The shmita controversy isn't over

There is a case to be made for holding that shmita in our day is an act of personal piety, and no more

wheat field 88 224 (photo credit: Courtesy photo)
wheat field 88 224
(photo credit: Courtesy photo)
For the past few months, a controversy has been raging in Israel: How should shmita (the Sabbatical year) be observed? Most Israelis view this as an esoteric argument between the haredim and the national-religious. They may also think that the problem was solved by the October 23 Supreme Court decision which instructed the Chief Rabbinate to follow its own heter mechira policy (symbolic sale of the Land of Israel to non-Jews). They are wrong. This argument touches on the very essence of Zionism as Israel turns 60. ACCORDING to biblical law, the Land of Israel must lie fallow during the sabbatical year (Exodus 23:10-11; Leviticus 25:1-7). Haredi farmers follow the Hazon Ish, Rabbi Isaiah Karelitz, who prohibits exporting produce from the shmita year, but allows certain leniencies such as hydroponics. Other farmers harvest the shmita year's produce as "rabbinic court agents" and sell it through an Otzar Bet Din - rabbinic court warehouse. This legal fiction can help the individual farmer, but it will not solve the state's dilemma because produce distributed through an Otzar Bet Din retains the sanctity of shmita. It may not be thrown in the garbage; it may not be eaten by non-Jews; it may not be sold; and it may not be exported abroad. SOME HAREDI settlements are supported by donations from abroad during the shmita year. As for consumers, most haredim buy their produce during the shmita year from Arabs. If all Israeli Jews followed these methods, Jewish agriculture in Israel would collapse; if Israel followed these methods, Agrexco would go bankrupt and Israel would lose $1 billion in agricultural exports every year. On the other hand, according to Rabbi Kook's heter mechira method, the land and everything planted on it are sold to a non-Jew for a period of two years (so that the shmita year is covertly included in the sale). It is thus permissible to buy and sell shmita produce, since it belongs to a non-Jew. It is also possible to engage in work that is only rabbinically prohibited such as irrigating, weeding, fertilizing and removing stones. On the other hand, the five kinds of activities that are prohibited by the Torah - sowing, pruning, reaping, harvesting grapes and plowing - are still prohibited during the shmita year. HISTORICALLY, the Chief Rabbinate followed the heter mechira. However, this year, due to haredi pressure, the heter mechira was performed as usual, but the Chief Rabbinate gave local rabbinic councils the right to ignore it and demand that supermarkets and restaurants in their towns must buy all their produce from Arabs. Indeed, the local rabbinates of at least nine cities with over 1 million inhabitants immediately declared that this is exactly what they would do. The potential loss to Jewish farmers was estimated at NIS 700 million to NIS 2 billion. TZOHAR, A group of liberal Orthodox rabbis then threatened to set up rival kashrut supervision and certify all the food establishments who follow the heter mechira. Finally, on October 23, 2007, Israel's High Court of Justice invalidated Chief Rabbi Yona Metzger's decision; if the Rabbinate itself had performed the heter mechira, it could not claim that it is not legitimate! The Court ruled that the Chief Rabbinate must overrule any local rabbi opposed to the heter and appoint in his place a rabbi who will follow the heter mechira. ALL OF the methods described above are unsatisfactory since they contradict the entire purpose of Zionism. Regarding the haredi solutions, did we found Israel so that Israeli Jews should be supported by Diaspora Jews or buy their produce from Arabs? Rabbi Kook's solution is even more surprising, since it originates precisely in the religious Zionist camp. It turns out that the ultra-Orthodox leave the land in Jewish hands, while the Zionists sell the land of Israel to gentiles. This is faithful to the letter of the law but not to its spirit. In order to observe the sabbatical laws in "the land that I assign to you" (Leviticus 25:2), "all the land, vegetation, plants, fruit trees, and all kinds of trees that we have in our holy Land of Israel" (this is the text of the document used today) is sold to an Arab dignitary for a period of two years. How