THE RAMBAM AND YISHUV ERETZ YISRAEL

In his Sefer HaMitzvot, the Rambam does not count the mitzvah of settling the Land of Israel as one of the 613 mitzvot.  Some commentators want to derive from this that the Rambam holds that there is no such mitzvah in the Torah.  However, after examining the Rambam’s rulings in his halachic writings, it becomes clear that this is not the case.

The Rambam’s View on Yishuv Eretz Yisrael

by HaRav Yaakov Filber, from his book  “The Dawn of Redemption” – translated by Rabbi Moshe D. Lichtman. For more of Rabbi Lichtman’s books and writings, see the website: https://toratzion.com/

In his Sefer HaMitzvot, the Rambam does not count the mitzvah of settling the Land of Israel as one of the 613 mitzvot.  Some commentators want to derive from this that the Rambam holds that there is no such mitzvah in the Torah.  However, after examining the Rambam’s rulings in his halachic writings, it becomes clear that this is not the case.

The Talmud teaches in Tractate Bava Kama (80b): “One who buys a house in Eretz Yisrael may write a sales contract for it, even on the Sabbath.”  The Gemara’s conclusion there is that one may tell a gentile to write the contract:

And even though telling a gentile [to do forbidden work for you on the Sabbath] is Rabbinically prohibited, [nonetheless], for the sake of settling Eretz Yisrael the Rabbis did not prohibit it.

It is clear from the words of the Gemara that there is a mitzvah to settle the Land of Israel, and that this mitzvah overrides a Rabbinic decree.  (After all, if there is no mitzvah, why would we waive even a Rabbinic decree?)  Tosafot, there, explain that the mitzvah of Yishuv Eretz Yisrael has priority over the rest of the mitzvot:

[This leniency applies] specifically to this mitzvah of Yishuv Eretz Yisrael, but for the sake of a different mitzvah one may not tell a gentile [to do work].

Now, logic dictates that if the Rambam holds that there is no mitzvah to settle the Land, he would omit this law from his halachic rulings.  But that is not the case.  The Rambam writes in Hilchot Shabbat (6:11):

One who purchases a house in Eretz Yisrael from a gentile may tell a[nother] gentile to write a contract for him on the Sabbath.  After all, telling a non-Jew [to do work for you] on Shabbat is a Rabbinic prohibition, and for the sake of settling the Land of Israel (Yishuv Eretz Yisrael) they did not prohibit this act.

The Talmud states in Tractate Ketuvot (110b):

Everyone may cause [others] to ascend to Eretz Yisrael, and not everyone may bring [others] out [of the Land].  The Gemara asks: “And not everyone may bring [others] out [of the Land]” – what [does this come] to include?  [It comes] to include [the case of] a slave who flees from Chutz LaAretz to the Land, [indicating] that we say to [his master], “Sell him here and leave,” because of [the mitzvah of] settling the Land of Israel.

In Hilchot Avadim (8:9), the Rambam codifies this halachah, as well, even though it is based on the mitzvah of settling Eretz Yisrael:

If a slave says [he wants] to go up to Eretz Yisrael, we force his master to go up with him or sell him to someone who will bring him there.  If the master wants to leave [the Land and go] to Chutz LaAretz, he may not take his slave [with him], unless [the slave] agrees.  And this law applies at all times, even today when the Land is controlled by gentiles.

The Talmud states further in Tractate Ketuvot (loc. cit.):

If he [a husband] says [that he wants] to go up [to Eretz Yisrael], but she [his wife] says not to go up, we force her to go up; and if [she still does] not [agree to go up], she is sent out [i.e., divorced] without [receiving her] ketuvah.  [The opposite is also true]: If she says [that she wants] to go up, but he says not to go up, we force him to go up; and if [he still does] not [agree to go up], he [must] send [her] out and pay the ketuvah.

(Notice how great the mitzvah of dwelling in Eretz Yisrael is.  For behold, our Sages z”l say, “Anyone who divorces his first wife, even the altar sheds a tear for him” (Gittin 90b).  Nevertheless, one’s love for Eretz Yisrael is expected to be greater than the love between a man and a woman.)

