출애굽기 23:33의 Halakhah

When the Jews are in control (Yad Yisrael Tekifah), it is forbidden for us to permit Nochrim to reside amongst us. Even if he is only a temporary resident or an iterant merchant, he cannot pass through our land unless he accepts the seven Noahide laws as the Torah (Shemot 23:33) states, “They shall not dwell in your land.” If he accepts the seven Noahide laws, he is classified as a Ger Toshav (a Nochri who is permitted to reside in our land). However, we do not accept a Ger Toshav at a time (such as nowadays) when the Yoveil (Jubilee) laws do not apply. When the laws of Yoveil do not apply, we accept only a Ger Tzedek (a full-fledged convert).

However, return of liberated territories for considerations other than preservation of life raises an entirely different set of halakhic considerations. On the basis of Avodah Zarah 20b, Rambam, Hilkhot Avodat Kokhavim 10:3-4, rules that it is forbidden for a Jew to sell houses or fields in Erez Yisra'el to a non-Jew.³⁶It is generally accepted that the prohibitions flowing from lo teḥanem apply to all non-Jews and not only to the Seven Nations. This is stated explicitly by Tosafot, Avodah Zarah 20a; Sefer ha-Eshkol, III, 123; Maharam Schick al Taryag Miẓvot, no. 426; and Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1. In this instance, Rambam departs from his usual practice of not supplying the underlying rationale upon which the halakhah is predicated. Rambam poses the question, "And why may one not sell [houses and fields] to them? For it is written, 'lo teḥanem'—Do not give them permanent encampment in real property, for if they will not possess real property, their residence is transient." If non-Jews are not given an opportunity to acquire real estate their presence in the Holy Land will be temporary and transient in nature. A person who does not own land, who does not own a home and who possesses neither fields nor orchards, is a person who has no roots. Such a person's domicile is inherently transitory. An individual acquires permanence and stability within a given geographic locale only when he requires property. Hence, the Torah forbids the sale of real estate in Erez Yisra'el to non-Jews lest through acquisition of land their domicile become permanent in nature.³⁷Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1, opines that the ultimate rationale underlying the prohibition against sale of real property in Ereẓ Yisra’el to a non-Jew is identical with the reason for the prohibition against permitting idolaters to dwell in Ereẓ Yisra’el. In the latter case, the reason is explicitly stated in Scripture: “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33). Both commandments, according to Ḥazon Ish, are akin to the commandment concerning eradication of paganism in the Land of Israel recorded in Deut. 7:5 and Deut. 12:2-3. This analysis was earlier advanced by Sefer Miẓvot Gadol, no. 48. Although Ḥazon Ish’s inference is from the terminology employed by Rambam in Hilkhot Avodat Kokhavim 10:3, it would seem that this thesis is more readily substantiated by Rambam’s comments in 10:4 in which he describes sale of real estate as leading to permanent residence and then, in the very same halakhah, proceeds to state, “Similarly it is forbidden to praise them … for this causes [Jews] to cleave to them and to learn from [their] evil deeds” (italics mine). Rambam appears to predicate both proscriptions upon the identical rationale. It is the divine plan that ultimately Erez Yisra'el in its entirety become the exclusive inheritance of the community of Israel.

He prohibited us from settling idol worshippers in our land, so that we not learn their heresy, with His saying, "They shall not dwell in your land lest they cause [you] to sin, etc." (Exodus 23:33). And if an idolator wants to remain in our land, it is only allowed when he accepts upon himself not to worship idols. However idol worshippers may not dwell with us [in the Land of Israel], nor may we sell them a holding nor may we rent them a house. And in the explanation (Avodah Zarah 20a), they told us, "Do not give them an encampment in the land." (See Parashat Mishpatim; Mishneh Torah, Foreign Worship and Customs of the Nations 10.)

