הלכה על במדבר 33:58

The Torah (Bemidbar 33:53) commands, "And you shall conquer the land [of Canaan] and settle in it, because it is for you I have given the land to inherit it." The Ramban comments:

Rav Moshe Feinstein was asked (Teshuvot Igrot Moshe E.H. 1:102, written in 1952) whether one should move to Israel in accordance with the view of the Ramban (Bemidbar 33:53 and mitzvah 4 of the positive mitzvot omitted by the Rambam) that even in our day, every Jew is required to live in Israel, or if one should follow the opinion of Rabbeinu Chaim Cohen (cited in Tosafot Ketubot 110b s.v. Hu Omeir and the Mordechai, Ketubot 313) that the mitzvah to live in Israel does not apply today. The latter is of the opinion that since the journey to and subsequent life in Israel is fraught with danger and since it is difficult to fulfill the mitzvot hatluyot ba’aretz (land based mitzvot, which apply only in Israel), there exists no mitzvah to live in Israel “today” (the twelfth century).

"And you shall inhabit the land and dwell therein" (Num. 33:53) is not simply a prognostication or blessing; it is a mizvah, a commandment constituting a religious obligation. As is the case with regard to all precepts, its ramifications and parameters require careful elucidation. Indeed, the very first question to be raised is whether or not settlement of the Land of Israel constitutes a binding imperative upon a people exiled from their land. The settlement of the Land of Israel is one mizvah among many. There are situations in which residence in Israel conflicts with other obligations or desiderata. As will be shown, the issues raised in such situations have been the subject of extensive halakhic discussion.

This conclusion also flows from an examination of the biblical passages in which these obligations are expressed. The obligation mandating conquest and settlement of the Land of Israel is formulated in the verse "and you shall inherit the land and dwell therein" (Numbers 33:53). The authorities who fail to consider the command "and you shall dwell therein" as binding in our day certainly would not regard the antecedent admonition "and you shall inherit the land" as remaining in force. There might, however, be grounds to assume that if "and you shall dwell therein" remains a binding obligation, the commandment to conquer the territory couched in the phrase "and you shall inherit the land" remains a binding obligation as well.

1. Chief among the authorities who maintain that the commandment to reside in Israel remains in force throughout the period of the dispersion is Nachmanides. In his commentary on the verse "And you shall inherit the land and dwell therein" (Num. 33:53), Nachmanides states that the passage is to be understood as a positive commandment to dwell in the Land of Israel while at the same time enjoining Jewry from establishing a national settlement outside of Israel. This view is reiterated by Nachmanides in his glosses appended to Maimonides' Sefer ha-Mizvot. In the latter work Maimonides enumerates each of the commandments, both positive and negative, which in their totality comprise the corpus of the 613 precepts of Judaism. Nachmanides remonstrates that Rambam, in cataloguing the various precepts, did not include the commandment concerning dwelling in the Land of Israel.

An analysis of our obligations with regard to Judea and Samaria as well as with regard to other areas within the boundaries of the Land of Israel, both insofar as establishment of settlements and possible return of liberated territories is concerned, must begin with a careful examination of Numbers 33:53.²Contemporary scholars who have written on various aspects of the halakhic issues involved in the return of Judea and Samaria include R. Iser Y. Unterman and R. Zevi Yehudah Kook, Shanah be-Shanah, 5728, pp. 103-109; R. Joshua Aaronberg and S. Z. Shragai, Shanah be-Shanah, 5730, pp. 138-145; R. Ovadiah Hadaya, No‘am, XI (5728), 178-184; R. Betzalel Zolti, Torah she-be-‘al Peh, XI (5729), 43-54; R. Abraham Weingart and Dr. Mordecai Breuer, Ha-Ma‘ayan, Tammuz 5738, pp. 1-29, and R. Sha’ul Israeli, R. Chaim David Halevi and Dr. Mordecai Breuer, “Af Sha’al”—Miẓvah Min ha-Torah?, a monograph published by Oz ve-Shalom, Ḥug Ra‘ayoni-Medini le-Ẓiyonut Datit (Jerusalem, 5738). This verse reads: "ve-horashtem et ha-arez ve-yeshavtem bah." A literal translation would read, "And you shall inherit the land and you shall dwell therein." The words "you shall inherit the land" are understood by all biblical exegetes as meaning, "you will take physical possession of the land" by casting out those who live therein. But the implications of the verse can be understood in at least three, and perhaps four, diverse ways. The passage can be understood simply as a promise and as a prognostication. If the verse is understood in this manner God is making no demands and is issuing no commandment. He is simply informing us of what will come to pass. In foretelling future events, God informs us, "You shall indeed inherit the land." This interpretation is cited by Ramban only to be dismissed peremptorily. To the best of my knowledge, none of the classical biblical commentators is willing to accept this interpretation.³The interpretation is cited by Ramban both in his commentary on Numbers 33:53 and in his commentary on Rambam’s Sefer ha-Miẓvot, miẓvot aseh, addenda, no. 4. From the context of the latter comment, it is clear that Ramban ascribes this position to Rambam and assumes that the latter failed to consider settlement in Ereẓ Yisra’el to be one of the 613 precepts because he understood this verse to be in the nature of yi‘ud ve-havtaḥah, or anticipation and promise. There is, however, no evidence that Rambam did, in fact, interpret the verse in this manner.

