The History of the Heter Mechira

The question of what to do in the first shmitta in the year 5649 (1888), after thousands of years in exile * The disagreement about the heter mechira between the eminent poskim of Europe and Eretz Yisrael, and the reliance of most farmers on the lenient opinion * Among the poskim who prohibited the heter mechira, some changed their positions when they saw how urgent the situation was * In the following generation, the fierce opposition to the heter was influenced by the opponents’ negative position to the Zionist movement, and the weakening of religious observance among the pioneers and farmers * The attacks and slander of fanatics against the rabbis in favor of the heter * Why the heter is associated with Rabbi Kook, even though it was introduced years before he immigrated to Israel

As a result of previous articles on the heter mechira, I received questions and complaints about the dispute over the heter. In order to reply to all of them together, I felt it necessary to relate the accounts of the heter chronologically.

When the Question Arose

During the long years of exile the Land of Israel remained desolate, and the few Jews who lived here did not engage in agriculture.

The Jews expelled from Spain who began immigrating to Israel five hundred years ago, and also the Hasidim and the Vilna Gaon’s disciples who began immigrating two hundred years ago, barely engaged in agriculture. Only about one hundred and forty years ago did Jews begin establishing agricultural communities throughout the country. The first were members of the Old Yishuv in Jerusalem who went out from the walls of the Old City, and together with new immigrants established small outposts, until in the year 5638 (1877) they established Petah Tikva. In 5642 (1881) the first aliyah of Chovevei Tzion (Lovers of Zion) began, giving rise to the establishment of seven additional moshavot (rural settlements), until the Sabbatical (shmitta)
year of 5649 (1889). They included: Rishon Lezion, Zichron Yaakov, Akron (Mazkeret Batya), Ness Ziona, Rosh Pina, Gedera and Yesod HaMa’alah.

This was the first time the question of keeping shmitta arose, and the problem was twofold – first, for the individual farmer, and second, for the public in general. As individuals, the farmers were barely able to exist and required support, and keeping shmitta would have brought them to a situation of severe duress, and even starvation. As far the public in general was concerned, keeping shmitta would have likely caused the destruction of the moshavot, for even if some of the farmers were able to exist, it was clear that many would not. In addition, many Jews in the Diaspora who considered immigrating to Israel would refrain from making aliyah after hearing about the difficulties of surviving in the shmitta year.

The Rabbis In Favor of the Heter

One of the Torah giants of the generation and a leader of the Chovevei Tzion movement, Rabbi Shmuel Mohilever, together with his European rabbi colleagues, Rabbi Yehoshua of Kutna ,and Rabbi Klapfish, the Av Beit Din of Warsaw, discussed the issue and decided to permit farmers to expropriate the fields from the obligation of shmitta by
selling them to a non-Jew, in a way that following the sale, the Jews would work in the fields as employees of the non-Jewish owner. The eminent posek (Jewish law arbiter), Rabbi Yitzchak Elchanan Spektor of Kovno also supported the heter. In addition, the Sephardic rabbis in Israel, headed by the Rishon Lezion Rabbi Yaakov Shaul Elishar, supported the heter, relying on the judgments of Sephardic rabbis of previous generations who lived in Eretz Yisrael.

Opponents of the Heter

However, the Ashkenazi rabbis in Jerusalem, led by Rabbi Shmuel Salant and Rabbi Diskin, opposed the heter. In their estimation, keeping shmitta would not cause great harm, because at any rate, some agricultural techniques claimed it was beneficial to periodically allow the fields to lie fallow. Other rabbis believed it was possible to obtain financial support for the settlers who kept shmitta. Some argued that if the farmers were allowed to act leniently in keeping shmitta, they would continue to do so in other halachic matters. Still more, they feared that the heter would actually cause the destruction of the moshavot, because it is written in the Torah that the punishment for not keeping shmitta is exile. There were other important European rabbis, such as the Netziv of Volozhin and Rabbi Soloveitchik, author of “Beit Halevi”, who opposed the heter.

In general, the dispute hinged on two questions: First, whether the heter mechira was based on the majority of poskim, or the minority. Second, whether the situation was considered a ‘sha’at dachak‘ (a time of distress), for indeed, there is an accepted halachic rule that in times of distress it is possible to rely on individual opinions, and the more pressing the situation, the more appropriate it is to be lenient.

In Practice, the Heter Mechira was Adopted

In practice, most of the farmers and their supporters felt the need to rely on the heter. Guided by their rabbis from Europe, the farmers approached the Sephardic rabbis in Israel, and they performed the sale of the fields for them. This was also the position of the majority of the leading rabbis. But there were still many rabbis in the Diaspora, and Jerusalem, who opposed the heter, and the fanatics of the times stood by their side and fought fiercely against it, and opposed the rabbis who supported it.

Initially, Some Members of Chovevei Tzion Opposed the Heter

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 shmitta year to the next, it became clearer just how difficult it was for the pioneers to refrain from working for a year, and consequently, even among the rabbis who were against the heter, some changed their minds in favor. One of them was the ‘Aderet’ (Rabbi Eliyahu David Rabinowitz-Teomim) who attested that while in the Diaspora, he was inclined towards the opinion of the machmirim. But after he immigrated to Eretz Yisrael to serve as the Chief Rabbi of Jerusalem, and viewed firsthand the great duress, he changed his mind in support of the heter (Iggrot HaRa’ayah 207). Rabbi Diskin from Jerusalem also opposed the heter in the first shmitta year, but in the second Sabbatical year, after recognizing the reality, agreed to the heter in some measure.

