The Israel Koschitzky Virtual Beit
MidrashThe Israel Koschitzky Virtual Beit
Midrash
Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har
Etzion
SHIUR
01: Is there a mitzva to settle the land of Israel?
By
Rav Chaim Navon
The first question that arises in any discussion regarding the mitzva
of settling the
We were commanded to
take possession of the land that God, blessed and exalted be He, gave our
forefathers, Avraham, Yitzchak, and Ya'akov, and not leave it in the hands of
other nations or in desolation. This is what He said to them: "And you shall
dispossess the inhabitants of the land and dwell in it; for I have given you the
land to possess it. And you shall divide the land for an inheritance"
(Bamidbar 33:53-54)… This is what the Sages called obligatory war. And
thus they said in the Gemara in Sota (44b): "Rav Yehuda said: Yehoshua's
war of conquest – all agree is obligatory; David's war for [greater] comfort -
all agree is optional"… And from what they said "Yehoshua's war of conquest,"
you understand that this mitzva is fulfilled through conquest… And I say
that the mitzva about which
the Sages expanded greatly, namely, living in the Land of Israel, to the point
that they said that anyone who leaves it and lives outside the Land [of Israel]
should be regarded in your eyes as an idolator… This is all part of this
positive precept, for we have been commanded to take possession of the land and
dwell in it. If so, it is a positive precept for [all] generations, binding upon
every individual, even during the period of the exile, as is clear from many
places in the Talmud. (Ramban, Commandments Omitted by the Rambam, positive
precept no. 4)
Some Acharonim argue that according to the Rambam, there is a
mitzva to live in the Land of Israel that applies at all times, even in
our day, but the obligation is only by rabbinic decree:
According to the Rambam,
we must say that it is all by rabbinic decree. But the plain sense inclines
toward the Ramban, that the mitzva to live in the Land of Israel is a
mitzva like all the positive precepts in the Torah. For it is
unreasonable that a rabbinic commandment should be equivalent to all the
positive precepts of the Torah. (Pe'at ha-Shulchan, Beit Yisra'el 1,
14)[1]
The author of the Megilat Esther proposes another explanation as
to why the Rambam failed to count the mitzva of settling the Land of
Israel. He argues that the mitzva to settle the land only applied prior
to the Exile:
It appears to me that
the Master did not count it because the mitzva to take possession of the
land and settle in it only applied during the days of Moshe, Yehoshua and David,
and as long as [Israel] was not exiled from its land. After they were exiled
from their land, however, this mitzva does not apply to [future]
generations, until the time that the Messiah will come. (Megilat Esther,
ad loc.)
The Megilat Esther
adduces proof from a midrash cited by the Ramban, which tells of
Sages who wept and rent their garments when they spoke of the importance of the
mitzva of settling the Land of Israel which they themselves did not
fulfill:
As for the statement
brought from the Sifrei, that they wept and read this verse, "And you
shall take possession of it and settle in it" (Devarim 17:14), it seems
to me that they wept because of their inability to fulfill this verse because
the Temple had been destroyed. And the proof is… For if this mitzva
applies even after the [Temple's] destruction, why did they weep and rend their
garments? Surely now too they could have fulfilled it. (Megilat Esther
(ibid.)
Many have countered the
Megilat Esther’s argument, including the author of the Avnei
Nezer:
Clearly, the author of
the Megilat Esther did not see the Sifrei itself, but only what
was cited by the Ramban. For the incident is found in the Sifrei
(parashat Re'e), where it is explicitly stated as follows: "And they
returned to their place, and said: Living in the Land of Israel is equivalent to
all the mitzvot." And furthermore, the Sifrei states that [certain
Sages] left the Land of Israel to study Torah in Netzivim with Rabbi Yehuda ben
Betera, and when they remembered the Land of Israel, they returned, and it
concludes as above. We see then that the mitzva is binding [even] in our
time, and therefore they returned even from Torah study to fulfill [the
mitzva of] living in the Land of Israel, which is equivalent to all the
mitzvot. (Avnei Nezer, Yore De'a,
454)
In any event, according to the Megilat Esther, the Rambam does not
categorically deny the mitzva of settling the Land of Israel. Rather, he
maintains that the mitzva applied in the past when we lived in the land,
and it will apply again in the future in the days of the Messiah, but it does
not apply today, when we are subjugated to the nations of the world. One might
have argued that, according to the Rambam, the mitzva to settle the Land
of Israel applied only in the days of Yehoshua, who was explicitly commanded to
settle there; and the many rabbinic dicta in praise of living in the Land of
Israel are merely Aggadic sayings or moral guidance, but not explicit
Halakha.
