The Shemittah part 6

Shemittah is inextricably tied to the Land of Israel. Anything grown outside the Land, does not have the sanctity or restrictions of Shemittah produce. But what are the borders of the Land? I frequently see people posting maps of "the REAL borders of the Land of Israel" When I point out that their map is actually only wishful thinking, I quickly get un-friended. There are actually several "stages" of this question. First, there is the "Promised Land", vouchsafed to Abraham. This area goes far beyond anything we ever had, and is understood in the Talmud to mean what will be in the Messianic era. The second stage is called "the First Sanctification", and encompasses all the land that the Israelites conquered in the time of Joshua, right after the death of Moses. The term "First Sanctification" refers to the idea that besides the intrinsic holiness of the Land of Israel, it needed to be sanctified by a declaration of the Sanhedrin (Court) for the laws relating to Eretz Yisrael to be operative; including Shemittah. Lands added during the time of David and Solomon were also sanctified, but that sanctification was only valid while that land was held. After the Babylonians seized Judea, the Land lost this status of Sanctified for purposes of Shemittah, except for Jerusalem. When the Israelites returned in the time of Ezra, they re-sanctified the Land...as much as they held. This is called the Second Sanctification Exactly how much they held is a subject of debate. Most likely, it was the area around Jerusalem, sweeping down towards the coast, but not quite reaching it, plus most of the Galilee. The Second Sanctification is eternal, and therefore didn't end with the Roman destruction. Since we do not know exactly how far the borders of the Second Sanctification went, the entire Central and Northern parts of the country need to observe Shemittah, although there are parts that probably were not included by Ezra. Just to make it very clear, all parts of the Land of Israel are holy, but not all have the laws pertaining to the Land, including Shemittah.
The present-day State of Israel contains areas with different statuses. Most of it is part of the Holy Land, conquered and sanctified by Joshua as well as Ezra.. There are many areas of the Holy Land that remain in Jordanian or Egyptian possession. There are, however, parts of the State of Israel that were never part of the Holy Land. This is true of the Southernmost part of the Negev desert (including Eilat), and probably some of the northeastern part of the country. (There is the minority view of Rav Saadia Gaon that all of the Negev is part of the Holy Land, but this is highly unlikely). Therefore, some people who are wary of all the previously mentioned methods choose to use only produce grown in these non-sanctified areas. This would be much too small an area to feed the entire country, let alone maintain an export industry, but is sufficient for those who wish to avoid the Shemittah restrictions without utilizing legal fictions. On the other hand, they miss out on partaking of the sanctity of the Shemittah fruit, which the Torah declares holy. Some other people prefer to live on imported produce for the entire year.
What I have described here may seem picky to some people. But the goal of maintaining a balance between ideals and practicality, without doing violence to the Laws of G-d, is really what is at stake. Nothing could be more Jewish. May G-d open our eyes and hearts to His Torah!

