Orlah, Preface: The prohibition of orlah, a mitzvah dependent on the Land of Israel
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What makes a mitzvah "dependent on the Land of Israel"? On the definition of these special mitzvot and the sanctity inherent in the soil and its produce. Also, on orlah's unique status inasmuch as it also applies abroad.
The Mishnah in Kiddushin (1:9) states:
"Any precept that is dependent on the land is practiced only in the Land [of Israel] and any that is not dependent on the land is practiced both in the and outside the Land. Apart from orlah and kila'im. Rabbi Eliezer says: chadash too."
From here we see that the prohibition of orlah is one of the mitzvot hateluyot ba'aretz, mitzvot dependent on the Land of Israel, but it also applies abroad. This seems to be an oxymoron: if this mitzvah depends on the Land of Israel, why does the prohibition also apply abroad? And if it also applies outside of Israel, in which way is it a mitzvah dependent on the Land?
The Gemara (Kiddushin 37a) probes the definition of a mitzvah hateluya ba'aretz, as follows:
What is the meaning of 'dependent' and 'not dependent'? Shall we say: 'dependent' refers to those [precepts] where 'coming' [bi'ah] is written, and 'not dependent' to those where 'coming' is not stated? But tefillin and the [redemption] of the firstborn donkey are practices both within and without the Land of Israel, though 'coming' is written in connection with them? Said Rabbi Yehuda: This is its meaning: every precept which is a personal obligation is practiced both within and without the Land of Israel; but what is an obligation of the soil has force only within the Land of Israel.
There are many mitzvot dependent on the Land of Israel, including: orlah, kila'im, chadash, lekket, shichecha, pe'ah, terumot and ma'aserot, shevi'it, and bikurim, among others. We need to determine what the common denominator is among all of these mitzvot and how exactly we can define a mitzvah tied to the Land.
The Gemara initially proposes that a land-dependent mitzvah is one about which the Torah explicitly notes that it is contingent on the entry of the Jewish People to the Land of Israel, using the term bi'ah ("coming"). However, it turns out that this rule does not hold true for both tefillin and peter chamor, since this term is used in the context of both these mitzvot. The Gemara's conclusion is that there is a distinction between a mitzvah tied to a personal obligation (that one performs with the body, mitzvat haguf) and an obligation tied to the soil (chovat hakarka). A land-dependent mitzvah is defined as an obligation of the soil.
Simply put, the Gemara's intent is that any mitzvah performed with the soil or with crops growing in soil is considered a mitzvah dependent on the Land of Israel, and thus applies to the Land of Israel only. However, this definition raises a difficulty, since we see several soil- or crop-related mitzvot that nevertheless are not considered land-dependent mitzvot. One example of this is the mitzvah of the four species, which are performed with crops: a lulav, etrog, hadas, and aravah, as well as the mitzvah of sukkah, which also is performed on the soil or with sechach from a crop growing in the soil.
Rabbi Moshe Kliers (1876–1934), the Ashkenazi chief rabbi of Tiveria, was one of the outstanding Torah scholars who dealt with Torah pertaining to the Land of Israel. He devotes the first two chapters of his book, Torat Ha'aretz, to a comprehensive discussion of the definition of the mitzvot hatelyot ba'aretz. There, he proposes two complementary definitions.
While the mitzvah of the four species is performed with crops, the mitzvah is only to perform an action with crops. Crops, in this case the etrog, lulav, etc., are only the technical means through which the mitzvah is performed. With the mitzvot dependent on the Land of Israel, the soil or crops growing in the soil are not merely means through which the mitzvah act is performed. Rather, the mitzvah is performed with the soil or its produce.
Rabbi Kliers adds that when it comes to the mitzvot tied to the Land of Israel, there is not only a personal obligation (chovat gavra), in which the mitzvah is performed with the soil or produce. There are also halachot that govern the produce or soil themselves (the object, cheftza). For example, with terumot and ma'aserot, the produce is either tevel, teruma, etc.
At the end of the portion on illicit relations in Acharei Mot (Vayikra 18: 24–25), the Torah warns:
"Do not defile yourselves in any of those ways, for it is by such that the nations that I am casting out before you defiled themselves. Thus the land became defiled; and I called it to account for its iniquity, and the land spewed out its inhabitants."
The Torah states that the sins of illicit relations are responsible for bringing upon us the punishment of exile: "Thus the land became defiled … and the land spewed out." Ramban discusses the connection between transgressions of illicit relations and the exile of the Jewish People from its land. Were the Jewish People failing to perform the mitzvot dependent on the Land of Israel, it would stand to reason why this would warrant exile. Sins of illicit relations, though, are not tied with our living in the Land of Israel. Why then would this result in our exile?