There are those who interpreted the Rambam in the opposite direction,
arguing that he too agrees that settling the Land of Israel is a Torah
mitzva. Why, then, did he not count it among the 613 mitzvot?
Various answers to this question have been proposed:
For the mitzva of
"you shall surely smite them" (Devarim 7:2) is in order that we should
settle in the land… For this reason, "you shall surely smite them" and living in
the Land of Israel were not counted as two [separate commandments]. But rather
he counted only the mitzva of "you shall surely smite them." (Avnei
Nezer, ibid.)
The Admor of Sochatchov, author of the Avnei Nezer, suggests that
the mitzva of settling the Land of Israel coincides with the
mitzva of "you shall surely smite them." This is why the Rambam did not
count settling the land as a separate mitzva, but contented himself with
the mitzva of "you shall surely smite them." The Avnei Nezer
assumes that there is congruence between the two mitzvot, but this is
by no means necessary. For in his Sefer ha-Mitzvot (positive precept
187), the Rambam implies that the mitzva to destroy the seven Canaanite
nations applies even outside the Land of Israel. On the other hand, the
mitzva of settling the Land of Israel certainly does not exhaust itself
with the killing of the nations inhabiting it. It is, therefore, difficult to
argue that we are dealing with the very same mitzva in a different
formulation.
The author of Eim
ha-Banim Semeicha proposes a different solution in the name of R. Yona Dov
Blumberg:
This explains the view
of the Rambam, who did not count the positive precept of settling the Land of
Israel among the 613 mitzvot, even though he too agrees that it is by
Torah law. This is based on the rule established in the fourth principle of
Sefer ha-Mitzvot, not to count commandments that include the entire
Torah. Since the mitzva of settling the Land of Israel is such a dear
mitzva, that includes all the mitzvot and embraces the entire
Torah, and the establishment of the all the festivals and Rosh Chodesh and all
its mitzvot depend upon it… So too the entire life of the nation depends
upon it. Hence, it is a general, and not a specific mitzva. For this
reason, it is not included in the count of the mitzvot, which includes
only the specific mitzvot. (Eim ha-Banim Semeicha, p.
154)
The Rambam, in his introduction to Sefer ha-Mitzvot, establishes
fourteen principles, that is, rules by which he determines which mitzvot
are to be counted and which not. In the fourth principle, the Rambam asserts
that general commandments, e.g., "You shall keep my statutes" (Vayikra
19:19), are not to be counted, because they add no specific content that
must be performed, but only encourage observance of the mitzvot in
general. R. Teichtel tries to explain that it is for this reason that the Rambam
did not count the mitzva of settling the Land of Israel - because it is a
general mitzva. Why is the settlement of the Land of Israel defined as a
general mitzva? He explains that this is due to the special importance of
the mitzva. Others have defined it as a general mitzva for a
different reason. R. Yehuda Herzl Henkin cites such a position and rejects
it:
Responsa Tzitz
Eliezer, VII, no. 48, in the
name of R. Avraham Yitzchak Kook, ztz"l, writes that even the Rambam
maintains that it is by Torah law. The reason that he did not count it is that
it includes many mitzvot that are dependent upon the land. As he writes
in the fourth principle, that it is not right to count general commands that
embrace the entire Torah. The same applies to the settlement of the Land of
Israel, upon which many essential parts of the Torah depend. And furthermore,
according to what the Ramban writes that all the mitzvot were essentially
given to be fulfilled only in the Land of Israel… [However,] this does not fit
with the words of the Rambam, for this is what he says in the fourth principle:
"The Torah contains commandments and prohibitions that do not relate to a
specific act, but rather embrace all the mitzvot, as if it said, 'Do
everything that I have commanded you to do'… Such a command should not be
counted as a separate mitzva, for it
does not command a specific action, that it should be a positive precept." We
see then that he only excludes mitzvot that do not involve a specific
action, like the examples cited there, "You shall be holy" (Vayikra
19:2), "Circumcise the foreskin of your heart" (Devarim 10:16), and
others. They are not similar to the [mitzva] of settling the Land of
Israel, which involves the specific act of living in the land, and if a person
is abroad, crossing the border and entering the land. (Responsa Benei
Banim, II, 42)
R. Henkin's argument is simple. He deals with the claim that settling the
Land of Israel is a general mitzva, because it includes many specific
mitzvot, like terumot, ma'asrot, and the like. R. Henkin
counters: The mitzva of settling the land has an additional element,
namely, the very obligation to live in the land. It is, therefore, impossible
that the Rambam omitted the mitzva of settling the land because it is a
general mitzva.[2]
Cities that were not conquered by the returnees
from babylonia
A strong objection may be raised against the Ramban from the Gemara at
the beginning of tractate Chagiga:
Many cities were
conquered by those ascending from Egypt, but they were not conquered by those
ascending from Babylonia, because the initial sanctification sanctified it for
that time, but did not sanctify it for all future times. And [those ascending
from Babylonia] left [some areas unsanctified] in order that the poor should
rely on them during the Sabbatical year. (Chagiga
3b))
There are those who raised an objection from this passage against the
Ramban who argues that the mitzva of settling the Land of Israel is a
Torah obligation: How could the returnees from Babylonia have refrained from
fulfilling an important Torah commandment because of economic
considerations?
