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Letter to a Friend: Eating Y’vul Nochri Is Not A Humra. It’s A Mistake.

May 11, 2015

Dear ****,

I am writing this to you in order to explain why, I believe, it is wrong and foolish to believe that choosing y’vul nochri produce, most of it Arab-grown, over hetter mechira produce is some sort of hiddur (as in “kasher limhadrin“) or a praiseworthy humra. We agree that ideally we should be following the Sabbatical rules, and therefore we should not be paying at all for our produce. Instead we should be distributing it to the entire Israeli Jewish population on a per-need basis. We also agree that the current Otzar Beth Din system, despite its flaws, is the best system we have for now, and Otzar produce should be anyone’s first choice. However, I firmly believe that if given the choice between hetter mechira produce and enemy-grown, we have a moral and ethical responsibility to choose hetter mechira, and conversely, there is a grave problem with buying the enemy-grown produce. Therefore, unlike most other halachic issues, I am not willing to say that we subscribe to differing views that should be respected. Instead, I believe it is proper to show you why you should, as a matter of policy, adopt the position I am advocating. I know that unlike many, you are not just following a ruling you received from your LOR, but rather chose to do this despite the fact that your community does not because you are of the belief that eating y’vul nochri is, by necessity, the stricter approach, much like other kosher strictures work. It is already not that important that one such as you takes on strictures with regard to kashruth observance, because you are not tempted to eat non-kosher and live in a predominantly observant community. How much more so with regards to an issue that is not truly a stricture. As an aside, what I am advocating does not apply to produce grown by a foreign ally

We do not need to rehash the various technical arguments for each position. You can look elsewhere for those, and the “give your money to Jews and not to Arabs” argument against y’vul nochri and in favor of hetter mechira has already been made by others. However, my personal opinion is based on some other points. 

We will start with this week’s parasha. The commandments of  B’har are connected to each other in two major ways:

1. As the verses stress, they are based on the principle of Jewish people helping each other out in time of financial need, or equalizing the financial playing field. The Sabbatical year makes the entire land’s produce free for all, and the Jubilee year is yet another Sabbatical year with the additional command that any Hebrew indentured servants be emancipated no matter what and that any land revert to its ancestral owner.  There is a commandment for the kin of the Hebrew slave to attempt to pay off his debt so as to obtain his freedom even before the time of emancipation. Those who are forced to sell their houses or fields due to poverty are protected by the additional commandment on the family to buy back that property. It is a commandment to lend to the poor, and interest and the like are prohibited. Hebrew slaves may not be given menial work or hard labor. These commandments stress the overriding ethical principles the Torah wished us to follow: do that which is right and good for other Jews. Fortunately for us, the reasons for this week’s commandments are explicit. 

2. This second connection is more technical. There is a halachic concept of “sanctified land” as opposed to “promised land.” The forefathers were promised a vast land by God, but only that land which was either conquered or settled by their progeny attained “sanctity” to the extent that the commandments specific to the Land of Israel could be kept there. For example, the Mishna says that the public grain offerings on Passover and Pentecost can only come from “the Land of Israel,”  i.e., only the land that at that time is considered sanctified. Maimonides describes the borders of sanctity as they applied to the first commonwealth, the second commonwealth (MT T’rumoth Chapter 1), and the third, current commonwealth, which in his opinion, includes the entire territory under control of the modern state of Israel. (See below for the source). However, the commandments of B’har do not apply even if there is a Jewish commonwealth and an area of sanctified land (MT Sabbatical and Jubilee Years, 10:9):

When [the laws of] the Jubilee year are observed, the laws of a Hebrew servant are observed, as are the laws of homes in a walled city, the laws of a field given as a dedication offering, and the laws of ancestral fields. We accept [a gentile as] a resident alien and the Sabbatical year is observed in the Land of Israel and debts are nullified in all places according to Scriptural Law. In the era when the Jubilee year is not observed, none of these commandments are observed except the Sabbatical year in the Land of Israel according to Rabbinic Law and the nullification of debts in all places according to Rabbinic Law, as we explained.

When is the Jubilee not observed? Unlike other such commandments, it is not contingent on the existence of the Temple, but rather (ibid., 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

That is, since the latter First Temple period, continuing with the entire Second Temple period, and even up until today, the Jubilee has not been in force, and therefore neither have all these other commandments that are linked to the Jubilee in Parashath B’har. Elsewhere, Maimonides makes the connection between the Sabbatical years and the t’rumoth and ma’asroth, etc. None of them apply nowadays according to Torah law. However, the sages stepped in and decreed that on their authority, we should still count and observe Sabbatical Years, and remit debts the years after Sabbatical years. Once we know when the Sabbatical years are, we can observe the particular commandments that apply to the intervening six years of every cycle: every year, portions of the crop are reserved for the poor, and in the third and sixth years a tithe is also taken for the poor. This is not a matter of halachic dispute: we hold very clearly that officially one year is a Sabbatical year and the others not. This has been a matter of positive tradition since the destruction of the Second Temple.

