Monthly Learning Forum by Rabbi Yaakov Kermaier: November 6, 2007

The Land of Israel has its own version of Shabbat: the shemitta year, in which it is to lie fallow. Ideally, shemitta would still be observed in all its stringency. Over the years, accommodations have been made to permit the Zionist enterprise to exist in a modern economy. This year, the most famous accommodation of shemitta, the “heter mechira,” has been very controversial. The result has been not only a rupture in Israeli society but an undermining of the authority of the Chief Rabbinate of Israel.

I. Mitzvot of Shemitta
Rabbi Kermaier began by reviewing the Biblical sources for the halacha of shemitta. First, in Shemot 23:10-11 (source sheet item I(A)), there is a command to leave the fields in the Land of Israel untended and unharvested. Later, in Vayikra 25:1-7 (source sheet item I(B)), the Torah explicitly analogizes the shemitta year to the weekly observance of Shabbat. There is both a positive obligation to relinquish ownership of your produce and a prohibition against working the fields. The fields are left open for anyone to take the produce; the produce is regarded as hefker, or ownerless.

All told, there are six Biblical laws of shemitta, two positive and four negative (soruce sheet item I(C)). The positive commandments are to let the land rest and relinquish ownership of produce; the negative commandments proscribe sowing your field, pruning your trees, harvesting your field in the way you normally would (though you may pick the untended produce), and picking your fruit as you normally would (with the same proviso). In addition, the rabbis added a prohibition against sfichim: produce that grows in the field on its own may not be eaten at all, lest one come to plant illicitly and claim that it grew by itself.

II. Shemitta After the Churban
In the aftermath of the destruction of the Temple, what is the status of shemitta?

(1)     A small minority holds that the rules remain Biblical.
(2)     The large majority of decisors says that the rules are rabbinically binding today. Three reasons are offered for the majority position: (i) the sanctity of the Land of Israel was reduced after the destruction of the Temple; (ii) Ezra’s aliyah did not include all of the people of Israel, so it was insufficient to re-sanctify the land; (iii) shemitta is interdependent with yovel (the jubilee year), which has lapsed in the absence of the Temple and the Sanhedrin.

(3)     Finally, at the other extreme, a minority of decisors (including luminaries such as the Ravad, Rashbam, and Meiri) say that shemitta today is voluntary — a mere midat chassidut — because the institution of yoveil is gone, without even a rabbinic remnant.

III. Shemitta in Contemporary Times/Heter Mechira
The first settlers of the land of Israel in the Zionist era — in towns like Mazkeret Batya, Nes Tziona, Petach Tikva, and Rishon Letzion — dealt with shemitta in 1889. The gedolim of the era were divided on what to do. Some permitted the heter mechira, i.e., selling the land temporarily to non-Jews. These included the rabbis in Russia and Eastern Europe who encouraged the early Zionist enterprise, including Rav Yitzchak Elchanan Spektor of Kovno, whose proclamation approving the heter was recorded in Hatzvi (source sheet item III(A)). The leading sages of Jerusalem, however, such as Rav Shmuel Salant and Rav Yehoshua Leib Diskin, disagreed.

Some of the early settlements, such as Mazkeret Batya, decided not to rely on the heter mechira. They not only suffered extreme hardship, but they also incurred the displeasure of Baron Rothschild, who cut off his funding of the enterprise.

By the next shemitta year, 1896, settlement of the land had expanded and the hardship of letting it lie fallow had increased. Some of the gedolim who had opposed the heter mechira in 1889, particularly Rav Yehoshua Leib Diskin, relented and permitted it this time.

By the shemitta year of 1910, Rav Avraham Yitzchak HaKohen Kook was not merely permitting the heter mechira in the reluctant fashion of Rav Yitzchak Elchanan but was advocating it. This elicited strong opposition from the rabbis of Jerusalem, including Rav Chaim Berlin. Rav Kook’s son, Rav Tzvi Yehuda Kook, later promoted the heter mechira very actively. To this day, haredim in Israel refer disparagingly to the heter mechira as “Kook’s heter,” even though its origins go back to Rav Yitzchak Elchanan, whom they would not criticize.