The Shemittah part 5

When I first moved to Israel in 1984, I had my heart set on living in the mystical city of Tzfat. I had learned that apartments were available for very reasonable prices in a new development. When I went to visit the complex, I was asked to sign a contract that was primarily intended to ensure the religious nature and standards of that particular community that had built these apartments. Prominent among the conditions was a clause that read: "During Shemittah, I will only purchase non-Jewish fruit and vegetables". The fact was, I had not yet decided on how I would observe Shemittah. I needed to study the sources and opinions. I refused to sign. That decision changed the course of my life. I and my family wound up in the settlements, where the politics and pressures broke our spirits, until we left the country seventeen years later.
Why would anyone boycott Jewish agriculture? I later learned that there are many who regard both the Heter Mechirah and the Otzar Beit Din as unacceptable legal fictions. Until the late nineteenth century, there had been virtually no Jewish farming in Eretz Yisrael, and non-Jewish produce was the norm. As to the argument that it would be impossible to maintain a Jewish State without farming one year in seven, they would counter with: "That is well and good if you consider Shemittah as rabbinic law, and even more so if you consider it custom. However, if you consider it Biblical even in this age, ideology would be no excuse. Tampering with a Biblical law requires an actual life-and-death situation. Put your politics aside, and obey the commandments of G-d".
Those opposed to this policy counter that besides the issue of ideology, there are real problems with this approach. At one time, everything sold in the non-Jewish market was grown by non-Jews. Today, although there is much farming done by non-Jews, much of what is sold in those markets is, in fact, through Tenuvah, Israel's main agricultural marketing cooperative. Hence, a large proportion of these fruits and vegetables are actually Jewish grown. On top of this, when Tenuvah knows that fruit is "orlah" (literally, "uncircumcised". That is, fruit grown during the first three years of a tree's life, or the first three years after transplanting a tree. Such fruit is forbidden by the Torah to be consumed), it is diverted to non-Jewish markets. Therefore, those buying supposedly non-Jewish produce, a significant proportion of what they are buying is, in fact, not only Jewish Shemiitah produce, but often intrinsically forbidden produce! Those who do accept this practice argue that since most produce sold in non-Jewish markets is non-Jewish produce, I can make the assumption that I have bought non-Jewish fruit and vegetables. Opponents consider this more of a legal fiction than Heter Mechirah or Otzar Beit Din.
One more common method of dealing with Shemittah remains. It deals with the politically, as well as religiously, hot topic of where are the borders of Eretz Yisrael. That will be my next post.

The Shemittah part 4

Those opposed to the Heter Mechirah were well aware that the full observance of Shemittah was impractical at the present time, but took offense at any legal fiction that would "uproot" this mitzvah entirely. They came up with the Otzar Beit Din (storehouse of the Court), a concept already found in the Talmud. However, extensions were made in its implementation, which supporters saw as a reasonable broadening of the concept. Critics saw it as bearing little resemblance to the original, and a much broader legal fiction than Heter Mechirah.
As we have discussed, the original practice of Shemittah was for the fruit to be considered "ownerless", with everyone coming to freely pick enough fruit sufficient for a limited time. One great exception to this was figs, an important staple in the Holy Land and surrounding countries. Fresh figs are delicious, but very delicate and perishable. They were rarely consumed fresh. They were dried and pressed into round "bricks" or "wheels" to be used all year until the next crop. If people were to come and pick the figs, they would be crushed, and quickly spoil. The Talmud records a solution. The Court would hire workers who would go to the fig orchard, picking and drying the figs. As the figs belonged to no one, and were acquired by no one (as they were declared ownerless), there would be no restrictions on how many were thus harvested. The fruit was then brought to the Court's storehouse, to be freely distributed to the public. The Court was, however, entitled to be compensated for the cost it had expended in hiring the workers. The fruit was not being sold (strictly forbidden under the laws of Shemittah), but the people would pay a service charge compensating the Court for out-of-pocket expenses. In the modern form of Otzar Beit Din, the farmers themselves are hired by the Court to grow and harvest the fruit. An estimate is made as to how much the fruit is worth. The farmer is paid slightly less (by one or two percent), in order to indicate that the Court is not BUYING the fruit, but merely paying the farmer's salary. The fruit is brought to a "distribution center". Theoretically, it is given out for free. In practice, the Court charges a fee for its expenses (the hiring of the farmer). The produce is, in fact, slightly cheaper than it would normally be; both because of the lower price paid the farmer, as well as because the usual chain of "middlemen" has been circumvented. The supporters of Otsar Beit Din argue that this is an ideal solution. "Ownerless" fruit is being given away. The fee is merely a service charge. The laws of Shemittah have been upheld. The fruit remains sacred. It must be eaten with the holiness and respect required by Shemittah observance. It cannot be exported. (Which does not solve the problem for those farmers dependent on exports). It also leaves unsolved the problem of vegetables. The Land may still not be sown, so only those vegetables planted before Shemittah may be eaten (and even these have certain restrictions). Those who observe Shemittah by means of Otzar Beit Din are still dependent on non-Jewish vegetables for at least part of the year. The opponents of Otzar Beit Din argue that the hiring of farmers and the distribution of the fruit which is still pricey, albeit less than the normal price, is an obvious legal fiction. The sacred fruit is harvested without the usual restrictions of methodology and quantity because it is "ownerless" and belongs to all the people. The farmer being paid close to his usual income, and the fact that different quality fruit has different prices, despite having the same outlay of money in the harvesting, would seem to belie the idea that we are simply reimbursing the Beit Din for its expenses. (Supporters counter that if the same prices were charged for all qualities, people would only buy the higher quality fruit, thus causing a loss for the Beit Din.) Another issue is that it is difficult to ensure that the fruit will be properly handled. I personally have witnessed Israeli exports, clearly marked "Otzar Beit Din" sold in New York supermarkets, thus violating the prohibition of export, as well as the buying and selling of the Shemittah fruit. Many argue that Otzar Beit Din, even if not ideal, solves the main challenges of Shemittah, while preserving the observance of the mitzvah. Many remain unhappy with both legal fictions, and advocate another alternative. That will be the topic of my next post.

