Rabbi Bleich
Your ancestors inherited the land of seven nations but you will one day inherit the land of ten nations.
PALESTINIAN TALMUD, SHEVI'IT 5:1 and KIDDUSHIN 1:8
Judaism teaches that the historic Land of Israel, in its entirety, is endowed for eternity with a unique sanctity, kedushat Erez Yisra'el. Jerusalem and the West Bank are, of course, integral parts of the Land of Israel. These areas were encompassed within the historic borders of Erez Yisra'el during both the First and Second Commonwealths. The sanctity of these geographical areas is eternal.
The Six-Day War resulted in an expansion of the borders of the State of Israel. The newly-acquired territories include not only Judea and Samaria but also other areas whose status is far less clear. This has given rise to a number of halakhic questions all of which are predicated upon the central issue of whether or not the liberated territories share in kedushat Erez Yisra'el, the intrinsic sanctity of the Land of Israel. The resolution of this issue in the affirmative or in the negative will determine the answers to be given to the following questions:
1. According to Ramban and other authorities who maintain that, even subsequent to the destruction of the Temple, residence in the Land of Israel constitutes the fulfillment of a biblical commandment, is the commandment fulfilled by one who dwells in the liberated territories?
2. The Gemara, Ketubot 110b, teaches that if either a husband or wife desires to emigrate to Erez Yisra'el the other is obliged to acquiesce. Failure to do so is grounds for divorce. Can one marriage partner desirous of settling in one of the newly-conquered territories compel the other to do so as well?
3. The sale to a non-Jew of real estate located within the boundaries of Erez Yisra'el constitutes a biblical transgression. May real estate in any of these territories be sold to non-Jews?
4. Are the "laws contingent upon the Land," e.g., terumah, ma'asrot and observance of the sabbatical year, applicable to any or all of these territories?
5. An inhabitant of Erez Yisra'el is forbidden to leave the Holy Land except for a limited number of specific purposes, e.g., the study of Torah, or marriage, and even then he may do so only temporarily. May a resident of Israel exit from areas acknowledged to be part of Erez Yisra'el proper in order to enter any or all of the liberated territories?
A number of articles have been published recently which address themselves to the basic issue, i.e., the intrinsic sanctity of the conquered territories. The first, by Rabbi Judah Gershuni, appeared in Or ha-Mizraḥ, Nisan-Tammuz 5733, a special commemorative issue marking the twenty-fifth anniversary of the founding of the State of Israel. A different version of this article was published in the 5733 issue of Torah she-be-'al Peh, which also contains a contribution by Rabbi Shiloh Raphael on the same topic. The subject is again discussed by Rabbi Aaron Soloveichik in a very incisive article which first appeared in the 5734 issue of Torah she-be-'al Peh and was subsequently reprinted in three parts in the Shevat, Adar and Nisan 5735 issues of Ha-Pardes. The topic was discussed earlier by Rabbi Eliezer Waldenberg in a treatise published in Kerem Ẓion ha-Shalem, Ozar ha-Terumot (Jerusalem, 5728), edited by Rabbi Yitzchak Rosenthal. An expanded version of this material is included in Rabbi Waldenberg's Ẓiz Eli'ezer, X, no. 1.
The proliferation of material dealing with the status of the liberated territories testifies to the importance attached to this question as well as to the complexity of the issues involved. The question is one which does not have a simple answer. In order to arrive at a halakhic determination it is necessary to identify and analyze a number of complex factors in light of the often conflicting views of the various early authorities who have formulated definitive positions regarding criteria of kedushat Erez Yisra'el. Few subjects evoke the fervor and enthusiasm of Jews the world over as intensely as does the Land of Israel. Despite the technical complexity of the subject matter, the interest generated by this topic warrants a somewhat detailed analysis.
I. The "First" and "Second" Sanctifications
Insofar as the question of the sanctity of the Land is concerned, the territory within the present enlarged boundaries of the State of Israel may be classified in terms of three distinct categories:
1. Territories settled subsequent to the conquest of the land of Canaan by those who "ascended from Egypt" and resettled by those who returned from the Babylonian exile.
2. Territories now under the sovereignty of the State of Israel which were originally conquered by "those who ascended from Egypt" but were not resettled subsequent to the Babylonian exile.
3. Territories now within the borders of the State of Israel but which were neither conquered by those who ascended from Egypt nor settled by those who returned from the Babylonian captivity.
All territories conquered by those who ascended from Egypt and settled by returnees from Babylonia share eternally in the sanctity of Erez Yisra'el regardless of whether or not they are incorporated within the confines of an autonomous Jewish state. This is so because, while the original sanctification of the land in the time of Joshua lapsed with the expulsion of the Jews following the destruction of the First Temple, the second sanctification, which occurred upon the return from the Babylonian exile, was efficacious for posterity. Thus, the newly-liberated areas of Judea and Samaria are integral parts of the Holy Land by virtue of Ezra's sanctification and are endowed with the self-same sanctity as all other areas within the confines of the historic boundaries of Erez Yisra'el.