Ramban poses the question as follows (Vayikra 18:25): "The text relates with stringency to illicit relations, since the land will become defiled due to them and spew out those who perform these acts."
And from this issue the Sages state in the Sifri (Ekev 43): "'and you will soon perish from the good land' [Devarim 11:17]: Even though I am exiling you from the Land of Israel, be observant of the mitzvot, so that when you return they will not be new to you. An analogy: A lord was angry with his wife and sent her away to her father's house. The lord said: 'Continue wearing your jewels, so that when you return they will not be new to you.' [So too, the Holy One Blessed be He said to Israel (in exile): 'My children, be observant of the mitzvot, so that when you return they will not be new to you.'] As Yirmiyahu said (to the Jews going into exile (31:21): 'Erect markers (tziyumin) for yourselves': these are the mitzvot, in which Israel are distinctive (metzuyanim)." And here it says in the scripture: "and you will soon perish … therefore impress these words of Mine [on your very heart] (Devarim 11:17,18)." These [mitzvot] are not compulsory in the Exile with the exception of personal obligations, such as tefilin and mezuzot. And the Sages explain that this is so in order that [mitzvot] will not be novel to us upon our return to the Land of Israel, because the primary observance of all of the mitzvot [can be performed by] those living in G-d's land. It is for this reason the Sages state in Sifri (Re'eh 80) on "When you have occupied it and are settled in it … take care to observe [all the laws and rules]" (Devarim 11:31–32), that dwelling in the Land of Israel is equivalent to all of the mitzvot in the Torah.
Ramban says here that, in truth, all of the mitzvot are tied to the Land of Israel. And the primary obligation is to perform them in the Land of Israel. However, the mitzvot that are personal obligations apply outside the Land of Israel as reminders "set up signposts for yourselves." In light of this, it is clear why if we transgress one of the Torah's mitzvot, especially one as severe as committing illicit relations, the result would be the land spitting us out and the Jewish People going into exile.
Ramban's intent is certainly not that the mitzvot that are personal obligations apply outside the Land of Israel only as rabbinic injunctions. Rather, that they can be performed in their most complete and perfect fashion only in the Land of Israel—and this holds true even for those mitzvot that are not land-dependent. This idea is explained by Rabbi Yaakov Moshe Charlop (1882–1951), Rosh Yeshiva of Merkaz HaRav and Rabbi of the Jerusalem Sha'arei Chessed neighborhood (Mei Marom, Ma'ayanei HaYeshua, p.252) as follows: G-d's Torah is an organic, comprehensive entity, and its most perfect fulfillment can only take place in the place where it is possible to observe all of the mitzvot. This is because the commandment to observe the mitzvot is given in a general sense and includes the entire Torah. When it comes to this general commandment to observe the mitzvot of the Torah, there is a deficiency in mitzvah observance abroad: outside the Land of Israel there are many mitzvot that cannot be performed. As such, Jews living in the Diaspora are not considered obligated in the mitzvah performance (eino metzuveh ve'oseh). With this understanding in mind, Rabbi Charlop explains the Talmudic statement that Moshe desired to observe the mitzvot dependent on the Land of Israel so that "all of them could be fulfilled by him" – with the emphasis on the entirety of the Torah.
The question we would like to raise with regard to the Ramban's opinion is: if all the mitzvot are, indeed, tied to the Land of Israel, then what makes the mitzvot hatelyot ba'aretz unique? And what, then, is the distinction between the mitzvot hateluyot ba'aretz and those that are not land-dependent?
In the beracha me'ein shalosh we say: "on the trees and on the fruit of the trees and on the produce of the field, and on the beloved, good, and expansive land that You wanted and you apportioned to our forefathers so that we may eat from its fruits and be satisfied by its goodness."
"And some say 'and we will eat from its fruits and we will be satisfied by its goodness.' And this should not be said, since we should not desire the Land of Israel for its fruits and its goodness, but rather to perform the mitzvot dependent on it."
In the Smak's opinion, we did not inherit the Land of Israel in order to partake of its fruits and be satisfied by its physical goodness, rather to fulfil our spiritual mission.
The Smak bases his statement on a Gemara in Sotah 14a:
Rabbi Simlai taught: For what reason did Moshe our teacher desire to enter the Land of Israel? Did he need to eat of its produce, or did he need to satisfy himself from its goodness? Rather, this is what Moshe said: Many mitzvot were commanded to the Jewish People, and some of them can be fulfilled only in the Land of Israel, so I will enter the land in order that they can all be fulfilled by me. The Holy One Blessed be He, said to him: Do you seek [to enter the land to perform these mitzvot] for any reason other than to receive a reward? I will ascribe you credit as if you had performed them.
