The Land of Israel is beloved unto Me above all else…. Behold the Land is beloved unto Me and Israel is beloved unto Me; I shall cause Israel who is beloved unto Me to enter the Land which is beloved unto Me.
BEMIDBAR RABBAH XXIII, 7
The Land of Israel exerts an almost mystical attraction upon the people of Israel in all their habitations. Jews are unique not only in having survived as a distinct people despite generations of exile, but also in having maintained a bond with a homeland which for so long was merely an historic memory. There is undoubtedly a causal connection between the fervent aspiration of the community of Israel to return to its land and the survival of Jewry despite intense sociopolitical assimilationist pressure. "Lift up a banner for the ingathering of our exiles and gather us together from the four corners of the earth" is not only a prayer, it is a thrice-daily reaffirmation of the centrality of the Land of Israel in the life of the people of Israel. It is a key to the survival of the Jew.
The first Jew who prayed for aliyah to Israel was one whose prayer was destined to be denied. Moses was not granted permission to enter the Holy Land. This, to him, was the severest of all punishments and he prayed with all his might that it be rescinded. Expressing astonishment at Moses' intense yearning to enter the promised land, the Sages queried, "Did [Moses] then need to eat of its fruit or to be satiated by its goodness?" Their reply is illuminating: "Said Moses, 'Israel was commanded many mizvot which cannot be fulfilled other than in Erez Yisra'el; I will enter the land so that the commandments will be fulfilled through me'" (Sotah 14a). For Moses, entry into the Land of Israel and the establishment of a Jewish commonwealth could have but one purpose: it afforded the opportunity to fulfill the divine commandments, particularly those "commandments which are contingent upon the Land" and can be fulfilled only in Erez Yisra'el. The Sages could not ascribe to Moses the vision of an independent homeland as the fulfillment of an ethnic purpose; to them nationalistic aspirations could be but a means, never an end. National independence, political self-sufficiency, and even settlement of the land are objects of longing primarily because they are seen as providing fertile soil for the fulfillment of mizvot.
Throughout the centuries the Jews have affirmed their love of Erez Yisra'el through the study of Torah lore and law pertaining to the fulfillment of mizvot uniquely associated with the Land of Israel. Settlement in the land might be but a fervent dream, but the "commandments associated with the Land" were a reality which could be perceived in the discussions of the Talmud and in the words of the Shulḥan Arukh. The laws were to be mastered in anticipation of a return to the Land. Such study bore eloquent testimony not only to an unabated desire for redemption from exile, but also to an appreciation of the ultimate goal of aliyah.
The love and zeal which this subject has always evoked have become even more manifest in recent years. Rabbinic scholars occupied themselves with such matters during the course of centuries even though their investigations and disputations were almost entirely theoretical. With the birth of the State of Israel these questions became topical and of immediate applicability. Quite naturally, in recent years questions pertaining to the "commandments contingent upon the Land" have become, to an even greater degree, a focal point of Torah scholarship both in Israel and in the Diaspora.
"And you shall inhabit the land and dwell therein" (Num. 33:53) is not simply a prognostication or blessing; it is a mizvah, a commandment constituting a religious obligation. As is the case with regard to all precepts, its ramifications and parameters require careful elucidation. Indeed, the very first question to be raised is whether or not settlement of the Land of Israel constitutes a binding imperative upon a people exiled from their land. The settlement of the Land of Israel is one mizvah among many. There are situations in which residence in Israel conflicts with other obligations or desiderata. As will be shown, the issues raised in such situations have been the subject of extensive halakhic discussion.
The establishment of an independent Jewish commonwealth understandably brings with it a host of questions regarding the prerogatives of the state. Not the least of these is the question of the authority of the state to wage war and the circumstances in which military action is justified. The interests of the state may at times conflict with the rights of its citizens and impinge upon their liberties. A halakhic adjudication of such conflicts is possible only upon a careful delineation of the extent and limits of the sovereign power of the state.
Settlement in Israel
The Six-Day War and the accompanying liberation of the Holy Places have brought in their wake renewed interest in settlement in Israel, and have resulted in a vast increase in the number of individuals, particularly among observant Jews, committed to aliyah. The exigencies of the present political situation in Israel are in themselves sufficient cause for us to welcome and foster any such aliyah. But aside from questions of immediate practical need, Jews have always viewed residence in the Holy Land as a unique privilege. To live in Israel is clearly a religious ideal. The establishment of a Jewish commonwealth following the crossing of the Jordan by our ancestors constituted the fulfillment of a biblical commandment. But does this commandment retain its binding force throughout the epoch following the destruction of the Temple and subsequent exile?
In a paper contributed to the 5729 issue of Torah She-be-'al Peh, Rabbi Ovadiah Yosef analyzes the various halakhic views with regard to the commandment concerning dwelling in Erez Yisra'el and the applicability of this mizvah in our own day. Rabbi Yosef, Sephardic Chief Rabbi of Israel, is the author of Teshuvot Yabi'a Omer, a voluminous work exhibiting encyclopedic mastery of rabbinic scholarship. The various positions regarding this question are outlined by Rabbi Yosef as follows:
1. Chief among the authorities who maintain that the commandment to reside in Israel remains in force throughout the period of the dispersion is Nachmanides. In his commentary on the verse "And you shall inherit the land and dwell therein" (Num. 33:53), Nachmanides states that the passage is to be understood as a positive commandment to dwell in the Land of Israel while at the same time enjoining Jewry from establishing a national settlement outside of Israel. This view is reiterated by Nachmanides in his glosses appended to Maimonides' Sefer ha-Mizvot. In the latter work Maimonides enumerates each of the commandments, both positive and negative, which in their totality comprise the corpus of the 613 precepts of Judaism. Nachmanides remonstrates that Rambam, in cataloguing the various precepts, did not include the commandment concerning dwelling in the Land of Israel.
Further evidence that residence in Israel constitutes fulfillment of a mizvah in our own day as well may be gleaned from various halakhic provisions which are apparently predicated upon this rationale. Examples cited by Rabbi Yosef include permission to allow a gentile to draw up a bill of sale on the Sabbath on behalf of a Jew acquiring property in Erez Yisra'el from a non-Jew (Gittin 8b) and the obligation of one renting a dwelling in the Land of Israel to affix a mezuzah immediately upon taking up residence rather than thirty days thereafter as in the Diaspora (Menaḥot 44a). R. Joseph Karo in Bet Yosef, Yoreh De'ah 286, explains that in the Diaspora a new residence is not considered to be a permanent dwelling place prior to the thirtieth day, whereas in Israel a new home is immediately deemed to be a permanent domicile because the act of residing therein constitutes the fulfillment of a mizvah and hence acquires the characteristic of permanence.
2. R. Isaac de Leon, the author of Megillat Ester, an early commentary on Maimonides' Sefer ha-Mizvot, maintains that Rambam omitted the commandment to dwell in the Land of Israel in cataloguing the 613 precepts of Judaism because he was of the opinion that the obligation to dwell in Israel lapsed with the dispersion of Israel following the destruction of the Temple. Megillat Ester points out that the Gemara, Ketubot 111a, interprets the verse "I cause you to swear, O daughters of Jerusalem … that ye awaken not nor stir up love until it please" (Song of Songs 2:7) as an admonition not to rebel against the conquerors of Israel or to seize the land by force.
Rabbi Yosef rejects this analysis of Maimonides' position because (a) Maimonides includes in his enumeration of the 613 commandments precepts such as the rebuilding of the Temple, which in Maimonides' own opinion are not operative prior to the Messianic era, and (b) none of the numerous statements contained in talmudic and midrashic works supporting the view that settlement in Israel is a positive commandment in any way intimates that this commandment may be binding only in certain epochs. Of particular note is the statement in Bereshit Rabbah LXXVI, 2 explaining the reason for Jacob's fear that he might be vanquished in battle by Esau. Jacob's foreboding was based on the fact that Esau had acquired greater merit by virtue of having dwelt in Erez Yisra'el uninterruptedly throughout the years spent by Jacob in the house of Laban.
3. Rashbam, Baba Batra 91a, states that while dwelling in Israel is not a commandment per se, the statement contained in the Gemara that it is forbidden to leave Erez Yisra'el other than in times of famine is based upon the consideration that living in the Land of Israel is a preparatory step to the fulfillment of commandments (hekhsher mizvah), there being numerous commandments which can be fulfilled only in Israel.
