שֶׁבְּנָאוֹ בַבִּירָה, שֶׁיִּטּוֹל אֶת דָּמָיו, מִפְּנֵי תַקָּנַת הַשָּׁבִים. וְעַל הַחַטָּאת הַגְּזוּלָה שֶׁלֹּא נוֹדְעָה לָרַבִּים, שֶׁהִיא מְכַפֶּרֶת, מִפְּנֵי תִקּוּן הַמִּזְבֵּחַ
Testified R. Yohanan b. Gudeggedah concerning a deaf-mute, whose father married her off, that [if she should be divorced], she goes forth with a writ of divorce and concerning a minor Israelite girl who was married to a priest, that she eats heave offering, and if she died, her husband inherits her estate; and concerning a stolen beam which one built into his house, that the original owner collects its value—on account of the good order of those who repent (takkanat ha-shavim); and concerning a stolen sin offering, that was not publicly known, that it effects atonement—for the good order of the altar.
The Gemara on bGittin 55a brings the following baraita (see tBava Kamma 10:5):
תנו רבנן: גזל מריש ובנאו בבירה, ב”ש אומרים: מקעקע כל הבירה כולה ומחזיר מריש לבעליו, וב”ה אומרים: אין לו אלא דמי מריש בלבד, משום תקנת השבין.
Our rabbis have taught on Tannaite authority: If someone stole a beam and built it into a house – the House of Shammai say, “Let him tear down the whole house and return the beam to its owner.” And the House of Hillel say, “The owner has a claim only for the value of the beam alone, on account of the good order of those who repent (takkanat ha-shavim).”
Takkant ha-Shavim, lit. the enactment of the penitent, has been used to help facilitate the return of stolen property or to encourage sinners to try and right whatever wrong they may have committed. For a discussion of the issue see this article (Hebrew) by Nachum Rakover, who has authored an entire book on the subject. Aaron Pankin’s discussion of takkanat ha-shavim in his book The Rhetoric of Innovation: Self-Conscious Legal Change in Rabbinic Literature can be found here.
Israel Hayom is reporting (hat tip) that most of the land on which the contested outpost Migron was built has been purchased from its Palestinian owners. The Israeli Supreme Court had previously ruled that the structures in Migron had to be destroyed because they were built on private Palestinian land.
Difficult cases produce difficult decisions. The High Court’s important verdict on Migron once again highlighted the fact that the end, as important as it may be, does not always justify the means, and certainly does not justify a violation of individuals’ selling rights. The message, one should hope, has already been heard loud and clear. It is precisely for this reason that in light of the new circumstances, assuming that the legality of the purchase is proven beyond a shadow of a doubt, the land that was bought for its full price, and thus the homes constructed on it, should be allowed to remain intact and their residents not evacuated. Such a policy would fall in line with the values of a democratic state — of justice and law — and also with the values of a Jewish state, recognizing the immense importance of “takanat hashavim” (the Talmudic ordinance for a compassionate justice in the restoration of misappropriated property) which allows those who sinned and stole land to avoid demolition by offering reasonable compensation.
I think that there is much value to Prof. Hacohen proposition, but if the news report is correct, is this an admission by the residents of Migron that they originally stole the land? That for years they were lying about its ownership?