In the Bach's gloss (on the Tur ibid., 12), he questions the Smak's conclusion:
It is puzzling: the sanctity with which the Land of Israel is imbued also influences its fruits. The fruits are nourished by the sanctity of the Divine Presence, which resides within the land of Israel. And it is for this reason that [the Torah] states the warning at the end of parashat Masei: "You shall not defile the land in which you live, in which I Myself abide, for I the L-rd abide among the Israelite people" (Bamidbar 35:34) and it is for this reason it is correct that we include in this blessing "and we will eat from its fruit and we will be satisfied by its goodness," since by eating its fruits we are nourished by the sanctity of the Divine Presence and its purity and we will be satisfied by Its goodness.
That is, the fruits of the Land of Israel—even if they seem to the naked eye similar to those that grow abroad, in truth they are not the same. The sanctity of the Land of Israel and the Divine Presence that rests within it influence the fruit growing there.
Regarding the mitzvot dependent on the Land of Israel, Rabbi Charlop writes (ibid., p. 314):
The sanctity of the Jewish People is independent and intrinsic and is not dependent on any external reason. It is precisely for this reason that the Holy One blessed be He gave them the Torah and mitzvot, since He wanted "to grant merits to Israel, therefore He gave them many laws and commandments" (Mishnah Makkot 3:16). The same is the case regarding the sanctity of the Land of Israel, which is an independent, intrinsic sanctity. And it is for this reason that there are special mitzvot that are tied only to it. It is not that the sanctity of the Land of Israel is tied to its mitzvot; on the contrary: it is due to its sanctity that these mitzvot are commanded that are tied to it. By performing the mitzvot dependent on the Land of Israel, we uncover the Land's independent sanctity.
Rabbi Charlop explains that the mitzvot depend on the Land of Israel; that is, the sanctity of the Land of Israel is the reason for the obligation of theses mitzvot. For this reason, the term is the "mitzvot dependent on the Land" and not "the Land dependent on the mitzvot." We see from here that the obligation to perform all of the mitzvot in their entirety is specifically in the Land of Israel, since only here is it possible to fully encounter G-d. However, the uniqueness of the mitzvot dependent on the Land of Israel is that these mitzvot especially reveal, express, and actualize the Land of Israel's sanctity.
The halachic definition of the mitzvot hateluyot ba'aretz above sheds light on Rabbi Charlop's words. As we said, the land-dependent mitzvot are mitzvot that pertain to the soil and to crops that grow in the soil. However, the produce or soil are not merely means for performing the act of the mitzvah, rather the mitzvah is performed with them because of the special nature of the produce and soil. That is, because there is sanctity inherent in the object (cheftza)—the produce and soil—there are mitzvot tied to the Land of Israel. This is the deep significance of the term mitzvot hateluyot ba'aretz, the precepts dependent on the land, as opposed to ha'aretz hatelyua bamitzvot, the land dependent on the mitzvot.
Orlah is a unique mitzvah, as explained in the Mishnah (Kiddushin, ibid.): "Any precept that is dependent on the land is practiced only in the Land [of Israel] … apart from orlah, " which also applies abroad as a halacha leMoshe miSinai. In which way is the fact that orlah is a land-dependent mitzvah manifested, if it applies abroad as well? In light of the discussions above, we see that a mitzvah dependent on the Land of Israel is not a mitzvah that applies specifically in the Land of Israel. The converse is true: orlah applies in the Land of Israel because it is a mitzvah dependent on the Land of Israel.
Torat Ha'aretz (9:1) explains that orlah is defined as a land-dependent mitzvah since the prohibition applies to the fruit (the object, cheftza) and not to the person (gavra). For this reason, it doesn't matter if the owner of the orchard or the consumer are the ones with the obligation (bar chiyuva). While one of the reasons for the mitzvah of orlah is educational: to teach us to restrain our natural impulse for instant gratification, as stated in the Gemara (Beitzah 25b): "Rami bar Abba said: … young trees will cut off the feet of butchers and those who have relations with menstruating women." The Torah, by prohibiting orlah, teaches man to be patient and warns us not to hasten to eat the animal's meat before removing its hide and cutting up its meat, as we should be concerned that there might be tereifah prohibitions that could be found in the animal. In any event, the prohibition of orlah starts with the fruit, which is the object of the prohibition. Following this is the added value of training people to be patient.
Happy are we that we merited to have such a unique land and such special fruit!