II. Temporary vs. Permanent Sanctification
The halakhic distinction between the original sanctification of the Land of Israel in the days of Joshua and his successors and its resanctification by Ezra following the return from the Babylonian captivity is somewhat extrinsic to the basic issues of this discussion. However, since much of the subject-matter is predicated upon the distinction between these two acts of sanctification, some explanation of the underlying concepts is in order. The talmudic principle is "kedushah rishonah kidshah le-sha'atah ve-lo kidshah le-'atid lavo"—the first sanctification [in the days of Joshua] was only for "its time," but not for eternity. Joshua's sanctification was temporary in nature and was abrogated upon the destruction of the first Temple and the attendant exile from the land. In contradistinction, Ezra's sanctification is depicted as "kidshah le-sha'atah ve-kidshah le-'atid lavo"—sanctification not only for "its time" but also for eternity. This sanctification of the land remained in effect not only during the period of the Second Commonwealth but is eternal in nature and can never be abrogated.
A number of reasons have been advanced by a variety of scholars in explanation of the disparity between the sanctification by Joshua which was temporary in nature and that of Ezra which was permanent.
1. Rambam, Hilkhot Bet ha-Beḥirah 6:16 and Hilkhot Terumot 1:5, explains that since the original Jewish settlers of the Land of Israel in the days of Joshua sanctified the land by the very act of conquest, their sanctification remained in effect only until the land was lost through conquest. Ezra's sanctification was not effected by an act of conquest but simply by virtue of the returnees being seized of the land (ḥazakah) and hence did not lapse.
This explanation, however, presents an obvious conceptual problem. The original settlement as a result of conquest also resulted in the inhabitants being seized of the land. Since the original settlement involved ḥazakah as well, why did it lapse? Kesef Mishneh, Hilkhot Bet ha-Beḥirah 1:16, raises the question and leaves it unanswered. The question may perhaps be resolved on the basis of the Palestinian Talmud, Shevi'it 6:1. This source indicates that the mode of sanctification utilized by Ezra, viz., ḥazakah, could not have been employed in the original settlement. Citing the verse, "And the Lord your God will bring you into the land … and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) the Palestinian Talmud states that, in contradistinction to the earlier sanctification, Ezra sanctified the land even though it did not achieve political autonomy but remained a vassal state owing fealty to the kings of Persia and Medea. Since this sanctification was a divine beneficence, and not contingent upon conquest of territory, it did not lapse when the land was taken from Israel.
2. Hayyim Sha'al, II, no. 39, and Ẓlaḥ, Berakhot 4a, [and see also R. Iser Zalman Meltzer, Even he-Azel, Hilkhot Zekhiyah u-Mattanah 1:1] resolve this question by stating that sanctification is contingent upon intention. Sanctification of the Land is effected by virtue of acquiring title. Accordingly, such sanctification remained conditional upon retention of title. The land was originally acquired by means of conquest; there was no intent at that time to acquire title by any other means. This is significant because acquisition of title (kinyan) is predicated upon intent (kavanah). Title acquired through conquest is lost through conquest, and hence sanctification lapsed with the loss of the land. Although title, and hence sanctification, acquired by means of ḥazakah does not lapse in this manner, there was no intent in the time of Joshua to acquire title by means of ḥazakah. In the absence of intent, the act of ḥazakah is of no legal significance. In the time of Ezra there was intent to acquire title by means of ḥazakah. Title to Erez Yisra'el acquired in this manner does not lapse and, accordingly, Ezra's sanctification was permanent in nature.
In a somewhat different manner, Mikdash David, III, no. 55, p. 4a, explains that sanctification must necessarily take place at the moment of acquisition. In the time of Joshua, when conquest was necessary, acquisition took place at the time of conquest. At that moment there was, as yet, no act of ḥazakah. In the time of Ezra, when no conquest was necessary, acquisition and immediate sanctification were achieved by means of ḥazakah. Sanctification achieved by means of conquest lapses through conquest; sanctification achieved through ḥazakah is permanent.
4. Radbaz, Hilkhot Terumot 1:5, also resolves the question by explaining that sanctification by means of conquest may be nullified. Radbaz, however, explains that the sanctification which took place in the time of Ezra was different in nature. The sanctification of Ezra, declares Radbaz, was a "verbal sanctification" and a verbal sanctification cannot be abrogated. This form of sanctification was absent in the time of Joshua.
5. Tosefet Yom Tov, in his commentary on Eduyot 8:6, followed by Hatam Sofer, Yoreh De'ah, no. 233, explains that conquest can be nullified since it is effected by force without the consent of the previous proprietors. The ḥazakah of Ezra cannot be nullified since it was carried out with the consent of the rulers of Persia. Divine consent to the original conquest is not sufficient to convey title in perpetuity since Israel's dominion was destined to be temporary in nature. The destruction of the Temple and accompanying desolation of the Land were foretold by the prophets. Accordingly, as was the divine intention, the original sanctification which was achieved by means of conquest was, in turn, nullified by conquest. There is, however, no explicit prophecy with regard to the destruction of the Second Commonwealth. The conquering nations were not granted explicit permission to dispossess Israel from the land. Hence, the second sanctification was permanent in nature.