The Shemittah part 3

The Heter Mechirah sent shock waves through the rabbinic community.On the one hand, many felt that it was a brilliant solution to a desperate situation. After all, it was similar to other "ha'aramot" (legal fictions), used to prevent a situation in which the halachah now harms, rather than helps, a group or an individual. It was similar to the widely practiced custom of selling one's chametz (leaven) to a non-Jew for Passover (a practice which also has its detractors, but is accepted by most). Moreover, there was the centuries old precedent of the Hebron community. On the other hand, many felt that this was a betrayal of the sanctity of the Land, as well as of the the laws of Shemitttah. It was, in essence, not a legal fiction, but an uprooting of an entire mitzvah. Besides this, there is a well established halachah that it is prohibited to sell land to a non-Jew in Eretz Yisrael. The opposition strengthened when the newly formed Chief Rabbinate adopted the Heter Mechirah as official policy. Many rabbis were vehemently opposed to that institution, as it brought religion and politics too close together, and it put a rabbinic stamp of approval on the Zionist leadership and its policies, which were secular in the extreme. One prominent Jerusalem rabbi said "Rabbi Kook's love of Zion has caused him to lose his mind, and remove him from obeying his Creator's mind". Even if the Heter Mechirah is valid, it would give de-facto recognition to the secular leadership.
Supporters of the Heter Mechiah countered with their own arguments. First of all, Shemittah was, according to the vast majority of opinions, and thus ruled in the Shulchan Aruch,  no longer Biblical, and therefore subject to leniencies in an emergency. (To violate a Biblical law, one would need an actual life and death situation. A rabbinic law only needs great pain or hardship). In the current situation, the farmers could technically ignore shemittah. A legal fiction could certainly be employed in order to keep the "letter of the law" since it was doubtful if it really needed to be kept in the first place. Hillel had used a legal fiction to circumvent the cancellation of debts at Shemittah, since it had become obvious that many poor people were unable to secure desperately needed loans since the rich were afraid of losing their money come Shemittah. Furthermore, according to a significant minority of opinions, Shemittah in the present day is not even rabbinic law, but only custom. As to selling land in E.Y. to a non-Jew, many rabbis interpreted that to mean specifically an idolater. There might be no prohibition in selling the land to a non-Jew who was clearly monotheistic, such as a Muslim or Druze. (In the most recent Heter Mechirah, the land was sold to a Noachide!). Also, was a one-year sale truly a sale, in terms of violating the prohibition? Rabbi Kook further "tweaked" the contract of sale, so that the land was not actually sold, but merely the trees and the soil around its roots. Rabbi Kook only wanted the Heter Mechirah employed for essential crops; not private gardens or flowers, which one could live without. Some, especially the late Sepharadic Chief Rabbi, Ovadia Yosef (with whom I was very close), opined that the Heter was usable for all under the present circumstances. He considered Shmittah to be only a custom today, as the agricultural areas are too far from the urban centers, making the original practice of everyone being able to just come and take, impractical. The opponents of the Heter Mechirah were unsatisfied. There were too many "ifs". Besides, there were, and are, a few rabbis who consider Shemittah as remaining Biblical, despite the lack of the Jubilee year. Was the situation truly one of life and death? Or were the proponents putting ideology ahead of halachah?
The rejection of the Heter Mechirah by most Hareidi (ultra Orthodox) authorities left the question open; "how are we to function without agriculture?" Another solution was found, and accepted, called the "Otzar Beit Din" (the storehouse of the Court). Proponents claimed that it solved at least the most pressing problems. One often hears "I don't accept the Heter Mechirah; I really observe Shemittah through Otzar Beit Din". Many who DO accept the Heter Mechirah consider Otzar Beit Din as nevertheless preferable. However, some (especially Rabbi Ovadia Yosef) considered the solution as worse than the problem. (This is also my view). What, exactly, is Otzar Beit Din? What are its advantages and disadvantages? That will be my next post.