The selfsame analysis is directly relevant to the topical question of territorial concessions on the West Bank. Whether or not restoration of Arab sovereignty over portions of Judea and Samaria involves transgression of lo teḥanem, it may be argued, is directly contingent upon precisely the same question regarding the nature of this prohibition. It should be stressed that transfer of national sovereignty does not constitute a "sale" in the usual sense of the term. Cession of territory by one sovereign state to another does not infringe upon the property rights of the citizens of any country who may own property in the area ceded by one country to another. Essentially, national sovereignty carries with it the right to display the flag of the sovereign power, to enforce the laws of the sovereign authority, and to collect taxes, but is irrelevant to proprietary interest. Thus, transfer of political sovereignty does not constitute a "sale" in the literal sense of the term, except of course, insofar as publicly held land actually owned by the government is concerned. However, as has been cogently argued by Rabbi Betzalel Zolti, Chief Rabbi of Jerusalem, political sovereignty assuredly carries with it an element of domiciliary permanence.⁴¹Torah she-be-‘al Peh, XI (5729), 44-54. R. Ovadiah Hadaya, No‘am, XI (5729), 183-184, also declares return of liberated territory to be forbidden by virtue of lo teḥanem. There is a strong reason to infer that this was the position of R. Chaim Ozer Grodzinski as well. When questioned as to whether acquiescence to a partition plan for Palestine would be forbidden as a violation of lo teḥanem, he replied that such acquiescence was permissible and was not to be equated with granting territory to non-Jews since the land was in the jurisdiction of gentiles by virtue of conquest, and “the matter is not within the jurisdiction of the Jewish people so that it be said that they are granting ḥaniyah be-karka.” The clear inference is that cession of sovereignty with regard to territory under Jewish jurisdiction does constitute a violation of lo teḥanem. See Aḥi‘ezer: Koveẓ Iggerot, ed. Aaron Sorasky (Bnei Brak, 5730), I, no. 61. There is no question that if a certain geographic area is under the rule and administration of a Jewish government, the permanence of Jewish inhabitance is enhanced and that the reverse is the case when the administration and the political authority is vested in a non-Jewish government. Thus, although restoration of Arab sovereignty does not constitute a violation of lo teḥanem if that prohibition is understood as a ban solely against "sale" of real estate to non-Jews, it does constitute such a violation if understood as a general ban against any action which serves to enhance the permanence of non-Jewish domicile.⁴²It has been suggested that transfer or return of territory to Arab sovereignty is tantamount to permitting unrestricted immigration of non-Jews to such areas and hence constitutes a violation of “They shall not dwell in your land” (Exodus 23:33). See R. Abraham Weingart, Ha-Ma‘ayan, Tammuz 5738, p. 15. However, the applicability of this prohibition is not as clear as is the applicability of lo teḥanem. Although Rambam, Hilkhot Avodat Kokhavim 10:6, rules that this prohibition encompasses all non-Jews, Rabad disagrees and expresses the view that it is limited to members of the Seven Nations who inhabited the area at the time of the original conquest. Rabad expresses no such disagreement with regard to lo teḥanem. Moreover, Minḥat Ḥinnukh, no. 94, states that “it is possible” that the miẓvah does not require displacement of a non-Jew from land which he has purchased. However, Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1, state that sale of land to a non-Jew constitutes a violation of “They shall not dwell in your land” as well as a violation of lo teḥanem.

It has been noted earlier that a Jew is not halakhically bound to admonish a non-Jew in order to prevent the latter from transgressing.⁵⁰See above, note 38. Cf., however, R. Yom Tov Lipman Heller, Tosefet Yom Tov, Pirkei Avot 3:14, who does posit an obligation to utilize moral persuasion in convincing non-Jews to abide by the provisions of the Noachide Code. Tosefet Yom Tov cites an obligation to coerce non-Jews to accept the Seven Noachide Commandments. This is apparently a reference to the ruling recorded by Rambam, Hilkhot Melakhim 10:6. That obligation, however, flows from the commandment, “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33), which applies only to non-Jews residing in Ereẓ Yisra’el. This does not, however, mean that Jews are absolved from all responsibilities with regard to non-Jews. The Gemara, Makkot 9b, declares that a non-Jew is culpable for violations of the Noachide Code even if he is ignorant of the halakhic restrictions because "he should have learned, but did not learn." The notion that the non-Jew "should have learned" certainly entails the assumption that the requisite information is available to those desiring to acquire such knowledge. Yet, it may readily be inferred from Rambam's comments, Hilkhot Melakhim 8:11, that Noachides do not possess an independent mesorah or tradition based upon divine revelation.⁵¹Cf., also Rambam, Commentary on the Mishnah, Ḥullin 100b. See also Rambam, Hilkhot Ma‘aseh ha-Korbanot 19:16, cited above, note 8. The authoritative source of the mesorah upon which the Noachide Code is predicated is the revelation which occurred at Mt. Sinai. Since only Jews were privileged to participate in that event, it is readily apparent that instruction in the Noachide laws must ultimately come from Jews. Jews are the bearers of the mesorah not only of the 613 commandments of the Children of Israel but also of the Seven Commandments of the Sons of Noah. Obviously, then, the Jewish scholar must be under some correlative obligation requiring him to impart knowledge. Otherwise a non-Jew could not justifiably be held accountable because "he should have learned but did not learn."

