Adapted from Likkutei Sichos Vol. XV, Parshas Lech Lecha

The Difference Between the Sanctity of the Beis HaMikdash and that of Eretz Yisrael as a Whole

The Rambam differentiates between the sanctity of the Beis HaMikdash and the sanctity of Eretz Yisrael as a whole. To quote:[1]

Why do I say that the original consecration sanctified the [Beis Ha]Mikdash and Jerusalem for [all] future times, while in regard to the sanctification of the remainder of Eretz Yisrael, in regard to [the observance of] the Sabbatical year, the tithes, and the like, [the original consecration] did not sanctify it for [all] future times?

Because the sanctity of the [Beis] HaMikdash and of Jerusalem stems from the Divine Presence and the Divine Presence can never be nullified....

The obligation to keep [the laws of] the Sabbatical year and the tithes in Eretz [Yisrael], by contrast, stemmed from the fact that [the land was] conquered by the people as a community. Accordingly, when the land was taken from them, the [original] conquest was nullified, and there was no obligation to give tithes or to observe the Sabbatical year, according to the Torah. For [this produce was not grown] in Eretz Yisrael.

When Ezra returned and consecrated [the land], he did not consecrate it through conquest, but rather by manifesting possession over it. Therefore, all the places possessed by the people who returned from Babylonia and which were consecrated a second time by Ezra, are sanctified at present. We are obligated to observe the Sabbatical year and the tithes [in regard to their produce] even though the land was later taken [from them].

Thus according to the Rambam, we may offer sacrifices on the site of the Beis HaMikdash, and partake of these offerings even though the Beis HaMikdash is destroyed.[2] Moreover, these laws applied even in the time between the Babylonian conquest and Ezra's return to Zion. In contrast, since Ezra's consecration of the land sanctified it only by virtue of Rabbinic decree,[3] our observance of the agricultural laws in Eretz Yisrael today is not mandated by the authority of the Torah itself. Moreover, in the period between the Babylonian conquest and the return to Zion, there was no obligation to observe these laws.

H: Analyzing the Distinction the Rambam Makes

The Kesef Mishneh raises the following questions regarding the distinction the Rambam makes:

1. Why does taking possession of the land have a more powerful effect than conquering it? Why weren't the effects caused by the Jews taking possession of the land nullified when the land passed into the possession of the gentiles?

2. Originally, after the Jews conquered the land, they also took possession of it. Why is their taking possession of the land without conquering it more effective than their taking possession of it after they conquered it?

Attempts to Resolve the Rambam's Perspective

The Radbaz[4] offers the following resolution: When the Jews took possession of the land at the time of Ezra, an explicit statement was made consecrating the land. Such a statement was not made at the time of the original conquest.

This explanation is, however, difficult to accept. Firstly, there is no mention in the TaNaCh of the fact that Ezra made any statements consecrating Eretz Yisrael.[5] Secondly, this explanation ignores the rationale given by the Rambam himself. The Rambam makes no mention of a verbal statement and explains the concept based on the distinction between conquest and taking possession.

The Tosafos Yom Tov[6] also attempts to resolve this issue, explaining that the conquest of Eretz Yisrael came against the will of the ruling gentile powers. Therefore, it could be nullified when other gentiles took the land from the Jews. When Ezra resettled Eretz Yisrael, by contrast, rights to the land were granted to him by the Persian kings, the ruling gentile powers of the time.

His explanation is, however, also problematic. If the subsequent conquest of the land of the Greeks and the Romans is considered a valid means of acquiring ownership, what difference does it make if originally, the land was granted to the Jews with the consent of other gentile authorities or not?[7]

When Prophecy Said That Nations Would Conquer Eretz Yisrael

The Tosafos Yom Tov appears to have appreciated that such a question could arise and in an attempt to resolve it, he offers the following explanation:

Originally, G-d gave the land to the Jews.... Prophets arose and prophesied that adversaries would arise and take the land from them. Similarly, it was prophesied that Cyrus, King of Persia, would return the land to them.