This, however, does not constitute decisive proof. It merely indicates
that sometimes even important and beloved mitzvot are set aside because
of social and even economic considerations.
Caution
with respect to mitzvot that depend upon the land of
Israel
The Gemara in tractate Ketubot states that both husband and wife
can compel one another to move to the Land of Israel:
Our Rabbis taught: If
[the husband] says to go up [to the Land of Israel], and she [his wife] says not
to go up, we compel her to go up. And if not, she goes out without a ketuba. If [the wife] says to go up, and
he [her husband] says not to go up, we compel him to go up. And if not, he must
divorce [her] and pay her ketuba.
(Ketubot 110b)
The Tosafot discuss the application of this ruling in their
time:
"If the husband says to
go up, etc." – does not apply in our time, when the roads are dangerous.
And Rabbenu Chayyim said that nowadays there is no mitzva to live in the
Land of Israel, because there are various mitzvot dependent upon the
land, and various punishments, with respect to which we cannot take the proper
precautions. (Tosafot, Ketubot 110b, s.v. hu)
There is no problem with the first part of the Tosafot: Even if
nowadays, for technical reasons, a husband cannot force his wife to live in the
Land of Israel, this does not mean that in principle there is no mitzva
to settle the land. But the position attributed here to Rabbenu Chayyim is
surprising and important: According to him, there is no mitzva to live in
the Land of Israel, because of the fear that we will not be able to properly
observe all the mitzvot that are binding upon us in the land. It must be
admitted that this is a somewhat odd argument, which seems to be based on a
psychological fear of dealing with the sanctity of the Land of Israel which
demands especially pure conduct. In any event, we are dealing with a puzzling
argument. The Maharit even claimed that these words were not authored by Rabbenu
Chayyim himself:
I found in the
Hagahot Mordekhai as follows: "Rabbenu Chayyim wrote in a responsum that
this applied in their day when there was peace, but nowadays when the roads are
unsafe, he cannot compel her, because it is like a case where he wants to take
her to a place where there are hordes of wild beasts or robbers… We see then
that the responsum of Rabbenu Chayyim Kohen, of blessed memory, is based only on
the argument of dangerous roads. That which is written in the Tosafot
that there is no mitzva to live in the Land of Israel is a gloss of a
student and not authoritative whatsoever. (Responsa Maharit, Yore
De'a 28)
The Gemara in Ketubot cites the view of Rav Yehuda who prohibits
moving to the Land of Israel:
For Rav Yehuda said:
Whoever moves from Babylonia to the Land of Israel violates a positive precept.
As the verse states: "They shall be carried to Babylonia, and there shall they
be until the day that I take heed of them, says the Lord" (Yirmiya
27:22). (Ketubot 110b-111a)
More often cited is the statement appearing later in that same passage.
The Gemara relates to the three oaths mentioned in Shir ha-Shirim,
understanding from them that God swore Israel to three
oaths:
What are those three
oaths? One, that Israel not go up as one. And one, that the Holy One, blessed be
He, administered an oath to Israel that they not rebel against the nations of
the world. And one, that the Holy One, blessed be He, administered an oath to
the nations of the world that they not subjugate Israel too much. (Ketubot
111a)
Some authorities
understood from this passage that even today moving to Israel "as one" is
forbidden.
