Why the call not to sell land to non-Jews in Safed?

Without entering the fray, this essay seeks to provide the Jewish legal background for a more informed discussion.

By SHLOMO BRODY
Safed balcony (photo credit: Marc Israel Sellem)
Safed balcony
(photo credit: Marc Israel Sellem)
The recent statements of a few prominent rabbis and politicians have drawn heated responses, with some denouncing them as undemocratic and racist, while others defend them as bold and patriotic. Without entering the fray, this essay seeks to provide the Jewish legal background for a more informed discussion.
When enjoining the Israelites to uproot the seven nations residing in the Promised Land, God declared, “You must doom them to destruction: Grant them no terms and give them no quarter [lo tehanem]” (Deuteronomy 7:2). While the last clause clearly forbids mercy on the inhabitants during war (Hilchot Avoda Zara 10:1), the sages understood this prohibition to further proscribe offering general accolades, free gifts and territorial hold within the Land of Israel (Avoda Zara 20a).
One major question regards the scope of these expanded prohibitions. Rabbi Yosef Karo (Beit Yosef CM 249:2), followed by more recent figures like Rabbi Avraham Karelitz (Hazon Ish Shvi’it 24), believed that they applied to all gentiles. Many, however, contended that these prohibitions only apply to idolaters (Tosafot AZ 20a), thereby excluding Muslims, for example (Bach CM 249). This distinction would stem from the perceived goal of these commandments to distance Jews from learning idolatrous ways (Rambam Lo Ta’aseh 50-1). These prohibitions would certainly not apply to a non-Jew (ger toshav) who has formally accepted the seven Noahide Laws (Rabad Hilchot AZ 10:6).
Rabbi Menahem Hameiri (13th century, Provence) went further to assert that these prohibitions only applied to the immoral seven nations that inhabited Israel in antiquity, but not to ethical people who are guided by religious norms (Beit Habehira AZ 20). Similar sentiments were adopted by Rabbi Baruch Epstein (Torah Temima 7:2), even as this remains a minority position, as noted by Rabbi Ya’acov Warhaftig (Techumin 2).
Beyond this dispute, many caveats minimize the scope of the prohibited activities. Regarding general accolades, the Talmud rules that one should recite a blessing when seeing a person of unique wisdom or beauty, since this is ultimately praise of God for His wondrous creations (OC 225:10). Following the medieval philosophers who regularly lauded Aristotle and other gentile thinkers, Rabbi Eliezer Waldenburg further contended that one can praise great inventors of medicine and technology (Tzitz Eliezer 15:47). Rabbi Moshe Feinstein deemed it appropriate to hold a tribute dinner for a gentile in gratitude for his communal service (Igrot Moshe YD 2:117).
Similarly, the sages limited the prohibition of free gifts to cases in which there will be no reciprocity, and therefore asserted that one may give gifts to an acquaintance in which there is assumed mutually beneficial relationship (Taz YD 151:8). Moreover, for the sake of peaceful relations, the sages further dictated that Jews should care for impoverished or sick gentiles (YD 151:11).
The prohibition of granting territorial claims led to two major controversies. Beginning in the end of the 19th century, scholars debated the artificial sale of Jewish agricultural land (heter mechira) during the sabbatical year (shmita) to gentiles to allow economic sustenance from continued reaping of the soil. Some, like Rabbi Naftali Z. Berlin, contended that this legal fiction was forbidden because it directly violated this prohibition.
Proponents of the sale, however, offered several justifications. Rabbis Yehoshua Trunk (Shu’t Yeshuot Malko YD 55) and Eliahu Rabinovitch-Teomim (Adar Hayakar 9) asserted that, as with the case of free gifts, the prohibition does not apply when it benefits the Jew. Rabbi Karelitz retorted that this dispensation did not apply here since any sale would inherently provide financial benefit yet remained prohibited. Yet Rabbi Abraham Kook argued the prohibition did not apply if the non-Jew already had residence in the land, especially if he was a monotheist. He further noted that this was merely a temporary sale which would strengthen long-term Jewish settlement (Shevet Ha’aretz, Ch. 12).
The more recent debate over relinquishing liberated territories, however, clearly entails a long-term transfer of the land. Rabbi Ovadia Yosef and others, however, have noted that a peace deal with the Palestinians (non-idolators) might benefit the Jewish people. Moreover, the principle of saving lives overrides this prohibition. Rabbi Shlomo Goren, however, retorted that the lifesaving principle does not trump settling Eretz Yisrael, which we are commanded to risk ourselves to conquer.
Ironically, within the contemporary Israeli scene, many members of the religious community who passionately oppose territorial concessions also adamantly insist on employing the various dispensations to support the sabbatical year sale. They reasonably contend, however, that their position remains legally consistent in supporting the long-term Jewish settlement of the land. Yet this observation reminds us that it is important to always distinguish what is religiously inspired from what is halachicly required, which might help defuse tensions like the Safed controversy which combine political perspectives and religious values.
The writer, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel.
JPostRabbi@yahoo.com