Sunday, May 10, 2009

Ki Li HaAretz - This Land is My Land - Eminent Domain

והארץ לא תמכר לצמתת כי לי הארץ

And the land shall not be sold for permanance; for the land is to Me. (VaYikra 25:23)

With these words, the Torah introduces to us a concept that has been part of civil law in many cultures throughout the world for generations: the law of eminent domain. Eminent domain is the right of a sovereign government to appropriate privately held land for the public good. It basically says that the government is the ultimate owner of the land.

G-d's eminent domain is of significance. And a sovereign state's eminent domain is likewise of significance. How so?

In a recent post, I disputed the claim of a rival blogger that the chareidi world is living in a world of chumros. My contention is that the non-chareidi world is living in a world of kulos. Let us review part of what I wrote:


Thus, I am not worthy to judge the Jews who in 1910 and 1917 had to implement a Hetter Mechira on Shmitta. Yet, as the name indicates, it is a kula - a hetter for what should, in normal circumstances, truly be assur. We know that it is not necessary today. But when somebody who wants to keep Hilchos Shmitta k'dikduko and does not want to rely on this controversial Hetter is called "a machmir" we have truly lost our Halachic compass.

I want to elaborate a bit on the issue of Hetter Mechira to explain why I (and the birds of my feather) think this way. There are 2 stipulations for a Hetter Mechira to be valid:

(A) It has to be a Hetter
(B) It has to be a Mechira

Stipulation A means that even if the "sale" is 100% Halachically valid and there is no question that "Halachic" ownership has been transferred to a non-Jew, we must establish that the fact that a non-Jew now "owns" the land exempts it from all of the laws of Shmitta. In other words, the Mechira may be good, but does that make a Hetter?

Stipulation B means that even if there is no question that the fact that a non-Jew now "owns" the land exempts it from all of the laws of Shmitta, we must establish that the "sale" is valid and that the land is, in fact, Halachically owned by a non-Jew. In other words, the Hetter may be good, but do we have a Mechira?

Unfortunately, both must be in effect. One without the other by definition invalidates the mechanism. So let's examine both stipulations and see if any of them are 100% valid or even close.

Stipulation A - The Hetter

This is relatively simple to deal with. We examine the simple case: If a non-Jew already owns land in E"Y with no mechiras necessary. Say his family [claims to have] owned the land for generations and all legal deeds and titles are in his name - does this suspend the laws of Shmitta?

As you would expect, this is a major machlokes in the opinions of the rishonim. There are numerous players, but 3 heavyweights stand out:

To the extreme right is the Mabit. He maintains that even if a non-Jew legally owns land, all the Halachos of shmitta remain in effect. This means that both the soil remains kadosh and the produce remains kadosh. As per the soil, this means that a Jew cannot work the land not as an employee, leasor, or sharecropper. Any produce that grows under these circumstances are fully prohibited. In terms of produce that grew from non-Jewish labor, it retains all Halachos of Kedushat Shviis. It may be consumed but... it cannot be sold for profit, cannot be exported, cannot be used for irregular consumption, is subject for biur, etc. According to the Mabit, selling the land accomplishes nothing since the Halachos don't change.

To the center is the Bais Yosef. He maintains that the land remains Kadosh but the produce grown through the labor of the non-Jew (or by themselves) does not. This is called Yevul Nochri. As such, a Jew may not lease and work the land and doing so makes the resulting produce forbidden. Thus, selling the land and "leasing" it back still accomplishes nothing with the minor exception of fruit trees and vines that produce by themselves. If the vines are tended by Jews, we are back to square one.

Most other poskim (I do not have names) support either the positon of the Mabit or the Bais Yosef.

The third and most lenient opinion is the Sefer HaTrumos and this is the foundation for the Hetter Mechira. The Sefer HaTrumos wants to say that, because we are in golus, all of Eretz Yisroel today has the status that the annexed land of Suria had in the times of the Bais HaMikdash. There, the Halcha was that only land that is owned by a Jew is subject to the Halachos of Shmitta. Land in Suria that is still owned by a non-Jew has no Kedusha of Shviis whatsoever and even a Jew may be employed to work on that land, or to lease with no restrictions.

The Sefer HaTrumos is certainly a "bar-samcha" yet this ruling came under much attack from his colleagues particularly because there is a Mishna in Challa that seems to negate this perspective. Regardless, the opinion of the Sefer HaTrumos is recognized as a "daas yachid l'hakel" and the general rule concerning a "daas yachid l'hakel" is that it can only be relied on in times of great necessity - "B'shaas ha'dchak".