bizarre. Most Israeli rabbis assume that the mitzva of shmita in our day is rabbinic, basing themselves on the opinion of Rabbi Judah the Prince in both the Jerusalem and Babylonian Talmuds. The Rishonim (early decisors, ca. 1000-1500 C.E.) explain these Talmudic passages in three ways: (a) A small minority maintains that shmita in our days is biblical, but very few later authorities accept this approach. (b) Many Rishonim rule like Rabbi Judah that shmita in Talmudic times was a rabbinic prohibition. However, there is still disagreement regarding shmita after Talmudic times. Many Rishonim ruled that shmita in their day was still rabbinic, according to Rabbi Judah's opinion in the Talmud. (c) However, many Rishonim maintained that when Rabbi Judah ruled that shmita was rabbinic, he was referring to the Second Temple period and his own time, but today (i.e. in the Middle Ages) shmita is a middat hassidut - an act of piety - and no more. But if so many Rishonim agree with this opinion, why is it that most modern rabbis ruled that shmita in our day is rabbinic? This is because they did not see most of the Rishonim who belonged to the third school of thought! Rabbi Kook and his contemporaries only saw this opinion in the writings of Rabbi Zerah'ia Halevi and the Ra'avad. Since the Ra'avad may have contradicted himself in another place, modern rabbis decided that shmita as an "act of piety" is a da'at yahid, the individual opinion of Rabbi Zerahia Halevi. Indeed, Rabbi Kook and Rabbi Joseph Engel used this individual opinion as a sneef (auxiliary reason) in order to support the heter mechira. TODAY, HOWEVER, we know that Rabbi Zerahia's opinion was never an individual opinion. Rabbi Menahem Kasher has proved that many rabbis in Provence and elsewhere considered shmita in our day an act of piety. In addition to Rabbi Zerahia and the Ra'avad, this opinion is mentioned or supported by R. Yitzhak ben Moshe of Vienna in the name of the Rashbam; R. Yitzhak ben Abba Mari; R. Menahem Hameiri; R. Nissim Gerondi; and the Rashbash in the name of Hukot Hadayanim who quoted Halakhot Gedolot, Rabbi Judah of Barcelona, Ba'al Ha'ittur and Rabbi Judah ben Rabbi Yakar, Nahmanides' teacher. Indeed, the Me'iri testifies that "many of us, many of the Geonim and rabbis who are with us" agree with him that shmita in our day is only an act of piety. The Rashbash also writes that "many important authorities consider that it does not apply today even rabbinically." Therefore, the opinions are evenly balanced: a large group of Rishonim ruled that shmita in our day is rabbinic and another large group (including most of the rabbis of Provence) ruled that shmita in our day is an act of piety. Since the farmers of Israel are in a difficult financial situation, and since the heter mechira itself is very problematic as explained above, it is preferable to follow the widespread opinion that shmita in our day is an act of piety and no more. FINALLY, one should add another sneef that supports the more lenient position. Even though we rule according to Maimonides, there is still considerable doubt as to whether the year 5768 is really a shmita year. Therefore, we should observe the laws of shmita today as an "act of piety." In other words, it is laudable to observe as much as possible, but farmers who cannot observe it due to financial pressure can sow and do all other necessary activities during the shmita year. If possible, the following laws should be observed: sowing gardens before Rosh Hashana; avoiding biblically forbidden work, such as sowing, pruning, harvesting and plowing; avoiding the planting or tending of ornamental gardens if they are not essential for preventing erosion. It is also advisable to perform various symbolic and educational acts such as leaving one field with a large sign as the "shmita corner" in which all laws of shmita will be observed and holding public study sessions of the laws of shmita. In the final analysis, what is the purpose of shmita? "That the poor of thy people may eat" (Exodus 23:2). Today, almost no one fulfills the commandment's purpose as it appears in the Torah. Therefore, it would be most appropriate for all Jewish farmers in Israel to donate a percentage or a fixed amount of the shmita year's profits to poor people. In this way, the original purpose of shmita will be achieved. The writer is the president of the Schechter Institute of Jewish Studies in Jerusalem.