4. Tosafot, Ketubot 110b, records the opinion of Rabbenu Chaim Kohen, who maintains that in our time it is not obligatory to dwell in Israel because of the difficulties in observing the many commandments specifically associated with the Land of Israel. Rabbi Yosef points out that the authorship of this statement has been disputed and in all likelihood the comment attributed to R. Chaim Kohen was an addition appended at a much later date.1See Teshuvot Maharit, II, no. 28. This view is sharply disputed by R. Ya‘akov of Lissa in a previously unpublished letter which appears in R. Yosef Sheinberger’s Amud Esh (Jerusalem, 5714), pp. 105–109. This authority contends that even according to Maharit the statement is to be attributed to one of the Tosafists. Furthermore, the recorded comment does not deny that dwelling in Israel does constitute fulfillment of a mizvah; it merely notes that, under certain conditions, other halakhic considerations may vitiate against fulfillment of this commandment. Such considerations were predicated upon economic and agricultural realities prevalent in days gone by but which, fortunately, are now considerably changed.
5. Rabbi Moses Feinstein, Iggrot Mosheh, Even ha-Ezer, I, no. 102, distinguishes between two distinct categories of positive commandments. There are precepts whose performance is mandatory, e.g., circumcision, the donning of phylacteries, etc., and others which are not mandated as obligatory responsibilities but nevertheless, when indeed performed, constitute the fulfillment of a commandment. Rabbi Feinstein maintains that even according to Nachmanides residence in Erez Yisra'el is not obligatory because this commandment is not a mandatory one. According to this interpretation, Nachmanides' position is that the act of dwelling in Israel constitutes the voluntary fulfillment of a commandment rather than the discharge of an obligation. Dissenting sharply, Rabbi Yosef asserts that the commandment constitutes a mandatory obligation, and that even in our own day there exists "a definite obligation upon all who fear the word of God and His commandments to ascend to the Land of Israel."1aThis appears to be the opinion of Hafla’ah, Ketubot 110b, as well. R. Ya‘akov of Lissa, loc. cit., similarly appears to agree with this understanding of Nachmanides but adds “… we conduct ourselves in accordance with Maimonides who does not enumerate aliyah in our time as a positive commandment.” Earlier he states, “… it is our tradition that in our time there is no obligation to ascend [to Ereẓ Yisra’el], See also letter of Chafetz Chaim published by R. Menachem Gerlitz, Mara de-Ar‘a Yisra’el, (Jerusalem, 5734), II, 27-29 and Koveẓ Mikhtavim (B’nei Brak, 5735), pp. 19–21.
Settlement in Israel in Face of Danger
Writing in the 5730 issue of Torah She-be-'al Peh, Rabbi Aaron Soloveitchik, Rosh Yeshivah of Yeshivat Brisk in Chicago, analyzes an interesting question related to the mizvah of settlement in Israel.
Halakhah stipulates that either husband or wife may insist upon the acquiescence of the other in establishing residence in Israel. However, the Shulḥan Arukh (Even ha-Ezer 75:5) cites an opinion to the effect that either partner may properly insist upon migration to Israel only if there is no danger attendant upon the move. If, however, the journey involves an element of danger, neither partner can force the other to take up residence in Israel. The ruling is both obvious and problematic. It is virtually axiomatic that an obligation with regard to the performance of any commandment is suspended in the face of accompanying danger. It should therefore be obvious that there is no room for coercion with regard to residence in Israel in time of danger. Yet the phraseology employed by the Shulḥan Arukh would indicate that although neither partner may coerce the other, either one may himself or herself seek to establish residence in Israel despite the attendant hazards. This apparently contradicts the general principle that one may not place oneself in danger in order to fulfill a commandment. An even greater difficulty is presented by the Shitah Mekubezet, Ketubot 110b, who declares that while neither partner is empowered to coerce the other to emigrate from the Diaspora to Israel in face of danger, nevertheless, either one may lawfully prevent the other from leaving Israel even if continued residence in the Holy Land is fraught with danger.
Rabbi Soloveitchik resolves these issues by noting that Ramban derives the obligation to establish residence in Israel from the verse "And you shall inherit the land and you shall dwell therein" (Num. 33:53). This verse, of course, deals primarily with the commandment to wage war against the inhabitants of Canaan in order to establish a Jewish homeland. In every war there is naturally an element of physical danger; yet the commandment to wage war is binding despite such danger. Hence, obligatory wars constitute an exception to the general principle that fulfillment of precepts is suspended in face of danger.
The commandment "And you shall inherit the land," according to Ramban, has two facets: an obligation on the part of the community of Israel to conquer the land, and a personal obligation devolving upon each individual to "inherit" the land by means of settlement. The Shulḥan Arukh is of the opinion that while the first obligation is binding even in face of danger, the second is not mandatory when such danger is present. Yet even the second aspect of this commandment is not entirely suspended in time of peril. Although such performance is not mandatory, neither is it forbidden. This commandment may be fulfilled in face of danger even by an individual; it is mandatory in face of danger only with regard to the community. The permissibility of individual settlement in face of danger may be deduced from the mandatory communal obligation. Even in communal exercise of the obligation to engage in war, the fulfillment (kiyum) of the commandment is individual, i.e., each person performs the mizvah of "inheriting the land" in contributing to the communal endeavor. Hence it may be inferred that settlement in Israel by an individual constitutes a permissible voluntary fulfillment of this commandment even when accompanied by an element of danger.
There is a further ramification of this problem not discussed by Rabbi Soloveitchik. May aliyah be forced upon a reluctant spouse despite attendant hazards in a situation in which continued residence in the Diaspora is also fraught with danger and risk? The irony of our contemporary situation is that one could well argue that residence virtually anywhere in the world today—in the Western Hemisphere no less than in the Middle East—is accompanied by an element of danger. All the more reason for believing Jews, ma'aminim b'nei ma'aminim, to turn their steps to Zion.
Aliyah Against Parental Objections
An increasing number of young men and women are joining the tide of immigrants leaving their native countries in order to settle in Israel. Quite frequently parents are unhappy at the prospect of their adolescent son or daughter living at such a great distance from the parental home. Are children permitted to emigrate to Israel despite their parents' objections, or does fulfilling the commandment to honor one's parents take precedence over the mizvah of dwelling in the Land of Israel? The question is reviewed in Or ha-Mizraḥ by Rabbis Judah Gershuni and Israel Schepansky in the Nisan 5731 issue, and by Rabbi Israel Hess of Rananah, Israel, in the Tishri 5732 edition.2An earlier treatment of this topic by R. Shaul Israeli and R. Schepansky appeared in Shanah be-Shanah, 5725. See also, R. Shaul Israeli, Amud ha-Yemini (Tel Aviv, 5726), no. 22, reprinted in Ḥovat ha-Aliyah le-Ereẓ Yisra’el, ed. Yochanan Freid (Jerusalem, 5732). The latter publication also contains responsa on this subject authored by R. Zevi Friedman and R. Chaim David Halevy.
An important discussion of the entire matter is found in Sha'arei Ẓedek (Mishpetei ha-Arez 11:5), a halakhic compendium devoted exclusively to the laws pertaining to the Holy Land. The codifier of this work is R. Abraham Danzig, author of the widely used Hayyei Adam and Hokhmat Adam. R. Danzig cites an incident recorded in Kiddushin 31b relating that Rav Ami, with the sanction of Rav Yochanan, left the Holy Land for the purpose of meeting his mother. This narrative would indicate that the fulfillment of the precept regarding dwelling in the Land of Israel does not supersede one's duty to honor a father or mother. Nevertheless, R. Danzig refrains from issuing a final decision, noting that apparently another consideration is involved with regard to this complex matter. There is a general principle that honor is due parents only if according such honor does not conflict with the performance of religious precepts. Children are obligated to honor parents, but parents and children alike are obliged to honor God. Hence, the honor due to parents is subordinate to the honor due the Almighty, which finds expression in observance of His commandments.
