"When you come to the land that I am giving you, the land must be given a rest period, a sabbath to God. For six years you may plant your fields, prune your vineyards, and harvest your crops. But the seventh year is a sabbath of sabbaths for the land."
A Brief History of the "Hetter Mechira"
In the late 1800's, as the Jewish people began to return to the land of Israel, establishing farms and agricultural settlements (moshavot), the question of letting fields lie fallow during the sabbatical year became (for the first time in many centuries) a burning issue. As the sabbatical year of 1889 approached, the Jewish settlers turned to the rabbinate to issue a hetter (permit) to allow them to continue working their lands during the seventh year so that the young and fragile agricultural settlements would not collapse.
Three respected halachic authorities met in Vilna and designed a "hetter mechira", based on temporarily selling the land to a non- Jew over the sabbatical year. The hetter was approved by the famed scholar Rabbi Yitchak Elchanan Spector.
During the three sabbatical years of 1889, 1896, and 1903, many of the new settlements utilized the hetter. However, a number of highly respected scholars vociferously opposed the leniency. Among the opponents were the 'Beit HaLevy' (Rabbi Yosef Dov Soloveitchik), the 'Netziv' (Rabbi Naftali Zvi Yehuda Berlin), and Rabbi Samson Raphael Hirsch.
The Sabbatical Year of 5670 (1909-1910)
Rav Kook arrived in the land of Israel in 1904, taking on the position of chief rabbi of Jaffa and the moshavot. Leading up to the sabbatical year of 1910, Rav Kook took a forceful position defending the "hetter mechira". He penned a treatise ("Shabbat Ha'Aretz") explaining the legal reasoning behind the permit, along with a discussion of the laws for the sabbatical year.
While Rav Kook was an original and creative thinker, he usually took a relatively strict and conservative stance in halachic matters. What lead him to support the lenient position in the "hetter mechira" controversy? We can learn much about his underlying concerns from letters that he wrote during this time. (The following quotes are taken from "Igrot Hare'iya", vol. I.)
Motives for Supporting the Hetter
Interestingly, Rav Kook admitted that while still in Russia, he and his father-in-law (Rabbi Eliyahu David Rabinowitz-Teomim, known as the Aderet, rabbi of Ponevez and later chief rabbi of Jerusalem) discussed the issue - and at that time, both opposed the hetter. "From afar, when we heard the arguments of those who permit and of those who forbid, we both leaned toward the stricter opinion. But when he (the Aderet) came to the land of Israel, he saw with his own eyes that it is truly impossible to even consider not making some sort of arrangement for the sabbatical year." [p. 258]
Arriving in Israel, and seeing first-hand the precarious state of agricultural settlements, was a critical factor in changing Rav Kook's mind. He understood that observing the sabbatical year fully could endanger lives and would likely cause the new settlements to fold.
A second concern was that the entire enterprise of the return to the land of Israel could fail over this issue. At that time, the economy of the new settlement in Israel was based on the commercial sale of agricultural produce.
"The JCA (Jewish Colonial Association) representative informed me that the JCA is preparing plans to buy much more property in the Holy Land. But if we decide that there is no hetter to allow work on the seventh year, via some legal sale, then the representative will be forced to advise that they should invest their money in Canada, and leave the land of Israel. He also said that (if the land lays fallow during the sabbatical year), the Arabs will take control of Jewish land during the sabbatical year by grazing their herds on them, and it will be necessary to take them to court." [p. 285]
A third concern - and perhaps the most critical for Rav Kook - was his fear that a strict ruling would plainly demonstrate that Judaism is incompatible with the modern world and the movement to return to Zion:
"Even worse than this danger is the possible ruin of Judaism and a wide-spread rejection of Torah observance that could sprout from this, heaven forbid. For the anti-religious actually hope that the rabbis will forbid (all agricultural activity). Then they will have gained a great victory. They will prove to all that by listening to the rabbis, the land will be laid waste and the fields and vineyards will become desolate; and all commercial ties for the sale of wines, oranges and other produce will be broken - ties that the survival of the Jewish settlement truly depends on." [p. 258]
The Halachic Underpinnings of the Hetter
In his letters, Rav Kook also discussed the legal reasoning behind the "hetter mechira". The sale is actually based on a number of independent, mitigating factors, each one lessening the severity of working during the sabbatical year.
