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sources for not making aliya- Rambam's opinion

Rabbi Ari ShvatNisan 6, 5774
812
Question
Hi on what basis do people justify staying in Chu"l and not making aliya. Some say the Rambam doesn’t hold that there is a mitzvah to live in eretz yisrael? Some say that there is no mitzvah to conquer eretz yisrael? I recently bought sefer hachinuch - is this based on rambam mitzvot or ramban? I cant seem to find there the mitzvah to live/settle/conquer eretz yisrael?
Answer
Shalom, Your question on the Sefer HaChinuch is the same as your question regarding the Rambam for he copied his list from the Rambam. Regarding the Rambam, the fallacy that he may not hold that there’s a mizva to live in Israel is based upon the fact the he doesn’t list it among his count of the 613 mitzvot. The question is usually raised by those looking for an excuse to justify their not making aliya, and if that’s the best they can come up with, it proves the point better than anything! The Vilna Gaon says there are several thousand (!) mitzvot m’doraita, and the technical question of how to settle that with the mesorah (oral tradition) that counts 613 (Makot 23b) provides some interesting pilpulim but there’s no נפקא מינה (practical ramification) whatsoever (מעלות התורה, עמ' סו במהד' י-ם, תשנ"א). Everyone agrees there must be a menora in the Beit HaMikdash, but there’s no difference whether it’s 1 of the 613 or included in the mitzva of “v’asu li mikdash” (see Sefer Hamitzvot, shoresh 12)! Everyone agrees one must believe in God, but many don’t consider it one of the 613 (see Ramban on mizva 1). Only R. Y. DeLeon, who is not considered by any accounts a posek, in his commentary “Megilat Esther”, suggests that maybe the reason the Rambam doesn’t count mitzvat yishuv haAretz as a mitzva is because it’s not applicable during the exile (and the Rambam only counts mitzvot which apply in all times, Sefer HaMitzvot, shoresh 3). This is only one of many possible reasons suggested- although for those living in America it is obviously popular! It is clearly wrong (something I would never say about any opinion of a rishon on any issue, but R. Y. DeLeon (the Megilat Esther) can hardly be considered a halachic authority, surely not a rishon- there is not even one (!) halacha in his name brought in the entire Shulchan Aruch and not everyone who lived in the period of rishonim has that status). The mistake of the Megilat Esther is self-evident in the Rambam himself in hil. Avadim 8, 8, where the Rambam takes the trouble to state explicitly that the mitzvat to live in Eretz Yisrael is in all generations, also during galut, even if the Land is in the hands of the gentiles! Additionally, in hil. M’lachim 5, 12, the Rambam says “a person should always live in Eretz Yisrael, even in a city of gentiles, and not in chu”l (outside of Israel) even in a Jewish city”. The Rambam should have sufficed with his opening statement (“a person should always live in Eretz Yisrael), yet again he goes out of his way to give an example (“even in a city of gentiles, and not in chu”l even in a Jewish city”, clearly referring to the period of exile), where we (or the Megilat Esther!) may have thought otherwise! Another unquestionable proof regarding the Rambam’s opinion is in hil. Mlachim 7, 14, that the only p’tur (exemption) from the Israeli army (in milchemet r’shut- an optional war) for one who planted a vineyard (and didn’t redeem it in the fourth year) or one who built a house (and has yet to dedicate it) is if they ‘re in Israel. As usual, the Rambam takes his halachot straight from the Talmudic sources, in this case from the Y’rushalmi Sotah 8, 4, which explains the reason is because only in ER.Y is planting a vine and building a house a mitzva, that of yishuv ErY. This exemption from the army is a halacha m’doraita, and there is no other way to explain the Rambam but that he holds mitzvat yishuv ErY is a mitzvah d’oraita (from the Torah). I personally think that it is not kavod to R. Y. DeLeon even to quote his opinion which he clearly did not check up in the Mishneh Torah, where the Rambam’s consistent shita (see also hil. M’chira 14, 8; hil Shmita 4, 27; hil. Shabbat 6, 10-11; hil. Ishut 13, 19 and more) is that it’s a mitzva D’oraita in all times, explicitly contradicting the Megilat Esther’s suggested explanation of the Rambam. [Ironically, today with the advent of the State of Israel, even the R. Y. DeLeon (the “Megilat Esther”) who was often cited as the opinion who justifies living in chu”l, apparently holds that the mitzvah has returned! For he opines that according to the Rambam there is no mitzvah until the Land is in our hands (Megilat Esther: “… after we were exiled, this mitzvah is not practiced until the coming of the Machich… that conquering the Land is a mitzvah when we are not subjected to non-Jewish rule”. And as the Rambam himself writes, hil. Tshuva 9, 2; Milachim 12, 2, we know we are in the times of mashiach if we have an independent state, and we’re not under foreign rule. In other words, today, even the dissenting Megilat Esther would agree that there’s a mitzvah today to live in Israel, for even if the mashiach has yet to come, we are already in what the Rambam terms (ibid) “the days of Mashiach” for we “are not subjected to non-Jewish rule”!]