Yet, over the years, a number of rabbinic authorities have sanctioned the sale of real estate to non-Jews, at least in certain limited circumstances. Mizbeaḥ Adamah, an important nineteenth-century Sephardic source, reports that noted rabbinic authorities had themselves done so in the past and cites several by name. Indeed, earlier scholars were perplexed by the narrative in I Kings 9:11 which reports that King Solomon bestowed twenty cities in the Galilee upon Hiram, king of Tyre, in appreciation of the latter's assistance in providing materials needed for use in the construction of the Temple. There is no record of Solomon having been censured for this action.¹⁰See, however, the commentary of Abarbanel on I Kings 9:10. Mizbeaḥ Adamah explains that the prohibition against the sale of real estate to a non-Jew is applicable only to idol worshippers but not to other gentiles. Indeed, idolaters are specifically denied the right of domicile in the Land of Israel lest they cause the Jewish populace to become enmeshed in pagan practices. "They shall not dwell in your land lest they cause you to sin against Me, for you will serve their gods" (Exod. 23:33). Many authorities (with the notable exception of Rambam, Hilkhot Avodah Zarah 10:6) rule that since specific reference is made to idolatrous influences, only pagans are excluded from the right of domicile. Mizbeaḥ Adamah views the prohibition against the sale of property as being simply an extension of the prohibition against domicile in the land of Israel, and hence similarly limited in its application solely to idolaters.¹¹This prohibition is also cited by R. Abraham I. Kook, Mishpat Kohen, nos. 58, 61, and 63, and by R. Zevi Pesach Frank, Kerem Ẓion, III, no. 13, as well as by R. Eliyahu Klatzkin, Teshuvot Imrei Shefer, no. 92, but is rejected by R. Ya‘akov David Wilofsky (see Mishpat Kohen, no. 61), R. Naftali Zevi Yehudah Berlin, Kuntres Dvar ha-Shmittah and Ḥazon Ish, Shevi‘it 24:3. In accordance with the above distinction, Mizbeaḥ Adamah rules that there is no restriction against the sale of real estate to Moslems, who profess a monotheistic belief. This thesis also serves to explain Solomon's gift to Hiram. Since Hiram was not an idol worshipper, there existed no halakhic obstacle to the transfer of land to him by King Solomon. Rabbi Yosef notes that, quite obviously, this line of reasoning is cogent only with regard to the prohibition of lo teḥanem, but fails to satisfy objections which might be raised on the basis of Ramban's position that the sale of land to a non-Jew also entails transgression of the commandment "And the land shall not be sold in perpetuity." He notes that there is, however, the possibility that Solomon expressly stipulated as a condition of his gift to Hiram that the cities were to revert to their original owners upon the advent of the jubilee year. Rabbi Yosef opines that consideration of Ramban's position would not preclude sale of land "in our day" since observance of the jubilee year lapsed with the destruction of the Temple. This contention may, however, be challenged, since even under contemporary conditions, all lands which are sold are subject to reversion to their original owners in the messianic era, which is to be accompanied by reinstitution of the observance of the jubilee year.

To not have worshipers of idols dwell in our land: To not have worshipers of idolatry dwell in our land, as it is stated (Exodus 23:33), "They shall not dwell in your land, lest they cause you to sin against Me."