This halachah, as well, is cited by the Rambam, in Hilchot Ishut (13:19-20):

…But [if one wants to take his wife] from Chutz LaAretz to Eretz Yisrael, we force her to go up, even from a nice dwelling to a bad dwelling.  And we force her to go up even from a place where most [of the residents] are Jews to a place where most [of them] are gentiles.  Furthermore, one may not bring [his spouse] out from Eretz Yisrael to Chutz LaAretz, even from a bad dwelling to a nice dwelling, and even from a place where most [of the residents] are gentiles to a place where most [of them] are Jews.  If the man says [he wants] to go up to Eretz Yisrael, but she does not want to [go], she is sent out without a ketuvah.  If she says [she wants] to go up and he says he does not want to [go], he [must] send her out and pay the ketuvah

We find two concepts in the sources just quoted: “Yishuv (settling) Eretz Yisrael” (in the case of buying a house from a gentile), and “Yeshivat (dwelling in) Eretz Yisrael” (in the case of forcing someone to make aliyah).  It seems that there are two mitzvot related to Eretz Yisrael.  One is that every Jew should dwell in the Land, which is why a man can force his wife, and a woman can force her husband, to make aliyah.  Even a Canaanite slave can force his master to go up to Eretz Yisrael.  This is the mitzvah of Yeshivat Eretz Yisrael.  The second mitzvah is to ensure that every place in Eretz Yisrael is settled by Jews.  Accordingly, anyone who buys a house from a gentile in Eretz Yisrael expands the Jewish Nation’s ownership over its Land.  This is the mitzvah of Yishuv Eretz Yisrael.  This means that even if all of the Jewish people dwell in one part of the Land, but the other part is ruled by a different nation, the obligation of Yishuv HaAretz – to redeem it from foreign rule – would still be incumbent upon us.

This idea provides us with an answer to those who claim, “One fulfills the mitzvah of Yishuv HaAretz within the ‘Green Line,’ as well.  So why all the fuss to settle in Chevron and Shechem?”  Now we understand why!  See also Chazon HaGeulah (p. 222), where Rav Kook writes: “Since the main undertaking of the Jewish National Fund is the purchase of swaths of land in Eretz Yisrael, to extract them from the gentiles and bring them under Jewish rule, their work is included in the mitzvah of conquering the Land, which is equal to all the mitzvot in the Torah.”

These halachot, and others, codified by the Rambam, demonstrate unequivocally that he holds that the mitzvah of Yeshivat/Yishuv Eretz Yisrael exists, for there is no basis for these halachot in its absence.  However, the question remains: why did the Rambam neglect to count this mitzvah in his enumeration of the mitzvot?  [R. Yitzchak De Leon, author of Megillat Esther on the Rambam’s Sefer HaMitzvot, claims that the Rambam did not count it because he holds that there is no mitzvah to settle the Land during the period of exile.]  The Megillat Esther’s explanations are very difficult and have been rejected, one by one, by many Acharonim (see Responsa Avnei Neizer, Yoreh De’ah 454).

The Avnei Neizer (ibid.) explains that whenever a mitzvah contains two components, a main objective and a means by which to reach that objective, the Rambam does not count the two components as separate mitzvot.  Rather, he will only count the means.  His proof is from the fact that the Rambam does not count the construction of the Holy Ark and its cover as a mitzvah.  The reason being that the main purpose of building the Holy Temple is to establish a “home” for the Ark and its cover, which is the focal point of the Temple.  And according to the Rambam, when we count the means (the building of the Temple), we do not count the main objective (the Ark and its cover).  The same is true, asserts the Avnei Neizer, regarding Eretz Yisrael.  The Rambam counts the mitzvah of: You shall utterly destroy them [the seven Canaanite nations], whose main purpose is to enable us to dwell in the Land.  And since these two commandments are essentially the same mitzvah, he does not count them separately.  Rather, the means (You shall utterly destroy them) encompasses the objective (settling the Land).  The Avnei Neizer concludes there (sec. 7):

What emerges from this is that there is absolutely no support from the [words of the] Rambam to say that [the mitzvah of Yishuv HaAretz] does not apply nowadays, and it is clear that it does apply, even in our times.

Our master, Rav Avraham Yitzchak HaKohen Kook zt”l, was accustomed to saying that the Rambam did not count Yeshivat Eretz Yisrael in his enumeration of the mitzvot because it is a mitzvah that encompasses the entire Torah.  (My master and teacher, Rav Tzvi Yehudah HaKohen Kook zt”l, referred me to the language of the Ohr HaChayim on Devarim 30:20 – “For dwelling in the Land is a mitzvah that encompasses the entire Torah.”)  After all, the Rambam himself establishes, in his fourth shoresh [rule], “that it is incorrect to count commandments that encompass the entire Torah.”  Thus, the reason the Rambam does not include Yishuv HaAretz in his list of mitzvot is not because of the mitzvah’s inferiority; on the contrary, it’s because of its broadness.

We mentioned above that the Rambam writes in Sefer HaMitzvot (Positive Commandment 153) that if the Jewish community in Eretz Yisrael would disappear, the perpetuity of Torah would expire, because all the holidays and the sanctification of the months depend on the Jews of Eretz Yisrael.  Based on this, the Chatam Sofer determines in his responsa (Yoreh De’ah 234):

Even the Rambam, who did not count Yeshivat Eretz Yisrael as one of the positive commandments, as the Ramban did in [his] mitzvah count, nonetheless concedes, with great vigor, that [the Land is] holy [even] nowadays.

 

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