The most important factor in taking a lenient stance is that the majority of authorities ruled that nowadays the sabbatical year no longer retains its status of Biblical law. Since it is Rabbinically-ordained, we may apply various leniencies (according to the rule, "sfeka d'rabbanan lekula").
The hetter only permits those types of agricultural labor that are not Biblically prohibited (even when the sabbatical year itself is Biblically-ordained). Thus, planting, pruning, harvesting, fruit-picking, (and perhaps plowing) must still be performed by a non-Jew hired to work the field. This clause ensures that no Torah prohibitions have been violated, even according to the minority opinion that also in our day, the sabbatical year is Biblically-ordained.
The Maharit (Rabbi Jacob Toledano, 18th century) permitted renting out land to a non-Jew for a time period that includes the seventh year. He ruled that the obligation to observe the sabbatical year is on the farmer working the land, and not on the land itself. Even those who disagreed with this ruling nonetheless agree that an actual sale of the land to a non-Jew will permit it to be farmed, since the land is no longer the property of the Jewish farmer.
An additional reason to be lenient is that the current situation is one of 'undue hardship' ("sha'at hadechak"). Given the precarious state of the agricultural settlements, not working the land would be truly life-threatening. In such cases one may rely on a single opinion ("da'at yachid"), the 'Raza' (Rabbi Zerachiya HaLevy Gerondi, 12th century), who held that nowadays, without the Jubilee year, the sabbatical year is not even rabbinically ordained, but is only a pious custom.
Additionally, we may take into account the question regarding the correct count of the years. The 'Kaftor Vaferach' (Rabbi Eshtori HaParchi, 13th/14th century) testified that some farmers would observe the seventh year during one year, while others observed it during another. Even though the rabbis agreed to observe just one sabbatical year (and Maimonides' count was chosen), this is only a convention; the doubt still remains as to what is truly the sabbatical year.
According to the land-deeds in (Turkish-ruled) Palestine, all land in fact belongs to the regime, not the Jewish farmer. The farmer is only a 'royal sharecropper', allowed to keep 90% of his produce by law (and 60-70% in practice).
Rav Kook also intimated that he had additional arguments to be lenient, but intentionally did not reveal them - so that the hetter should not become too entrenched. His ultimate goal was not to circumvent the laws of the sabbatical year, but to allow the settlements to grow and prosper until they would be able to completely observe the sabbatical year in all of its details.
"On purpose, I did not organize everything in this matter to be fully explained, organized, and profound as it should be; some justifications and cogent reasonings I left out completely. All this was in order that the hetter should not become too accepted, but will always be considered a temporary measure ("hora'at sha'ah"); something that was permitted grudgingly, only due to the necessity of the time. But when these issues are analyzed in the way of true Torah scholarship .. then the prohibition would become too weakened - and *that I certainly did not desire." [pp. 348-9]
Eye to the Future
Many of the rabbis who opposed the "hetter mechira" wrote that not observing the sabbatical year would in fact jeopardize the future of Jewish settlement in the land of Israel, since the punishment for transgressing its laws is exile . While Rav Kook also looked forward to the day when the seventh year would be fully observed, he viewed the "hetter mechira" as a stepping-stone that would allow the community achieve that goal.