The Dispute in the Second Generation

In the year 5664 (1904), Rabbi Kook began serving as rabbi of Jaffa and the moshavot, and in the shmitta year of 5670 (1909), twenty-one years after the Gedolei Ha’dor (eminent Torah scholars) had introduced and implemented the heter, Rabbi Kook continued in their path, and enacted the heter mechira.

Over the years that passed from the beginning of the new settlements, the moshavot grew and expanded. Instead of hundreds of farmers, there were already thousands of families whose livelihood was dependent on agriculture. On the one hand, this fact made the heter even more necessary, but on the other hand, it also caused the opponents of it
to harden their position, since the heter became more comprehensive and involved a lot more people and land.

The Spiritual Situation of the Farmers

In the meantime, another significant change occurred: Most residents of the first moshavot, members of the First
Aliyah, were Torah observant and committed to the rulings of the rabbis. However, during the following generation, the rapid secularization process that swept over European Jewish communities was reflected in the composition of the young immigrants who came to Israel as part of the Second Aliyah. Thus, in the year 1909, many of the new farmers were not fully observant. Most of them were willing to cooperate with the rabbis on issues concerning Shabbat, orla and tithes, but it was impossible to persuade them not to work the fields for a full year. The pioneer’s distancing from Torah observance caused the opponents of the heter to escalate their struggle against it, and against the rabbis supporting it, but on the other hand strengthened the position of those in favor, who believed that by way of the heter, the pioneers would continue cooperating with the rabbis in matters of kashrut (Iggrot HaRa’ayah 291, 311).

The Struggle against the Zionist Movement

At that point in time, the hashkafa lines were clearly drawn. If initially there were rabbis who supported Chovevei Tzion but objected to the heter, in the second generation, all those who supported the new settlements, approved of the heter. On the other hand, the defining characteristic of the opponents was that they had reservations about the Yishuv HaChadash to one extent or another, and certainly disapproved of the Zionist movement which, in the meantime, had been founded in 5657 (1897), and most of its leaders and activists were non-religious.

Only in this light can the fierce opposition to the heter be understood. True, the first generation of rabbis who opposed the heter could still disregard the opinion of the lenient rabbis, seeing as it was a new matter which had not yet been adequately clarified, and the extent of the threat to the public by keeping shmitta was also unclear. But in the second generation, the opponents of the heter were already aware of its considerations, and could have known that its foundations were vastly firmer than similar heters, such as eating ‘chadash‘ in chutz l’aretz, which is accepted in times of sha’at dachak. Moreover, the rabbis who supported the heter tended to be more machmir (stringent) and cautious compared to what was common in similar cases of distress.

The only answer is that the machloket (controversy) of most of the opponents of the heter against the Zionist movement kilkala et shurat ha’din (defied the rules of proper debate among Torah scholars), to the point where they ignored all the reliable sources of the heter, while gathering together all the possible chumra arguments.

The Mitzvah of Settling the Land

In other words, if they believe there is no point in yishuv ha’aretz without keeping shmitta, and there is also no value in the fulfillment of the mitzvot of yishuv ha’aretz by someone who is not meticulous in mitzvot, it goes without saying there is no need to find a heter to work in the shmitta year.

However, the heter is based on the mitzvah of yishuv ha’aretz, which our Sages said is equivalent to all the mitzvot. Not working the fields in the shmitta year was liable to cause great damage to the settlements, because apart from it, the difficulties of immigration and settlement were enormous, and only small numbers of Jews agreed to move to Israel; how much more so would their numbers have decreased if they had to stop working in the shmitta year. Therefore, the rabbis saw a great need to find a heter in order to expropriate the fields from the obligation of shmitta – which today is d’rabbanan (of rabbinic status) or midat chassidut (a pious and meritorious act), and fulfill the commandment of yishuv ha’aretz, whose obligation is d’oreita (of Biblical status). In time, it turned out that the necessity was much graver, because many of the Jews who remained in European exile were murdered by the Nazis or trapped under Communist persecution.

The Controversy

Life was not easy for the rabbis in favor of the heter. They had to withstand harsh attacks and slander from the fanatics of the times. There were even Gedolei Ha’dor who initially opposed the heter, but after hearing the explanations in favor, supported it, but refrained from openly expressing their opinions due to the dispute waged by the opponents of the heter (for example, the eminent posek, the Maharsham).

Rabbi Kook

When the Gedolei Ha’dor instituted the heter in 5649 (1888), Rav Kook was only twenty-four years old. In spite of this, many people associate the heter with Rabbi Kook, because he explained its foundations at length in his book ‘Shabbat Ha’aretz‘ and in numerous responsa and letters, and he was also responsible for its implementation as rabbi of Jaffa and the moshavot in the shmitta years of 5670 (1909) and 5677 (1916) (although he was not in Eretz Yisrael at that time). Later on, as Chief Rabbi of Israel, he also implemented the heter in the shmitta years of 5684 (1923) and 5691 (1930).

It is worth noting that by nature, Rav Kook was an extremely pious man who was inclined to enhance and embellish every mitzvah possible, and greatly regretted having to be forced to expropriate the mitzvot of shmitta by means of the heter mechira. Nevertheless, in practice, he determined that it was absolutely impossible to be machmir. And as he wrote, if we are overly machmir (stringent) in this matter, beyond what is required, the enormity of the chilul Hashem (desecration of God) and the destruction of the Torah it would cause would be inconceivable, for it would reinforce the heretics who claim that the Torah does not enable the Jewish People to survive, and therefore we must renounce its commandments (Iggrot 291, 311).

With God’s help, next week I will write about the harder line the opponents of the heter took, and the serious consequences it has until today.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Additional articles by Rabbi Melamed can be found at:
http://en.yhb.org.il/