Rabbi Schepansky observes that a much earlier authority, R. Meir of Rothenberg, Teshuvot Maharam ben Barukh (Berlin, 5651), no. 79, addressing himself to precisely the same question, states unequivocally that settlement in the Land of Israel constitutes fulfillment of a divine precept and hence the honor of God takes precedence over the honor due to one's parents.
The identical question is posed by Teshuvot Mabit, I, no. 139. This authority declares that the parents, no less than the child, are bound to pay honor to God, and adds that the parents "can also emigrate with him and both precepts will be fulfilled." Rabbi Hess cites the concurring opinion of Maharik, no. 166, and of Hafla'ah, R. Pinchas ha-Levi Hurwitz. In his biblical commentary, Panim Yafot (Lekh Lekha), the latter authority observes that Naomi's sons incurred the punishment of an early death (Ruth 1:2–5) precisely because they departed from the Land of Israel in order to pay honor to their father. Rabbi Gershuni cites a similar ruling, which is incorporated by R. Israel of Sokolov in his Pe'at ha-Shulḥan, Hilkhot Erez Yisra'el 2:21, without mention of earlier sources.
R. Danzig, to whom the earlier responsa dealing with this subject were apparently unavailable, quotes an intriguing midrashic comment on the verse "Go you from your land and from your birthplace and from your father's house" (Gen. 12:1). Noting the seemingly redundant inclusion of the word "you—lekha," the Midrash declares that this word was added for a specific purpose. "Our father Abraham was afraid and said, 'I will go and through me the Divine Name will be profaned; [people] will say he left a father and went away in his old age.' The Holy One, Blessed be He, said to him, 'Go you; you I exempt from the precept of honoring father and mother, but another I do not exempt from honoring father and mother.' " The exemption granted to Abraham, R. Danzig notes, was for the express purpose of dwelling in the Holy Land. Since this dispensation was granted solely to Abraham, it would appear that others must give priority to honoring parents over fulfillment of the commandment concerning settlement in Israel. Rabbi Schepansky, emphasizing the contrary rulings of the earlier authorities previously cited, observes that the evidence adduced from the midrashic comment is not conclusive. Abraham required special dispensation because, at the time of his departure from his parental home, settlement in the Holy Land did not yet constitute the fulfillment of a mizvah. The Holy Land was not yet his possession and had not as yet become the "Land of Israel." Only with the granting of the Land of Canaan to Abraham as the homeland of the Jewish people did settlement in Israel constitute fulfillment of one of the commandments of the Torah.2aMore fundamentally, it is doubtful that fulfillment of this commandment was at all a possibility prior to the sanctification of the Land of Israel in the time of Joshua. Thus Tosafot, Gittin 2a, maintains that areas not resettled by those who ascended from Babylonia are endowed with no sanctity whatsoever and hence one who dwells in such territories does not thereby fulfill a miẓvah. Cf. below, p. 318, n. 50, and p. 321, n. 56; cf. also Ḥidushei Rabbenu ha-Graz Soloveitchik al ha-Torah, Lekh Lekha, sec. 5. In all subsequent periods, Rabbi Schepansky argues, honor due to one's parents may not be permitted to interfere with settlement in Israel, in the same manner that the obligation to honor one's parents may not be permitted to deter one in the performance of other precepts.
An interesting ramification of this issue involves a possible distinction between sons and daughters with regard to the question at hand. Since the objection to honor one's parents is set aside only for the sake of the fulfillment of another commandment, the discussion centers around the question of whether women are also bound by the commandment to dwell in Israel. Rabbi Schepansky cites the comment of Rabbenu Nissim, Ketubot 110b, Teshuvot Rashbash, no. 2, and Maharit, II, no. 28, who state explicitly that no distinction exists between males and females with regard to performance of this mizvah. However, he notes parenthetically, a dissenting opinion of Teshuvot Rashbaz, I, no. 21 and III, no. 198, to the effect that the commandment of dwelling in Israel consists not simply of living in the country but of establishing sovereignty and acquiring territory. Rashbaz views these tasks as being male prerogatives and rules that women are exempt from this commandment.
While there may be some difference of opinion with regard to settlement in Israel against parental objections, the case of students who wish to study Torah in Israel is entirely different. It is clear that parental disapproval need not stand in the way of children who desire to further their Torah studies in Israel or, indeed, in any other country. Since the mizvah of Torah study takes precedence over honoring one's parents, the student is free to study wherever he feels his efforts will lead to enhanced proficiency. The Gemara, Megillah 16b, tells us that Jacob was punished for being remiss in fulfilling the commandment of honoring one's parents throughout the years he spent in the home of Laban. He was not punished for the period he spent in the academy of Ever in the interim between leaving his father's home and arriving at the house of Laban. Shulḥan Arukh, Yoreh De'ah 230:25, emphasizes that parental directives may be disregarded with regard to a locale for Torah study even if such instructions are born of a well-grounded concern for the safety and well-being of the son.
Pitḥei Teshuvah adds that the same provision applies to the choice of a synagogue for prayer. Regardless of parental wishes in the matter, a child may elect to worship in whichever synagogue he feels he will be able to pray with the greatest measure of fervor. Rabbi Schepansky observes that, by the same token, the desire to pray at the Holy Places warrants disregard of parental objections to settlement in Israel.
Although Shulḥan Arukh declares that the intention to further Torah studies is in itself sufficient justification for ignoring parental preferences with regard to places of domicile, Rabbi Schepansky questions whether this is true only of male children, or whether a young woman's desire to study at a Torah institution also supersedes her duty to honor her parents. Here, too, the discussion centers around the nature of the obligations of women with regard to Torah study. However, in light of Rabbi Schepansky's previous comments, the desire to pray at the Holy Places is itself sufficient reason for disregarding the wishes of one's parents—a consideration which certainly applies to women as well as to men. Furthermore, the question of the technical nature of women's obligations with regard to Torah study may well be irrelevant to the question under discussion. Torah education serves to instill spiritual values in addition to imparting academic knowledge. Women are enjoined to strive for piety and devotion no less than men. A young woman who feels that study in Israel will enhance her commitment to Judaism and its precepts may allow these considerations to be the deciding factor.
It goes without saying that even when parental counsel does not carry with it a halakhic imperative, the considered judgment and mature advice of parents, who are deeply concerned for the welfare of their children, should not be disregarded lightly.
War and the State of Israel
In the relatively few years of its existence, the State of Israel has experienced four major armed conflicts: the War of Independence of 1948, the Sinai campaign of 1956, the Six-Day War of 1967 and the Yom Kippur War of 1973. Although very little has appeared in print, with the noteworthy exception of the writings of Rabbi Joel Teitelbaum, the "Rebbe" of Satmar, the halakhic sanction for these wars has been challenged in some rabbinic circles.3See R. Norman Lamm, “The Ideology of the Neturei Karta,” Tradition, Fall 1971. The venerable Rabbi Shlomoh Yosef Zevin, general editor of the Encyclopedia Talmudit, addresses himself to this emotion-laden topic in a scholarly, objective manner and endeavors to show that definite halakhic sanction does in fact exist for each of these wars. The basic issues with which Rabbi Zevin grapples are at the core of the theological controversy concerning the establishment of the state. Rabbi Zevin's views are contained in an article appearing in the 5731 Torah She-be-'al Peh annual.
The prime argument cited in objection to the War of Independence, and indeed to the very establishment of the state itself, is based upon a literal understanding of the Talmud, Ketubot 111a. In an aggadic statement, the Talmud declares that prior to the exile and dispersal of the remnant of Israel, God caused the Jews to swear two solemn oaths: (1) not to endeavor to retake the Land of Israel by force, and (2) not to rebel against the nations of the world. Rabbi Zevin maintains that these talmudic oaths are not binding under circumstances such as the ones which surrounded the rebirth of the Jewish state. In support of this view he marshals evidence from a variety of sources. Avnei Nezer, Yoreh De'ah, II, 454:56, notes that there is no report in any of the classic writings regarding an actual assemblage for the purpose of accepting these oaths, as is to be found, for example, in the narrative concerning the oaths by which Moses bound the community of Israel prior to the crossing of the Jordan. The oaths administered before the exile are understood by Avnei Nezer as having been sworn by yet unborn souls prior to their descent into the terrestrial world. Such oaths, he argues, have no binding force in Halakhah. Similarly, the Maharal of Prague in his Commentary on the Aggada, Ketubot 111a, and in chapter 25 of his Nezaḥ Yisra'el, interprets these oaths as being in the nature of a decree or punishment rather than as injunctions incumbent upon Jews in the Diaspora. There is obviously no transgression involved in attempting to mitigate the effects of an evil decree. A third authority, R. Meir Simchah of Dvinsk, author of the Or Sameaḥ, accepts the premise that these oaths do apply in a literal sense. However, he expresses the opinion that following the promulgation of the Balfour Declaration, establishment of a Jewish homeland in Palestine no longer constitutes a violation of the oath concerning rebellion against the nations of the world. The text of Or Sameaḥ's statement on this important issue is reprinted by Z. A. Rabiner, Toledot R. Meir Simḥah (Tel.Aviv, 5727), p. 164. Rabbi Zevin adds that this argument assumes even greater cogency subsequent to the United Nations resolution sanctioning the establishment of a Jewish state.