"We must recognize that we are obligated to strive with all of our strength to bring matters so that, in the end, the land's sabbatical will be increasingly established in all of its holiness in the Holy Land. .. But how to arrive at this holy goal? Through which means we should use to attain it? This matter requires study. In my opinion, we need to arrive at our desired goal precisely by graduated efforts. Rabbi Chiya Rabba described the overall redemption of Israel as beginning slowly, little by little ("kim'a kim'a"). So too, the spiritual redemption of establishing the land's holiness will progress in stages." [p. 330]
One expression of Rav Kook's step-by-step approach was the distinction the hetter made between forms of agricultural labor prohibited Biblically and Rabbinically. 'We should be like one who saves possessions from the fire,' Rav Kook explained. 'Whatever is more precious and holier (i.e., Biblically-prohibited labor) must be rescued first.'
This distinction also provides a solution to the danger of punishment by exile for not observing the sabbatical year. Such a severe penalty could only apply to transgressing Biblically- ordained prohibitions. As the 'Sha'agat Aryeh' (Rabbi Aryeh Leib Gunzberg, 18th century) wrote regarding the blessings recited before Torah study: "It is self-evident, that if this blessing was only of rabbinic origin, it would not warrant such a great punishment as forfeiting the Land." [end of siman 24]
Not Relying on the Hetter
What about people who did not wish to rely on the "hetter mechira"? Here, Rav Kook distinguished between farmers and consumers.
Rav Kook was very supportive of farmers who did not wish to rely on the "hetter mechira". When he heard that the JCA was using the hetter to force farmers to work on the sabbatical year, he became acutely upset, and wrote the JCA that the hetter would no longer be valid under such circumstances. Rav Kook also spoke of setting up a special fund to support these farmers.
On the other hand, Rav Kook spoke harshly against consumers who chose to be stringent in the sabbatical year by buying produce only from non-Jewish farmers. One cannot take on chumrot (stringencies) at the expense of others.
"Certainly it is not worthwhile to look for leniencies and loopholes by purchasing produce from non-Jews, in a situation when this will cause lose of income from Jews and take away their livelihood. In general, in any situation when we desire to be strict for ourselves, it is proper to make certain that this stringency does not induce any negative repercussions of financial loss or disrepute for others." [p. 258]
A Brief History of the "Hetter Mechira"
In the late 1800's, as the Jewish people began to return to the land of Israel, establishing farms and agricultural settlements (moshavot), the question of letting fields lie fallow during the sabbatical year became (for the first time in many centuries) a burning issue. As the sabbatical year of 1889 approached, the Jewish settlers turned to the rabbinate to issue a hetter (permit) to allow them to continue working their lands during the seventh year so that the young and fragile agricultural settlements would not collapse.
Three respected halachic authorities met in Vilna and designed a "hetter mechira", based on temporarily selling the land to a non- Jew over the sabbatical year. The hetter was approved by the famed scholar Rabbi Yitchak Elchanan Spector.
During the three sabbatical years of 1889, 1896, and 1903, many of the new settlements utilized the hetter. However, a number of highly respected scholars vociferously opposed the leniency. Among the opponents were the 'Beit HaLevy' (Rabbi Yosef Dov Soloveitchik), the 'Netziv' (Rabbi Naftali Zvi Yehuda Berlin), and Rabbi Samson Raphael Hirsch.
The Sabbatical Year of 5670 (1909-1910)
Rav Kook arrived in the land of Israel in 1904, taking on the position of chief rabbi of Jaffa and the moshavot. Leading up to the sabbatical year of 1910, Rav Kook took a forceful position defending the "hetter mechira". He penned a treatise ("Shabbat Ha'Aretz") explaining the legal reasoning behind the permit, along with a discussion of the laws for the sabbatical year.
While Rav Kook was an original and creative thinker, he usually took a relatively strict and conservative stance in halachic matters. What lead him to support the lenient position in the "hetter mechira" controversy? We can learn much about his underlying concerns from letters that he wrote during this time. (The following quotes are taken from "Igrot Hare'iya", vol. I.)