6. Mekom Shmuel, no. 37, offers a most intriguing explanation. The Land of Israel was given to the people of Israel on the express condition that they observe the divine commandments. This stipulation is implicit in the words of the Psalmist, "And He gave them the lands of the nations and the labor of the people did they inherit. That they might keep His statutes and observe His laws" (Psalms 105:44-45). The first Temple was destroyed because this condition was not fulfilled. The Gemara, Yoma 9b, states definitively that the first Temple was destroyed because Israel was guilty of idolatry, sexual immorality and acts of murder. Idolatry, in particular, is tantamount to renunciation of the Torah in its entirety. Since the people of Israel failed to fulfill the condition imposed upon them, the gift of Erez Yisra'el was annulled and the sanctity of the land abrogated. The second Temple, however, was destroyed not because Jews failed to observe basic tenets of Judaism, but because baseless enmity (sin'at ḥinam) was rampant among them. Although this was a grave transgression, nevertheless, at that time, Jews basically did "observe His laws." Thus, Jews did not fail to observe the condition imposed upon them and hence did not lose title to Erez Yisra'el. Thus, in a sense, the Land of Israel was "unjustly" taken from the people of Israel. It is for this reason, argues Mekom Shmuel, that Jews still retain title to the Land of Israel and that, as a result, its intrinsic sanctity has not lapsed.
Whatever the ultimate rationale may be, the qualitative distinction between the first and second sanctifications is clear. The territories sanctified by Ezra are endowed with eternal sanctity while those captured by Joshua but not resettled in the time of Ezra are not endowed with the self-same sanctity.
III. Joshua's Sanctification
The status of the areas conquered during the time of Joshua, but not resettled following the Babylonian exile, is a matter of controversy. Numerous authorities maintain that even these territories retain some form of sanctity. Rambam, Hilkhot Terumot 1:26, rules that insofar as terumot and ma'asrot are concerned, the sanctity of these territories lapsed with the Babylonian expulsion. Yet, with regard to other regulations, Rambam indicates that such areas are deemed to be part of Erez Yisra'el. Although the biblical form of ordination required for serving as a member of a Bet Din empowered to impose fines and corporal punishment can be conferred only in Erez Yisra'el, Rambam, Hilkhot Sanhedrin 4:6, states that all territories conquered by those who ascended from Egypt are considered to be part of Erez Yisra'el insofar as this stipulation is concerned.
Radbaz, in his commentary ad locum, citing Kaftor va-Feraḥ 10:38, indicates that such areas are also to be deemed part of Erez Yisra'el insofar as fulfillment of the commandment of dwelling in the Land of Israel is concerned. This is also the opinion of Ramban (addendum to his commentary on the Talmud, Gittin 2a), Ba'al ha-Terumot (cited in R. Yechiel Michal Tucatzinsky, Sefer Erez Yisra'el, I, 26:7b), Yeshu'ot Malko (Yoreh De'ah, no. 67), Hazon Ish (Shevi'it 3:19 and Hilkhot Avodat Kokhavim 65:1) and Rabbi A. I. Kook (Shabbat ha-Arez, Introduction, sec. 16). Thus, these authorities maintain that, although produce grown in these areas is exempt from the "commandments contingent upon the Land," nevertheless, these territories do enjoy the status of Erez Yisra'el proper and this sanctified status is manifest in other areas of Jewish law. Tosafot, Gittin 2a, however, is of the opinion that areas not resettled by those who ascended from Babylonia are endowed with no sanctity whatsoever and hence one who dwells in such territories does not fulfill a mizvah.
The position of Maharit with regard to the status of these areas is most interesting. Agreeing with Tosafot, Teshuvot Maharit, I, no. 47, rules that those territories cannot be regarded as part of Erez Yisra'el for purposes of fulfillment of the commandment of dwelling in the Land of Israel. Yet, Maharit concedes that such areas must be considered to be part of the historic homeland of the people of Israel even though they were not resettled in the days of Ezra. He points out that the patriarchs sought a burial place in Israel even before it became sanctified as the homeland of the Jewish people.
IV. Communal vs. Private Conquest
It is also possible for areas which were neither conquered nor settled in the time of Ezra, or even in the time of Joshua, to become sanctified as integral parts of the Land of Israel. Commenting on the verse, "Every place where your foot shall tread shall belong to you" (Deuteronomy 11:24), Sifre, Ekev 51, indicates that the Torah here declares that all conquered territories, even those lying outside the biblical boundaries of Erez Yisra'el, are endowed with the sanctity of the Holy Land. Thus, Rambam, Hilkhot Melakhim 5:6, writes, "All territories which Israel conquers by means of a king upon the instruction of the Bet Din … are for all purposes as the Land of Israel which was conquered by Joshua." Rambam, it should be noted, stipulates that a Bet Din (i.e., the Sanhedrin) is required in order to effect the sanctification of territory outside the boundaries of Erez Yisra'el—a factor which was clearly absent in all conquests of the modern era.