(According to Rabbi Joseph Karo, Maimonides somehow believed that among all the commandments discussed in B’har, the Sabbatical year alone is still biblically mandated even though the Jubilee is not. He bases this on a divergent text of halacha 10:9, above, that he had in his possession. As has been pointed out by those who have looked into the matter, Karo’s text is untenable. It contradicts all of the authentic manuscripts that have ever been found, and moreover, it contradicts a number of other explicit statements Maimonides wrote concerning the Sabbatical year in our times. As Rabbi Joseph Kappah pointed out, it is simply untrue to say that Maimonides believed that the commandment of the Sabbatical year applies according to Torah Law, and it is perplexing as to where Rabb Karo got the idea in the first place. On top of that, great European rabbis of the 18th and 19th centuries, who had neither access to nor knowledge of the correct version of the Mishneh Torah, have based their rulings on the assumption that although many other Medieval authorities believed that the Sabbatical years were only currently a rabbinical commandment, “Maimonides still believed it was a  biblical command.” The whole idea is thus shown to be baseless. There may be other opinions out there that the Sabbatical year is still in force by Torah Law, but it can not be said that Maimonides believed it to be so, and any opinions based on Maimonides’s mistaken opinion are thus discounted. See here for more on the topic, and a similar conclusion.)

According to Maimonides, we have the potential to keep all of these commandments according to the Torah by simply redividing the land among the tribes as per the prophecy at the end of Ezekiel. We do not have to put each tribe back in the territory it received in Joshua’s time  (ibid., 12:15-16):

When the Jews were exiled after the first destruction [of the Temple], the sanctity of the walled cities from Joshua’s time were nullified. When Ezra ascended at the time of the second entry into the land, all of the walled cities of that time became consecrated. For the entry [into the land] at the time of Ezra, i.e., the second entry, was comparable to the entry at the time of Joshua. Just as [after] their entry at the time of Joshua, they counted Sabbatical years and Jubilees, sanctified the homes in walled cities and were obligated in the tithes, so too, [after] their entry in the time of Ezra, they counted Sabbatical years and Jubilees, sanctified the homes in walled cities and were obligated in the tithes. Similarly, in the Ultimate Future, upon the third entry to the land, we will begin to count the Sabbatical and Jubilee years and sanctify the homes in walled cities, and every place that will be conquered will be obligated in [the separation of] tithes, as [Deuteronomy 30:5]: “And God your Lord will bring you to the land that your ancestors possessed as a heritage and you shall possess.” [The verse] equates [the Jews’ ultimate] possession with that of their ancestors. Just as when your ancestors took possession of the land as a heritage, they practiced the renewal of all these observances, when you take possession of the land, you should practice the renewal of all these observances.

The question, as I posed recently, is why didn’t the Rabbis suspend our count during the days of the first aliyah and start a new one upon establishment of the state or the Jewish National Council during the Mandatory Period? Be that as it may, Maimonides also reports that it is an ongoing tradition that our form of the Sabbatical year has been observed the same way, every seven years, ever since the destruction of the Second Temple. The Rabbis decided that we observe some of the other commandments that would not normally apply. They specifically decided that the remission of debts should also still apply, but eventually they ran into difficulties (ibid., 9:16):

When Hillel the Elder saw that the people would refrain from lending to each other and thus violated the Scriptural charge [Deuteronomy 15:9]: “Lest there be a wicked thought in your heart,” he ordained a pruzbol so that debts would not be nullified and people would lend to each other. A pruzbol is effective only with regard to the nullification of debts in the present era which are a Rabbinic institution. A pruzbol is not effective with regard to the nullification of debts by Scriptural Law.

Here is my argument:

1. There is no reason to claim today that the observance of the Sabbatical year today, this year, 5775, is mandated by Torah. Either it is as Maimonides describes, that by tradition, every seventh year is a rabbinical Sabbatical year, or that indeed the commandment to have a Sabbatical year is still in Torah force, but because the authorities are not counting the years a they should, this year is a false Sabbatical year, a default rabbinic enactment because no one is stepping up and properly arranging one. More importantly, even if there were a legitimate doubt between the two positions, whether the Sabbatical year is still mandated by the Torah, we can resolve the doubt by looking at the tradition in practice. This is an explicit Talmudic principle, also mentioned in this very chapter by Maimonides: The halacha in practice decides between two legitimate but differing opinions as to what the halacha should be.