Motives for Supporting the Hetter
Interestingly, Rav Kook admitted that while still in Russia, he and his father-in-law (Rabbi Eliyahu David Rabinowitz-Teomim, known as the Aderet, rabbi of Ponevez and later chief rabbi of Jerusalem) discussed the issue - and at that time, both opposed the hetter. "From afar, when we heard the arguments of those who permit and of those who forbid, we both leaned toward the stricter opinion. But when he (the Aderet) came to the land of Israel, he saw with his own eyes that it is truly impossible to even consider not making some sort of arrangement for the sabbatical year." [p. 258]
Arriving in Israel, and seeing first-hand the precarious state of agricultural settlements, was a critical factor in changing Rav Kook's mind. He understood that observing the sabbatical year fully could endanger lives and would likely cause the new settlements to fold.
A second concern was that the entire enterprise of the return to the land of Israel could fail over this issue. At that time, the economy of the new settlement in Israel was based on the commercial sale of agricultural produce.
"The JCA (Jewish Colonial Association) representative informed me that the JCA is preparing plans to buy much more property in the Holy Land. But if we decide that there is no hetter to allow work on the seventh year, via some legal sale, then the representative will be forced to advise that they should invest their money in Canada, and leave the land of Israel. He also said that (if the land lays fallow during the sabbatical year), the Arabs will take control of Jewish land during the sabbatical year by grazing their herds on them, and it will be necessary to take them to court." [p. 285]
A third concern - and perhaps the most critical for Rav Kook - was his fear that a strict ruling would plainly demonstrate that Judaism is incompatible with the modern world and the movement to return to Zion:
"Even worse than this danger is the possible ruin of Judaism and a wide-spread rejection of Torah observance that could sprout from this, heaven forbid. For the anti-religious actually hope that the rabbis will forbid (all agricultural activity). Then they will have gained a great victory. They will prove to all that by listening to the rabbis, the land will be laid waste and the fields and vineyards will become desolate; and all commercial ties for the sale of wines, oranges and other produce will be broken - ties that the survival of the Jewish settlement truly depends on." [p. 258]
The Halachic Underpinnings of the Hetter
In his letters, Rav Kook also discussed the legal reasoning behind the "hetter mechira". The sale is actually based on a number of independent, mitigating factors, each one lessening the severity of working during the sabbatical year.
The most important factor in taking a lenient stance is that the majority of authorities ruled that nowadays the sabbatical year no longer retains its status of Biblical law. Since it is Rabbinically-ordained, we may apply various leniencies (according to the rule, "sfeka d'rabbanan lekula").
The hetter only permits those types of agricultural labor that are not Biblically prohibited (even when the sabbatical year itself is Biblically-ordained). Thus, planting, pruning, harvesting, fruit-picking, (and perhaps plowing) must still be performed by a non-Jew hired to work the field. This clause ensures that no Torah prohibitions have been violated, even according to the minority opinion that also in our day, the sabbatical year is Biblically-ordained.
The Maharit (Rabbi Jacob Toledano, 18th century) permitted renting out land to a non-Jew for a time period that includes the seventh year. He ruled that the obligation to observe the sabbatical year is on the farmer working the land, and not on the land itself. Even those who disagreed with this ruling nonetheless agree that an actual sale of the land to a non-Jew will permit it to be farmed, since the land is no longer the property of the Jewish farmer.
An additional reason to be lenient is that the current situation is one of 'undue hardship' ("sha'at hadechak"). Given the precarious state of the agricultural settlements, not working the land would be truly life-threatening. In such cases one may rely on a single opinion ("da'at yachid"), the 'Raza' (Rabbi Zerachiya HaLevy Gerondi, 12th century), who held that nowadays, without the Jubilee year, the sabbatical year is not even rabbinically ordained, but is only a pious custom.
