Reflections on Shemitta, 5761

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Summarized by Yitzchak Barth

Translated by David Silverberg

Shemitta, the sabbatical year, must be treated at two levels. First, as with all mitzvot in the Torah, we must assess its halakhic aspects: its laws, details and modes of observance. However, with regard to the mitzva of shemitta, an additional facet demands our attention: the attitude towards the "heter mekhira" (the formal "sale" of the agricultural lands to gentiles in order to avoid the strictures of shemitta). This issue has emerged this year in a particularly painful way, in light of the bitter debate that erupted surrounding it - a controversy that left a bitter taste in the mouths of adherents to the faith of Israel, on both sides of the issue. But this pain merely adds to the immanent pain latent within the "heter," independent of the resulting commotion. More than any other, the mitzva of shemitta expresses our helpless inability to bridge the gap between reality and the ideal halakha. Regarding the mitzva of shemitta in particular, the pain of the Almighty, on the one hand, and Kenesset Yisrael on the other, is sensed.

First and foremost, shemitta is a broad halakhic topic, encompassing forbidden labor and the requirement to rest, similar to Shabbat; prohibitions regarding eating and commerce, resembling kashrut; and the conferral of a status of sanctity on the produce, like that conferred upon teruma and ma'aser sheni. In addition to the strictly halakhic dimension, the laws are embedded within a conglomerate of values reflected through them. We need not dig deep for reasons underlying this mitzva; they are obvious and self-evident.

We can easily discern at least three threads woven into this institution. Like the weekly Shabbat, the septennial Shabbat of the land infuses us with an awareness of the Almighty's exclusive and absolute authority and ownership. It also absolves the farmer from the pressures of his material life for the purpose of enabling him to devote more time to spiritual pursuits. Additionally, shemitta features even a strictly democratic aspect, equating young and old, rich and poor, and, to some extent, even man and beast:

"But you may eat whatever the land during its Shabbat will produce - you, your servant, your maidservant, for your hired and live-in laborers who live with you, and your cattle and the beasts in your land shall eat all its yield." (Vayikra 25:6-7)

What remains today of this spectacular vision? Virtually nothing. The transition from an agrarian to industrial economy eliminated - for the vast majority of society - the direct relevance of the forbidden farming activities. Yet, in this area the situation is relatively good: we neither circumvent nor distort the prohibitions; the majority of us simply do not encounter them. Regarding, however, the prohibitions pertaining to eating and the sacred status of the produce, the situation is ten times worse.

What options avail themselves to those reverently concerned about the sanctity of shemitta produce and the detailed laws relevant thereto? They can rely on a legal fiction, according to which - woe unto the ears that hear such a thing! - the fields of the entire land, from Lebanon to Egypt and from the sea to the Jordan River, are sold or leased to a gentile. I do not intend here to question the halakhic validity of the sale or the ability of non-Jewish ownership over the land to eliminate the shemitta status of its produce. Even should we assume the halakhic propriety of the lenient position, the phenomenon itself must make us tremble.

Alternatively, those who feel skeptical about the "heter" can purchase produce grown overseas or in Arab fields (if he is prepared to rely on the ruling of the Beit Yosef, who allows doing so). But how vast a gap exists between running to special greengrocers in order to pay exorbitant prices for non-Jewish produce - grumbling over the schlep and expense while priding oneself for his piety - and the biblical vision that "You may eat whatever the land during its Shabbat will produce!" Can we find any commonality between that sense of arrogance and the sense of human submission and divine greatness that stand at the center of the institution of shemitta? Of those who are diligent in their observance of the prohibition of "sefichim" (vegetables that grew during shemitta), what percentage go through the shemitta year with genuine joy, as opposed to those who long, almost desperately, for relief from its burden?