There is yet another line of reasoning on the basis of which Rabbi Zevin denies the binding nature of these oaths at the present juncture of Jewish history. He advances a forceful argument which, particularly in the present post-Holocaust era, must find a sympathetic echo in the heart of Jews who have witnessed an unprecedented erosion of all feelings of humanity among the nations of the world which permitted the horrendous oppression and torture of the Jewish people. The Talmud, loc. cit., records that the two oaths sworn by the people of Israel were accompanied by a third oath which devolves upon the nations of the world; namely, that they shall not oppress Jews inordinately. According to Rabbi Zevin and others who have advanced the same argument, these three oaths, taken together, form the equivalent of a contractual relationship. Jews are bound by their oaths only as long as the gentile nations abide by theirs. Persecution of the Jews by the nations of the world in violation of this third oath releases the Jewish people from all further obligation to fulfill the terms of their agreement.4See also R. Aaron Soloveitchik and R. Meir Blumenfeld, Shanah be-Shanah, 5734. For additional sources regarding the applicability of these oaths, see R. Menachem M. Kasher, Milḥemet Yom ha-Kippurim (Jerusalem, 5734), pp. 63–83; and R. Shmuel ha-Kohen Weingarten, Hishbati Etkhem (Jerusalem, 5736). R. Chaim Vital, Eẓ Ḥayyim (Jerusalem, 5723), p. 3, quotes Beraita de-Rabbi Yishma’el, Pirkei Heikhalot, which declares that the oath remained in effect only for a period of one thousand years; see also Zohar, Parshat Va-Yeira, p. 117a.
Objections to the Sinai campaign and the Six-Day War are founded upon completely different considerations. According to Halakhah, the declaration of an offensive war requires the affirmative act of both the Sanhedrin and the king (Sanhedrin 2a and 20b), but in our day we possess neither Sanhedrin nor monarch. R. Abraham Isaac Kook, Mishpat Kohen, no. 144, sec. 15, has argued that the latter requirement is not a literal one because declaration of war is not a royal prerogative.5This position is endorsed by R. Eliezer Waldenberg, Hilkhot Medinah, I, no. 3, chap. 5, and Ẓiẓ Eli‘ezer, X, no. 1, chap. 3, sec. 14, who maintains that this is the opinion of R. Ya‘akov Emden, Mor u-Keẓi‘ah 306. See also R. Benjamin Rabinowitz-Teumim, Moriah, Tevet 5735. The king, in performing this function, merely serves as the agent of the nation. In the absence of a monarchy, authority for the declaration of war is vested in the established state authority. This contention is borne out by the words of Ramban in his addendum to Maimonides' Sefer ha-Mizvot, no. 17. Discussing the declaration of war, Ramban states that this is the prerogative of "the king, the judge, or whosoever exercises authority over the people." In contrast, the second requirement, namely, concurrence of the Sanhedrin, is crucial. Accordingly, Rabbi Zevin concludes that there is no possible halakhic authority for the waging of an offensive war in our time.
However, Rabbi Zevin asserts that these objections do not affect the halakhic status of the armed conflicts in which modern Israel was involved. A defensive war does not require the sanction of either the king or the Sanhedrin. These requirements apply only to wars of aggression carried out for purposes of exacting tribute, of territorial aggrandizement or of enhancing national prestige. Rabbi Zevin concludes that no objections can be raised against any of Israel's wars since they were all defensive in nature. Although Rabbi Zevin's article appeared before the events of October 1973, the conclusions he reaches apply with equal logic to Israel's most recent war as well.
These questions are also discussed by Rabbi Judah Gershuni, whose contribution dealing with this topic appears in the same issue of Torah She-be-'al Peh and in the Tevet 5731 edition of Or ha-Mizraḥ. Rabbi Gershuni asserts that the acquiescence of the Sanhedrin for the declaration of a war of offense may be dispensed with in our day. Quoting Meshekh Hokhmah, Parshat Bo, Rabbi Gershuni argues that only in the absence of a general desire on the part of the nation to engage in war is the agreement of the Sanhedrin necessary. Meshekh Hokhmah contends that the sanctification of the New Moon, ordinarily a prerogative of the Sanhedrin, may be performed by the community as a whole in the absence of the Sanhedrin. Rabbi Gershuni avers that this provision may be extended to declarations of war as well. Hence, in Rabbi Gershuni's opinion, the approval of the Sanhedrin is necessary only when the populace is unwilling to engage in battle of its own accord.
Moreover, declaration of war by the king and the concurrence of the Sanhedrin is not required with regard to obligatory wars such as the conquest of Erez Yisra'el. Although some authorities disagree, Ramban is of the opinion that the commandment "And you shall inherit the land and dwell therein" (Num. 33:53) is binding in all generations. In his commentary on the above passage, Ramban clearly states that this mizvah includes the commandment to conquer the Land of Israel.
Rabbi Gershuni, however, notes that another condition must be satisfied even with regard to obligatory wars. Both Ramban, in the previously cited gloss to the Sefer ha-Mizvot, and Maimonides, Sefer ha-Mizvot, shoresh 14, declare that even obligatory wars require consultation and guidance of the urim ve-tumim. Rabbi Gershuni argues that since this prerequisite cannot be fulfilled at the present time, war for the sake of conquering the territory of the Land of Israel cannot be sanctioned even according to Ramban.
There is, however, one category of warfare which does not require guidance of the urim ve-tumim: viz., the war against Amalek. It is usually assumed that because population shifts have occurred and ancient peoples are no longer ethnically identifiable, this mizvah cannot be fulfilled. Rambam, Hilkhot Melakhim 5:4–5, states that the commandment to eradicate the seven Canaanite peoples has lapsed because of precisely these considerations but fails to make a similar statement with regard to the people of Amalek. Rabbi Gershuni quotes an unpublished comment attributed to R. Chaim Soloveitchik of Brisk in resolution of this difficulty. R. Chaim is purported to have declared that the commandment to destroy Amalek extends not merely to genealogical descendants of that ancient people but encompasses all who embrace the ideology of Amalek and seek to annihilate the Jewish nation.6Of interest are the comments of Maharal of Prague, R. Judah Loew, Or Ḥadash (Jerusalem, 5720), p. 54a, who remarks that all enemies of Israel throughout the generations of their dispersion are, in point of fact, geneological descendants of Amalek. Hence, the "war of God against Amalek" continues "from generation to generation" against the professed enemies of Israel, and in our day is directed against those Arab nations which seek to eradicate the people of Israel. Since the battle against Amalek is in the nature of a continuous and ongoing war, it does not require the sanction of the urim ve-tumim.