Additionally, we may take into account the question regarding the correct count of the years. The 'Kaftor Vaferach' (Rabbi Eshtori HaParchi, 13th/14th century) testified that some farmers would observe the seventh year during one year, while others observed it during another. Even though the rabbis agreed to observe just one sabbatical year (and Maimonides' count was chosen), this is only a convention; the doubt still remains as to what is truly the sabbatical year.
According to the land-deeds in (Turkish-ruled) Palestine, all land in fact belongs to the regime, not the Jewish farmer. The farmer is only a 'royal sharecropper', allowed to keep 90% of his produce by law (and 60-70% in practice).
Rav Kook also intimated that he had additional arguments to be lenient, but intentionally did not reveal them - so that the hetter should not become too entrenched. His ultimate goal was not to circumvent the laws of the sabbatical year, but to allow the settlements to grow and prosper until they would be able to completely observe the sabbatical year in all of its details.
"On purpose, I did not organize everything in this matter to be fully explained, organized, and profound as it should be; some justifications and cogent reasonings I left out completely. All this was in order that the hetter should not become too accepted, but will always be considered a temporary measure ("hora'at sha'ah"); something that was permitted grudgingly, only due to the necessity of the time. But when these issues are analyzed in the way of true Torah scholarship .. then the prohibition would become too weakened - and *that I certainly did not desire." [pp. 348-9]
Eye to the Future
Many of the rabbis who opposed the "hetter mechira" wrote that not observing the sabbatical year would in fact jeopardize the future of Jewish settlement in the land of Israel, since the punishment for transgressing its laws is exile . While Rav Kook also looked forward to the day when the seventh year would be fully observed, he viewed the "hetter mechira" as a stepping-stone that would allow the community achieve that goal.
"We must recognize that we are obligated to strive with all of our strength to bring matters so that, in the end, the land's sabbatical will be increasingly established in all of its holiness in the Holy Land. .. But how to arrive at this holy goal? Through which means we should use to attain it? This matter requires study. In my opinion, we need to arrive at our desired goal precisely by graduated efforts. Rabbi Chiya Rabba described the overall redemption of Israel as beginning slowly, little by little ("kim'a kim'a"). So too, the spiritual redemption of establishing the land's holiness will progress in stages." [p. 330]
One expression of Rav Kook's step-by-step approach was the distinction the hetter made between forms of agricultural labor prohibited Biblically and Rabbinically. 'We should be like one who saves possessions from the fire,' Rav Kook explained. 'Whatever is more precious and holier (i.e., Biblically-prohibited labor) must be rescued first.'
This distinction also provides a solution to the danger of punishment by exile for not observing the sabbatical year. Such a severe penalty could only apply to transgressing Biblically- ordained prohibitions. As the 'Sha'agat Aryeh' (Rabbi Aryeh Leib Gunzberg, 18th century) wrote regarding the blessings recited before Torah study: "It is self-evident, that if this blessing was only of rabbinic origin, it would not warrant such a great punishment as forfeiting the Land." [end of siman 24]
Not Relying on the Hetter
What about people who did not wish to rely on the "hetter mechira"? Here, Rav Kook distinguished between farmers and consumers.
Rav Kook was very supportive of farmers who did not wish to rely on the "hetter mechira". When he heard that the JCA was using the hetter to force farmers to work on the sabbatical year, he became acutely upset, and wrote the JCA that the hetter would no longer be valid under such circumstances. Rav Kook also spoke of setting up a special fund to support these farmers.
On the other hand, Rav Kook spoke harshly against consumers who chose to be stringent in the sabbatical year by buying produce only from non-Jewish farmers. One cannot take on chumrot (stringencies) at the expense of others.
"Certainly it is not worthwhile to look for leniencies and loopholes by purchasing produce from non-Jews, in a situation when this will cause lose of income from Jews and take away their livelihood. In general, in any situation when we desire to be strict for ourselves, it is proper to make certain that this stringency does not induce any negative repercussions of financial loss or disrepute for others." [p. 258]