From a purely halakhic standpoint, the "heter mekhira" raises two main problems. The first involves the efficacy of the sale, to what extent the sale of lands to gentiles is indeed effected. The sale occurs both on the general, national level - certainly a problematic transaction, as well as on the private plane, where its halakhic validity, although less problematic, is also far from clear. Even if we accept that there are circumstances where it permissible to employ "tricks" or deception in order to circumvent mitzvot, as Rav Kook writes in the introduction to his "Shabbat Ha-aretz," the question still arises as to whether the "trick" here actually works and the land in fact leaves Jewish ownership. After assuming the validity of the sale, the "heter mekhira" raises yet another halakhic problem: the ability of a gentile's acquisition of the land to eliminate the obligations connected to the land of Israel, particularly that of shemitta. These two questions are critical, and our consideration thereof will clearly impact upon our attitude towards the "heter mekhira."

Beyond the strictly halakhic realm, the "heter mekhira" raises, as noted, a problem of a different nature as well. Virtually no other area exists where we sense so acutely the fierce tension between the pain of the Almighty on the one hand and that of Kenesset Yisrael on the other. Tosafot (Ketubot 110b s.v. Hu) cite the view of Rabbeinu Chayim "that now there is no mitzva to live in Eretz Yisrael, since there are many mitzvot concerning the land and many punishments that we cannot properly observe." Over the last generation we have earned the privilege of reinstating Jewish settlement in Eretz Yisrael, and we dealt with the mitzvot related to the land with considerable success. Yet the mitzva of shemitta remains a particularly hard nut to crack. We cannot put a hold on the country's agriculture for an entire year without losing all world markets the following year, resulting in the collapse of Jewish agriculture in the Holy Land. We could, perhaps, distinguish between the farmer, who cannot let his field lay fallow, and the consumer, who can conduct himself stringently and not rely on the "heter." Clearly, however, without consumers purchasing their produce, the farmers and agricultural industry at large will collapse. Moreover, even if a single individual or limited sector of the population can act stringently without inflicting irreparable damage to agriculture, such an option clearly does not live up to the standard articulated by Kant, by which one must act in a manner in which he wishes others to act. The interests of Kenesset Yisrael demand the leniency of the sale in order to prevent a total breakdown of the Zionist agricultural enterprise in Israel.

Concurrent with our concern for the welfare of Kenesset Yisrael, we sense ever so strongly the pain of the Giver of the Torah. Specifically the mitzva of shemitta - a mitzva of such critical importance, whose underlying idealistic depth is so clear and and so easy to identify with - we circumvent, hiding behind a trick of sorts rather than properly fulfilling it. Another phenomenon adds onto the distress over the "trick" itself and the halakhic problems involved in the "heter." Some people classify themselves in terms of yirat Shamayim based on their reliance on, or opposition to,the "heter mekhira." Those who choose not to rely on the "heter" paint themselves in the eyes of others - and at times even their own eyes! - as God-fearing and meticulous in mitzva observance. Those who do rely on the "heter," from their perspective, are religiously weak. Thus, the "heter mekhira," which should have been the subject of a legitimate halakhic debate, takes on a factional dimension. Those supporting the "heter" view the issue as a sacred battle, as if no real basis for stringency exists; from the other side, we face a world of dissension and divisiveness.

At the moment, no solution appears on the horizon capable of meeting the demands of the entire country, and no "shemitta fund" exists that can supply the needs of the entire population. On the other hand, I do not suggest, Heaven forbid, that we overlook the halakhic obligations, however displeasing to our tastes they may be. We understand full well the absolute responsibility we bear towards even those mitzvot whose reason has disappeared, as it were. I address here but one point: that we acknowledge the reality and weep over it.

It appears that the dilemma of which we have spoken has no remedy that puts our minds completely at ease. From one perspective, looking through a halakhic lens, relying on the "heter mekhira" clearly raises serious issues. Moreover, we are called upon to lend support to the sale of portions of Eretz Yisrael to the gentiles. And, clearly, those who most vehemently battle on behalf of the "heter" would be the first to climb over barricades and declare a holy war were the sale to be actually effected. Yet the overwhelming majority of Am Yisrael relies on the "heter," and its rejection could lead to a sense of alienation and superiority. In effect, every shemitta I feel myself standing between hammer and anvil, and it is clear to me that the final decision must be a complex one, incorporating balances in both directions. Personally, I cannot rely on the "heter" because of the halakhic and axiological problems it raises. Yet, at the same time, I carefully avoid a sense of superiority over those who do rely on the "heter;" quite simply, my own judgment does not allow me to rely on it.