Rabbi Soloveichik addresses himself to the question of whether or not conquest by the armed forces of the State of Israel confers sanctification upon such territories. It is axiomatic that only territory acquired by "communal" conquest may be endowed with sanctity; territory conquered by an individual or by a group of individuals does not acquire sanctity. Accordingly, the crucial problem is whether or not the conquest of the territories in question constitutes a "communal" conquest. If these conquests are deemed to be "communal" conquests, it follows that sanctification did occur; if, however, the conquests are not deemed to have been communal in nature, the status of those territories is similar to that of "Syria," the territory conquered by King David, which was not deemed to have been sanctified because it was an "individual" or "private" conquest.
Rashi, Gittin 8b, enumerates the criteria of "communal conquest" as distinct from "private conquest" and indicates that David's conquest was private in nature because David's conquest was (1) for his personal benefit, (2) carried out without prior consultation of the urim ve-tumim, and (3) did not involve 600,000 people. In contradistinction, Joshua's conquest was for the benefit of the entire people, was carried out only after consultation of the urim ve-tumim, and involved all of Israel, i.e., a community of 600,000 warriors.
Tosafot, Gittin 8b and Avodah Zarah 21a, presents a different criterion for distinguishing between "communal" and "private" conquests. David's conquest was "private" because it was carried out prior to the conquest of Erez Yisra'el in its entirety. Since, at the time of David's war against Syria, Jerusalem was still in the hands of the Jebusites the conquest of the Land of Israel proper was not yet complete and, hence, no other conquered territory could become sanctified.
Rambam espouses a third position in his enumeration of the conditions to be fulfilled in order that a conquest be deemed "communal" in nature. In Hilkhot Terumot 1:2, Rambam states that a conquest is "communal" in nature only if carried out by a king or a prophet with the approval of the majority of Israel. In Hilkhot Melakhim 5:6, Rambam speaks of the approval of the Sanhedrin rather than of the approval of the majority of Israel. Presumably, Rambam's position is that the Sanhedrin serves as the representative of the people and that approval of the Sanhedrin is tantamount to approval of the entire populace.
In Hilkhot Terumot, Rambam does not mention the need for consultation of the urim ve-tumim. However, in his Sefer ha-mizvot, shoresh 14, Rambam states that a communal conquest requires a king, Sanhedrin and urim ve-tumim. Rabbi Soloveichik points out that this discrepancy can be resolved if it is understood that the urim ve-tumim is required not for the act of conquest or for purposes of conferring sanctity per se but, rather, that, as a matter of course, the king could not act without consulting the urim ve-tumim. Thus, the requirement for prior consultation of the urim ve-tumim is not a necessary condition of sanctification but a limitation upon legitimate exercise of the royal prerogative. Sefer mizvot Gadol modifies the requirement that the conquest must be carried out by a king and states that a communal conquest undertaken not only by a king but even by a judge (shofet) confers sanctity. In Hilkhot Terumot 1:3, Rambam adds a condition identical to that recorded by Tosafot. Here, Rambam declares that conquest confers sanctity only if all of the Land of Israel proper has been conquered previously.
On the basis of Tosafot, Avodah Zarah 21a, Rabbi Soloveichik argues that, in defining what constitutes a "private " rather than a "communal" conquest, Tosafot, in actuality, distinguishes between two geographic areas. There is an apparent discrepancy with regard to the boundaries of the Land of Israel as they are described in the Bible. Numbers 34:1-12 gives the borders in great detail, and includes the names of cities along the borders. Deuteronomy 11:24, employing much broader language, states that the boundaries shall extend "from the wilderness, and the Lebanon, from the river, the river Euphrates, even unto the hinder sea." The latter description quite obviously encompasses much more territory than is included in the boundaries described in Numbers. Rabbi Soloveichik indicates that the enhanced territories referred to in Deuteronomy were merely promised to Abraham, whereas the more limited area described in Numbers was actually "given as a gift" to Abraham. It was only the latter territory which was actually conquered by "those who ascended from Egypt." Nevertheless, Ramban, in his commentary on Deuteronomy 11:24, writes that the people of Israel were commanded to conquer even the additional territory lying outside the borders described in Numbers but encompassed within the boundaries indicated in Deuteronomy. Syria—the area captured by King David—clearly lies within those boundaries. However, since Tosafot considers Syria to be a "private" conquest, because it was conquered before the conquest of the Land of Israel in its entirety, a new conclusion emerges. According to this reasoning it would appear that the mizvah of conquering Erez Yisra'el requires that the territory described in Numbers be conquered before any attempt is made to take areas within the larger boundaries described in Deuteronomy.
In light of this analysis, Rabbi Soloveichik argues that Tosafot's position is that once Erez Yisra'el proper is captured in its entirety any individual may conquer any area within the more inclusive boundaries delineated in Deuteronomy and that such territory automatically becomes endowed with the sanctity of Erez Yisra'el. Neither a king, urim ve-tumim, Sanhedrin, nor 600,000 people are necessary since such territories are within the confines of the area divinely promised to Abraham. Beyond those boundaries, however, even Tosafot agrees that any additional conquest is endowed with the sanctity of Erez Yisra'el only if all the enumerated conditions are fulfilled.