2. The rabbis who instituted the remission of debts had the same right to institute an exception to that rule. This is the fundamental basis of rabbinic authority with regards to halacha. The Rabbis who ordained that a second Festival day be observed in the Diaspora also permitted us to conduct complete burials on those festivals. So too, the same rabbis who instituted the Sabbatical year in our era have the right to institute exceptions to that rule as they see fit. Yes, the hetter mechira would not work if we were observing the Torah’s real version of the Sabbatical year, but because our Sabbatical year is rabbinic in nature, the rabbis have the right to institute any and all exceptions that they feel should apply to it. This effectively eliminates the greatest challenges to the hetter mechira, namely the prohibition against selling land to a gentile, and even if we were to overcome that, the opinion that Israeli land in the possession of a gentile is still bound by the commandments incumbent on the land. In reality, the transaction is just a one-year rental, which, according to the rules the rabbis themselves create, is sufficient to disqualify those rented lands from being included in the rabbinical sh’mitta. If you will argue that land in gentile possession sill must rest during the Sabbatical year, that rule only applies to a Torah-mandated Sabbatical, and not one ordained by the Rabbis, who, once again, can choose what rules apply to their Sabbatical year. 

3. The explicit principle behind these commandments is to help other Jews in need. It can not be that in order to avoid various halachic issues between Man and God we should take money from our poor, hard-working brethren and give it to those who would eradicate Jewish society within our land! 

Last year, Jonathan Rosenblum coined the term “K’lal Yisrael Consciousness”:

Unfortunately, the Klal Yisrael perspective has become attenuated among Torah Jews as well. That is most evident among groups who have been fighting a pitched battle against Zionism in Eretz Yisrael for well over a century. In war, it is easy to forget that those on the other side are also Jews, or at least that they are Jews who count. How else to explain tactics that often seem tailor-made to make the Torah and those who uphold it as alien as possible to the vast majority of world Jewry? But the phenomenon is not limited to the precincts of Meah Shearim. In the more than two centuries since the ghetto walls began to fall, Torah communities have often had to fight to preserve themselves. Those that followed the principle of separation from larger communal frameworks were usually the most successful in preserving their Torah identity. But that victory too came with a cost in terms of a diminished Klal Yisrael consciousness. To some extent, Jewish statehood, which inevitably pits groups against one another in the battle for larger pieces of the pie, has exacerbated the problem of exclusive identification with one’s own small subgroup.

To which Slifkin responded:

“Most successful at preserving their Torah identity” is not quite accurate. Rather, the separationists were the most successful in preserving certain aspects of their Torah identity, while fundamentally perverting other aspects. In my monographs on the Novelty Of Orthodoxy and The Making of Charedim I presented several examples of innovations and reformations that came about as a result of trying to maintain Torah identity in the face of modernity. But perhaps the most significant reformation is that which Rosenblum himself mentions: “diminished Klal Yisrael consciousness.” Being part of Am Yisrael was, traditionally, a major part of what being a Jew was all about. At a very fundamental level, Torah is about being a “giver” rather than a “taker.” Every tribe in Israel had to provide people for the army, or engage in other forms of national service. Kol Yisrael Areivim Zeh Lezeh. But the ultra-Orthodox community did not preserve this part of their Torah identity. Instead, they jettisoned it.

Slifkin then gave examples of such jettisoning that were relevant last year. This year and next, the issue of what to eat will be the best example.

Think about this story which is being replayed again and again here in Israel. Two young people have decided to wed. Their respective families are not from similar communities; he is of Mizrahi descent and comes from a mixed, national religious community, and has served in the IDF; she was born abroad to an almost Hasidic family, but made Aliyah alone before meeting her fiance. The parents have met just once, and are trying to put together a wedding in Israel that could accommodate everyone, and they bump heads over finding a hall with the right Kashruth. As you can guess, the Diaspora folk want that the hall have Badatz certification and only y’vul nochri produce, and his family wants only hetter mechira produce. But as you also know, his family is much more likely to relent, while hers is much more likely to insist. Why? It’s not because his family feels that that they are merely accommodating a position that is stricter than theirs, but rather because the very attitudes, ideas, and assumptions that go into individuals’ and families’ choosing to eat hetter mechira produce are the same ones that make them more amenable to trying to get along with others, to compromise, and to do what is best for everyone when looking at the bigger picture, while the mentalities that lead others to choose y’vul nochri are the same ones that eliminate their Klal Yisrael Consciousness.


From → halacha, original


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