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A Novel Solution to Shemitta Related Problems

October 31, 2013
Laws of Shemitta, Chapter 10
Halacha 1

It is a positive commandment to count sets of seven years and to sanctify the fiftieth year, as [Leviticus 25:8-10] states: “And you shall count seven years for yourselves… and you shall sanctify the fiftieth year.” These two mitzvot are entrusted to the High Court alone.

Halacha 2

When did the counting begin? After the fourteen years following the entry into Eretz [Yisrael]. [This is derived from Leviticus 25:3]: “Six years shall you sow your field and six years shall you trim your vineyard.” [Implied is that] each person must recognize his [portion of the] land. [The people] took seven years to conquer the land and seven years to divide it. Thus the counting began after the 2503rd year after the creation, from Rosh HaShanah,6 after the conjunction [of the sun and the moon before the creation] of Adam, which was in the second year of the creation.7 They declared the [two thousand,] five hundred, and tenth year after the creation which was the 21st year after the entry into Eretz Yisrael as the Sabbatical year. They counted seven Sabbatical years and then sanctified the fiftieth year which was the 64th year after they entered Eretz [Yisrael].

Halacha 3

The Jewish people counted 17 Jubilee years from the time they entered [Eretz Yisrael] until they departed. The year they departed, when the Temple was destroyed the first time, was the year following the Sabbatical year and the 36th year in the Jubilee cycle. For the First Temple stood for 410 years. When it was destroyed, this reckoning ceased.

After it ceased, the land remained desolate for seventy years. Then the Second Temple was built and it stood for 420 years. In the seventh year after it was built, Ezra ascended [to Eretz Yisrael]. This is referred to as the second entry. From this year, they began another reckoning. They designated the thirteenth year of the Second Temple as the Sabbatical year and counted seven Sabbatical years and sanctified the fiftieth year. Although the Jubilee year was not observed in [the era of] the Second Temple, they would count it in order to sanctify the Sabbatical years.

Halacha 4

It follows that the year in which the [Second] Temple was destroyed, [more precisely, the year] beginning from Tishrei that was approximately two months after the destruction– for the reckoning of Sabbatical and Jubilee years begins in Tishrei – was the year following the Sabbatical year. It was the fifteenth year of the ninth Jubilee cycle.

According to this reckoning, this year which is the 1107 year after the destruction, which is the 1487th year according to the reckoning of legal documents, which is 4936th year after the creation, is a Sabbatical year and it is the 21st year of the Jubilee cycle.

Halacha 5

Nevertheless, all of the Geonim have said that they have received a tradition, transferred from teacher to student that in the seventy years between the destruction of the First Temple and the building of the Second Temple, they counted only Sabbatical years, not the Jubilee year. Similarly, after the destruction of the Second Temple, they did not count the fiftieth year. Instead, they counted only sets of seven from the beginning of the year of the destruction. [This interpretation] is also apparent from the Talmud in Avodah Zarah. This reckoning is a received tradition.

Halacha 6

[The reckoning of] the Sabbatical year is well-known and renowned among the Geonim and the people of Eretz Yisrael. None of them make any reckoning except according to the years of the destruction. According to this reckoning, this year which is the 1107th year after the destruction is the year following the Sabbatical year.

We rely on this tradition and we rule according to it with regard to the tithes, the Sabbatical year, and the nullification of debts, for the received tradition and deed are great pillars in establishing [Halachic] rulings and it is appropriate to rely on them.

Halacha 7

The Jubilee year is not counted in the set of Sabbatical years. Instead, the 49th year is a Sabbatical year and the fiftieth year is a Jubilee year. Then the 51st year is the first of the six years of the [next] Sabbatical cycle. This is true of every Jubilee year.

Halacha 8

From the time the tribes of Reuven and Gad and half the tribe of Menasheh were exiled, [the observance] of the Jubilee year ceased, as [implied by Leviticus 25:10]: “You shall proclaim freedom throughout the land to all of its inhabitants.” [One can infer that this commandment applies only] when all of its inhabitants are dwelling within it. [Moreover,] they may not be intermingled, one tribe with another, but rather each tribe is dwelling in its appropriate place.

Thus, it is irrelevant whether or not or even to what extent the Jews observed Jubilee years during the time of the Second Temple. As the Temple was destroyed in August 69, which was Av 3829, which was the latter part of a Shemitta year, our count of Shemitta years reckons every Hebrew that is completely divisible by 7, like 3829, to be a Shemitta year because we do not observe Jubilee years at all, even as place holder years similar to the ones Maimonides claims were observed in Second Temple times. He seems to be sympathetic to the view that indeed, after the destruction of the Second Temple, the Jews should have continued observing every fiftieth year as a blank year, not part of any Shemitta cycle.