This view is, however, contradicted by another authority. Rabbenu Ya'akov, author of the Tur Shulḥan Arukh, writes in his Hilkhot Erez Yisra'el that, in any period of history, any place conquered by those who ascended from Egypt which is "set aside for Jewish habitations and the fields are set aside for Israel and there is no fear of the gentiles upon them that they may drive them therefrom, this is its sanctification and ma'aser is biblically obligated." Thus, the author of the Tur maintains that any area settled by those who ascended from Egypt becomes resanctified by virtue of Jewish settlement. However, Tur maintains that even after settlement of Erez Yisra'el by those who ascended from Egypt, "private" conquests of an area within the borders described in Deuteronomy but not conquered by those who ascended from Egypt, does not constitute sanctification; Tosafot, in disagreeing, maintains that once Erez Yisra'el proper is conquered, conquest by any individual of territory within the borders described in Deuteronomy confers sanctity as an integral part of the Land of Israel. Rabbi Soloveichik points out that all the territories occupied as a result of the Six-Day War are within the confines of the borders promised to Abraham as delineated in Deuteronomy. Hence, argues Rabbi Soloveichik, all of the occupied territories, including those areas not conquered by Joshua, are, according to the position of Tosafot, endowed with the sancity of the Land of Israel; whereas, according to the authorities who disagree with Tosafot, areas which were previously never part of the territory of a Jewish commonwealth are not endowed with sanctity.
With regard to the status of those territories now under the sovereignty of the State of Israel which were originally conquered by those who ascended from Egypt but were not resettled by those who returned from Babylonia, Rabbi Soloveichik is of the opinion that, according to Rashi, who requires 600,000 people and urim ve-tumim, no sanctification has occurred and hence there exists no obligation with regard to terumot and ma'asrot. According to Rambam the necessary conditions for sanctification include either a king or a prophet as well as the approval of either a majority of Israel or of the Sanhedrin. Both Rambam, Hilkhot Terumot 1:2, and Rashi, Gittin 8a, state that the conquest must be carried out "with the knowledge [in the sense of acknowledgment or agreement] of the majority of Israel." Since these conditions have not been fulfilled, argues Rabbi Soloveichik, there exists no sanctity according to Rambam. It is true that, according to Sefer mizvot Gadol, an annointed monarch is not required and sanctification can be achieved if the conquest is carried out under the leadership of a judge. It may well be argued that the government of Israel is equivalent in status to a "judge." Nevertheless, even according to Sefer mizvot Gadol, the prior approval of a majority of Israel is required. This, argues Rabbi Soloveichik, was absent in present-day conquests. Since the majority of the members of the community of Israel do not reside in the State of Israel, it can hardly be insisted that the Six-Day War was waged with their prior agreement.
In opposition to this view, both Rabbi Raphael and Rabbi Gershuni argue that neither the absence of a king nor of a Sanhedrin constitutes an impediment to sanctification. They assert that Rambam's reference to a "king" does not connote exclusively a monarch enjoying royal prerogatives, but includes any official or any governmental body in whom ruling authority is vested. The king, in waging war, merely serves as an agent of the nation. In the absence of a monarchy, authority for the declaration of war is vested in the established state authority. Earlier, Rabbi Shlomoh Yosef Zevin, Torah she-be-'al Peh (5731), XIII, had pointed out that this contention is borne out by the terminology employed by Ramban in his addendum to Rambam's Sefer ha-mizvot, lo ta'aseh, no. 17. In discussing declaration of war, Ramban states that this is the prerogative of "the king, the judge or whoever exercises authority over the people."
Both Rabbi Raphael and Rabbi Gershuni assert that agreement of "the majority of Israel," as required by Rashi and Rambam, refers to Jews residing in the Land of Israel. Hence, in order for territorial acquisitions to become sanctified, approval of the military operation need be secured only from a majority of those Jews who reside in the State of Israel.
Rabbi Soloveichik disagrees with this position. It is his contention that, since the obligation with regard to conquering and settling the Land of Israel is incumbent upon all of the community of Israel, the agreement of "the majority of Israel" must refer to the entire community of Israel and not only to the residents of Erez Yisra'el. Rabbi Waldenberg, Ẓiz Eli'ezer, X, no. 1, secs. 9-12, argues that 600,000 Jews constitute an entire "community." Hence, following the settlement of 600,000 Jews in Israel, conquest of territory is not contingent upon the approval of Jews in the Diaspora.
It should be noted that, according to one authority, the requirements of a king and a majority of Israel posited by Rashi do not apply to areas already conquered by those who ascended from Egypt. Mabit, Kiryat Sefer, Hilkhot Terumot, chap. 1, writes "A king or prophet and a majority of Israel are required … for the first conquest. But, for the second conquest, since the Land of Israel has already been sanctified even though [that sanctity] has been abrogated, a majority of Israel is not necessary…. According to these authorities, newly-occupied territory lying within the area conquered by those who ascended from Egypt must be viewed as sanctified territory.