Another version of what appears to be an identical attempt to resolve this difficulty is cited by Rabbi Joseph B. Soloveitchik in the name of his father, the late Rabbi Moshe Soloveitchik, in a footnote to his "Kol Dodi Dofek," Ha-Dat ve-ha-Medinah, ed. M. Rottenberg (Tel Aviv, 5724), pp. 192–93.7This article is also included in Torah u-Melukhah, ed. S. Federbush (Jerusalem, 5721) and forms the second part of Mosad ha-Rav Kook’s edition of Rabbi Soloveitchik’s Ish ha-Emunah (Jerusalem, 5735). Rabbi Soloveitchik argues that the commandment with regard to Amalek is really a twofold one: (1) an obligation devolving upon each individual Jew to destroy the genealogical descendants of Amalek; (2) a communal obligation to defend the Jewish people against any enemy threatening its destruction. These differing obligations are indeed recorded as separate commandments. The commandment recorded in Deuteronomy 25:19, "you shall erase the memory of Amalek," is addressed to all individual Jews and refers only to genealogical descendants of Amalek. Exodus 17:16, which speaks of "the war of God against Amalek," is addressed to the community as a whole and lends sanction to a preemptive war undertaken in the face of impending danger. Since the latter type of warfare, although categorized as a war against "Amalek," must be waged against any would-be aggressor, Rambam eliminates mention of the fact that the genealogical descendants of Amalek are no longer identifiable. This thesis leads to a conclusion contradictory to that of Rabbi Gershuni. While Rabbi Gershuni's explanation would lend sanction to a war of aggression against professed enemies, according to this analysis only preemptive or defensive wars may be undertaken even against the avowed foes of the people of Israel.
Hijack Victims
The weeks preceding the High Holy Day period of the autumn of 1970 were a time of high tension for the Jewish community throughout the world. Members of an Arab terrorist movement succeeded in hijacking several jet airliners and in diverting them to a landing-strip in Jordan. Passengers and crew members were seized as hostages for the release of a large number of guerillas then held captive by Israel and several European governments.
During these harrowing weeks the State of Israel remained steadfast in its resolve not to free any imprisoned terrorists in exchange for these hostages. This decision was based upon two factors: (1) Acceding to the demands of the terrorists would establish a dangerous precedent and could at any time lead to further hijackings as a means of securing hostages in order to strengthen any future demands set forth by the guerillas. (2) Although release of the captured guerillas might save the lives of the hostages, the released terrorists would once more be free to return to their nefarious activities, thereby endangering the lives of Israeli citizens. The validity of these considerations as justification for a course of action which permitted continued danger to the lives of the hostages is examined by Rabbi Judah Gershuni in the Nisan 5731 edition of Ha-Darom. Related to this problem is the more general question of the propriety of paying ransom in order to secure the release of hostages.
The Mishnah, Gittin 45a, declares that captives are not to be ransomed if the sum demanded is "greater than their value"—a term which the vast majority of commentators understand as meaning a sum equal to that which the captive would command if he were to be sold as a slave. This limit is placed upon the amount which may be paid as ransom because of concern lest the abductors succeed in extorting exorbitant sums and potential captors thus be encouraged to kidnap additional victims. Tosafot, Gittin 58b, contends that this limitation does not apply if the captive's life is in danger. This exception, however, is not cited by either Rambam or Shulḥan Arukh. It may therefore be assumed that the latter authorities view the prescribed maximum as being applicable even in cases of actual danger to the victim. Latter-day authorities are divided with regard to a definitive decision on this matter; numerous responsa on the subject are cited by Pitḥei Teshuvah, Yoreh De'ah 252:4.
Tosafot, Gittin 54a, enumerates two other exceptions to the general rule that excessive ransom may not be paid. Tosafot maintains that restrictions upon the amount of ransom do not apply if the victim is a scholar of renown. Furthermore, such limitations are not imposed subsequent to the destruction of the Temple. For, Tosafot claims, during the period of the exile, the enemies of the people of Israel require no encouragement in their desire to victimize Jews. Hence, payment of an excessive ransom will not significantly intensify their motivation. The second exception formulated by Tosafot is not incorporated in Shulḥan Arukh's codification of the relevant laws.
The 1970 hijackings, involving, as they did, the requested release of celebrated terrorists, pose an entirely different question. Is it obligatory or even permissible to endanger one person, or a group of people, in order to save the life of another? Release of known terrorists, who would then be enabled to return to their malevolent pursuits, should give rise to, at the very minimum, a safek, or reasonable fear, that the freeing of such terrorists will lead to their resumption of guerilla activities and ultimately result in loss of life. Bet Yosef, Hoshen Mishpat 426, is of the opinion that one is obligated to expose himself to possible danger in order to rescue another person from certain danger. Rabbi Gershuni, however, adduces numerous authorities who disagree and maintain that one is not obliged to expose himself to the possibility of danger in order to save another person's life. Certainly, argues Rabbi Gershuni, when both dangers are merely potential ones, the danger to the victim also being indefinite in nature, no overt action is mandated.
Rabbi Gershuni advances yet another argument in defense of the stance adopted by the Israeli government. It is his thesis that just as an individual is obliged to sacrifice his life on behalf of his country in time of war, so is he also duty-bound to assist in the preservation of law and order even at the risk of his own life. Rabbi Gershuni quotes R. Ya'akov Emden's explanation of the motive which prompted the tribe of Benjamin to enter into battle against the rest of Israel. Judges 19:25–29 describes how some members of the tribe of Benjamin subjected a concubine to repeated sexual assaults which ultimately resulted in her death. Subsequently the tribe of Benjamin resorted to warfare in order to preserve the perpetrators of this heinous deed from summary execution by members of the other tribes of Israel. In his Migdal Oz, R. Ya'akov Emden explains that it was the prerogative of each tribe to judge its own members and the tribe of Benjamin was therefore justified in resorting to violence in defense of this right. Surrender of this prerogative would have constituted capitulation to a measure of anarchy. Rabbi Gershuni views this analysis as establishing an obligation to risk one's life in order to preserve law and order. Since release of the terrorists would have undermined law and order in Israel, the government, in Rabbi Gershuni's opinion, was justified in refusing to release captured terrorists, despite the fact that the lives of innocent people were endangered thereby. These considerations are quite apart from the argument that it is within the sovereign power of a state to promulgate laws and issue edicts in order to protect the welfare and safety of its inhabitants, even though some individuals may be adversely affected.
Extradition
The avowed intention of the founders of the State of Israel was to provide a homeland for any Jew who sought to return to the land of his fathers. Following the Holocaust, the fledgling state opened its doors and became a haven of refuge to countless victims of oppression. This policy was formalized in the Law of Return, which grants any Jew the privileges of domicile and citizenship as vested legal rights. The law, however, contains a clause specifically denying these rights to individuals having prior criminal records. In the twenty-eight years of Israel's existence, relatively few would-be immigrants have been excluded on these grounds. Recently, however, this provision was invoked in denying permanent residence to Meyer Lansky. The attendant publicity has generated much discussion of the moral and halakhic justification of this restrictive clause in the Law of Return.
This question, and the parallel question of extradition of persons facing criminal charges in their countries of origin, is examined by Rabbi Judah Gershuni in an article appearing in the Tevet 5732 issue of Or ha-Mizraḥ and reprinted in volume XIV (5732) of Torah She-be-'al Peh.
Rabbi Gershuni asserts that, with the exception of idolaters and apostates, every Jew has an inalienable right to reside in Israel. Ran, Nedarim 28a, offering one explanation of the halakhic obligation on the part of a Jew to obey the civil law of his country of residence, explains that in the Diaspora the land is the personal possession of the monarch, who has the option of making obedience to his edicts a condition of continued residence upon his property. However, continues Ran, the situation with regard to the Land of Israel is different, "for with regard to the land of Israel all the people of Israel are partners." Therefore, concludes Rabbi Gershuni, the Israeli government lacks the right to expel or to deny admission to any Jew desirous of living in Israel.
Extradition for purposes of criminal prosecution poses a different problem. Rambam, Yesodei haTorah 5:5, rules that a Jew cannot be turned over to a non-Jew for assassination or execution unless the individual whose custody is demanded is guilty of a capital crime. A demand of this nature must be rejected even if non-compliance poses a threat of death to the entire community. Taz, Yoreh De'ah 157:8, rules that a Jew dare not be turned over to a non-Jew even if the person whose custody is demanded is not in danger of being put to death but will be punished in some other manner. Taz, however, does permit the denunciation of malefactors, such as forgers, whose nefarious activities constitute a danger to the entire Jewish community. In times gone by it was not at all uncommon for the entire community to be punished for the misdeeds of a single individual. When this was the case, the transgressor had the status of a "pursuer" who placed the lives of others in jeopardy, and hence it was permissible to take any steps necessary in order to eliminate the danger. Where this consideration does not apply, Halakhah demands that the evildoer be tried and punished by a Jewish court. Therefore, concludes Rabbi Gershuni, rather than permit the extradition of criminals to other countries, Israel is bound to grant them asylum. At the same time Israeli courts must assume jurisdiction and bring the criminal to justice. If the latter responsibility is not shirked, the danger of Israel becoming a haven for undesirable elements is minimized.8See also Rabbi B. Rabinowitz-Teumim, No‘am (5724), VII.
