The Mitzva to Settle the Land of Israel
The first question that arises in any discussion regarding the mitzva of settling the Land of Israel is whether or not such a mitzva exists. As is well known, the Rambam did not include the mitzva of settling the Land of Israel in his count of the 613 biblical mitzvot. The Ramban, in his criticisms of the Rambam's Sefer ha-Mitzvot, adds the mitzva of settling the Land of Israel as one of the commandments unjustly omitted by the Rambam:
We were commanded to take possession of the land that God, blessed and exalted be He, gave our forefathers, Avraham, Yitzchak, and Ya'akov, and not leave it in the hands of other nations or in desolation. This is what He said to them: "And you shall dispossess the inhabitants of the land and dwell in it; for I have given you the land to possess it. And you shall divide the land for an inheritance" (Bamidbar 33:53-54)… This is what the Sages called obligatory war. And thus they said in the gemara in Sota (44b): "R. Yehuda said: Yehoshua's war of conquest – all agree is obligatory; David's war for [greater] comfort – all agree is optional"… And from what they said, "Yehoshua's war of conquest," you understand that this mitzva is fulfilled through conquest… And I say that the mitzva about which the Sages expanded greatly – namely, living in the Land of Israel – to the point that they said that anyone who leaves it and lives outside the Land [of Israel] should be regarded in your eyes as an idolator… this is all part of this positive precept, for we have been commanded to take possession of the land and dwell in it. If so, it is a positive precept for [all] generations, binding upon every individual, even during the period of the exile, as is clear from many places in the Talmud. (Ramban, Commandments Omitted by the Rambam, positive precept no. 4)
Some Acharonim argue that according to the Rambam, there is indeed a mitzva to live in the Land of Israel that applies at all times, even in our day, but the obligation is only by rabbinic decree:
According to the Rambam, we must say that it is all by rabbinic decree. But the plain sense inclines toward the Ramban, that the mitzva to live in the Land of Israel is a mitzva like all the positive precepts in the Torah. For it is unreasonable that a rabbinic commandment should be equivalent to all the positive precepts of the Torah. (Pe'at Ha-Shulchan, Beit Yisra'el 1:14)
The author of the Megillat Esther proposes another explanation as to why the Rambam failed to count the mitzva of settling the Land of Israel. He argues that the mitzva to settle the land only applied prior to the exile:
It appears to me that the Master did not count it because the mitzva to take possession of the land and settle in it only applied during the days of Moshe, Yehoshua, and David, and as long as [Israel] was not exiled from its land. After they were exiled from their land, however, this mitzva does not apply to [future] generations, until the time that the Messiah will come. (Megillat Esther, ad loc.)
The Megillat Esther adduces proof from a midrash cited by the Ramban, which tells of Sages who wept and rent their garments when they spoke of the importance of the mitzva of settling the Land of Israel, which they themselves did not fulfill:
As for the statement brought from the Sifrei, that they wept and read this verse, "And you shall take possession of it and settle in it" (Devarim 17:14), it seems to me that they wept because of their inability to fulfill this verse because the Temple had been destroyed… For if this mitzva applies even after the [Temple's] destruction, why did they weep and rend their garments? Surely now too they could have fulfilled it. (Megilat Esther, ibid.)
Many have countered the Megillat Esther’s argument, including the author of the Avnei Nezer:
Clearly, the author of the Megillat Esther did not see the Sifrei itself, but only what was cited by the Ramban. For the incident is found in the Sifrei (Parashat Re'eh), where it is explicitly stated as follows: "And they returned to their place, and said: Living in the Land of Israel is equivalent to all the mitzvot." Furthermore, the Sifrei states that they [certain Sages] left the Land of Israel to study Torah in Netzivim with R. Yehuda ben Betera, and when they remembered the Land of Israel, they returned, and it concludes as above. We see, then, that the mitzva is binding [even] in our time, and therefore they returned even from Torah study to fulfill [the mitzva of] living in the Land of Israel, which is equivalent to all the mitzvot. (Avnei Nezer, Yoreh De'ah 454)
In any event, according to the Megillat Esther, the Rambam does not categorically deny the mitzva of settling the Land of Israel. Rather, he maintains that the mitzva applied in the past, when we lived in the land, and it will apply again in the future in the days of the Messiah, but it does not apply today, when we are subjugated to the nations of the world. One might have argued that according to the Rambam, the mitzva to settle the Land of Israel applied only in the days of Yehoshua, who was explicitly commanded to settle there, and the many rabbinic dicta in praise of living in the Land of Israel are merely aggadic sayings or moral guidance, but not explicit Halakha.