Various resolutions of
the appparent contradiction between the three oaths and the modern aliya
movement have been offered. Some suggest that the position of Rav Yehuda as
well as the three oaths were never codified as law. Others argue that the
revival of aliya to the Land of Israel marks "the day that I take heed of
them,' from which time the prohibition is no longer in effect. Some have
emphasized that we moved to Israel and founded a state with the agreement of the
nations of the world, and thus the oaths are no longer valid. Some maintain that
the three oaths are interdependent, and since the nations of the world violated
their oath not to subjugate us excessively, we too are released from our oath.
It would seem, however, that the whole question is not a question. The
aforementioned talumudic statements appear to fall into the category of Aggada;
they are not halakhic rulings. The Rambam makes no mention of these oaths, and
it would appear that this is not because he maintains that they were not
accepted as Halakha, but rather because he thinks that we are not dealing here
with Halakha. R. Yisraeli put forward a similar position:
These three oaths do not
involve actual prohibitions, but only guidance for Israel to accept the decree,
justifying God's judgments, and without rebellion. For it will not help; on the
contrary, it will lead to intensified subjugation. This explains why the
posekim do not bring these oaths as Halakha, for there are practical
ramifications. Rather, as I said above, there is no prohibition here, only sound
advice. (R. Shaul Yisraeli, Eretz Chemda, I, 1, 4)
Sovereignty
On the assumption that
there is a mitzva to settle the Land of Israel, another question arises:
Does the mitzva focus only on living in the Land of Israel, or also on
acquiring sovereignty over it? In other words, does the mitzva merely
instruct us, as individuals or as a nation, to live in the Land of Israel? Or
perhaps we are bound by a special mitzva that we should be masters of the
Land and establish within it a system of Jewish rule!
The expression, "and not leave it in the hands of other nations" (Ramban,
cited above), does not necessarily imply Jewish sovereignty. Let's say that a
large Jewish community developed in the Land of Israel, and all the non-Jews
left the country, but the country remained under the rule of the Turkish pasha.
Would that mean that the mitzva of settling the Land of Israel has not
been fulfilled? It may indeed be possible to suggest that with respect to the
mitzva of settling the Land of Israel, the only important question is how
many Jews are living in the Land, and the issue of sovereignty is absolutely
irrelevant.
One of those to deal
with this issue notes frankly that "when the Rishonim related to the
mitzva of settling the Land of Israel, they did not attach any importance
whatsoever to the question of sovereignty over the Land."[3] There are two late
sources that argue that Jewish sovereignty over the Land of Israel has
significance with respect to the mitzva of settling the Land. R. Tzadok
ha-Kohen of Lublin argued that the mitzva of settling (yishuv) the
Land can only be fulfilled if it also finds expression in Jewish
sovereignty.
Yishuv means living in
tranquility… that is, as masters of the Land… Only if they are living in the
Land in tranquility and domination, for that is called yishuv. This was
the case in the time that the Temple stood. But once the Temple was destroyed,
even though they did not all go out into exile, even those who lived there were
not called "yoshvim of the Land." And they had no yeshiva there,
since they were slaves to the kings of the nations who ruled there, like us who
live outside the Land of Israel. This is not called yishuv, but merely
sojourning, and there is no fulfillment of "And you shall settle it
(vishavtem)." (R. Tzadok ha-Kohen, Divrei Soferim, no.
14)
R. Tzadok argues that settlement of the Land is void of meaning without
sovereignty. It is not clear, however, whether sovereignty in an of itself has
value, or – as it would appear from the beginning of the passage – it is merely
a means to "living in tranquility," which is impossible without sovereignty. In
any case, he is clearly of the opinion that sovereignty is an essential
condition for the fulfillment of the mitzva of settling the Land of
Israel.
R. Yisrael Yehoshua of Kutna, author of Responsa Yeshu'ot Malko,
proposed a less revolutionary position:
Even according to the
Ramban who considered it a positive precept, the essence of the mitzva
involves taking possession [of the land] and settling in it like a person on
his own property, to conquer the Land of Israel that it be in our possession,
and not the empty arrival of today… Nevertheless it [= mere settlement]
certainly involves a great mitzva… And there is no doubt that it is a
great mitzva, because the ingathering [from the exile] is the beginning
of the redemption. (Yeshu'ot Malko, Yore De'a
66)
The author of the Yeshu'ot Malko argues that while the primary
goal of the mitzva is to achieve full domination over the Land, "like a
person on his own property," nevertheless the aliya of individuals also
has meaning, as a means to the end. He too agrees that the heart of the
mitzva involves the imposition of Jewish sovereignty, but he argues that
the immigration of individuals has value, as a preparation for the main
mitzva.