Rabbi Raphael, however, states that, with the exception of Judea and Samaria, the newly-occupied territories do not lie within the area settled in the time of Ezra or even within the area captured by those who ascended from Egypt. Rabbi Raphael does not follow the view of Rabbi Soloveichik in positing different prerequisites for the sanctification of territory within the confines of the borders vouchsafed to Abraham. Therefore, he finds no grounds for assuming that any of these territories have become sanctified. However, settlements such as Metullah and the northern areas, which were incorporated within the boundaries of the State of Israel even before 1967, are located in an area conquered by those who ascended from Egypt but not resettled by Ezra. According to Rabbi Raphael, insofar as the mizvah of dwelling in the Land of Israel is concerned, the status of this area is affected by the controversy between Tosafot and Rambam. According to Rambam (and other authorities cited earlier) those areas are part of Erez Yisra'el for all purposes save for the obligation with regard to terumot and ma'asrot; for Tosafot they are part of the Diaspora.
V. Gaza
Rabbi Gershuni makes an interesting observation with regard to the status of Gaza. Teshuvot Radbaz, V, no. 1105, asserts that Gaza was definitely conquered by those who ascended from Egypt but expresses uncertainty with regard to its resettlement in the days of Ezra. However, this view is contradicted by R. Isaac Trani, Teshuvot Maharit, 1, no. 47. The latter responsum is in answer to a question posed by a man who had married in Egypt and wished his wife to accompany him in making their home in Gaza. Maharit was asked whether the wife could be compelled to do so since a wife must join a husband in settling in Erez Yisra'el and vice versa. Essentially, the question was whether or not Gaza is considered to be part of the Land of Israel. Maharit's answer was in the negative. He maintained that Gaza was definitely not settled by the returnees from Babylonia and ruled that, even assuming that it had been conquered by those who ascended from Egypt, the wife could not be compelled to live there since "commandments contingent upon the land" are not observed in such areas.
VI. The Golan
There is also some controversy regarding the status of the Golan. Rabbi Raphael states that the Golan was among the territories conquered in the days of Joshua. Tosafot, Yevamot 16a, cites two opinions with regard to how much of this territory was settled by the Babylonian returnees. According to one opinion, only the northern section, i.e., the land of Bashan north of the river Yabok was settled; according to the second opinion, the entire area extending south to the river Arnon was settled. The latter opinion is also held by Sefer mizvot Gadol, 161; Mahari Kurkos, Hilkhot Shmittah ve-Yovel 4:28; and Radbaz, Hilkhot Terumot 1:2. Rabbi Gershuni, in his Torah she-be-'al Peh article, cites the geographical descriptions of Kaftor va-Feraḥ and declares that, according to Tosafot, the cities of the Golan are included in the sanctified areas. However, in his article in Or ha-Mizraḥ, Rabbi Gershuni cites Makkot 9b in showing that the Golan is part of the territory of Transjordan and hence not sanctified insofar as terumot and ma'asrot are concerned. For other purposes, such as fulfillment of the commandment to dwell in the land, the earlier cited controversy between Rambam and Tosafot is germane.
VII. Southern Territories
Insofar as the Negev and the southern territories are concerned, the Mishnah, Gittin 2a, indicates that Ashkelon was the southern boundary of Erez Yisra'el. Rambam maintains that those who ascended from Egypt conquered no territory south of Ashkelon and that Ashkelon was always the southern boundary. However, most other authorities maintain that in the time of Joshua territories south of Ashkelon were also captured and that the Mishnah, in speaking of Ashkelon as the southern border, refers only to areas regained in the time of Ezra and gives the boundary which existed in the time of the Second Commonwealth. According to these authorities, at least some of the areas south of Ashkelon fall into the category of territory captured by those who ascended from Egypt but not retaken by the returnees from Babylonia. There is considerable evidence in support of this view. I Kings 8:65 speaks of the south of Israel as being populated by Jews "until the river of Egypt." Targum Yonatan (Genesis 15:18) translates the words "nahar mizrayim" as the "Nile of Egypt." Radbaz, Hilkhot Terumot 1:7, dismisses this view and declares the river to be Wa'ad al Arish. This is also the opinion of Sa'adia Ga'on. Sa'adia Ga'on states that Ma'aleh Akrabim of Numbers 34:4 is identical with the area known as Aqaba. I Kings 9:26 speaks of Solomon's dominion as extending to Eilat; II Kings 14:22 and II Chronicles 26:2 speak of the rebuilding of Eilat by Uzziah. It is, however, generally assumed that these territories were not resettled by those who returned with Ezra.
However, in his article in Or ha-Mizraḥ, Rabbi Gershuni notes that both the Book of Maccabees and Josephus state that these territories were captured by both the Maccabees and by Herod. If this is the case, exclusion of these areas from the obligation of terumot and ma'asrot is puzzling. Rabbi Gershuni develops the thesis that only those areas settled by Ezra were permanently sanctified. Other areas settled at a later time do not share in this sanctity. The Palestinian Talmud, Shevi'it 6:1, cites the verse "… and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) and interprets it as referring specifically to Ezra's resettlement of the Land of Israel. The beneficence spoken of and described as greater than that bestowed upon earlier generations is understood by the Palestinian Talmud as a specific allusion to the permanent nature of Ezra's sanctification. According to Rabbi Gershuni, the sanctity with which the territories captured by the Maccabees and by Herod were endowed was different in nature from the sanctity of the areas resettled by Ezra. The latter enjoyed permanent sanctity by virtue of settlement. No conquest was necessary since the return and resettlement of the land was accomplished with the permission of the Persian rulers. The areas captured by the Maccabees, and by Herod, argues Rabbi Gershuni, enjoyed sanctity solely by virtue of conquest, as was the case in the time of Joshua. Therefore, the sanctity of those territories lapsed when they were subsequently recaptured, just as the sanctity of the areas captured by Joshua lapsed when those territories were conquered by gentile nations.