Rav Yosef Engel noted that the Torah promised (Vayikra 25:19-24) that those who observed shemitta would not incur hardship, because they would receive a double bounty in their sixth-year harvest. That Biblical guarantee against hardship does not exist today, when (for the vast majority of decisors) the mitzvah of shemitta is no longer Biblical.

Rav Chaim Rapoport of the UK has written about how Rav Shlomo Zalman Auerbach, while not relying himself on the heter mechira, said such reliance was permissible and spoke well of Rav Kook in his sefer Ma’adanei Aretz. Later redactions of the sefer have removed the positive references to heter mechira and Rav Kook.

Against this background, contemporary opposition to heter mechira has alternative sources:

(1)     The sale of the land is not legally recorded, and the parties do not sincerely rely on the transaction, so it is a sham. A counter-argument is that this is equally true of the sale of chametz, and that is accepted even though the rule being circumvented is Biblical rather than probably rabbinic or maybe even voluntary. What is more, though the view that shemitta is voluntary (as opposed to rabbinic) is a minority position, there is support in the poskim for relying on minority positions in time of great need.

(2)     The example of selling chametz is not dispositive, however, because the Torah nowhere prohibits selling leaven to a gentile before Pesach, but there is a view that one may not sell land in Israel to a gentile. A Mishna in Avodah Zarah 19b says that one may not sell plants that are attached to the ground in Israel to idolaters. From this it is derived that one may not sell the land itself, as the Gemara concludes that the verse in Devarim 7:2 of “lo techanem” means that one may not give a resting place to idolaters in the land of Israel. (Of course, there is a related question of which gentiles in our day are or are not idolaters.) Thus, the Netziv characterized the heter mechira as a case of running away from the wolf (the rabbinic rules of shemitta) and into the lion (the Biblical prohibition against selling the land). The Chazon Ish said, in contrast, that the sale does not work anyway, because of the principle of “ein shaliach l’devar aveira” (there is no agency to perform a sin). In response to those who claimed that the heter mechira violates “lo techanem,” R. Y.E. Spektor responded that the heter mechira sale should be formulated as a temporary sale for a set period. By so doing, one circumvents the issues of shemitta, yet one does not violate “lo techanem,” which applies only to a permanent transfer of property. Other poskim cite Rishonim who limit “lo techanem” to idol-worshippers (and Muslims, after all, are monotheists). Others (including Rav Kook) argue that “lo techanem” applies only when the sale transfers land and thereby weakens the Jewish settlement, but not when the whole purpose of the sale is to bolster the Jewish settlement. Moreover, others (such as Rabbi Zvi Pesach Frank) opine that “lo techanem” is not violated with the sale, but rather with the actual transfer of land, something that does not occur with the heter mechira.

For those who do not want to rely on the heter mechira, there is the otzar beit din. In this arrangement, the rabbinic court gathers produce and charges customers what it costs in labor and materials to do so. This solution does not provide enough produce for the entire country. Also, the produce purchased from otzar beit din has the rules of the holiness of the seventh year, and must be treated with great care, which will work only for those who are punctilious.

IV. What Is Different This Year
What has changed this year such that heter mechira has become so controversial? Economic circumstances in Israel have changed over the years. Whereas one-third of Israel’s exports in the 1960s were agricultural, today produce accounts for under 3% of exports. As of 2001, however, there were still 70,000 persons employed on farms, not to mention those who work in restaurants and elsewhere in the food sector.