Thus we see that even if the land is unequivocally under the ownership of a non-Jew, "rov deos" (most opinions) hold that it does not constitute a Hetter. The opinion that it is a Hetter (Sefer HaTrumos) is a daas yachid l'hakel. This is very far from being 100% valid.

Stipulation B - The Mechira

The Hetter is not enough. Even if there were no opposition to the opinion of the Sefer HaTrumos, we must verify the second stipulation, that the land becomes the rightful property of the non-Jew. Or, in other words, that it becomes "non-Jewish" land. There are numerous issues that play a role, many of them are technical issues were applicable in 1910 as much as today. But I only want to discuss one issue that not many people are aware of: Ki Li Haaretz - eminent domain.

As we wrote, eminent domain is the right of a sovereign government to appropriate privately held land for the public good. The implication is that a private owner is merely a junior partner in the land with a non-controlling (49%) share. Another perspective is that the state is the ultimate owner of the land under all circumstances and the legal "occupant" is merely leasing the land from the state on a long-term basis for a nominal fee. This implies that nobody who sells land from one person to the other is really selling it because the land does not actually belong to either of them. The seller is merely transferring to the buyer the rights to exclusive occupancy that he had procured from the state until now. Thus, no matter how thorough and "legal" a "Mechira" one does, the land belonged to the state beforehand and it still belongs to the state afterward.

What it Means

With this knowledge in hand, we note that there have been some very significant changes in circumstances from the time HaRav Kook, ZT"L, advocated the Hetter Mechira in 1910 to the present. The main change took place on 5 Iyar 5708 (May 14, 1948), 13 years after the death of Harav Kook, ZT"L. Both stipulations are affected.

Stipulation A - The main problem does not focus on 1948 but on more recent times (let us say from 1967 and beyond). In 1910 and 1917 (WW I), the drastic situation of a miniscule food supply was a clear matter of pikuach nefesh. No question about it. Thus, despite all the deficiencies in the Hetter Mechira, there was a clear Shaas hadchak which certainly justified relying on a "daas yachid". The direness of the situation was not merely related to the severe food shortage but to another aspect. I was told (I did not read this anywhere) that the Turkish authorities would not allow a farmer to leave farmland unworked. If one would neglect to work the land, the Turks would confiscate it. Thus, through the shmitta year of 1917, there was a double pikuach nefesh.

1917 relieved the second aspect of the dchak when the British overran the Turks and took over the country. They did not sustain this cruel policy (they implemented enough of their own), but, of course, we still needed to grow food for subsistance. Even this was not to the same degree, as the British opened up commerce to the West. Over the ensuing 80 years, our agricultural prowess (hydroponics and such)and commercial ties with the outside have steadily grown and, together with financial assistance from the diaspora (Keren Shviis, etc.), we see that even though shmittas may still be difficult - as they are meant to be - there is no longer any of the "pikuach nefesh" that was in place in 1910 and 1917 and even 1931 (Rav Kook's final shmitta year).

But there is one more ramification that does relate directly to 1948 and, ironically, it has more adverse "Halachic" significance for the Religious Zionists than for the chareidim. This is that the entire Hetter is based on the ruling of the Sefer HaTrumos that since we are in golus and all of the shmitta laws are Rabbinic, then we can consider all of E"Y as if it is Suria.

The problem is that the most extreme elements of the Religious Zionist camp, which happen to be the strongest advocates of the Hetter Mechira, want to maintain that the "conquest" of 1948 was a Halachic and divinely mandated conquest and we are no longer in golus! If not for the Western lackey government we would have rebuilt the Bais HaMikdash already! This is ראשית צמיחת גאולתנו and that is why it is appropriate to say Hallel with a bracha on 5 Iyar.

Well, if we are no longer in golus and the Kibush makes kedushas haAretz, then shmitta is d'Oraisa and we cannot consider mainland E"Y as Suria, can we? Now, for the chareidim this is no problem because nothing changed in 1948 and shmitta is still Rabbinic. But for the idealist RZs, even the Sefer Terumos is null and void. Obviously, they must hold that, since yad umos haOlam tekifa and we didn't build the Bais HaMikdash, the kibush falls just short of making Shmitta d'Oraisa. But if this is true, then אכתי עבדי דאחשורש אנן and I cannot figure out the justification to say Hallel. We must say that the kibush is just valid enough to justify Hallel but not valid enough to require proper shmitta observance. Hm-m-m. I suppose some people need to grow their hummus and eat it too.