This position is, however, antithetical to the opinion expressed by R. Shmuel Strashun (Rashash) in his commentary on Eduyot 8:6. This authority adopts the extreme position that whenever "with the permission of the king" a Jew purchases land within the territory conquered by those who ascended from Egypt, such land acquires the sanctity of Erez Yisra'el. His argument is that such an individual acquisition is similar in nature to that of Ezra. The ḥazakah which conferred sanctity in the time of Ezra was efficacious precisely because it was an act of settlement carried out with permission of the ruling authorities. For Rashash there is no distinction between an individual and a communal settlement with regard to the "second sanctification." It is thus clear that, according to Rashash, the beneficence which the Palestinian Talmud describes as having been conferred upon Ezra was extended to subsequent generations as well. This interpretation understands the Palestinian Talmud as teaching simply that authority for sanctification through ḥazakah was withheld prior to the time of Ezra.
VIII. Further Arguments Negating Sanctity of Liberated Territories
Both R. Soloveichik and R. Raphael consider a further argument against the thesis that the sanctity of the Holy Land devolves upon territories conquered in the Six-Day War. Rambam, Hilkhot Melakhim 5:6 and Hilkhot Terumot 1:3, stipulates that additional territories acquire the sanctity of Erez Yisra'el only if they are conquered subsequently to the conquest of territories contained within the biblically stipulated boundaries. Sifre, Ekev 51, indicates that it is for this reason that King David's conquest of Syria was deemed to be "private" and hence the territory of Syria did not become sanctified. An argument might, therefore, be advanced that Sinai and Gaza did not become sanctified in 1967 since they were taken before Jerusalem and other parts of Israel proper.
However, the rationale underlying this provision is somewhat obscure. Sifre states that the sanctity of the Holy Land did not devolve upon Syria because, in failing first to conquer Erez Yisra'el in its entirety, David "did not act in accordance with the Torah." If so, non-sanctification of such territories results from the transgression involved. Tosafot, Avodah Zarah 21a, indicates that the crucial factor impeding sanctification of such territories is the prohibition against their conquest prior to the conquest of Erez Yisra'el proper in its entirety. Following this line of reasoning, Rabbi Soloveichik and Rabbi Raphael argue that, in the absence of any other impediment, territories conquered in a defensive war, which clearly involves no transgression, should be sanctified even if such territories are conquered before portions of the Land of Israel proper have been recaptured.
Rambam, however, fails to record that nonsanctification of private conquests results from commission of a transgression. Indeed, Rambam, Hilkhot Terumot 1:3, states that the "private" conquest of Syria by King David was carried out with permission of the Sanhedrin. It is unthinkable that the Sanhedrin would sanction a forbidden course of action. In codifying this provision Rambam apparently bases himself directly upon the verse, "Every place where your foot shall tread, yours shall it be." As indicated by Sifre, this is a reference to territory lying outside the area delineated by the biblical boundaries extending "from the wilderness and the Lebanon, from the river, the river Euphrates, even unto the hinder sea." It is from this passage that Sifre derives the principle that territory lying outside the boundaries of the Holy Land may acquire the sanctity of Erez Yisra'el. Rambam apparently interprets this verse in a purely descriptive sense. The phrase "yours it shall be" is to be understood as meaning that the territory becomes endowed with the sanctity of Erez Yisra'el only if conquered subsequent to the territories specifically enumerated. Nevertheless, even according to this understanding of Rambam, argues Rabbi Raphael, the regulation established with regard to the order in which the territories must be conquered applies only to the original sanctification of Erez Yisra'el which took place by conquest but not to the subsequent sanctification by Ezra which was effected by means of ḥazakah.
Rabbi David Friedman of Karlin, "Kuntres ha-Shevi'it," She'ilat David, I, 36, develops the thesis that the requirement for the prior conquest of Erez Yisra'el applied only as long as the land was inhabited by the seven nations of Canaan. With the disappearance of these nations, he maintains, this prerequisite has lapsed.
Rabbi Gershuni advances yet another consideration auguring against recognition of the newly-liberated territories as being endowed with the sanctity of the Land of Israel. He cites Tosafot, Yevamot 82b, to the effect that in the time of Ezra it was not mandatory that all cities settled by those who returned from Babylonia be sanctified with the sanctity of Erez Yisra'el. Tosafot, argues Rabbi Gershuni, apparently maintains that verbal sanctification was necessary as indeed is the case with regard to the special sanctity of Jerusalem and with regard to the sanctity of walled cities. Hence, had any city not been sanctified verbally it would have remained in its previous nonsanctified state. Maharit, I, no. 25, disagrees with Tosafot and maintains that the act of settlement itself constituted the act of sanctification and that no verbal sanctification was necessary. Rabbi Gershuni cites authorities who maintain that Maharit's disagreement with Tosafot is limited to those areas within the boundaries vouchsafed to the Patriarchs. Only those areas divinely promised to Israel do not require verbal sanctification. Areas beyond these promised boundaries, he avers, must be verbally sanctified. Rabbi Gershuni argues that Syria and, according to some authorities (Bet ha-Levi, II, no. 50, and Tevu'ot ha-Arez, as cited by Birkei Yosef, Oraḥ Hayyim 489), Transjordan as well, are not included among the territories promised to Abraham and hence require verbal sanctification. This verbal sanctification was, of course, lacking in the conquests of the Six-Day War.