There was never, by contrast, an explicit prophecy that the land would be taken from our hands by this nation, [the Romans]. Therefore, their taking possession of the land has no legal sanction. [Hence, the land may still be considered in our possession, for] land can never be stolen.

This explanation is, however, insufficient. If conquest of land through war is an effective means of acquisition,[8] what difference does it make whether or not there was a prophecy regarding the land's conquest?

It is possible to explain that the Tosafos Yom Tov's intent is that conquest through war is not an effective means of transferring ownership. Because of the prophecies in the TaNaCh, an exception was made regarding the conquests of the Babylonians and the Persians, and they are considered to have acquired the land through their conquest. Since, however, there was no explicit prophecy regarding the conquest of the land by the Romans, they are considered to have stolen the land from its rightful owners, the Jewish people. Accordingly, the Jews are considered as the legal owners of the land, regardless of whether it is actually in their possession or not.

It is, however, difficult to accept this as the Rambam's position, for the Rambam makes no mention of the prophecies in the TaNaCh. On the contrary, the Rambam makes only one distinction between the Jews' original conquest of the land and their return in the time of Ezra, the difference between conquest and manifesting possession.

Our People's Ownership of Eretz Yisrael

The above difficulties can be resolved by differentiating between the Jews' ownership of Eretz Yisrael and the sanctity of the land. To explain: G-d told Avraham,[9] "I gave this land to your descendants." Commenting on the use of the past tense of the verse, our Sages[10] interpret this to mean, "I have already granted it." From that time onward, even though the Jews did not actually possess Eretz Yisrael, the land belonged to them.

There is also a halachic dimension to the Jews' owning Eretz Yisrael even before they actually entered the land. In this context, our Sages explain[11] that the daughters of Tzelofchad received a double portion of land. Why? Because Tzelofchad was the firstborn son of his father Chefer. Since Eretz Yisrael was granted to the Jews who left Egypt, Chefer was given a portion of the land. After he died, his portion was left to his sons. Since Tzelofchad was Chefer's firstborn, he was granted a double portion.

One might, however, ask: A firstborn is granted a double portion only in regard to property which is possessed by the estate at the time of his father's death. Even when property will surely be acquired by the heirs, if it is not in their father's possession when he dies, the firstborn is given only a single share.

Seemingly, Chefer's portion of Eretz Yisrael had not come into his possession at the time of his death. Why then were the daughters of Tzelofchad given a double share of it? Because Chefer had actually possessed that land. At all times, every Jew is the actual owner of his portion of Eretz Yisrael. Similarly, in the present era, every Jew owns a portion of Eretz Yisrael.[12] Although we are in exile, the land remains ours.[13]

The Sanctification of Eretz Yisrael is Dependent on G-d's Command

The above applies in regard to the possession of Eretz Yisrael. The sanctity of Eretz Yisrael, by contrast, took effect only after the Jews conquered and took possession of the land. In this context, the manner in which the Jews took possession of the land is significant. After the exodus from Egypt, the Torah explicitly emphasizes that the Jews were to take possession of the land by conquest, as it is written:[14] "And the land will be conquered before you."

In regard to the return of the people to Eretz Yisrael at the time of Ezra, by contrast, it is written:[15] "I will remember you... and cause you to be returned to this place." By having the prophecy of the return to Zion include the phrase "to be returned," G-d emphasized the Jews would return to Eretz Yisrael by virtue of the authority of other nations.

The sanctity of the land is dependent on G-d's command. In the first instance, He commanded that the Jews take possession of the land through conquest, and in this manner, the land would be sanctified. Therefore - to resolve the second question asked by the Kesef Mishneh - the conquest of the land is significant, and not the fact that they later took possession of it.[16] When the people returned with Ezra, by contrast, it was G-d's will that the land would be sanctified by the Jews manifesting their possession over it and not through conquest.

Manifesting Possession - Revealing One's Ownership

Based on this concept, we can also resolve the first question asked by the Kesef Mishneh: Why does taking possession of the land have a more powerful effect than conquering it?