The king may first wage only a milḥemet mizvah. What is a milḥemet mizvah? It is the war against the Seven Nations,¹⁰The obligation to annihilate the Seven Nations assumes two distinct forms. A communal obligation to engage in war against those nations is here posited by Rambam, Hilkhot Melakhim 5:1, and by Sefer ha-Ḥinnukh, no. 425. A personal obligation to eliminate the members of those nations is formulated by Rambam, Hilkhot Melakhim 5:4, and by Sefer ha-Ḥinnukh, no. 425.
Various aspects of the commandment may be explained on the basis of this two-fold formulation. Sefer ha-Ḥinnukh declares that the obligation to annihilate the Seven Nations is incumbent upon both males and females equally and also expresses the view that the obligation is suspended when fulfillment would entail self-endangerment. Minḥat Ḥinnukh notes two apparent contradictions: (1) Sefer ha-Ḥinnukh, no. 525 and no. 603, in contradistinction to Rambam, Sefer ha-Miẓvot, introduction, shoresh 14, rules that women are exempt from participation in all wars including milḥamot miẓvah. (2) The waging of war, almost by definition, entails self-endangerment. Hence a commandment to wage war must be understood as explicitly requiring the placing of one’s life at risk in fulfilling that obligation.
These problems are resolved if it is understood that the obligation is two-fold in nature: a communal obligation to wage war against the Seven Nations and a personal obligation to eliminate the members of those nations. Although women are exempt from conscription for purposes of engaging in communal warfare, they are required to eliminate members of the Seven Nations by virtue of their personal obligation. Conversely, in the absence of a state of war declared by the sovereign, no individual is obligated to endanger his life in an attempt to discharge his personal obligations with regard to eradication of the Seven Nations. See R. Moshe Sternbuch, Mo’adim u-Zemanim, II, no. 164; R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melakhim 5:2; and R. Shlomoh Goren, Torat ha-Mo‘adim, (Tel Aviv, 5714), pp. 180f.
One significant difficulty remains. The biblical source of the commandment to annihilate the Seven Nations is the injunction “you shall utterly destroy them” (Deuteronomy 7:2 and Deuteronomy 20:7). This biblical passage might well be interpreted as establishing either a communal or a personal obligation; it is difficult to deduce a two-fold obligation from a single phrase.
In order to resolve this difficulty, it should first be noted that in delineating a milḥemet miẓvah the Gemara, Sotah 44b, speaks of the “wars of Joshua to conquer,” i.e., war for the conquest of the land of Canaan. Rambam, Hilkhot Melakhim 5:1, speaks, not of conquest of the land of Canaan, but of war against the Seven Nations. Of course, conquest of the land of Canaan involved war against the indigenous inhabitants, viz., the Seven Nations. However, Rambam’s substitution of his own terminology for that of the Gemara is significant in that it places negative emphasis upon such war as serving to destroy the Seven Nations rather than upon its positive aspect as a war for the conquest of the Land of Israel.
Conquest of the land of Canaan as an end in itself, as well as settlement in the Land of Israel, is deemed by Ramban to be mandated by the verse “And you shall drive out the inhabitants of the land and dwell therein” (Numbers 33:53). See Ramban, Commentary on the Bible, ad loc., and idem, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4. Rambam, as is well known, fails to record any positive commandment predicated upon that verse. Hence it may be assumed that, for Rambam, neither settlement in the land of Israel nor conquest of the territory so designated constitutes a miẓvah. (See, however, Megillat Esther, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4, who asserts that Rambam understands this passage as establishing a commandment to conquer the land, but that this commandment was binding only upon the generation of the original conquest rather than for posterity.) Indeed, Rashi understands the verse as constituting only prudent counsel, viz., in order to assure permanence of settlement it is necessary first to drive out the inhabitants. See Contemporary Halakhic Problems, II, 193-99. It may be suggested that Rambam views the first clause of this passage as a commandment or, more precisely, as an amplification of the commandment recorded elsewhere, viz., “you shall utterly destroy them.” The latter passage establishes a personal obligation with regard to annihilation of the Seven Nations. That obligation is quite independent of considerations of settlement. Sefer ha-Ḥinnukh explains that eradication of paganism is the rationale underlying the commandment “you shall utterly destroy them.” Indeed, the commandment is presented in precisely that context both in Deuteronomy 7 and in Deuteronomy 20. “You shall drive out the inhabitants of the land and dwell therein” may well have been understood by Rambam as a reiteration of the commandment recorded in Deuteronomy 7:2 and Deuteronomy 20:7 and hence this injuction is not enumerated by Rambam as a new commandment. However, in Numbers 33:53 an entirely different telos is presented, viz., “and dwell therein:” Annihilation of the Seven Nations makes permanence of settlement a greater likelihood. Since, according to Rambam, residence in the Land of Israel is not a personal obligation, establishment of a permanent settlement must be a matter of communal concern. Hence “You shall drive out the inhabitants of the land” (in contradistinction to “you shall utterly destroy them”) must also be addressed to the community in general rather than to individuals qua individuals. Thus the communal obligation to wage war against the Seven Nations is derived from Numbers 33:53 but is not deemed by Rambam to be a distinct miẓvah. Rather, he regards it as merely supplementary to the general commandment formulated in Deuteronomy 7:2 and Deuteronomy 20:7 that serves to establish a personal obligation. the war against Amalek and [a war] to deliver Israel from an enemy who has attacked them (she-ba aleihem). Thereafter he may wage a milḥemet reshut, which is a war against other people in order to enlarge the borders of Israel and to enhance his greatness and prestige.¹¹Rashi, Sotah 44b, describes the “wars of the House of David” as wars “which he fought in Aram Zoba in order to annex it to the Land of Israel and against others of his neighbors in order that they bring him tribute and servants to do taskwork.” A literal reading of a narrative reported in Berakhot 3b and Sanhedrin 16a would yield the inference that a milḥemet reshut may be undertaken for economic reasons; see, however, below, notes 42 and 51.

