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.

Hermeneutics

Hermeneutics

Hermeneutics is the scholarly term for rules of Biblical interpretation. The Talmud records several methodologies. One is the Seven Rules of Hillel. These were later expanded by Rabbi Yishmael into thirteen rules (or Middot). These are actually recited in the morning prayers. Rabbi Akiva had a totally different methodology, based on extra or missing words or letters, the use of inclusive words (like "and" or "with") and limiting words (like "but" or "only"). Both methods were employed in the Talmud. Another set of thirty two rules was presented by Rabbi Eliezer ben Rabbi Yosi Hagalili. These later rules were intended not for halachic (legal) exposition, but for aggadic (homiletic, metaphorical) interpretation.
Why bother? Why not just take the text literally? Allow me to pose the following question. Where does the Torah (or any Biblical book) forbid sexual relations between a father and daughter? IT DOESN'T!.Among the incestuous relationships forbidden by the Torah, some blood relatives and some not, we search in vain for what would seem to be a most basic abomination! However, the Talmud points out that we DO find a prohibition of relations with a granddaughter. We have here an argument called "kal V'chomer" (from the minor towards the major). If a granddaughter is forbidden, how much more so a daughter! Is this rabbinic law? NO! It is seen as Biblical; validly derived by the rules that have been handed down to us. (There were, in fact, some views outside the rabbinic tradition that DID allow such a union. See 1 Corinthians 7:36).
But why wouldn't the Torah specify ideas like this? The Torah is a Divine document, far beyond human comprehension, with layers of meaning that remain yet to be discovered. It was revealed with explanation, guidelines, hints to be used in interpretation. There is no extraneous letter. It is written tersely, yet it contains every imaginable (and many beyond imagination) secret and mystery.
I like to think of this as analogous to romantic love. No one EVER really knows another person. In fact, we don't really know ourselves! Yet, when we have known someone for a relatively short time, we may realize that we love them. If it is a good relationship, love matures and grows. Even after several decades, we discover aspects of the other person that make us love them even more! We realize how without that person, how dark our lives would have been! So it is with the Torah. As children, we sit wide-eyed at the telling of the story of the Great Flood, the Exodus, the splitting of the Sea. As we mature and continue studying, we get to know the Torah better. Each story has lessons vital FOR ME! And as we encounter new challenges in life, the Torah provides new answers! We love the Torah when we are children, but love her so much more by the time we have weathered numerous life challenges. We realize that G-d's teachings and guidance are so intricately woven, that each thread tells us exactly what we need, that we may well have overlooked while examining the entire fabric.
I noted above that the thirteen rules of interpretation are in our daily prayers. Why would they be in a prayer? The Kabbalists inform us that these thirteen Torah rules are inextricably bound up with the Thirteen Attributes (also called Middot!) with which we implore G-d's Mercy. If we are studying the Torah correctly, it becomes a prayer. If we pray correctly, finding G-d in all the ups and downs of life, prayer opens up the Torah for us in a new way. Prayer can be the ultimate Torah study! The Zohar says that if the Torah was only what we read on the surface, we could write a much better Torah. But that is NOT the Torah. There are ins and outs, permutations, like a great poem combined with the most personal prayerful devotion, that grows as we grow, and offers ever-widening vistas.