Some authorities interpreted the Rambam in the opposite direction, arguing that he agrees that settling the Land of Israel is a Torah mitzva. Why, then, did he not count it among the 613 mitzvot? Various answers to this question have been proposed:
For the mitzva of "you shall surely smite them" (Devarim 7:2) is in order that we should settle in the land… For this reason, "you shall surely smite them" and living in the Land of Israel were not counted as two [separate commandments]. Rather, he counted only the mitzva of "you shall surely smite them." (Avnei Nezer, ibid.)
The Admor of Sochatchov, author of the Avnei Nezer, suggests that the mitzva of settling the Land of Israel overlaps with the mitzva of "you shall surely smite them." This is why the Rambam did not count settling the land as a separate mitzva, but contented himself with the mitzva of "you shall surely smite them."
The Avnei Nezer assumes that there is congruence between the two mitzvot, but this is by no means necessarily true. In the Rambam’s Sefer Ha-Mitzvot (positive precept 187), he implies that the mitzva to destroy the seven Canaanite nations applies even outside the Land of Israel. On the other hand, the mitzva of settling the Land of Israel certainly does not exhaust itself with the killing of the nations inhabiting it. It is therefore difficult to argue that we are dealing with the very same mitzva in a different formulation.
The author of Eim Ha-Banim Semeicha proposes a different solution in the name of R. Yona Dov Blumberg:
This explains the view of the Rambam, who did not count the positive precept of settling the Land of Israel among the 613 mitzvot, even though he too agrees that it is by Torah law. This is based on the rule established in the fourth principle of Sefer Ha-Mitzvot, not to count commandments that include the entire Torah. Since the mitzva of settling the Land of Israel is such a dear mitzva that includes all the mitzvot and embraces the entire Torah, and the establishment of the all the festivals and Rosh Chodesh and all its mitzvot depend upon it… So too the entire life of the nation depends upon it. Hence, it is a general, and not a specific mitzva. For this reason, it is not included in the count of the mitzvot, which includes only the specific mitzvot. (Eim Ha-Banim Semeicha, p. 154)
The Rambam, in his introduction to Sefer ha-Mitzvot, establishes fourteen principles, rules by which he determines which mitzvot are to be counted and which not. In the fourth principle, the Rambam asserts that general commandments, such as, "You shall keep my statutes" (Vayikra 19:19), are not to be counted, because they add no specific content that must be performed, but only encourage observance of the mitzvot in general. R. Teichtel suggests that it is for this reason that the Rambam did not count the mitzva of settling the Land of Israel – because it is a general mitzva.
Why is the settlement of the Land of Israel defined as a general mitzva? R. Teichtel explains that this is due to the special importance of the mitzva. Others have defined it as a general mitzva for a different reason. R. Yehuda Herzl Henkin cites such a position and rejects it:
Responsa Tzitz Eliezer (7:48), in the name of R. Avraham Yitzchak Kook, ztz"l, writes that even the Rambam maintains that it is by Torah law. The reason that he did not count it is that it includes many mitzvot that are dependent upon the land, and as he writes in the fourth principle, it is not right to count general commands that embrace the entire Torah. The same applies to the settlement of the Land of Israel, upon which many essential parts of the Torah depend. Furthermore, [the mitzva should not be counted] according to what the Ramban writes that all the mitzvot were essentially given to be fulfilled only in the Land of Israel… [However,] this does not fit with the words of the Rambam, for this is what he says in the fourth principle: "The Torah contains commandments and prohibitions that do not relate to a specific act, but rather embrace all the mitzvot, as if it said, 'Do everything that I have commanded you to do'… Such a command should not be counted as a separate mitzva, for it does not command a specific action, that it should be a positive precept." We see then that he only excludes mitzvot that do not involve a specific action, like the examples cited there, "You shall be holy" (Vayikra 19:2), "Circumcise the foreskin of your heart" (Devarim 10:16), and others. They are not similar to the [mitzva] of settling the Land of Israel, which involves the specific act of living in the land and, if a person is abroad, crossing the border and entering the land. (Responsa Benei Banim 2:42)
R. Henkin addresses the claim that settling the Land of Israel is a general mitzva because it includes many specific mitzvot, like terumot, ma'asrot, and the like. R. Henkin counters that the mitzva of settling the land has an additional element – namely, the very obligation to live in the Land. It is therefore impossible that the Rambam omitted the mitzva of settling the land because it is a general mitzva.