Guard Duty on the Temple Mount
The Six-Day War and the liberation of the Holy Places has brought to the foreground a host of halakhic questions which for long periods in Jewish history had been of merely theoretical interest. Although the Temple Mount is now in Jewish hands, it is nevertheless forbidden to enter the Temple site proper because of the fact that virtually all persons have become ritually impure, and pending restoration of the sacrificial order we lack the ashes of the red heifer which are required for performance of the purification ritual. Rambam, Hilkhot Bet ha-Beḥirah 6:15–16, rules that the intrinsic sanctity of the Temple site is unaffected by the destruction of the Temple itself. Rabad, in a gloss appended to the text of the Rambam, declares that with the destruction of the Temple, the sanctity of the area where the Temple once stood has indeed been abrogated, and therefore a person who enters that holy site no longer incurs the statutory punishment. Magen Avraham (Oraḥ Hayyim 561:62), Bi'ur ha-Gra (Yoreh De'ah 331:6), and Mishneh Berurah (Oraḥ Hayyim 561:5) all follow Rambam in ruling that entry onto the Temple Mount is forbidden.
Many latter-day authorities contend that entry onto the Temple Mount is forbidden even according to Rabad, and argue that his comments were intended merely to establish the absence of the punishment of karet— "cutting off"—a form of death at the hands of Heaven, but that the negative prohibition against such entry remains fully in effect. As evidence they point to the fact that elsewhere Rabad fails to disagree with Rambam's codification of certain laws which are predicated upon the assumption that the sanctity of the Temple site has not lapsed. In particular, Rambam declares that the laws pertaining to "fear of the Temple," which ban certain forms of unseemly conduct, remain binding even subsequent to the destruction and Rabad fails to disagree.
The apparent incongruity in Rabad's position is explained by the late Rabbi Kook in his Mishpat Kohen, no. 96. Throughout the period in which the Temple stood, the Temple site was possessed of two distinct forms of sanctity: sanctity by virtue of the fact that it was the "encampment" of the Shekhinah, and a second sanctity associated with the "walls" of the Temple structure. Rabbi Bezalel Zolti, Torah She-be-'al Peh (5728), X, draws essentially the same distinction and asserts that historically these two different sanctifications occurred at two distinct times: the Temple structure was sanctified by King Solomon, whereas the site was sanctified as the "encampment" of the Shekhinah by King David many years before the Temple was actually built. Punishment of karet is prescribed for defilement of the Temple itself, i.e., the physical structure, as indicated in Numbers 19:20, "That person shall be cut off from the midst of the community for he has defiled the Temple of God." The second prohibition, carrying with it a lesser punishment, reads "And they shall not defile their encampment in the midst whereof I dwell" (Num. 5:3). The latter reference makes no mention of the sanctity of the "walls" but refers to the sanctity of the "encampment." Rabad's position, then, is that the sanctity of the "walls" lapsed with the destruction of the Temple, whereas the sanctity of the "encampment" continues and is in no way abrogated by the destruction of the Temple walls. Consequently, even according to Rabad, the prohibition "They shall not defile their encampment," forbidding a person who has become ritually impure to enter the Temple Mount, remains in force even in our day.
The necessity of posting guards in the Temple area poses grave questions for observant soldiers assigned to such duty. Rabbi Shiloh Rafael discusses the ramifications of this problem in an article appearing in the Sivan-Tammuz 5732 issue of Moriah. In Rabbi Rafael's opinion, the security reasons which prompt the assignment of patrols in the area constitute pikuaḥ nefesh—a danger to life sufficiently serious to warrant transgression of prohibitions against entry onto the Temple Mount. Nevertheless, even in face of danger, infractions of Halakhah must be limited to that which is of absolute necessity. With regard to the posting of guards, the question to be clarified is how the transgression can be minimized insofar as possible.
The Temple Mount is divided into diverse areas, each having different regulations with regard to the entry of ritually unclean persons. One who has become defiled through contact with a corpse is barred only from the site of the Temple proper but not from the surrounding areas of the Temple Mount. Those who have become ritually unclean through certain other forms of defilement are banned from the surrounding areas as well. However, purification in the latter instances may be accomplished simply by means of immersion in a ritualarium. Accordingly, Rabbi Rafael advises that a soldier assigned to guard duty on the Temple Mount immerse himself in a ritualarium prior to assuming his post. Since the immersion is biblically ordained, only a ritualarium satisfying the requirements for the immersion of a niddah may be utilized. The regulations with regard to cutting of the nails, removal of foreign substances, prior cleansing, etc., are identical with those governing the immersion of a niddah. Citing R. Zadok ha-Kohen of Lublin, Teshuvot Tiferet Ẓevi, no. 27, sec. 11, Rabbi Rafael rules that a blessing must be recited following the immersion.
Since the precise boundaries of the various sections within the Temple Mount cannot be determined with precision, Rabbi Rafael advises the soldiers to stand as close as possible to the walls surrounding the Temple area. (According to Tosafot, Shevu'ot 14b, even during the Babylonian period, Jews visiting the Land of Israel were not aware of the precise site of the Temple proper. Its exact location was apparently known only to local residents who were thoroughly familiar with the environs. Our knowledge of the Temple area is presumably no more accurate than that of Babylonian Jews during the talmudic period.)
Soldiers quite often have on their persons objects which are not essential for security purposes. This gives rise to an additional problem with regard to the introduction into the Temple area of clothes or utensils which are ritually unclean. The Gemara, Eruvin 104b, records that it is forbidden to bring any defiled object into the Temple. However, Avnei Nezer, Yoreh De'ah, no. 452, sec. 3 and Arukh ha-Shulḥan he-A tid, Kodshim, I, 37:16, declare that the prohibition against bringing unclean objects into the Temple applies only to the innermost areas and to the "courtyard," but not to the outermost reaches of the Temple Mount.
In contradistinction, the injunction "And you shall reverence My sanctuary" (Lev. 19:30) applies to the entire area of the Temple Mount. The Gemara, Yevamot 6a, and Rambam, Bet haBeḥirah 7:1–10, define this commandment as enjoining reverential behavior and deportment and, accordingly, specifically forbid an individual to enter the Temple Mount while bearing a staff, wearing shoes, carrying a purse, or with dust upon his feet. Noting that efficient performance of their duties requires the guards to be properly shod, Rabbi Rafael permits the wearing of shoes by soldiers on the grounds that failure to patrol the area properly would present an imminent danger.
This latter point is challenged by Rabbi Chanoch Zundel Grossberg in the Nisan 5733 issue of Ha-Ma'ayan. Apparently, Rabbi Rafael assumes that the prohibition against wearing shoes on the Temple Mount includes not only leather shoes but also shoes made of other materials as well. Minḥat Hinukh, no. 254, sec. 2, writes that it is "perhaps" permissible to wear shoes of materials other than leather when entering the Temple Mount. A later authority, R. Yechiel Michal Tucatzinsky, Ir ha-Kodesh ve-ha-Mikdash, IV, 27–28, states explicitly that shoes of such materials are permissible. Rabbi Grossberg finds clear evidence for this distinction on the basis of Yevamot 102b. He, therefore, concludes that the halakhah regarding the wearing of shoes on the Temple Mount parallels the regulation governing the wearing of shoes on the Day of Atonement, and that in both instances a "shoe," by definition, is prohibited only if made of leather. Since leather shoes are not essential to the performance of their duties, Rabbi Grossberg advises that soldiers stationed on the Temple Mount be instructed to wear sneakers or the like.9See also R. Shiloh Rafael, Ha-Ma’ayan, Tammuz 5733.
It is, of course, forbidden to eat, drink, spit, or sleep in the Temple area. Levity and frivolous conduct are also proscribed. Arukh ha-Shulḥan he-A tid, Kodshim, I, 14:5, declares that all forms of conversation are forbidden. Rabbi Rafael rules that smoking is also not permissible. Soldiers on guard duty are not exempt from the injunction concerning reverence for the Temple; accordingly, these proscribed activities are forbidden to them as well. Even while performing such duty they are to be mindful of the holiness of the place on which they stand.