The Shemittah part 2

Let's look at what Shemittah REALLY means. It is an acknowledgment that the Land belongs not to us, but to G-d. Like the Shabbat, it is not only restrictions, but sanctification. All fruit trees are to be made ownerless. Every person could come to the orchards, and pick enough fruit for several meals. The fruit, once picked, is still sacred. Eating it constitutes the performance of a mitzvah. It must be treated with respect. It may not be bought or sold. Food normally only eaten raw may not be cooked, and vice versa. No edible part of the fruit may be discarded. It is forbidden to export this fruit to other lands; it must remain within the boundaries of Eretz Yisrael. I have seen many fruit trees in front of Jerusalem homes with signs "Shemittah Fruit. Just take". However, not a single commercial farm actually "observes" Shemittah. 
It is easy to see, however, how this system would not, in practice, be practical for large, industrial farms, as we have today. Besides the economic hardship for the farmers, today's farms are not just outside the towns. They are in distant areas. People are unlikely to take a long drive just to pick a small amount of fruit. The fruit would, for the most part, go to waste. Throughout the ages since Talmudic times, this presented little problem. The Jews in Eretz Yisrael were generally not farmers. They were artisans, merchants, shop keepers and some who dedicated their lives to study and prayer, who were supported by others. Fruit was purchased from their non-Jewish neighbors. Produce from the field of a non-Jew was permitted to be bought and sold. According to most, Shemittah does not apply to it at all. Others opined that some of the laws of Shemittah apply, but not all. This continues to be a source of dispute between the rabbis of Bnai Brak and Jerusalem. Many Jews continue to buy all their produce from non-Jews during Shemitttah year. Jewish agriculture in Eretz Yisrael only began in the 1880s. The first farmers were observant, and faced with a dilemma by the approaching Shemittah year. They were struggling financially. Shemittah threatened to ruin them. Would Jewish agriculture be feasible in the Holy Land? Some gave up and left the farms as Shemittah approached. The rest sent an urgent plea to the great European rabbis of the age. A possible solution was offered by Rabbi Yitzcak Elachanan Spektor, considered by many the leading sage of that time. He found in the literature that in the Holy City of Hebron (Judaism's second holiest city), there had been Jewish farmers for centuries who had simply "sold" their fields to a non-Jew for the duration of the Shemittah year, buying it back at its conclusion. Although he was unable to find the appropriate responsa that had permitted this practice, he felt it reasonable, and, under the circumstances, permissible. This became known as the "Heter Mechirah" (Permission to Sell). The Land would not have any of the requirements of Shemittah, and could be farmed freely. Several European rabbis concurred, while others protested vehemently. They saw this as an absolute violation of several Torah laws, as well as a legal fiction (ha'aramah) that took legal fictions to a new low. The farmers accepted it. Some fifty years later, Rabbi Abraham Isaac Kook, the first Chief Rabbi of the Jewish community in Eretz Yisrael endorsed this view, with some modifications. Since then, it has been seen as Rabbi Kook's innovation, which is not really the case. It was adopted as the official stand of the Israeli Chief Rabbinate to this day. Even Rav Ovadia Yosef considered it the most acceptable way to observe Shemittah. Many Hareidi (ultra-Orthodox) rabbis, however, saw, and continue to see this as a travesty. What were the arguments for and against? Was there, in fact, an alternative? That will be my next post.