The Asmachta

I have written several times in the past about the centrality of Deuteronomy 17:5-13, which is the very foundation of the Oral Torah and rabbinic authority. When there is a question of how to follow a Torah command, we are to turn to the sages, priests and prophets who formed a central court, later known as the Sanhedrin. We are commanded to follow their teachings, instructions and enactments. With the demise of the Sanhedrin in the fourth century CE, rabbinic authority remains, albeit in a limited form. According to RASHI and most Ashkenazic authorities, the power of the Oral Torah shifted to all the Torah Greats in a generation, who, in a sense, form a kind of Sanhedrin. According to RAMBAM, followed by most Sepharadic opinion, rabbinic authority only extends to a community's rabbi, with no powers beyond his own community. In any case, the Torah is not for individual interpretation of practices, but comes with instructions! Without the Sages, the Written Torah is a closed book.
A fascinating part of the Oral Torah is known as an "Asmachta" (Aramaic for "leaning"). The Torah empowers the sages to enact legislation to protect the Torah ("fences around the Torah"), without adding to the number of Biblical laws. Sometimes, the sages would "lean" a purely rabbinic law on a Biblical text. For instance, the Torah commands us to tie the Tefillin on our arm and head. But which arm? The rabbis had received a clear tradition that it was the left arm (for lefties, most agree that they are to put the tefillin on the right arm). This was always part of the Oral Torah. But the Talmud, the central work of the Oral Torah, says that, in fact, there is a Biblical reference to this idea. Of the four places where the Torah commands Tefillin, in one place, the word "Yadecha" (your hand/arm) has an unusual spelling, so that it can also be read "weaker arm". Now, no one would argue that this is the literal meaning of the verse. Rather, the idea has been "leaned" onto the verse for support. Here, we have two interpretations. One view is that the asmachta was simply a device used to give SOME Biblical authority to a rabbinic enactment. Another, far more accepted view, is that, in fact, the Torah has not as yet revealed all of her secrets. The Torah is wider than the seas, vaster than the Heavens. Besides the laws clearly given in the Torah, or handed down by oral tradition, the Torah contains infinite "hints". Some may be universal, some may apply to a given time, place or situation. Some may even be individual. Some great Tzaddikim, when asked a question, may open a Torah text at random, and find the answer there! (I have seen this with my own eyes). Therefore, "minor" variations in spelling, grammar or syntax can actually be hints to sages of future generations as to how to act in a given situation. The unusual spelling of "Yadecha" was put there by G-d Himself, to guide the sages should a question arise. Over the last seventy years, many rabbis have discovered cryptic  messages in the Torah that were previously unknown, by certain letters occurring at certain intervals (every twenty-fifth letter, for example) which spell out a clear message.
The rabbis tell us that the Torah existed for two thousand years before the world was created. Although there are many interpretations of this idea, one thing is certain. I, you, every man, woman and child who ever lived or will live is in the Torah. The Sages can see this, and guide us accordingly. We must be aware that the Torah is not just a book. The Zohar states that the first word in the Ten Commandments (Anochi/I am) is an acrostic of "ana nafshi ketavit yehavit" (I wrote and gave you My Self). When we touch the Torah, we touch G-d. But we need to learn from those who know how to see this and make it into a reality in our lives.

Hora'at Sha'ah and the Second Passover

The "Hora'at Sha'ah" (ruling for the hour), is a provision in Jewish Law that allows a prophet, a beit din(court) or even a community rabbi, to decide that in extraordinary situations, a law, even a Biblical law, could be set aside for a greater good. The Hora'at Sha'ah is a one time thing, setting no precedent for future actions. The most famous case is to be found in the story of Elijah. The people were unsure whether to worship G-d or the pagan deity, Baal. Elijah challenges the Priests of Baal to a contest. They will offer sacrifice to Baal, he will offer sacrifice to G-d. Neither would light fire under their altars, but ask for fire to come down from Heaven. The Baalites fail, Elijah succeeds.The people now shout "G-d is G-d!". This beautiful story raises two obvious questions. One, how was Elijah allowed to not only condone, but actually encourage, a pagan sacrifice? Secondly, how was he allowed to offer sacrifice outside the Temple, which then stood in Jerusalem, apparently violating the law of the central sanctuary? The rabbis explain that this was a Hora'at Sha'ah. The people were straying from G-d, and extraordinary measures were necessary.
The sixteen year rule of Ahaz, King of Judah, was marked by apostasy and persecution of everything holy. At his death, he was succeeded by his righteous son, Hezekiah. Hezekiah was faced with the need to bring the people back to G-d. It is not an exaggeration to say that Judaism could very well have ended then, if not for Hezekiah's determined actions. The Bible records that Ahaz was not accorded a Royal burial. The Talmud elaborates; Hezekiah had his father's remains dragged by horses on a bier of reeds. A firm statement needed to be made, even at the expense of dishonoring his own father. In the first year of his reign, Hezekiah reopened the Temple, which had been closed by Ahaz. He knew that something must be done quickly to bring the people back to G-d. He decided that the right time for this would be Passover. But there was a problem. The Temple, the Priests, the people were not ready. It was too short notice! He needed more time! In II Chronicles 30, we read that he made a huge Passover...in the Second Month! The Torah commands that Passover be in the First Month (Nisan). Here there are two interpretations. One is that he added an additional month (as we do on a leap year) in order to make Passover come out later and give him more time. Since this was done not following the usual rules of leap year, it SEEMED like the Second Month. However, some interpret differently. There is a provision in the Torah that one who was unclean or on a journey could bring the Passover sacrifice on the same date in the following month. This is called Pesach Sheni (the Second Passover). However, this was only for individuals; not the community. According to this view (which appears to be the literal understanding of the text), Hezekiah made a hora'at sha'ah, instituting FOR THAT YEAR that everyone should observe Pesach Sheni. The Bible even notes that it was "not as written"; he had not abided by the usual rules. Scripture tells us that Hezekiah asked G-d to "heal" (forgive) the people who were not properly purified for this ceremony. G-d did! Many scoffed at Hezekiah's idea, but most celebrated as had not been done for many years. The people had come back to G-d! He probably saved Judaism.

Many  people eat a piece of matzah on Pesach Sheni  as a reminder. But let us also remember the good King Hezekiah, whose foresight and bravery kept us as the people of G-d. Let us be determined to remain that way!