Tuesday, December 14, 2010

Rabbi Aharon Lichtenstein's Response to the Letter Banning Sale of Homes to Gentiles in Israel

Response to the Esteemed Rabbis, Signatories of the Letter Forbidding the Sale of Homes to Gentiles in the Land of Israel
Rabbi Aharon Lichtenstein
6 Tevet, 5771

[Translated from the Hebrew by Elli Fischer; the translation has not been reviewed by R. Lichtenstein]

I have read the document that you have disseminated throughout the country. As I read your words, I was impressed enough by the dogged determination inherent in your love of the land and your love of the nation that dwells therein to advance your approach. However, I am concerned that in this instance your love has affected your judgment. To say the least, it must be asked whether this is a battle worth fighting. Aside from the judgment, the wisdom of it seems faulty as well.

Indeed, almost the entire unfolding of events that resulted from the dissemination of this letter was foreseeable and, to a large extent, obvious. The public furor, both social and ideological, the rift that has opened among the citizens of the state—between camps and within camps, the op-eds in the various media outlets, the various positions, often impassioned and overheated, the attack on the religious-Zionist rabbinate from the right and from the left, even from Torah giants—it was all foreseeable. One reads it and wonders what happened to the wisdom of those who are enjoined to consider future ramifications?

It has been particularly painful for those faithful to the Torah and mitzvot who fear for the stature and character of the state; it has upset the spiritual leaders who work hard to make the Torah and adherence to halakha beloved and who strive to set the State of Israel on the pillars of tradition and ancestral heritage. This pain stems from the shortcomings that the document manifests in precisely those areas that should have been its strong point. The document speaks in the name Halakha, and its signatories see themselves as its envoys and propagators.

But therein lies the problem; the prohibition of selling homes to gentiles is presented as the exclusive halakhic position in the manner at hand, and the voice that bursts forth from the throats of the signatories is made to sound like the single unequivocal word of God, that is, halakha. Here one asks, is that indeed so? Without a doubt, the position expressed in the letter is based on rabbinic sources and a long halakhic tradition. Yet taken as a whole, the document leaves one with the impression that its conclusions are based on presumptions that characterize a particular—but not exclusive—halakhic approach. This impression is generated in part by what the document states, and no less by what the document omits. For example:

A. The first paragraph of the letter gives the impression that Rambam linked intermarriage, selling a parcel of land to gentiles, and the desecration of God’s name. It further implies that there is no escaping the conjunction of these elements, and there is no way to minimize or neutralize their linkage. However, there is no such formulation in the writings of Maimonides.

B. The concluding paragraph states that one who sells a residence to a gentile must be excommunicated. This ruling is patently erroneous. The excommunication discussed by the Talmud and Rishonim addresses harm to Jewish neighbors in context of the issue of a neighbor’s right of first refusal (dina de-bar metzra)—unrelated to the questions of lo techanem or lo yeshvu be-artzekha, the prohibitions that set the tone of the letter.

C. Regarding that which was not said: any position or opinion that could have been relied upon to moderate the stance taken in the letter simply does not exist. There is no mention of Ra’avad’s position that limits the prohibition to the seven aboriginal nations of Canaan. For some reason, the opinion of the Tosafists—that if the gentile is willing to pay a higher price than a Jew for the property, there is no prohibition against selling it him—has been ignored. At the same time, the letter never addresses the position among the Rishonim, based on Bava Batra 21a, that the prohibition against leasing is limited to craftsmen who wish to set up shop in the neighborhood—indicating that they were concerned about the neighbors fleeing, not about the sanctity of the land and all it entails. The opinion of Ramban and his disciples, that the prohibition of lo techanem does not apply to transactions rooted in the grantor’s interests—which admittedly relates to the granting of a gift or a favor, but may also be applicable to the granting of a tract of land—directly contradicts the position expressed in the letter.

D. In addition, the document is based almost exclusively on Rambam’s position, which, as it approximates the perspectives discussed in the Talmud, left its mark on the Shulchan Arukh. Yet every school child knows that for whatever reason there is a wide gap between Rambam’s position and the approach of the Tosafists. It is sufficient to leaf through the first pages of the talmudic Tractate Avoda Zara with an eye on the prohibitions discussed there, or through the end of the first chapter of that tractate, to see the degree to which the Tosafists exploited every loophole and leniency with regard to these prohibitions. For example, several Tosafists maintained that the prohibition to lease a home to a gentile was limited to an instance in which the gentile is expected to bring foreign gods inside. I certainly do not wish insert myself into a dispute among giants or presume to decide between Rambam and the Tosafists; I merely note that the required willingness to examine approaches that would limit the prohibitions associated with this issue, given that there are tools and materials that enable such limitations, is completely absent from the letter.

I conclude with what should be self-evident. At stake are key questions that involve meta-halakhic considerations. The willingness and ability to consider and assign appropriate weight to wide-ranging components related to halakhic content and its connection to both historical and social realities mandates a much wider discussion. We, who dwell in the beit midrash, remain committed to our belief and desire “to proclaim that God is upright, my rock in whom there is no wrong.”