Cities That Were Not Conquered By The Returnees From Babylonia
A strong objection may be raised against the Ramban’s view from the gemara at the beginning of tractate Chagiga:
Many cities were conquered by those who came up from Egypt, but they were not conquered by those who came up from Babylonia, because the initial sanctification sanctified it for that time, but did not sanctify it for all future times. And they [those who came up from Babylonia] left [some areas unsanctified] in order that the poor should rely on them during the Sabbatical year. (Chagiga 3b)
Some raised an objection from this passage against the Ramban, who argues that the mitzva of settling the Land of Israel is a Torah obligation: How could the returnees from Babylonia have refrained from fulfilling an important Torah commandment due to economic considerations?
This, however, does not constitute decisive proof. It merely indicates that sometimes even important and beloved mitzvot are set aside because of social and even economic considerations.
Caution With Respect to Mitzvot That Depend Upon The Land of Israel
The gemara in Ketubot states that both husband and wife can compel one another to move to the Land of Israel:
Our Rabbis taught: If he [the husband] says to go up [to the Land of Israel], and she [his wife] says not to go up, we compel her to go up. And if not, she goes out without a ketuba. If she [the wife] says to go up, and he [her husband] says not to go up, we compel him to go up. And if not, he must divorce [her] and pay her ketuba. (Ketubot 110b)
Tosafot discuss the application of this ruling in their time:
"If the husband says to go up, etc." – This does not apply in our time, when the roads are dangerous. And Rabbenu Chayyim said that nowadays there is no mitzva to live in the Land of Israel, because there are various mitzvot dependent upon the land, and various punishments, with respect to which we cannot take the proper precautions. (Tosafot, Ketubot 110b, s.v. hu)
The first part of the Tosafot is not difficult to understand. Even if nowadays, for technical reasons, a husband cannot force his wife to live in the Land of Israel, this does not mean that there is no mitzva to settle the Land in principle. But the position attributed here to Rabbenu Chayyim is surprising and important. In his view, there is no mitzva to live in the Land of Israel, because of the fear that we will not be able to properly observe all the mitzvot that are binding upon us in the Land. This is a somewhat strange argument, which seems to be based on a psychological fear of dealing with the sanctity of the Land of Israel, which demands especially pure conduct. The Maharit even claimed that these words were not authored by Rabbenu Chayyim himself:
I found in the Hagahot Mordekhai as follows: "Rabbenu Chayyim wrote in a responsum that this applied in their day, when there was peace, but nowadays when the roads are unsafe, he cannot compel her, because it is like a case in which he wants to take her to a place where there are hordes of wild beasts or robbers…” We see, then, that the responsum of Rabbenu Chayyim Kohen is based only on the argument of dangerous roads. That which is written in the Tosafot that there is no mitzva to live in the Land of Israel is a gloss of a student and not authoritative whatsoever. (Responsa Maharit, Yoreh De'ah 28)
The Three Oaths – "They Shall Be Carried To Babylonia" (Yirmiyahu 27:22)
The gemara in Ketubot cites the view of R. Yehuda, who prohibits moving to the Land of Israel:
For R. Yehuda said: Whoever moves from Babylonia to the Land of Israel violates a positive precept, as the verse states: "They shall be carried to Babylonia, and there shall they be until the day that I take heed of them, says the Lord" (Yirmiyahu 27:22). (Ketubot 110b-111a)
More often cited is the statement appearing later in that same passage. The gemara relates to the three oaths mentioned in Shir Ha-Shirim, deducing from them that God swore Israel to three oaths:
What are those three oaths? One, that Israel not go up as one. And one, that the Holy One, blessed be He, administered an oath to Israel that they not rebel against the nations of the world. And one, that the Holy One, blessed be He, administered an oath to the nations of the world that they not subjugate Israel too much. (Ketubot 111a)
Some authorities understood from this passage that moving to Israel "as one" is forbidden even today.
