Yeshivat Ha'Aretz

(19) As noted earlier, Rambam does not enumerate the commandment "and you shall inherit the land and dwell therein" in his compilation of the 613 precepts. The simplest and most obvious reason for this omission is that Rambam does not view this injunction as constituting a mandatory obligation binding upon all generations. Rambam may well have deemed the commandment to have been binding only upon the generation of the wilderness to whom it was addressed and to those who were charged with the original conquest of the land of Canaan,^6aThe phrase “the wars of Joshua to conquer” employed in Sotah 44b as the definition of milḥemet ḥovah certainly appears to indicate that the original conquest was commanded. See, however, R. Shlomoh Goren, Maḥanayim, no. 69 (lyar 5722), pp. 5-15, reprinted in his Torat ha-Shabbat ve-ha-Mo‘ed (Jerusalem, 5742), pp. 338-356, who draws attention to Rambam’s ruling in Hilkhot Melakhim 6:1 to the effect that even in the wars of Joshua it was required that the indigenous populace be offered terms of peace and were to be permitted continued residence upon acceptance of these terms. Rabbi Goren maintains that the wars of Joshua constituted milḥamot ḥovah or milḥamot miẓvah, not by virtue of a commandment to conquer the land of Canaan per se, but by virtue of the entirely independent commandment to annihilate the Seven Nations; see Rambam, Hilkhot Melakhim 5:1. Cf., below, notes 7 and 8 for Rabbi Israeli’s analysis of Rambam’s position as formulated in his Ereẓ Ḥemdah. The phraseology of Sotah 44b also seems to be at variance with the position of R. Aaron Soloveichik cited below, note 9. but not intended as a binding commandment for all of posterity.⁷Megillat Ester, however, understands Rambam’s position as being that the commandment lapsed only upon the destruction of the Temple. Avnei Nezer, Yoreh De‘ah, II, no. 454, sec. 4, and R. Ovadiah Yosef, Torah she-be-‘al Peh, XI (5729), 36, assume that the miẓvah of settlement in Israel will again be binding in the messianic era. Accordingly they take exception to Megillat Ester’s explanation of Rambam’s omission of this commandment from his enumeration of the 613 miẓvot since Rambam does reckon among this number miẓvot which will again be binding in the days of the Messiah. It, however, appears evident that Megillat Ester assumes that settlement in Israel, although certain to occur with the advent of the Messiah, will not have the status of a binding miẓvah. Perhaps this is because Jews in the messianic era will have sufficient motivation to immigrate to Ereẓ Yisra’el even in the absence of a binding commandment. Alternatively, Rambam may have interpreted the verse as constituting sage counsel, as did Rashi, rather than as a commandment.⁸R. Sha’ul Israeli explains Rambam’s position on the basis of his own thesis as cited above, note 7. He asserts that Rambam understands the verse “and you shall inherit the land” as a necessary prerequisite for fulfillment of the subsequent directive “and you shall dwell therein.” Rambam differs from Ramban, according to Rabbi Israeli, in understanding the term “ve-horashtem” as meaning military conquest and displacement of the indigenous populace. This form of “inheritance” is not merely not required but also prohibited in our era by virtue of the “three oaths” and the biblical statement concerning exile. Since “and you shall dwell therein” requires antecedent inheritance,” Rambam adopts the position that the miẓvah concerning settlement has lapsed as well. It thus follows that, in our time, according to Rambam, there is no divine imperative requiring a Jew to remove himself from the Diaspora and to establish residence in Israel.

