1998/5758

              We have previously outlined the argument of those who forbid exchange land even for genuine peace.  We also began explaining the position of those who believe it permissible to exchange land for peace.  We will cite some of Rav Yehuda Amital's arguments of why the needs of Am Yisrael enjoy precedence over the needs of Eretz Yisrael.

Rav Amital's Argument

              Rav Amital, as we mentioned last week, outlines our three core values:  Am Yisrael, Torat Yisrael, and Eretz Yisrael.  The following Midrash seems to demonstrate that Am Yisrael has priority over Torat Yisrael (Tanna D'vei Eliyahu chapter fourteen):

              Rebbe said to me there are two ideas in my heart which are extremely beloved to me - Torah and [the people of] Israel.  However, I do not know which of the two has priority.  I answered that although common perception is that Torah is more important, I though, would say that the holy nation of Israel is first as it states (Yirmiyahu 2:3) "Israel is sacred unto Hashem the first of His grain."

              Rav Amital then cites the following Halacha to demonstrate that Torat Yisrael has priority over Eretz Yisrael.  The Mishna in Keilim (I:6) and the Rambam (Hilchot Beit Habechira 7:12) states:  "Eretz Yisrael is holier than any other land and its holiness derives from the fact that the Korban Omer and Bikurim [are brought exclusively from produce grown in Eretz Yisrael]."

              We see that the holiness of Eretz Yisrael derives from Mitzvot, demonstrating that Eretz Yisrael is secondary in importance to Torat Yisrael.  Thus, Rav Amital concludes that the order of our cores values are Am Yisrael, Torat Yisrael, and Eretz Yisrael.  Accordingly, he argues that the needs of saving Am Yisrael enjoy priority over Eretz Yisrael.

              Another proof adduced by Rav Amital is the following point.  He cites Rav Kook's celebrated responsum (Teshuvot Mishpat Kohein no. 146) forbidding work on Shabbat even in order to settle Eretz Yisrael (see the essay by Rav Shlomo Aviner on this topic, Techumin 4:307-313).  Pikuach Nefesh, in turn, takes priority over Shabbat.  Accordingly, we see the needs of Am Yisrael (Pikuach Nefesh), and Torat Yisrael (Shabbat) taking priority over Eretz Yisrael.

              Another proof cited by Rav Amital is an interesting comment of the Netziv to Devarim 18:17.  The Netziv writes that the appointment of a king depends on the needs of Am Yisrael.  We are commanded to appoint a king only if it is in the interest of Am Yisrael.

              I once suggested another proof to Rav Amital which he thought to be correct.  I cited a celebrated responsum of Rav Yechezkeil Landau (Teshuvot Noda Beyihuda Yoreh Deah 2:161) in which he forbids a woman to offer herself sexually in order to spare her life or the lives of others.  Rav Landau explains that one may not adduce the Biblical Esther as a proof to permit such actions, since her action was to save all of Israel.  Esther's situation was unique in the opinion of the Noda Beyihuda and may not be extrapolated to the question of saving indavidual lives.  We see the needs of saving Am Yisrael coming before Torat Yisrael (for an incisive essay discussing the philosophical and Halachic ramifications of the concept of Am Yisrael see Professor Nachum Rakover's article in Techumin 16:211-232).

Response to the "Ramban - Minchat Chinuch Argument"

              Last week we mentioned the argument that since the Ramban believes that it is always a Mitzva for Am Yisrael to conquer Eretz Yisrael even if it involves loss of life.

              Rav Amital counters that it seems clear that the Rambam believes that the Mitzva to conquer Eretz Yisrael does not apply today.  He commented that a Rav cannot rule that we must risk life in accordance with the Ramban, if the Rambam does not agree with this assertion.  Moreover, some Achronim interpret the Rambam as ruling that only the Mitzva of settling the land but not conquering the land applies today.  The 5!; %:&-(0 (Hilchot Eretz Yisrael I:3) rules in accordance with this view (this Sefer is considered authoritative regarding Mitzvot of the land of Israel).

              Indeed, Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat II:78) rules that the Mitzva to conquer the land does not apply absent a specific divine command.  Rav Moshe rules that today we are permitted to engage in defensive war.  Rav Moshe's reasoning is that we are permitted to risk life to conquer Eretz Yisrael only if God commanded us specifically to do so.