The Shemittah part 1

The Shemittah, or Sabbatical Year, is commanded in several places in the Torah. It is part of a fifty year cycle, that includes a Sabbatical year every seven, that includes a cessation from most agricultural work in the Land of Israel, as well as the cancellation of debts, and a fiftieth year Yovel (Jubilee) which besides the above, also requires the freeing of Hebrew slaves, and the return of most real estate to its original owner. The fifty-year cycle also has implications for tithing of produce. Besides the gifts required to be given to a Kohen (Priest) and a Levite, which were required every year, there were additional tithes to be given to the poor in certain years, and another which the person who grew the crops was obligated to eat as a  "second tithe" in Jerusalem in other years.
A problem arises with Jubilee because of the Biblical command to observe it "when you come into the Land"; interpreted to mean when you come as a nation, dwelling according to your tribes". This situation ceased to be with the Exile of the Northern Ten Tribes in 723 BCE. Therefore, without Jubilee being operative, the entire cycle was thrown into kilter. Here, we have several views. The first view says that at this point, Sabbatical years became rabbinic rather than Biblical. After the seventh Sabbatical Year, the fiftieth year was supposed to be Jubilee, with the following year counted as year one of the new cycle. Without a Jubilee, the year following the seventh Sabbath (year forty-nine) became the first year of the new cycle. This was not Biblical, and the cycle was  only preserved either as rabbinic law, or, as suggested by some, as a custom of remembrance, so that these laws will still  not be forgotten when G-d gathers the exiled tribes to the Holy Land. A second view holds that Jubilee and Sabbatical Years are independent, so in the absence of Jubilee, the Sabbatical year still remains Biblical. This view is held by a small, but distinguished, minority. A third view is that of RAMBAM. He states that as long as there was a Sanhedrin, even when Jubilee was not possible to observe, they still proclaimed the fiftieth year as sacred, thereby maintaining the fifty year cycle, the Biblical nature of the Sabbatical year, as well as the order of tithes. But with the demise of the Sanhedrin during the fourth century CE, this ceased, and Sabbatical year and tithes became rabbinical only. The Torah states that the years must be proclaimed. The Oral Torah explains that this was proclamation by the Sanhedrin. What's more, RAMBAM calculates when Sabbatical year will fall. He noted that his calculation is different from that which is observed by Jews dwelling in the Land. He concludes, "I withdraw my opinion before the custom of the Land of Israel". Many understand this to mean that our entire observance of Shemittah today is, essentially, custom. This view was picked up and advocated by MEIRI (1249-1310).
The result is that there are widely differing views as to the degree of stringency with which these laws need to be observed today.  Ideological questions come up as well. With the return of large numbers of Jews to the Holy Land, should the observance of Shemittah, no matter what its status, be enforced as much as possible so that we will be made aware of the fact that it IS the Holy Land? Or, given the economic hardship of a struggling economy, should legal fictions come into play, justified by the fact that these laws may be not only rabbinical today, but only custom? These topics have been the center of major debates since the late nineteenth century. Several different methods of dealing with Shemittah are in force in different communities. Each method has its advocates and detractors. I shall discuss these views in coming posts.