R. Waldenberg, Ẓiz Eli'ezer, X, no. 1, secs. 18 and 26, presents an argument which would supersede all other considerations and preclude sanctification of any of the newly conquered territories, including even those possibly conquered by those who ascended from Egypt. R. Waldenberg argues that only territory captured for purposes of settlement may become sanctified. Areas conquered for purposes of erecting defense fortifications or for purposes of exacting tribute do not become sanctified. R. Ya'akov Emden, Mor u-Kezi'ah 306, indicates that it was for this reason that King Solomon's conquests in Lebanon did not become sanctified. R. Waldenberg argues that the territories acquired in the Six-Day War were seized for purposes of defense and that, if peace were assured, those territories would be restored. Since this was the intent at the time of conquest, he argues, no conquest for purposes of settlement ever took place and hence the territories are not endowed with the sanctity of Erez Yisra'el. Unfortunately, Rabbi Waldenberg's thesis is not analyzed, or even mentioned, by any of the other scholars.
IX. A Further Argument Affirming Sanctity of Liberated Territories
Rabbi Raphael advances an ingenious argument which, if valid, would lead to the conclusion that the Negev as well as all the conquered territories are endowed with the sanctity of Erez Yisra'el even though those areas were not conquered or settled either in the days of Ezra or of Joshua. As noted earlier, Sifre declares that all conquered territories, including those lying outside the biblical boundaries of Erez Yisra'el, acquire sanctity as integral parts of the Holy Land. Rambam, however, stipulates that sanctity is acquired only if such areas are acquired by a king acting upon the directive of the Sanhedrin. It would appear that in the absence of a Sanhedrin there can be no sanctification.
However, Rabbi A. I. Kook, Mishpat Kohen, no. 145, argues (on the basis of a discrepancy in Rambam's language in Hilkhot Terumot 1:2) that sanctification is contingent upon the Sanhedrin only in cases of "permitted" wars, i.e., wars undertaken for purposes of territorial aggrandizement. In such instances, prior sanction of the Sanhedrin is required. Obligatory wars, waged at the specific command of the Torah, require no such permission. Rabbi Kook argues that since permission of the Sanhedrin is not required, territory conquered in the course of obligatory wars is automatically endowed with the sanctity of the Holy Land. Wars of defense are obligatory wars. Hence, argues Rabbi Raphael, territories conquered as a result of the Six-Day War, since it was a defensive war, are automatically endowed with the sanctity of Erez Yisra'el. The identical argument was advanced earlier by R. Waldenberg, Ẓiz Eli'ezer, X, no. 1, sec. 18. Although Rambam declares that conquered territory lying outside the borders of the Land of Israel becomes sanctified only if conquered by a king, R. Waldenberg, R. Gershuni and R. Raphael, as noted previously, all contend that the reference does not apply exclusively to a monarch but includes any government of Israel.
X. Status of Returned Territories
Yet another important difference emerges from the disagreement between Rabbi Soloveichik and Rabbi Gershuni. Portions of the territory conquered during the course of the Six-Day War have been returned to the sovereignty of the nations from whom they were taken and additional territory will undoubtedly also be returned. If these territories have become sanctified, does their sanctity lapse upon their removal from the sovereignty of the State of Israel? If the conquest of the Six-Day War is equivalent to "settlement by Ezra," then such sanctity remains valid in perpetuity and any produce grown in those areas at any future time would be subject to the "laws contingent upon the Land." This would appear to be the case according to the authorities who (following Rabbi Soloveichik's argument) maintain that these areas have acquired sanctity. However, according to Rabbi Gershuni's argumentation, the very same authorities would maintain that these areas were sanctified, not by virtue of ḥazakah as in the days of Ezra, but rather by virtue of "conquest." Hence, the sanctification which occurred as a result of conquest would lapse upon loss of those territories, just as the sanctification of Joshua lapsed when those territories were lost with the destruction of the first Temple. Indeed, Rabbi Gershuni maintains that the areas conquered by the Maccabees and by Herod lost their sanctity in precisely this manner.
It is readily apparent that it is not easy to resolve the ambiguities and differences of opinion surrounding the question of which territories are in fact endowed with the unique sanctity of the Land of Israel. The people of Israel, however, awaits with eager anticipation the time when many of these questions will be resolved in an entirely different manner. The Torah records that in His covenant with Abraham the Almighty vouchsafed to him territory vastly greater than that included within the historic boundaries of Erez Yisra'el. In the Messianic era this territory will be incorporated within Erez Yisra'el and will indeed share in the eternal sanctity of the Land of Israel.