Various resolutions of the appparent contradiction between the three oaths and the modern aliya movement have been offered. Some suggest that the position of R. Yehuda, as well as the three oaths, were never codified as law. Others argue that the revival of aliya to the Land of Israel marks "the day that I take heed of them,” from which time the prohibition is no longer in effect. Some have emphasized that we moved to Israel and founded a state with the agreement of the nations of the world, and thus the oaths are no longer valid. Some maintain that the three oaths are interdependent, and since the nations of the world violated their oath not to subjugate us excessively, we too are released from our oath.
It would seem, however, that the whole question is not a question. The aforementioned talumudic statements appear to fall into the category of aggada; they are not halakhic rulings. The Rambam makes no mention of these oaths, and it seems that this is not because he maintains that they were not accepted as Halakha, but rather because he thinks that we are not dealing here with Halakha. R. Yisraeli advanced a similar position:
These three oaths do not involve actual prohibitions, but only guidance for Israel to accept the decree, justifying God's judgments without rebellion. For it will not help; on the contrary, it will lead to intensified subjugation. This explains why the posekim do not bring these oaths as Halakha, for there are practical ramifications. Rather, as I said above, there is no prohibition here, only sound advice. (R. Shaul Yisraeli, Eretz Chemda I 1:4)
On the assumption that there is a mitzva to settle the Land of Israel, another question arises: Does the mitzva focus only on living in the Land of Israel, or also on acquiring sovereignty over it? In other words, does the mitzva merely instruct us, as individuals or as a nation, to live in the Land of Israel? Or are we perhaps bound by a special mitzva that we should be masters of the Land and establish within it a system of Jewish rule?
The Ramban’s inclusion of the the obligation to "not leave it in the hands of other nations" does not necessarily imply Jewish sovereignty. Let's say that a large Jewish community developed in the Land of Israel, and all the non-Jews left the country, but the country remained under the rule of the Turkish pasha. Would that mean that the mitzva of settling the Land of Israel has not been fulfilled? It may indeed be possible to suggest that with respect to the mitzva of settling the Land of Israel, the only important question is how many Jews are living in the Land; the issue of sovereignty is absolutely irrelevant.
One of those who deal with this issue notes frankly that "when the Rishonim related to the mitzva of settling the Land of Israel, they did not attach any importance whatsoever to the question of sovereignty over the Land." But there are two later sources that argue that Jewish sovereignty over the Land of Israel has significance with respect to the mitzva of settling the Land.
R. Tzadok ha-Kohen of Lublin argued that the mitzva of settling (yishuv) the Land can only be fulfilled if it also finds expression in Jewish sovereignty:
Yishuv means living in tranquility… that is, as masters of the Land… Only if they are living in the Land in tranquility and domination, for that is called yishuv. This was the case in the time that the Temple stood. But once the Temple was destroyed, even though they did not all go out into exile, even those who lived there were not called "yoshvim of the Land." And they had no yeshiva there, since they were slaves to the kings of the nations who ruled there, like us who live outside the Land of Israel. This is not called yishuv, but merely sojourning, and there is no fulfillment of "And you shall settle it (ve-shavtem)." (R. Tzadok Ha-Kohen, Divrei Soferim 14)
R. Tzadok argues that settlement of the Land is void of meaning without sovereignty. It is not clear, however, whether sovereignty in an of itself has value, or – as it would appear from the beginning of the passage – if it is merely a means to "living in tranquility," which is impossible without sovereignty. Either way, he is clearly of the opinion that sovereignty is an essential condition for the fulfillment of the mitzva of settling the Land of Israel.