(19) As noted earlier, Rambam does not enumerate the commandment "and you shall inherit the land and dwell therein" in his compilation of the 613 precepts. The simplest and most obvious reason for this omission is that Rambam does not view this injunction as constituting a mandatory obligation binding upon all generations. Rambam may well have deemed the commandment to have been binding only upon the generation of the wilderness to whom it was addressed and to those who were charged with the original conquest of the land of Canaan,^6aThe phrase “the wars of Joshua to conquer” employed in Sotah 44b as the definition of milḥemet ḥovah certainly appears to indicate that the original conquest was commanded. See, however, R. Shlomoh Goren, Maḥanayim, no. 69 (lyar 5722), pp. 5-15, reprinted in his Torat ha-Shabbat ve-ha-Mo‘ed (Jerusalem, 5742), pp. 338-356, who draws attention to Rambam’s ruling in Hilkhot Melakhim 6:1 to the effect that even in the wars of Joshua it was required that the indigenous populace be offered terms of peace and were to be permitted continued residence upon acceptance of these terms. Rabbi Goren maintains that the wars of Joshua constituted milḥamot ḥovah or milḥamot miẓvah, not by virtue of a commandment to conquer the land of Canaan per se, but by virtue of the entirely independent commandment to annihilate the Seven Nations; see Rambam, Hilkhot Melakhim 5:1. Cf., below, notes 7 and 8 for Rabbi Israeli’s analysis of Rambam’s position as formulated in his Ereẓ Ḥemdah. The phraseology of Sotah 44b also seems to be at variance with the position of R. Aaron Soloveichik cited below, note 9. but not intended as a binding commandment for all of posterity.⁷Megillat Ester, however, understands Rambam’s position as being that the commandment lapsed only upon the destruction of the Temple. Avnei Nezer, Yoreh De‘ah, II, no. 454, sec. 4, and R. Ovadiah Yosef, Torah she-be-‘al Peh, XI (5729), 36, assume that the miẓvah of settlement in Israel will again be binding in the messianic era. Accordingly they take exception to Megillat Ester’s explanation of Rambam’s omission of this commandment from his enumeration of the 613 miẓvot since Rambam does reckon among this number miẓvot which will again be binding in the days of the Messiah. It, however, appears evident that Megillat Ester assumes that settlement in Israel, although certain to occur with the advent of the Messiah, will not have the status of a binding miẓvah. Perhaps this is because Jews in the messianic era will have sufficient motivation to immigrate to Ereẓ Yisra’el even in the absence of a binding commandment. Alternatively, Rambam may have interpreted the verse as constituting sage counsel, as did Rashi, rather than as a commandment.⁸R. Sha’ul Israeli explains Rambam’s position on the basis of his own thesis as cited above, note 7. He asserts that Rambam understands the verse “and you shall inherit the land” as a necessary prerequisite for fulfillment of the subsequent directive “and you shall dwell therein.” Rambam differs from Ramban, according to Rabbi Israeli, in understanding the term “ve-horashtem” as meaning military conquest and displacement of the indigenous populace. This form of “inheritance” is not merely not required but also prohibited in our era by virtue of the “three oaths” and the biblical statement concerning exile. Since “and you shall dwell therein” requires antecedent inheritance,” Rambam adopts the position that the miẓvah concerning settlement has lapsed as well. It thus follows that, in our time, according to Rambam, there is no divine imperative requiring a Jew to remove himself from the Diaspora and to establish residence in Israel.

(20) This is certainly how Rambam is understood by the seventeenth-century scholar, R. Isaac de Leon.⁹Rambam is also understood in this manner by Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 234. In addition, Ritva, Yoma 38a, clearly maintains that there is no objection, at least subsequent to the dispersion of Israel, to maintaining continued residence in the Diaspora. See Avnei Nezer, Yoreh De‘ah, II, no. 454, sec. 63. I believe this also to be the opinion of Maharam of Rothenberg cited by Rosh, Ketubot 13:17 and Tur Shulḥan Arukh 75; see below, note 33. In his work, Megillat Ester, a commentary on the Sefer ha-Mizvot, this authority seeks to defend Rambam's position against Ramban's critique by citing the "three oaths" described in Ketubot 111a.¹⁰For an analysis of the halakhic implications of these oaths see Contemporary Halakhic Problems, I, 14-15. The Gemara tells us that at the time that Jews were banished from the Land of Israel and driven into exile, God caused the Jews and the nations of the world to swear a series of solemn oaths. One of these oaths bound the people of Israel not to attempt to retake the Land of Israel by force. Megillat Ester questions how it may logically be possible that there exist a binding commandment to conquer and to settle the Land of Israel if at one and the same time Jews were caused to swear an oath not to exercise force in regaining the Land of Israel. According to this authority, the very possibility of such an oath is a clear indication that the commandment "and you shall inherit the land" is not addressed to all generations in all ages.

(21) Indeed, Rambam himself strongly encourages settling in the Land of Israel. Rambam, Hilkhot Melakhim 5:12, declares, "A person should live in the Land of Israel under all circumstances, even in a city in which the majority are heathens, and should not live outside the Land even in a city in which the majority are Jews." This statement follows immediately after Rambam's declaration, Hilkhot Melakhim 5:11: "The Sages said that the sins of whosoever dwells in the Land of Israel are forgiven.… Even if one walks four cubits therein, one is assured of life in the World to Come. So too, one who is buried there will obtain atonement…." Residence in the Land of Israel is thus regarded by Rambam as meritorious in the highest degree, but not as a binding obligation.

(22) It should, however, not be inferred from Rambam's failure to classify settlement in the Land of Israel as a mizvah that it was his position that residence in Israel is not preferable to residence in the Diaspora.¹¹This seems to be inherent in the position of Mahari Asad, no. 88; cf., however, Pe’at ha-Shulḥan, Bet Yisra’el, 1:15. See also R. Abraham I. Kook, Shabbat ha-Areẓ, Introduction, ch. 15, as well as the comments of Kli Yakar, Genesis 13:17. Even in the absence of a specific binding obligation concerning residence in the Land of Israel in all generations, Erez Yisra'el remains unique for all Jews. Despite the absense of the imperative engendered by a mizvah, domicile in Erez Yisra'el carries with it great zekhut or merit.

(12) 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.

(14) 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.

(15) 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.