We must admit that in
contrast to R. Tzadok, who explicitly speaks of "domination," R. Yisrael
Yehoshua of Kutna is ambiguous: It is not entirely clear whether he is referring
to full sovereignty, or merely to private ownership of the real estate. R. S.Y.
Zevin understands the words of the Yehoshu'ot Malko in their plain sense,
as referring to full Jewish sovereignty.[4]
R. Ovadya Yosef, however, takes the Yeshu'ot Malko in an entirely
different direction. R. Ovadya notes in passing that according to the
Yeshu'ot Malko, the mitzva of settling the Land is not being
fulfilled today in the Yesha territories. "For regarding the present conquest,
we are unable to drive out the Arabs living in Yesha, and they continue to enjoy
permanent residence." Thus, our status in the Land is not like that of "a person
on his own property."[5]
R. Ovadya Yosef appears to understand that the Yeshu'ot Malko is
not referring to formal sovereignty, but to practical control. Without being
full aware of it, R. Ovadya seems to be setting aside the concept of
sovereignty, which is not rooted in the words of the Rishonim, in favor
of the more familiar concept of ownership.[6]
R. Tzadok and the Yeshu'ot Malko are struggling with the question
whether there is a mitzva of settling the Land of Israel prior to the
attainment of sovereignty. R. Eliezer Waldenberg, author of Responsa Tzitz
Eliezer, deals with exactly the opposite problem: He is concerned that some
might argue that the heart of the mitzva lies in the attainment of Jewish
sovereignty in the Land of Israel, and therefore, once this goal has been
achieved, there is no longer a mitzva to move to Israel. He argues
(Tzitz Eliezer, VII, no. 48, Orchot ha-Mishpatim, ch. 12) that the
mitzva of settling the land of Israel is a double mitzva: a
mitzva falling upon the collective to establish Jewish sovereignty, and a
mitzva falling upon each individual to settle in the land, irrespective
of the question of sovereignty.[7]
Another interesting
position is brought by R. Avraham of Sochotchov in the name of his
father:
My father, the Admor,
the Gaon, shelita, proposed the innovative idea that the primary
fulfillment of the mitzva of living in the Land of Israel is when a
person maintains himself on the income he earns in the Land of Israel. But if he
receives charity from people living outside the Land of Israel, he does not
fulfill the mitzva in perfect manner… The essence of the mitzva of
living in the land of Israel is for a person to receive his bounty from God
Himself (blessed be He), and not by way of an angel of the land (= outside the
Land of Israel). (Responsa Avnei Nezer, Choshen Mishpat, no.
95)
FOOTNOTES:
[1] This is also the way
the Rambam was understood by the Rashbash (nos. 1, 2) and others.
[2] Prof. Ya'akov
Levinger proposed that, according to the Rambam, the mitzva of living in
the Land of Israel is an element of the prohibition not to return to the land of
Egypt (Ha-Rambam ke-Filosof u-khe-Posek, p. 93). I find this position
difficult to accept.
[3] Y. Brandis,
"Ha-Hityashvut be-Chevlei ha-Aretz she-be-Ribonut Nokhrit,"
Techumin 17(5747), p. 99.
[4] Rav S.Y. Zevin,
"Ha-Medina ha-Ivrit u-Kedushat ha-Aretz," Techumin 10(5789), p.
25.
[5] Rav O. Yosef,
"Mesirat Shetachim me-Eretz Yisrael bi-Mekom Pikuach Nefesh,"
Techumin 10(1989), p. 44.
[6] Rav S. Yisraeli
expressed his astonishment regarding Rav Ovadya's position (ibid., p.
54). It seems that the underlying disagreement between them is whether the
Yeshu'ot Malko is referring to state sovereignty or to proprietary
control.
[7] Rav Waldenburg adds
that not only is the individual obligation in effect today, but also the
collective obligation; strengthening the framework of sovereignty is no less
important than its establishment.