The decision at the institutional level is far easier: we cannot possibly allow the yeshiva's kitchen to rely on the "heter," thereby creating a situation where some of the students and faculty cannot eat in our dining room. True, we could have suggested separating between those who rely on the "heter" and those who do not, but partisanship in the yeshiva is unacceptable and would be a grave error, which could potentially lead to a social and moral catastrophe. We therefore have no choice but to avoid relying on the "heter" altogether. We will, however, make every effort to rely on it whenever possible (i.e. regarding fruits, not vegetables). [1]

The process to which we bear witness had been expected already from the very beginning. Interestingly, in two places the Torah warned about a lack of faith, and in both cases we have failed.

A) Regarding the cessation of agricultural work during shemitta, the Torah writes, "Should you ask, 'What are we to eat in the seventh year,'" and God promises to provide. Today, however, we resort to the "heter mekhira."

B) Addressing the cancellation of debts during the shemitta year, the Torah warns, "Beware, lest you harbor the base thought, 'The seventh year, the year of shemitta, is approaching… ' Give to him readily and have no regrets… " In this regard, we avoid the problem by writing a "pruzbul" (a document by which one may collect his debts after the shemitta year).

Two mitzvot, two challenges - and two tragedies. Liberal circles often speak of the pruzbul as an impressive achievement that exemplifies Halakha's ability to accommodate itself to new circumstances. But let the truth speak for itself. Did Hillel, when he established the pruzbul, rejoice in having circumvented a mitzva, even with all the authority in the world? Did he not approach this responsibility with a broken and distressed heart? Much to our dismay, Hillel found himself and his generation in a quandary. On one hand, the Torah commands us to lend money to the needy. On the other hand, it also decreed that once in seven years debts are annulled and we begin anew. What's more, it appended to this prohibition a warning that this obligation must not affect one's preparedness to lend.

In a worthy generation, both goals would have been achieved. The needy would find the resources they so desperately need, and the lenders would train themselves, if only once in seven years, to loosen the fist that we clench around every penny as if protecting our very lives. Unfortunately, however, Hillel's generation was not worthy, and the wealthy began shutting the gates in the faces of the needy. A sensitive halakhist truly and fully understands the pain involved in choosing between two conflicting values. What price would Hillel have paid in order to avoid this cruel decision! No jubilant songs of celebration came from his mouth at that moment. When he looked upon the grim situation, he had only this to say: I have been defeated. I, the representative of the Halakha and tradition, have succeeded in finding a solution, but on one plane I simply failed: rather than observing and fulfilling, I found a way to circumvent.

This describes our situation today with regard to the agricultural prohibitions of shemitta. Formally, perhaps, all has been taken care of, but we do not observe the land's year of rest. We, including both supporters and opponents of the "heter," those who shop as usual and those who consult regularly with calendars and charts, are not "meshamet" (observing "shemitta"), but rather "mishtamet" (shirking our responsibility). I see no way to save the situation in the foreseeable future. At very least, however, we must sense the pain, just as Hillel felt the pain in his day. With no alternative, we will use the various "heterim" and means of circumvention, and we will bow our heads in humble submission to reality. But let us not resign ourselves to it. Let us admit to our failure and feel distress, hoping that the Almighty will make good our loss.

(This sicha was delivered on 4 Tishrei, 5761 [2000].)

FOOTNOTE:

[1] Regarding vegetables, where there is a problem of sefichim, we will avoid "heter mekhira" products altogether. We will attempt to purchase hydroponically grown vegetables from areas whose status as Eretz Yisrael is only doubtful, and will keep imported vegetables to a minimum. The vegetables in yeshiva will therefore lack kedusha. Regarding fruits, however, where there is no issue of sefichim, we will purchase either heter mekhira products or otzar beit din, and therefore one should treat fruits in yeshiva as possessing kedusha.