Indeed we keep observing Shemitta years every seven years without fail. Many believe that Shemitta, like the weekly Sabbath, happens when it does regardless of any other considerations, but the truth is that it is not so. There is no objective Shemitta year. Instead, like the festivals, the Shemitta is determined by the Sanhedrin (what the Rishonim call beth din, what Touger called the High Court, and what we call today the rabbanut or rabbinate). That is, it is subject to the court’s determination. It so happens that we have a calendar that is predetermined; that itself was put in place by the Sanhedrin as an accommodation with less than ideal circumstances, and the true Jewish calendar will in the future work as it had in the past: with the Sanhedrin establishing the first day of every month on a month by month basis. It is also a common principle of Jewish law that when there is a commandment for people to count something, be it clean days  for menstruant women or days of the omer between Passover and Pentecost, for the commandment to be performed properly, someone actually has to count those days. So too with the Shemitta. It is clear from the halacha and from history that Jewish authorities were enjoined to and actually did determine  when to start counting years within Shemitta and Jubilee cycles, and that they still have that prerogative. Consider: In Joshua’s time, the powers that be chose when to start counting Shemitta years, and in Ezra’s time, almost a thousand years later, he chose to discard, albeit respectfully, the count that had been initiated in  Joshua’s time and start anew.

After reading the wonderful new book by Sam Finkel, Rebels in The Holyland, which recounts the history of one of the earliest religious agricultural settlements in pre-state Palestine and how its settlers had to deal with the sudden and difficult arrival of their first Shemitta year, I realized that there was then and still is now an easy solution to the problems presented by attempting to observe Shemitta.

The main ideas then, as now, were to take the risk and observe Shemitta completely, or try to find a loop-hole, the infamous heter mechira, to allow for getting passed the Shemitta restrictions. However, I believe that the Rabbis could have taken upon themselves to make the following argument:

“Being that in the early days of the first and second commonwealths the elders only decided to start counting years toward the Shemitta cycles once the people were properly settled, we hereby declare that Shemitta does not apply and will not apply until such time as the nation of Israel is once again established and self sufficient in its own land.”

That is, like in Joshua’s time, they could declare that Shemitta will only begin to take effect once the Jews found a state and have secure and specific control of their territory. In practice, the Rabbinate of the nascent State of Israel should have declared that they would have started a new count only sometime after the War of Independence, say, 1950, with the first  Shemitta being in 1956, and every seven years after that.

Further, just like in Second Temple times, they would then add Jubilee years even though they did not count as true Jubilee years with regards to emancipation of slaves and reinstatement of property rights, etc. This was done, once again, as a matter of discretion by the Sanhedrin. What is preventing the modern-day rabbinate from doing likewise? Probably no real halachic argument, although hashkafic arguments against this abound.

You might think that this is a wild idea, namely that the rabbinate or whoever take it upon themselves to declare a new reckoning of Shemitta years, but not only do I claim that it fits with historical precedence and the words of the Talmud and Maimonides, it also must be the case. We will have to do such a thing. Why? Because it is universally agreed that despite all of the halachic impediments that exist today, one day the Jubilee will once again take effect, even if the rabbis choose not to introduce it as they did in Second Temple times. Eventually, all of the commandments, Jubilee, Shemitta, tithes, etc. will once again be in force by biblical mandate, and then the rabbinate will have to add Jubilee years. When that happens, they will have to pick the first year of some Shemitta cycle, following our example, 1953, or 1960, or 1967, etc., to start a fifty year count toward the Jubilee. Even if the year they choose coincides with the first year of a Shemitta cycle as reckoned by our current count, as 1953 was, once they add the blank Jubilee year, the new count will by force diverge from the old count. 2001 would have been the seventh Shemitta year according to the new jubilee count, and although it was a Shemitta year according tot he old count, 2002 would be a blank year, making the next Shemitta 2009, and not 2008 as it was according to the old count!

Thus, because the biblical commandments to observe the Shemitta and Jubilee must one day in the future be in force, we will have to discard the current system of observing every seventh year as Shemitta. After just seven cycles, we will no longer be able to merely divide the Hebrew year by seven to determine if it is a Shemitta year.

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