              According to these approaches we are not commanded to conquer Eretz Yisrael if this will lead to loss of life.  Thus, if surrendering land will lead to peace, it would be permissible to do so, as the Mitzva of settling the land of Israel can still be fulfilled in those areas still controlled by Medinat Yisrael.

              It also should be noted that two outstanding Geonim, Rav Chaim Ozer Grodinsky (Techumin 9:293-295) and Rav Zvi Pesach Frank (Techumin 9:276-277) ruled that it is permitted to accept the Peale partition plan of 1937.  Although it is undoubtedly difficult to extrapolate from the 1937 issue to today's issues, it is nevertheless significant to note that both Rav Chaim Ozer and Rav Zvi Pesach Frank did not share Rav Charlop's adamant opposition to signing any treaty that included territorial compromise.

              Those in favor of exchanging land for peace are fond of quoting the S'forno's comments to Bereishit 33:4 where the Torah describes Yaakov and Eisav meeting each other and subsequently kissing and crying.  S'forno noted that had the "9*&1*. (Zealots) of the Second Temple period followed Yaakov's efforts to make peace, the Beit Hamikdash would not have been destroyed.

The "Lo Techaneim Debate"

              Another serious concern is that the Mishna (Avoda Zara 19b) records the Halacha following the relinquishing of Israeli real estate to non-Jews.  This is based on the Pasuk (Devarim 7:2) -! ;(1..  Chazal interpret this as referring to (among other interpretations) as -! ;;0 -%. (1**% "8983, "do not give non-Jews land in Israel."  This prohibition causes some to forbid exchanging land even to save lives as they believe that this prohibition may not be waived even for Pikuch Nefesh considerations (see Teshuvot Dvar Yehoshua II:48).  Others argue that this prohibition may be ignored if lives would be saved thereby, (see Rav Ovadia Yosef, Techumin 10:34-47).  Rav Yosef also points to the many authorities such as the Bach, who believe that -! ;(1. does not apply to non-Jews who are non-idolaters such as Muslims.

Arguments of Rav Schachter and Professor Schochetman

              Until now we have discussed the question of surrendering land in order to secure peace.  The question that Israel faces now is whether to surrender land in exchange for an uncertain peace.  The country is divided as to whether ceding land in general, and the Oslo peace process specifically, will bring peace to Israel or endanger Israel.  Even Israel's top generals disagree as to whether ceding land will bring peace or not.  The question is whether land may be exchanged in a situation when we are uncertain of the results of this action.  We will present two different approaches to this question, one of Rav Hershel Schachter and the other of Professor Eliav Schochetman.

              Rav Schachter writes (Journal of Halacha and Contemporary Society, Fall 1988 pp.79-80):

              The question at hand seems comparable to that of a sick individual who must decide the course of action his doctors should undertake.  The Poskim discuss the case of a patient who is fatally ill but who could receive treatment that would prolong his life although cause painful side-effects.  In such a situation, since there is no consensus whether going ahead with such treatment is desirable, the decision is left to the sick individual (see Nishmat Avraham Yoreh Deah 155:2 and 349:2 p.266 and Beit Yitzchak 1986 p. 104).  Likewise, in the case of a nation in mortal danger, faced with a solution of dubious value, the decision on the course of action to be taken should be in the hands of the majority of those affected.

              Professor Eliav Schochetman (Techumin 17:107-120) disagrees with this approach.  He cites numerous sources to demonstrate that the nation cannot decide matters of halacha.  Moreover, he cites the ruling of Rav Mordechai Eliyahu that in a case where doctors disagree regarding the plan of action for a sick patient, the doctors should adopt a policy of :" &!- ;3:% - maintain the status quo.  Similarly, reasons Professor Schochetman, since there is disagreement among military experts if exchanging land for peace treaty is prudent or reckless, the status quo should be maintained.

Conclusion

              We have outlined the basic approaches of the halachic debate regarding the permissibility of the exchange of land for peace.  It should be noted, though, that the greatest danger to Medinat Yisrael is not from our enemies without, but rather within.  We recall that the Labor Party came to power in 1992 to a great extent due to fights within the "religious" and "nationalist" parties.  Unduly harsh statements issued against the duly elected leaders of Medinat Yisrael only serve to strengthen the hands of our enemies.  Medinat Yisrael requires love and mutual respect from those holding different views on this issue.  This is especially so since there are great Torah scholars who support each side.  3:% :-&. "/9&/*& %&! *3:% :-&. 3-*1& &3- ,- *:9!-!