Philosophical aspects of heter mechirah
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As part of my master's thesis in law, I wanted to ask you if you could address several points:
- In your article on heter mechirah (which I thoroughly enjoyed reading), you wrote that the situation as Rabbi Kook saw it upon his arrival in the Land of Israel was that it would be impossible for the Jewish colonies and agriculture to exist unless heter mechirah was employed—for either objective or subjective reasons. What did you mean by "objective and subjective reasons"?
- Do you not see an ideological contradiction in selling the land to non-Jews in order to maintain the Jewish ownership of the land (including both Jewish ownership and agriculture by Jews)?
- Isn't it possible to present the halachic solutions of the Ridbaz on the one hand, and Rabbi Kook on the other, as serving the ideologies of each? If so, would this not be the flip side of the coin – law in the service of ideology, as we refer to the legal view of the issue of shemitah (as the land belongs to JNF-KKL and the Development Authority) where it is prohibited to sell land except in specific cases, including for shemitah (Basic Law – Israel Lands)?
Rabbi Yaakov Ariel
- Objective reasons include dire financial straits, which anyone in the world could recognize. Subjective reasons include the personal motivation of a farmer to observe the mitzvah. The latter depends on the farmer's spiritual level and aspirations for a high standard of living.
- Your question was asked in a slightly different fashion to Rabbi Kook by the Ridbaz, and Rabbi Kook addresses it in his introduction to Shabbat Ha'aretz (chapter 15). Here I will use my own words: we need to distinguish primary from secondary; essential matters from specific cases; and permanent from temporary. Use of a non-Jew is temporary for the purpose of the permanent residence of Jews in the Land of Israel. The ownership of the land remains in Jewish hands.
- The phrase "law in the service of ideology" is too extreme, but there is no doubt that every judicial system strives to apply certain principles and values. Justice, for example, among others. Justice is relative—is it for the greater good or for the individual? Values certainly differ from one society to another and from one person to the next. While the Torah has permanent values, when it comes to applying them in daily life, it is possible for there to be different opinions—all are legitimate, as long as they are in the framework of halachah. Figuratively speaking, we might say that the Rizbaz has mercy on the land (that the land should rest from work) while Rabbi Kook has mercy on the people (that the pioneers should survive). The goal is that the lands will stay in Jewish hands and will not be neglected or be transferred to non-Jewish owners. For this reason, heter mechirah does not constitute lo techonam. Likewise, the amendment to the Israel Lands Law fits the general goal: that the State of Israel's land will remain in Israeli hands.