R. Yisrael Yehoshua of Kutna, author of Responsa Yeshu'ot Malko, proposed a less revolutionary position:
Even according to the Ramban, who considered it a positive precept, the essence of the mitzva involves taking possession [of the land] and settling in it like a person on his own property, to conquer the Land of Israel that it be in our possession, and not the empty arrival of today… Nevertheless it [mere settlement] certainly involves a great mitzva… And there is no doubt that it is a great mitzva, because the ingathering [from the exile] is the beginning of the redemption. (Yeshu'ot Malko, Yoreh De'ah 66)
The Yeshu'ot Malko argues that while the primary goal of the mitzva is to achieve full domination over the Land, "like a person on his own property," nevertheless the aliya of individuals also has meaning, as a means to the end. He too agrees that the heart of the mitzva involves the imposition of Jewish sovereignty, but he argues that the immigration of individuals has value as a preparation for the main mitzva.
Admittidly, in contrast to R. Tzadok, who explicitly speaks of "domination," R. Yisrael Yehoshua of Kutna is ambiguous. It is not entirely clear whether he is referring to full sovereignty or merely to private ownership of the real estate.
R. S.Y. Zevin understands the words of the Yehoshu'ot Malko in their plain sense, as referring to full Jewish sovereignty. R. Ovadya Yosef, however, takes the Yeshu'ot Malko in an entirely different direction. R. Ovadya notes in passing that according to the Yeshu'ot Malko, the mitzva of settling the Land is not being fulfilled today in the territories of Yehuda and Shomron: "For regarding the present conquest, we are unable to drive out the Arabs living in Yehuda and Shomron, and they continue to enjoy permanent residence." Thus, our status in the Land is not like that of "a person on his own property."
R. Ovadya Yosef appears to understand that the Yeshu'ot Malko is not referring to formal sovereignty, but to practical control. R. Ovadya seems to be setting aside the concept of sovereignty, which is not rooted in the words of the Rishonim, in favor of the more familiar concept of ownership.
R. Tzadok and the Yeshu'ot Malko are struggling with the question of whether there is a mitzva of settling the Land of Israel prior to the attainment of sovereignty. R. Eliezer Waldenberg, author of Responsa Tzitz Eliezer, deals with exactly the opposite problem: He is concerned that some might argue that the heart of the mitzva lies in the attainment of Jewish sovereignty in the Land of Israel, and therefore that once this goal has been achieved, there is no longer a mitzva to move to Israel. He argues (Tzitz Eliezer 7:48, Orchot Ha-Mishpatim, ch. 12) that the mitzva of settling the land of Israel is a double mitzva: a mitzva falling upon the collective to establish Jewish sovereignty and a mitzva falling upon each individual to settle in the land, irrespective of the question of sovereignty.
Another interesting position is brought by R. Avraham of Sochotchov in the name of his father:
My father, the Admor, the Gaon shlita, proposed the innovative idea that the primary fulfillment of the mitzva of living in the Land of Israel is when a person maintains himself on the income he earns in the Land of Israel. But if he receives charity from people living outside the Land of Israel, he does not fulfill the mitzva in perfect manner… The essence of the mitzva of living in the land of Israel is for a person to receive his bounty from God Himself, and not by way of an angel of the land [outside the Land of Israel]. (Responsa Avnei Nezer, Choshen Mishpat 95)
(Translated by David Strauss)
 This is also the way the Rambam was understood by the Rashbash (nos. 1, 2) and others.
 Prof. Ya'akov Levinger proposed that according to the Rambam, the mitzva of living in the Land of Israel is an element of the prohibition not to return to the land of Egypt (Ha-Rambam Ke-Filosof Ukhe-Posek, p. 93), but I find this position difficult to accept.
 Y. Brandis, "Ha-Hityashvut Be-Chevlei Ha-Aretz She-Be-Ribonut Nokhrit," Techumin 17 (5747), p. 99.
 R. S.Y. Zevin, "Ha-Medina Ha-Ivrit U-Kedushat Ha-Aretz," Techumin 10 (5789), p. 25.
 R. O. Yosef, "Mesirat Shetachim Me-Eretz Yisrael Be-Mekom Pikuach Nefesh," Techumin 10 (1989), p. 44.
 R. S. Yisraeli expressed his astonishment regarding R. Ovadya's position (Eretz Chemda, p. 54). It seems that the underlying disagreement between them is whether the Yeshu'ot Malko is referring to state sovereignty or to proprietary control.
 R. Waldenburg adds that not only is the individual obligation in effect today, but also the collective obligation; strengthening the framework of sovereignty is no less important than its establishment.