Imprisonment or Death for Convicted Terrorists
Despite the carnage and loss of life which it has suffered as a result of terrorist activity, the State of Israel has refrained from imposing the death penalty upon convicted terrorists. In yet another in an intriguing series of articles dealing with the halakhic ramifications of policies adopted by the Israeli government, Rabbi Judah Gershuni, Or ha-Mizraḥ, Tevet 5733, seeks to clarify whether this policy is compatible with Halakhah or whether it is a violation of Jewish law.
It is obligatory upon the Bet Din to sit in judgment upon Jews accused of infractions of the law and to impose the death penalty upon those convicted of a capital crime (Rambam, Sefer ha-Mizvot, Aseh, nos. 226–229; Sefer ha-Hinukh, nos. 47, 50, 261 and 555). In our day, in the absence of a Sanhedrin, this obligation cannot be fulfilled. The point which is obscure is whether or not a similar obligation exists with regard to the punishment of non-Jews as well. If such an obligation does in fact exist, it may be fulfilled in our day as well since a Sanhedrin is not required for the sentencing of a non-Jew.
Rambam, Hilkhot Melakhim 9:14, numbers the imposition of the death penalty for violation of the provisions of the Noachide Code among the seven commandments incumbent upon the "sons of Noah." In explaining the biblical narrative concerning the carnage of the inhabitants of the city of Shechem, Rambam declares that the people of Shechem incurred the death penalty as a result of their culpability in not meting out punishment to Shechem for his transgression of the Noachide Code. Nevertheless, points out Rabbi Gershuni, Rambam's discussion is limited to the obligation of non-Jews with regard to the punishment of their fellow men but does not indicate that a Jew is under obligation to bring a non-Jew to justice. (Although Tosafot, Avodah Zarah 64b, indicates that once a death penalty has been pronounced, all persons, including Jews, are under an obligation to carry out the sentence.)
Rabbi Gershuni cites another ruling of Rambam which indicates that a Jew is obligated to impose the death penalty upon a non-Jewish transgressor. Rambam, Hilkhot Milah 1:6, declares that a gentile slave who refuses to accept the seven Noachide commandments is to be put to death. Rabbi Gershuni points out that according to this ruling the slave is, in effect, being executed for transgressing these laws and concludes that, according to Rambam, Jewish courts are indeed obligated to impose the death penalty upon non-Jewish transgressors.
Rabad disagrees with Rambam regarding the above case and states that the slave is to be sold to a non-Jew but is not to be executed. Rabbi Joseph Rosen, in his commentary on the Rambam, Ẓafnat Pa'aneaḥ, explains Rabad's position in the following manner: with the lapse of the Sanhedrin and the abrogation of capital punishment among Jews, Jews can no longer impose capital punishment upon non-Jews, even though the latter remain obligated to do so in administering their own system of law. Moreover, Ramban, in his commentary on Genesis 34:13, disagrees with Rambam and states that there is no statutory obligation requiring non-Jews to impose punishment upon transgressors. Imposition of capital punishment, he maintains, is discretionary under the Noachide Code. The injunction, "Thou shall not stand in fear of a man," does forbid a member of the Bet Din to refuse to sit in judgment; however this admonition applies only to instances when the defendant is a Jew. Since in Ramban's opinion a non-Jew, if he so desires, may decline to sit in judgment, it follows, according to this view, that Jewish courts have the same prerogative.
Whether or not Israeli courts are under an obligation to impose the death penalty for transgressions which are capital crimes under the Noachide Code is thus a subject of dispute among the authorities. According to both Ramban and Rabad, the Israeli courts are under no obligation to do so, and hence are at liberty to impose a prison sentence upon terrorists in lieu of capital punishment. Rabbi Gershuni concludes that the current Israeli practice is in consonance with halakhic norms.
Sale of Israeli Real Estate to Non-Jews
"And in the seventh year shall be a sabbath of solemn rest for the land…. you shall not sow your field, nor prune your vineyard" (Lev. 25:4). The commandment concerning the sabbatical year—shmittah— prescribes that land in Erez Yisra'el be allowed to lie fallow every seventh year. According to rabbinic exegesis, not only is it forbidden to till the soil, it is also forbidden to sell produce which grows of its own accord. "And the sabbath-produce of the land shall be for food for you …" (Lev. 25:6). The Torah grants permission for the produce which grows of its own accord to be used "for food, but not for merchandise" (Bekhorot 12b). The year 5733 was a shmittah year, and quite appropriately the fifteenth annual Torah She-be-'al Peh colloquium held in Jerusalem under the auspices of Mosad ha-Rav Kook was devoted to matters pertaining to the sabbatical year. A number of the papers presented at this gathering, all of which were subsequently published in the Torah She-be-'al Peh annual, dealt with the practice of selling farms and orchards to a non-Jew in order to circumvent the prohibition against tilling the land and the restriction against commercial dealings involving the produce of the sabbatical year.
The problem of shmittah came to the fore as a matter of pressing concern in modem times a little less than a century ago, when the newly established yishuv in Erez Yisra'el faced its first sabbatical year in 5649. Since that time a vast literature has emerged centering primarily upon the efficacy of the sale of land to a non-Jew as a means of lawfully circumventing the strictures of shmittah. Those who permit this procedure base themselves on the premise that laws governing the sabbatical year do not apply to territory in the possession of non-Jews. This premise is itself the subject of considerable controversy.
Granting argumento that the sale of land to a non-Jew constitutes a method of obviating the need for observance of the shmittah laws, a second, equally weighty problem arises: Is it permissible to transfer title to land within the boundaries of Erez Yisra'el to a gentile? Indeed, R. Naftali Zevi Yehudah Berlin, in a treatise entitled "Kuntres Dvar ha-Shmittah" (published in Teshuvot Meshiv Davar, II, following responsum no. 56) writes, "This is like one who runs from a wolf and is come upon by a lion! If you desire to escape the prohibition of working the land in the seventh year in our day, which according to the majority of authorities is a rabbinic transgression, you are caught in the prohibition of selling land to a gentile, which is a biblical transgression according to all." Hazon Ish, Shevi'it 24:4, invokes the talmudic principle, "There can be no proxy for transgression," and argues that not only is such sale forbidden, but if an agent or proxy is used in effecting the sale of land to a non-Jew, the sale is invalid. It is a principle of talmudic jurisprudence that an agent cannot be appointed for the performance of an act involving a transgression. If the sale of land in Israel to a non-Jew constitutes a transgression, such a sale cannot be effected by means of an agent. In practice, the Chief Rabbinate acts as the agent for most landowners who seek to effect such sales. Since Hazon Ish maintains that sale to a non-Jew is forbidden, he deems such sales to be null and void when executed through a proxy and hence of no possible effect in mitigating restrictions concerning the sabbatical year. The Chief Rabbinate, of course, views sale of land to a non-Jew as a permissible procedure and hence efficacious.
The considerations upon which this dispute is based are discussed in a number of contributions which appear in Torah She-be-'al Peh. The permissibility of selling land in Erez Yisra'el to a non-Jew is discussed by Rabbi Ovadiah Yosef in the course of a detailed analysis of the general question of the sale of land to a non-Jew as a means of avoiding the onus of shmittah observance and by Rabbi Shmuel Tanchum Rubenstein in his treatment of the same topic. A third article, by Rabbi Eliyahu Bakshi-Duran, is devoted exclusively to the specific question of whether or not it is permissible to sell land in Erez Yisra'el to a non-Jew. Also included in this volume is a responsum on the same subject authored by the late Rabbi Mordecai Zevi Tannenbaum.