2. An examination of Ramban's comments regarding the commandment "and you shall dwell therein" inescapably yields the conclusion that the obligation is double-faceted in nature. The obligation encompasses (1) a personal obligation to establish domicile in the Land of Israel and (2) a similar obligation that is communal, rather than individual or personal, in nature. According to Ramban, the latter aspect of the mizvah includes an obligation to conquer the land, to inhabit and cultivate the land in its entirety, and to assure that no part of that territory remains in the hands of gentile nations.¹³See Ramban, Commentary on the Bible, Numbers 33:53, and idem, addenda to Rambam’s Sefer ha-Miẓvot, miẓvot aseh, no. 4. According to Ramban's formulation, the oath "she-lo ya'alu be-ḥomah" may well be reflective, not simply of the suspension of the obligation with regard to conquest, but indicative of the abrogation of all communal obligations with regard to the Land of Israel. Banishment from the Land of Israel is the fulfillment of the prognosticated punishment reflected in the verses "And you I will scatter among the nations" (Leviticus 26:33) and "… and you shall be plucked from off the land which you go there to possess. And the Lord will scatter you among all peoples from the end of the earth to the end of the earth" (Deuteronomy 28:63-64). But how can such a situation be reconciled with an ongoing obligation to dwell within the confines of the Land of Israel? The answer may well be that "you shall inherit the land" refers to the people of Israel as a communal entity, whereas "and you shall dwell therein" constitutes an admonition addressed to the individual. The community is in exile; hence there can be no communal obligation regarding the Land of Israel. The individual, however, remains fully bound by the personal obligation to "dwell therein." Accordingly, even after the dispersion of the community, the individual, if he is but capable of doing so, is duty-bound to establish residence in the Land of Israel. But since that obligation is incumbent upon a Jew only qua individual it does not extend to duties and responsibilities which, by their very nature, are not within the purview of the individual but which can be fulfilled only through the cooperative efforts of the community.

Rabbi Soloveitchik resolves these issues by noting that Ramban derives the obligation to establish residence in Israel from the verse "And you shall inherit the land and you shall dwell therein" (Num. 33:53). This verse, of course, deals primarily with the commandment to wage war against the inhabitants of Canaan in order to establish a Jewish homeland. In every war there is naturally an element of physical danger; yet the commandment to wage war is binding despite such danger. Hence, obligatory wars constitute an exception to the general principle that fulfillment of precepts is suspended in face of danger.

The comments of the Midrash are problematic to say the least. According to Rashi's understanding of Numbers 33:53 there exists no biblical commandment with regard to dwelling in the Land of Israel. Even according to Ramban there certainly existed no commandment regarding domicile in the Land of Israel prior to the divine utterance, "And you shall inherit the land and dwell therein." The Patriarchs, to be sure, did fulfill mizvot without having been formally obligated to do so, and they indeed fulfilled such commandments even prior to the revelation of mizvot. Nevertheless, it is clear that they did not fulfill all mizvot. For example, "ve-kidashto—and you shall sanctify him" (Lev. 21:8) constitutes a mizvah pertaining to the priesthood. However, prior to the establishment of the Aaronic dynasty and the sanctification of the progeny of Aaron as priests, this mizvah would have been completely vacuous.

Moreover, declaration of war by the king and the concurrence of the Sanhedrin is not required with regard to obligatory wars such as the conquest of Erez Yisra'el. Although some authorities disagree, Ramban is of the opinion that the commandment "And you shall inherit the land and dwell therein" (Num. 33:53) is binding in all generations. In his commentary on the above passage, Ramban clearly states that this mizvah includes the commandment to conquer the Land of Israel.