Rabbi Eliezer Melamed
Rabbi Eliezer MelamedPR photo

It is worth noting the similarity between the issue of the heter mechira (the sale of Israeli farmland to a non-Jew to avoid the prohibition of working the land in Israel during the Sabbatical [shmita] year) and the issue of conversion to prevent assimilation. Seemingly, these are two different issues, but in practice, on these two issues, the Haredi rabbis are machmir (rule strictly) and rabbis who take responsibility for the overall general public rule leniently, because the basis of the dispute in both, is common.

Haredi and Clal Yisraeli Rabbis

A ‘haredi‘ position is a position that fears for the future the guardians of the Torah and mitzvot amongst Jews, who are the guardians of the word of God. As a result of the development of the natural sciences, society and man, a modern society was created and the whole world changed, and unfortunately, many Jews left the path of Torah and mitzvot. In order to remain loyal to traditional Judaism, the haredim chose to separate themselves from the general society in order to be saved from its evil influence.

To this end, a special effort is devoted to the observance of the mitzvot and minhagim (customs) that differentiate between the haredim and the rest of the public.

To this end, despite the economic cost, they parted with the studies of science and professional careers.

To this end, despite the supreme value of the mitzvah of yishuv ha’aretz (settling the Land of Israel) and service in the IDF, they canceled their participation in them, since they take place with non-observant Jews.

The haredi segregation is also from the religious community and rabbis who do not segregate themselves from the secular society in yishuv ha’aretz, in military service, in the study of sciences, and attaining a profession.

On the other hand, Religious Zionist rabbis,, out of a belief in the segulah (virtue) of Israel, chose to remain bound to all Jews, even when unfortunately they do not keep mitzvot, particularly when they perform hugely important mitzvot such as settling the Land, and serving in the army. And even abroad, great respect is paid to those involved in yishuvo shel olam (advancement of the world) in the development of science, and economics. In general, preserving the Jewish identity of those who do not keep the commandments is important to them, and they are willing to dedicate themselves to saving it.

Judgment Considerations

On both issues, the basic position is clear: in the shmita year, one must refrain from working the Land and from growing fruit, and one must not convert anyone who does not intend to keep all the mitzvot. The question, however, is what to do in case a when refraining from work in the shmita year severely infringes on the mitzvah of yishuv ha’aretz, and what to do when Jews married to non-Jews, and the non-Jew is willing to convert, but is not willing to lead a religious lifestyle.

The question is whether for the sake of yishuv ha’aretz, the laws of shmita should be ruled leniently, and whether for the sake of preserving Jewish identity of non-religious people, the laws of conversion should be dealt with the above-descried circumstances leniently.

On both issues, the dispute hinged on two things. First, whether the heter mechira or a conversion with a general acceptance of mitzvot is based on the majority of the poskim (Jewish law arbitrators), or on a minority, or has no basis. The second question is how urgent reality is, since it is a known rule in halakha, that in a sha’at dachak (times of distress) one can also rely on the opinions of individual poskim, and the more severe the distress, the more correct it is to be lenient.

In both issues, there was a discussion in principle in the first stage in which the dispute was between those who were inclined to chumra (rule strictly), and those who were inclined to rule le’kula (leniently), and over time the camps were divided between haredi rabbis, and the rest of the rabbis.

The Heter Mechira

In 5649 (1888), after the establishment of the first moshavot (colonies), the question of refraining from working the Land in the shmita year arose. The problem was twofold – personal and general. This was the first time the question of observing shmita arose, and the problem was twofold – first, for the individual farmer, and second, for the public in general. Individually, farmers were barely able to exist and required support, and observing shmita would have brought them to a situation of severe duress, and even starvation. As far the public in general was concerned, observing shmita would have likely caused the destruction of the moshavot, and put a stop to the settlement and aliyah enterprise.

Rabbi Shmuel Mohilever, one of the Torah giants of the generation and one of the leaders of the Chovevei Tzion movement, together with his colleagues, Rabbi Yehoshua from Kutna and Rabbi Klapfish, the Av Beit Din of Warsaw, instructed to permit farmers to expropriate the fields from the obligation of shmita by selling them to a non-Jew. The Sephardic rabbis in Israel, headed by the Rishon Lezion, Rabbi Yaakov Shaul Elishar, also supported the heter.

However, the Ashkenazi rabbis in Jerusalem, led by Rabbi Shmuel Salant and Rabbi Diskin, and with them, other rabbis in Europe, opposed the mechira. In their estimation, no major damage would occur from refraining from working the land in the shmita year, because there were agricultural approaches that held it was beneficial to refrain from working the fields from time to time. They also believed that financial support could be obtained for the existence of settlers who refrained from working. There were other poskim who claimed that if they were lenient in this issue, other Jews would come to be lenient in other matters as well.

Clarification of the Issue

Seeing as the issue of shmita was new, because for more than a thousand years there had been almost no Jewish agriculture in the country, the simple position was initially to be machmir. However, the more the matter was clarified, the clearer it became that the hetermechira was sufficient.

First, there are three different methods among the Rishonim how the years are calculated, and consequently, when shmita actually occurs, and although the custom follows the opinion of Rambam (Maimonides), when necessary, since the mitzvah is from Divrei Chachamim (rabbinical), it is possible to be lenient and work in shmita because of the doubt of the years.

Second, in the opinion of the majority of the poskim, shmita at this time is from Divrei Chachamim, but according R’zah, R’avad and a few other Rishonim, there is no chova (obligation) to keep shmita at this time, but it is merely a minhag (custom). The proof is that they were divided when shmita occurs, and if it was obligatory to fulfill it – at the least for the sake of shmitat kesafim (financial tithes), which is also practiced abroad – there should have been a clear tradition when the shmita was.