The Mishnah, Avodah Zarah 19b, expressly forbids the sale of real estate in Israel to non-Jews. The Gemara explains that this prohibition is derived from the biblical injunction "lo teḥanem," (Deut. 7:2), which, according to rabbinic exegesis, is to be understood as meaning "You shall not grant them permanent encampment (ḥaniyah)." Rambam, Hilkhot Avodah Zarah 10:4, amplifies this statement with the explanation, "For if they will not own land, their inhabitance will be temporary." Ramban, in his commentary on the Bible, Leviticus 25:23, finds that conveyance of land to a non-Jew involves yet another transgression. Scripture provides that all fields revert to their original owners in the jubilee year, and explicitly commands, "and the land shall not be sold in perpetuity." Ramban understands this verse as banning the sale of land to a non-Jew since the latter would retain permanent possession and not return the land to its original owner in the jubilee year. The verse concludes with the explanation "for the land is Mine," indicating that in actuality the land is the possession of God and that it is only by virtue of His largesse that man is permitted to dwell in, and derive enjoyment from, his terrestrial habitat. Accordingly, this passage gives expression to the divine will that Israel be the homeland of the Jewish people and that they not be displaced by foreign land-owners. According to Ramban, the purchase of land in Israel from a non-Jew constitutes a fulfillment of the commandment "You shall give a redemption unto the land" (Lev. 25:24). Rabbi Bakshi-Duran argues that, according to Ramban, there is yet another source militating against the sale of dwellings or fields in Israel to a non-Jew. According to Ramban, the verse "And you shall inherit the land and dwell therein" (Deut. 11:31) is not simply a prophetic prognostication or a divine promise but constitutes a positive commandment. Ramban comments, "We have been commanded to inhabit the land which God gave to our forefathers, Abraham, Isaac, and Jacob, that we not allow it to remain in the possession of any other nation or allow it to be desolate." Rabbi Bakshi-Duran understands the second clause in Ramban's comment as referring not to the establishment of political sovereignty but to actual ownership of territory. Thus any act which results in a non-Jew acquiring title to any portion of the land of Israel constitutes a violation of the commandment concerning settlement of Erez Yisra'el.
Yet, over the years, a number of rabbinic authorities have sanctioned the sale of real estate to non-Jews, at least in certain limited circumstances. Mizbeaḥ Adamah, an important nineteenth-century Sephardic source, reports that noted rabbinic authorities had themselves done so in the past and cites several by name. Indeed, earlier scholars were perplexed by the narrative in I Kings 9:11 which reports that King Solomon bestowed twenty cities in the Galilee upon Hiram, king of Tyre, in appreciation of the latter's assistance in providing materials needed for use in the construction of the Temple. There is no record of Solomon having been censured for this action.10See, however, the commentary of Abarbanel on I Kings 9:10. Mizbeaḥ Adamah explains that the prohibition against the sale of real estate to a non-Jew is applicable only to idol worshippers but not to other gentiles. Indeed, idolaters are specifically denied the right of domicile in the Land of Israel lest they cause the Jewish populace to become enmeshed in pagan practices. "They shall not dwell in your land lest they cause you to sin against Me, for you will serve their gods" (Exod. 23:33). Many authorities (with the notable exception of Rambam, Hilkhot Avodah Zarah 10:6) rule that since specific reference is made to idolatrous influences, only pagans are excluded from the right of domicile. Mizbeaḥ Adamah views the prohibition against the sale of property as being simply an extension of the prohibition against domicile in the land of Israel, and hence similarly limited in its application solely to idolaters.11This prohibition is also cited by R. Abraham I. Kook, Mishpat Kohen, nos. 58, 61, and 63, and by R. Zevi Pesach Frank, Kerem Ẓion, III, no. 13, as well as by R. Eliyahu Klatzkin, Teshuvot Imrei Shefer, no. 92, but is rejected by R. Ya‘akov David Wilofsky (see Mishpat Kohen, no. 61), R. Naftali Zevi Yehudah Berlin, Kuntres Dvar ha-Shmittah and Ḥazon Ish, Shevi‘it 24:3. In accordance with the above distinction, Mizbeaḥ Adamah rules that there is no restriction against the sale of real estate to Moslems, who profess a monotheistic belief. This thesis also serves to explain Solomon's gift to Hiram. Since Hiram was not an idol worshipper, there existed no halakhic obstacle to the transfer of land to him by King Solomon. Rabbi Yosef notes that, quite obviously, this line of reasoning is cogent only with regard to the prohibition of lo teḥanem, but fails to satisfy objections which might be raised on the basis of Ramban's position that the sale of land to a non-Jew also entails transgression of the commandment "And the land shall not be sold in perpetuity." He notes that there is, however, the possibility that Solomon expressly stipulated as a condition of his gift to Hiram that the cities were to revert to their original owners upon the advent of the jubilee year. Rabbi Yosef opines that consideration of Ramban's position would not preclude sale of land "in our day" since observance of the jubilee year lapsed with the destruction of the Temple. This contention may, however, be challenged, since even under contemporary conditions, all lands which are sold are subject to reversion to their original owners in the messianic era, which is to be accompanied by reinstitution of the observance of the jubilee year.
Teshuvot Yeshu'ot Malko, Yoreh De'ah, no. 55, advances a number of other considerations which serve to render the sale of land during the shmittah year a permissible procedure. One argument advanced by this authority is that there is no restriction against such sale when it is negotiated primarily for the benefit of the seller. Since the sale of land for the period of the sabbatical year is entered into primarily for the purpose of strengthening the economic viability of the Jewish settlements in Israel, such transfer of property, in the opinion of Yeshu'ot Malko, does not fall within the parameters of this biblical prohibition. Similarly, he argues that property may be sold if it is the seller's intention to repurchase the land after its agricultural potential has been enhanced by the purchaser. Since routine chores, such as weeding and pruning, may not be performed during shmittah, the future agricultural yield of such lands is sharply reduced. Sale to a non-Jew, which enables these operations to be performed, serves to enhance the agricultural value of the property, Rabbi M. Rubin, Shemen ha-Ma'or, Yoreh De'ah, no. 4, adds that the ultimate purpose underlying the prohibition (viz., the prevention of "permanent" residence by non-Jews, which is a concommitant of the acquisition of real estate) would in this case be thwarted by a ban on the sale of land for the period of the sabbatical year. The economic hardships resulting from failure to obviate the difficulties associated with observance of shmittah through sale to a non-Jew would undoubtedly result in the abandonment of Jewish agricultural settlement and in a diminution of the Jewish populace. The net result would be greater "permanence" of the non-Jewish population. This point is also made by Rabbi Eliyahu David Rabinowitz-Teumim in a letter appended to Rabbi Kook's Shabbat ha-Arez, p. 128.
Yeshu'ot Malko further argues that only sales which result in the property remaining in the possession of the purchaser in perpetuity are forbidden. Sales in which the property reverts to the seller at a future date do not constitute a bestowal of "permanence" upon the dwelling of a non-Jew. In accordance with this line of reasoning Yeshu'ot Malko rules that an explicit stipulation should be made at the time of sale to the effect that the land will be resold by the purchaser after the expiration of the sabbatical year.
While he does not himself accept the argument, Rabbi Kook (Shabbat ha-Arez, introd., chap. 10, and Minḥat Kohen, no. 68) cites a contention advanced by Rabbi Zalman Shach to the effect that there is no restriction against selling land to a non-Jew who already owns real estate in Israel. The reasoning underlying this position is that since the purchaser already owns property, he has already acquired "permanence." Since a state of "permanence" is not newly bestowed upon the purchaser through the acquisition of additional parcels of land, the sale of real estate to such an individual is not forbidden.
The disagreement with regard to the permissibility of the sale of real estate to a non-Jew who already owns property in the Land of Israel is contingent upon an analysis of the nature of the prohibition lo teḥanem. On the basis of a contribution by Rabbi Bezalel Zolti to an earlier volume of Torah She-be-'al Peh (XI, 5729), it may be demonstrated that there exists a significant difference of opinion with regard to the technical nature of this prohibition. Some authorities deem the sale of land to be forbidden under all conditions because, in their opinion, the concept of granting "permanence" is simply the underlying rationale of a prohibition which, by definition, encompasses any transfer of title. Hence, according to these authorities, any sale of property to a non-Jew is forbidden, regardless of the effect such sale may or may not have upon the permanence of dwelling achieved by the purchaser as a result of consummation of the sale. Other authorities deem the essence of the prohibition to be the bestowal of "permanence" of dwelling rather than the sale itself, and hence they sanction sale for a stipulated period of time, exchange of parcels of real estate or even sale to a non-Jew who already owns property in Israel.