Stipulation B - This is the real sticky problem. Remember that all this Hetter doesn't work if the land does not become "non-Jewish" land. Well, in 1910 when the Ottomans ran the place it can be argued that eminent domain made all the land into non-Jewish land even if the Jew did not sell it! And this can certainly be reinforced by the Turkish grow-or-go policy that I discussed earlier. Even after 1917 through 1935 when Rav Kook ZT"L passed away, the eminent domain was mandated to Bnei Eisav. 1948, however turns the situation on its face. Now, technically all the land is under the jusidiction of the Israel Land Authority or the KKL and they have no authority to sell it out of their authority! Hence, technically even rightful Arab owned land within the jurisdiction of the ILA is technically all Jewish owned land and possibly, even the kula of the Bais Yosef (that produce of non-Jewish land in E"Y does not have Kedushas Shviis) can come into question.

Obviously, all of this is perspective and not psak. Rav Kook is no longer here to give his opinion. There is no doubt that the circumstances that is was based upon have drastically changed. Also, the assurance that he gave to his chareidi colleagues that the Hetter would not be employed wily-nily and the essence of shmitta will not be forsaken due to the Hetter does not seem to have stood the test of time. We have no way of telling what Rav Kook, ZT"L would hold in today's circumstances. ואין לנו לסמוך אלא על אבינו שבשמים and Avinu SheBashamayim says this:

כי לי הארץ .

The land (alt.: the Earth) is Mine. Avinu SheBaShamayim - His A-lmighty Eminence - holds eminent domain.

It is not ours to work on the seventh year and it is not ours to sell on the seventh year unless He tells us otherwise. He talks to us through the tzaddikim and morei hora'ah of each generation. 99 years ago Rav Kook, ZT"L and Rav Yitzchok Elchanan Spector, ZT"L, were here to tell us that those who really need to can sell the land and work it. But neither of them are here to tell us this now.



משנה ח
שבעה מיני פרעניות באין לעולם, על שבעה גופי עברה: מקצתן מעשרין ומקצתן אינן מעשרין רעב של בצרת בא; מקצתן רעבים ומקצתן שבעים. גמרו שלא לעשר רעב של מהומה ושל בצרת בא. ושלא לטול את החלה רעב של כליה בא. דבר בא לעולם על מיתות האמורות בתורה, שלא נמסרו לבית דין; ועל פרות שביעית. חרב בא לעולם על ענוי הדין, ועל עוות הדין, ועל המורים בתורה שלא כהלכה.

משנה ט
חיה רעה באה לעולם על שבועת שוא, ועל חלול השם. גלות בא לעולם על עובדי עבודה זרה, ועל גלוי עריות, ועל שפיכת דמים, ועל השמטת הארץ. בארבעה פרקים הדבר מתרבה: ברביעית ובשביעית, ובמוצאי שביעית, ובמוצאי החג שבכל שנה ושנה. ברביעית מפני מעשר עני שבשלישית; בשביעית מפני מעשר עני שבששית; ובמוצאי שביעית מפני פרות שביעית; ובמוצאי החג שבכל שנה ושנה מפני גזל מתנות עניים.

3 comments:

Freelance Kiruv Maniac said...

I always was shocked at the inconsistency of RZ (like Chardal) who refused to buy arab produce during Shemitta and insisted on buying the Jewish-grown heter mechira produce-- when heter mechira is the most anti-Zionistic gesture you can possibly make--selling the country itself to back to the arabs!

Yehoshua said...

FKM,

I suppose that people that take their position would argue that selling the land doesn't have any practical negative security implications, whereas buying things from them gives them money that they can use to buy weapons to kill Jews with.

Personally, I don't like buying arab-grown produce at all, but when Shemmitah comes around I just keep reminding myself that I am doing so in order to be mekayem Hashem's will as paskened by my posek, and it cannot be that Jews will be hurt because of that.

Yechezkel said...

From what i understand, the regular Tenuva produce comes from multiple sources, Arab and Jew alike. Thus, anybody who eats Tenuva produce during the regular 6years is eating Arab grown stuff as much as not. On Shmitta they buy from the same Arabs but because of shmitta issues, the non-Jewish source of the produce is identified. All those "idealists" that refuse to buy "Arab" produce on Shmitta are buying it anyway all the rest of the time. The only difference is that on Shmitta you know this is Arab produce and when it's not Shmitta you don't.