. There are many other alternative suggestions why the Rambam doesn’t count yishuv Eretz Yisrael among the 613 mitzvot, 1. The Chatam Sofer (shu”t Yoreh De’ah, 234): the chova to live in Aretz is based on the exceptional kdusha here, and there is therefore no need to call it “just” a mizva. 2. The Avnei Nezer (shu”t Orach Chaim, vol. II, 535, 8) says its included in the mitzva of kibbush haAretz (“haCharem Tacharimem”). 3. Rav Kook quotes the Or haChayim (end of p. Nitzavim), that living in Aretz encompasses all of the mitzvot in the Torah, or “is equated with all of the mitzvot in the Torah” (Sifre Dvarim 12), and need not be counted as “only” one individual mitzvah (shoresh 4). 4. Eretz Chemda (R. Shaul Yisraeli, p.33): it’s included in “v’achalta v’savata uverachta et Hashem Elokecha al haAretz haTova” if we thank Hashem for (literally: “on”) the Land which He gave us, we obviously must be here! 5. The Gadol of Minsk: Shoresh 2 of the Rambam’s rules for what he counts in the 613 and what not: Inferred Mitzvot aren’t among the 613. Anyone who reads the Tanach sees that it is obviously addressing Am Yisrael who is living in Eretz Yisrael. 6. Rav Yissachar Teichtel, Em haBanim Smecha (p. 151): It’s a basic necessity for our national survival to have Eretz Yisrael, just as there’s no mitzva to breathe because it’s simply a necessity, and the Rambam himself (Sefer haMitzvot, aseh 153) infers this point. The Pitchei Tshuva (Even haEzer 75, 5) points out that the Shulchan Aruch as well as “all the poskim Rishonim vAchronim” hold like the Ramban in this issue, that aliya is a mitzvah in all time periods. In other words, the sugya has already been decided several hundred years ago. In my opinion it’s even unwise and uneducational to spend so much time on the rejected minority opinion of this Megilat Esther because it lends legitimacy to this lone view as if it were a legitimate halachic opinion which can be relied upon (see the klalei psika of the Shach on Yoreh De’ah 110, that such a minority opinion isn’t even considered an opinion). Since when do we learn halacha l’ma’aseh from R. Y. DeLeon (or even the Rambam, for that matter)? Since their time (about 750 years ago), the universally accepted Shulchan Aruch and Rama have been published and are the definitive halachic decision. They hold that aliya is a mitzvah in all times (Even haEzer 75,3, Orach Chaim 248,4). The only time you’ll hear someone pasken like a rejected da’at yachid against the Shulchan Aruch regarding any mitzvah m’doraita (!) is when he’s fishing for that yearned-for excuse to live in America. Regarding your question whether it’s a mitzvah to conquer the Land of Israel today, we’ve already cited the Pitchei Tshuva (Even haEzer 75, 5) that the Shulchan Aruch as well as “all the poskim Rishonim vAchronim” hold like the Ramban in this issue, that it’s a mitzvah to settle and conquer the Land in all times and if one sees the Rambam’s Perush HaMishnayot (on Sotah 8, 6 and the Tiferet Yisrael there) this seems to be the opinion of the Rambam, as well. Regarding the excuse that aliya might lower their standard of living, I already elaborated in my article in Tchumin (vol. 22), and found that all the rishonim and achronim agree that parnassa can only be an excuse if one must beg for a living in Israel (see http://www.daat.ac.il/daat/israel/maamarim/teruts-2.htm). In short, the legendary R. Ya’akov Emdin, Sulam Beit-El, p. 14, summarized the issue well when he wrote (more than 200 years ago) “it is truly a recurrent riddle on the holy people of Israel. Regarding other mitzvot they are extremely strict… spend great sums and make the effort to observe them as meticulously as possible. But why are they lazy and degrade this beloved mitzvah (of aliya), the peg upon which the entire Torah hangs?!”. Similarly, R. Yehuda HaLevy in his Sefer HaKuzari has an answer for all of the king’s hundreds of questions on Judaism, but when asked why doesn’t the rabbi himself make aliya, the answer is simply, “You have found my point of embarrassment” (Kuzari 2, 24). I know someone who for years claimed that he didn’t make aliya because his parents needed his help. Only after his elderly parents (!) made aliya and he stayed in America, did it turn out that it was just an excuse. When people don’t make aliya it's not because of any sources, but usually just because they don’t have the guts to make the change. Pesach Kasher v’Same’ach! Rav Ari Shvat
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