Third, after the fields are sold to non-Jews, according to many poskim, the obligation to refrain from working no longer applies to them. Thus, it turns out that the hetermechira is totally sufficient.

The Division of the Camps

It is worth noting that initially, among the rabbis who were machmir (stringent), there were rabbis who felt civic responsibility towards the Yishuv HaChadash (the new community) and the farmers, as did the rabbis of Jerusalem. Among the rabbis who were machmir, there were also rabbis who enthusiastically supported the ‘Chovevei Tzion‘, like the Netziv of Volozhin and Rabbi Mordechai Gimpel Yaffe. However, from one shmita year to the next, it became clearer just how difficult it was for the pioneers to refrain from working for a year, and on the other hand, that the heter was utterly sufficient, and consequently, many rabbis who were against the heter, changed their minds in favor.

In the end, the camps became completely clear: all those who supported the new settlement supported the mechira, while the prominent characteristic of those who opposed the mechira was that they objected, to one degree or another, to the new settlement; all the more so, they opposed the Zionist movement, which was founded in 1897, whose leaders were secular. For if in the first generation the rabbis who were machmir could ignore the opinion of the lenient poskim because it was a new issue, however, by the second generation, the machmirim were already familiar with the mechira considerations, and could realize it was much more grounded than similar heters commonly relied upon in times of distress, such as eating ‘chadash‘ abroad.

This is nothing but the controversy over the work of yishuv ha’aretz and the Zionist movement, many of whose leaders were secular, spoiled the line of judgement, until the point where they ignored all the solid sources of the mechira, while collecting all possible allegations to be machmir. As the process of leaving religion increased, in Israel and in the Diaspora, the machmirim intensified their stance against the Zionist movement and against the heter mechira. All the halakhic claims did not work: the machmirim added se’varot to the chumrot, while humiliating and canceling the position of the lenient rabbis.

The Aderet and Rabbi Kook

By virtue of their nature, the Aderet (Rabbi Eliyahu David Rabinowitz-Teomim) and his son-in-law, Rabbi Kook, tended to be machmir, therefore they also opposed the heter mechira. And as Rabbi Kook said in his letter to the Maharsham (Igrot HaRayah 207), when they were abroad their opinion was “prone to be machmir, and had serious complaints about the lenient poskim”.

However, after the Aderet made aliyah to serve as Chief Rabbi of Jerusalem, the question of the shmita in 5663 (1902) came to his attention, “and he saw everything for himself, that it was something quite unimaginable, that no tikkun (correction) had been made regarding the practicality of shmita…” and therefore accepted the opinion of the lenient poskim.

Maran Rabbi Kook also followed in his footsteps in the next shmita, which, despite his being extremely prone to be machmir – for the sake of settling the country and caring for the lives of the settlers, instructed to rely on the heter mechira.

The Question of Conversion

The case is similar on the question of converting spouses of Jews, or descendants of Jews. On the one hand, our Sages instructed not to convert for the sake of marriage, wealth, or honor, but only a ger (convert) who comes for the sake of Heaven, in order to join the people of Israel, and keep the Torah and mitzvot (Yevamot 24b; S.A.,Y.D. 268, 2:12). On the other hand, if a Beit Din (religious court) accepted a ger who came for reasons of marriage or money and the Beit Din did not check whether he intended to keep mitzvot, and converted him in acceptance of overall mitzvot, circumcision, and mikveh – in the opinion of the majority of poskim, his conversion is valid (S.A. 268:12).

The question is, how should we act? In the first stage, the controversy was principled, and as a rule, those who tended to think about the general public, were inclined to be lenient, and those who tended to think of only the observant, tended to be machmir. However, this division was not clear-cut, because the most eminent of the machmir rabbis, Rabbi Yitzchak Shmelkes (1827-1906), Rabbi of Lviv, was one of the members of Chovevei Tzion, and it was he who established the position that without obligation to keep all the actual mitzvot – the conversion is null and void (Beit Yitzchak 2: 100). Although he objected to the Zionist movement, his important and loyal students, his son-in-law and nephew, supported ‘Mizrahi’.

As the years passed, and it became clear that if they did not convert according to the method of the lenient poskim, they and their descendants would be lost from the Jewish world, the camps went their own separate ways, and in this issue, it was clear-cut: almost all the rabbis who felt responsibility for all Jews in Israel and in the Diaspora were lenient to convert Jews who in practice did not keep the mitzvot as the observant did, in order to save the couples from assimilation, or at least relied on the lenient poskim; on the other hand, all the haredi rabbis opposed this type of conversion. Some strongly opposed, such as the Hungarian zealots, and some respectfully, such as Rabbi Feinstein.

Here it is worth noting that although Rabbi Kook was very strict in the laws of conversion, there was almost no assimilation in his environs, and therefore, he did not know the problem in its full severity. In my opinion, just as after realizing the magnitude of the problem in the shmita, he instructed to be lenient for yishuv ha’aretz – so too, I feel he would have instructed to be lenient regarding conversion, in order to save Jews from assimilation. For according to what he explained about Segulat Yisrael (the unique virtue of Israel), and the value of the younger generation, that, although it is full of ambiguities, it is of good intention and should be drawn closer to Torah and mitzvot with warmth and love – all the more so, when dealing with those who settle the Land and serve in the army, who are filled with mitzvot like a pomegranate filled with seeds, and it is correct to convert them. In any case, among the rabbis who followed in his footsteps, are the ones who in practice ruled leniently.

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.