Perhaps more important than the economic shift, there has been a larger sociological shift that goes back to the last elections for Chief Rabbi. The Chief Rabbis are selected by a 150-member electoral body, 80 of whom are rabbis and 70 of whom are public representatives, including members of the Knesset. Many of the 80 rabbis are haredim, even though the haredi community does not rely upon the Chief Rabbinate. In 2003, the governing coalition in the Knesset included both the National Religious Party and Shas. The NRP and Shas made a deal whereby they would support each other’s candidates for Ashkenazic and Sephardic Chief Rabbi, respectively. But Shas ultimately broke with the NRP and allied itself with Degel Hatorah. Degel Hatorah, under the leadership of Rav Elyashiv, supported Rav Yona Metzger for Ashkenazic Chief Rabbi. The NRP’s candidate had been Rav Yaakov Ariel of Ramat Gan, but he was objectionable to Degel Hatorah because (i) he was blamed for giving the NRP’s Effi Eitam cover to join a government that included the anti-clerical Shinui Party, (ii) he was associated with certain moderate views on, for example, a greater role for women, and (iii) he has looked for creative solutions to the conversion problem for Russian olim. Rav Elyashiv favored Rav Metzger because of his commitment not to effect any change to the status quo on these issues — and because, as someone who lacks independent halachic authority, Rav Metzger would follow Rav Elyashiv’s rulings on matters such as, but not limited to, shemitta.

Rabbi Kermaier characterized the haredi position on heter mechira as principled, though he argued that this strict ruling should not be imposed on the broader Israeli public. Once in office, Rav Metzger took the position that each local rabbinate could accept or reject the heter mechira. Some municipalities (including Petach Tikva, Hadera, and the decidedly non-haredi Herzliya) have rejected the heter mechira, resulting in higher prices and, in some cases, restaurants abandoning hashgacha altogether.

In October, the Supreme Court of Israel reversed the Chief Rabbinate’s ruling and said it may not allow local rabbinates to reject the heter mechira. The court ruled that the Chief Rabbinate could not delegate the decision to local rabbis, because that could harm Israel’s farmers and the public at large.

In the interim, while the case was pending, a group of Religious Zionist rabbis in the organization called Tzohar had offered a hechsher to any group denied a hechsher from the Chief Rabbinate because of the heter mechira. In the wake of the Supreme Court ruling, Tzohar has indicated that it will continue to offer such certification until it sees that the court’s decision is actually implemented.

V. Implications of the Current Situation
Rabbi Kermaier concluded that the current situation is very troublesome. The haredi community has never accepted the Chief Rabbinate as an authority, and now the Religious Zionist community is also disaffected. Under these circumstances, where the Chief Rabbinate is not viewed as a religious authority by any segment of Israeli society, the question may be asked why a Chief Rabbinate is needed at all. In the absence of a Chief Rabbinate, however, the Jewish character of the State of Israel could be jeopardized. Moreover, the interference on the part of the Supreme Court in overtly religious matters sets a dangerous precedent. Some Religious Zionist Knesset members, who have, in the past, criticized the Court’s judicial activism, have now been placed in the awkward position of applauding the outcome of the Court ruling, while mourning that it had to come to this. Additionally, the competition of Tzohar in the field of kashrut invites other groups, perhaps with questionable commitments to halacha, to do the same, and not only in matters of kashrut. One wonders whether the Rabbinate’s stringency in the case of the heter mechira will ultimately lead to the erosion of religious standards and the further alienation of segments of Am Yisrael from Torat Yisrael.

Rabbi Kermaier suggested that the Chief Rabbinate would play a valuable role if it found a way to employ the most lenient halachic position on matters related to society at large, even if it had to qualify such positions by saying they represent a bare minimum upon which reliance should not be placed by those who could be more stringent. Currently, the Chief Rabbinate does not have the moral authority to make such pronouncements. The experiment of a state that is both Jewish and democratic is not a simple project, and Rabbi Kermaier hoped for a state of affairs under which Jewish concerns could be respected while at the same time accommodating social concerns.

Rabbi Kermaier closed by citing the Sfas Emes, who said that the essence of shemitta is to create unity among the Jewish people by breaking down socio-economic barriers. Rabbi Kermaier expressed the hope that this could be achieved by the next shemitta year of 5775.