Conquering a land involves taking it from its owner against his will. Thus the very nature of G-d's command to conquer Eretz Yisrael implied that there was a certain acceptance of the gentiles' ownership of it. Accordingly, when other gentiles were able to conquer the land from the Jews, the Jews' connection with it was nullified.

When a person manifests possession over land, by contrast, the emphasis is not on his acquisition of the land from another person, but rather, on the outward expression of his ownership of it. When the Jews took possession of the land at the time of Ezra, they revealed the inner connection they had with the land that had existed from the time of Avraham onward. Just as the Jews' ownership of the land can never be nullified, so too, the sanctity brought about by the manifestation of this ownership will continue for all time.

---

May our study of the sanctity of Eretz Yisrael hasten the coming of the time when that sanctity will be manifest in a complete manner with the coming of the Redemption and the return of our entire people to our holy land.[17] And then it will be revealed how Eretz Yisrael is "the eternal land" given to "the eternal people" by "the eternal G-d." May this take place in the immediate future.

   

Notes:

1. (Back to text) Hilchos Beis HaBechirah 6:16. See also similar statements in Hilchos Terumah 1:5.

2. (Back to text) Hilchos Beis HaBechirah 6:15.

3. (Back to text) Since the entire Jewish people did not return with Ezra (Hilchos Terumah 1:26).

4. (Back to text) In his gloss to Hilchos Terumah, op. cit.

5. (Back to text) See the collection of Responsa, Chayim Sha'al by the Chidah (Vol. II, responsum 39). In the TaNaCh, we find a description of Ezra's sanctification of Jerusalem (Nechemiah, ch. 12), but no mention of his consecration of Eretz Yisrael as a whole.

6. (Back to text) In his commentary to Ediyos 8:6.

7. (Back to text) The Tosafos Yom Tov's explanation also raises other questions. For example, there were portions of Eretz Yisrael which were given to the Jews willingly, e.g., the lands of the Gibeonites. According to the Tosafos Yom Tov's explanation, the conquest of the land by the Babylonians should not have nullified the sanctity of these portions of the land.

8. (Back to text) See Gittin 38a. In Hilchos Melachim 4:10, the Rambam states that all the lands conquered by a king belong to him. See also Shulchan Aruch HaRav, Choshen Mishpat, Hilchos Hefker, which states that there is no question whatsoever regarding the effectiveness of conquest as a means of acquisition. Once land is conquered, the conqueror becomes its legal owner.

9. (Back to text) Bereishis 15:18.

10. (Back to text) Challah 2:1. See also Bereishis Rabbah 44:22, Rashi, Bereishis, loc. cit.

11. (Back to text) Bava Basra 119a,b.

12. (Back to text) This ownership also has halachic ramifications. For example, a pruzbol is effective only when the borrower owns land. Nevertheless, even when the borrower is not known to own land, if no other alternative is available, there are authorities (Maharam Boruch, Responsum 530), which consider a pruzbol valid, because every Jew owns four cubits of land in Eretz Yisrael.

    Although this law is not accepted by all authorities (see Hilchos Shluchin 3:7), it is possible to explain that the difficulty lies not in the theoretical construct that every Jew possesses four cubits in Eretz Yisrael, but in the fact that the person cannot actually identify the location of his four cubits. See Likkutei Sichos, Vol. XX, p. 309, note 69.

13. (Back to text) This is alluded to by the wording of our prayers (Musaf liturgy for holidays): "Because of our sins, we have been exiled from our land and driven far from our soil," i.e., even when we are in exile, it is "our land" and "our soil."

14. (Back to text) Bamidbar 32:29.

15. (Back to text) Yirmeyahu 29:10.

16. (Back to text) Similarly, the fact that the Gibeonites willingly surrendered their land to the Jews (see note 7) is of no consequence. For the holiness of the land stems from G-d's command, and, at that time, G-d commanded that holiness be imparted to the land through a war of conquest.

17. (Back to text) See Hilchos Terumah 1:26.