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Classic Brisker Toirahs That Do Not Fit Torath Eretz Yisrael, Part 1

May 14, 2015

A. Amalek is still around today. See this post.

B. The holiness of the Temple derives from the presence of the Ark of the Covenant. Maimonides ruled that the sanctity of the Temple Mount  was created upon the building of the Temple, and that it is eternal. This is in contrast to the sanctity of the promised land, which first came about upon the conquest of the Land in Joshua’s time, was removed upon the Babylonian conquest, and then reinstated upon the return of the exiles from Babylon. The Ra’avad disagreed with Maimonides, and claimed that the sanctity of the Temple had been nullified upon its destruction and that one who enters the Temple precincts today in a state of impurity has not violated a prohibition punishable by excision, although later scholars claimed that the Ra’avad still prohibited entry.

Maimonides also ruled that despite the historical controversy as to what really happened to the Ark of the Covenant – the Talmud itself leaves the matter uncertain – the Ark of the Covenant was hidden beneath the Temple. (Laws of the Temple, 4:1.) Others opine that it was taken away to Babylon, never to be seen again, and the Ethiopian Church has claimed for centuries that it is holding it. 

Rabbi Soloveichik taught that it was of necessity that Maimonides ruled on which version of history was correct because the sanctity of the Temple derives from the sanctity of the Ark and its contents. Just like a Torah scroll is of the highest importance due to the Divine Names written therein, the Temple derives its sanctity from the Divine Names written on the scroll and tablets contained in the Ark.

According to the Kappah-Rabinovich method of explaining Maimonides according to Maimonides, the two rulings are unrelated. Rather, Maimonides wrote that the Ark was hidden because of all the opinions mentioned in the Talmud, this view is backed up by a number of biblical verses, and even if it was taken into captivity in Babylon, it would have been returned along with the rest of the vessels that were eventually returned. As for the eternal sanctity of the Temple Mount, Maimonides rules that it is due to something else entirely (MT Laws of the Temple, 6:14-16):

How was [the Second Temple] consecrated? With the first consecration performed by Solomon, for he consecrated the Temple Courtyard and Jerusalem for that time and for eternity. Therefore, we may offer all the sacrifices [on the Temple site], even though the Temple itself is not built. Similarly, sacrifices of the most holy order can be eaten in the entire [area of the] Courtyard, even though it is in ruin and not surrounded by a divider. We may also eat sacrifices of lesser sanctity and Ma’aser Sheini throughout Jerusalem, even though [it is not surrounded by] a wall, for through its original consecration, it was consecrated for that time and for eternity. Why do I say that the original consecration sanctified the Temple and Jerusalem for eternity, while in regard to the consecration of the remainder of Eretz Yisrael, in the context of the Sabbatical year, tithes, and other similar [agricultural] laws, [the original consecration] did not sanctify it for eternity? Because the sanctity of the Temple and Jerusalem stems from the Divine Presence, and the Divine Presence can never be nullified. Therefore, [Leviticus 26:31] states: “I will lay waste to your Sanctuaries.” The Sages declared: “Even though they have been devastated, their sanctity remains.” In contrast, the [original] obligation to keep the laws of the Sabbatical year and tithes on the Land stemmed from the fact that it was conquered by the [Jewish people, as a] community. Therefore, when the land was taken from their hands [by the Babylonians,] their [original] conquest was nullified. Thus, according to Torah law, the land was freed from the obligations of the Sabbatical year and of tithes because it was no longer Eretz Yisrael. When Ezra returned [to Eretz Yisrael] and consecrated it, it was not sanctified by means of through conquest, but rather through Chazzakah. Therefore, every place which was repossessed by the [exiles returning from] Babylon and consecrated when Ezra consecrated [the land] the second time, is sacred today…

Holiness is a halachic state whereby something is involved in more commandments whether positive or negative than other things in that category, i.e., the Sabbath and festivals are holier than weekdays because of the commandments to desist from work, Jews are holy because they have more applicable commandments than gentiles, and parts of the the Land of Israel have gradations of holiness based on the increasing applicable commandments (Tohoroth 1:6).

Because God chose the Temple as the place for domiciling his name, its sanctity, i.e., the commandments applicable to it, are forever in force, but the promised land, which serves as a domicile for His people, loses its sanctity when the people are gone and gains its sanctity when the people are there. And once again, its sanctity means the applicability of its particular commandments.

As for the holiness of of the Divine Names within the Ark of the Covenant, that type of holiness only applies to movable objects (m’talt’lin), such as Torah scrolls, but not to  places (qarqa).

This concept of the holiness of the Temple being derived from the Divine Presence and not the Ark explains how the Second Temple could be completed specifically without the Ark, and why it is unnecessary, although desirable, for us to replace it in any future Temple.

Next: The mourning of s’fira is the model of the year of mourning for one’s parents.

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