The Megilat Esther, R. Chaim in Tosafot, and R. Moshe Feinstein

Although it’s a famous question, the issue of whether Mitzvat Yishuv Eretz Yisrael is one of the 613 mitzvot is just about the most irrelevent of all the so important aspects of Er.Y. It’s 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 that counts 613 (Makot 23b) provides some interesting pilpulim but there’s no Nafka Mina (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 Hashem but many don’t consider it one of the 613 (see Ramban on mizva 1).Only the Megilat Esther, who is not considered by any accounts a posek, suggests thatthe reason the Rambam doesn’t count mitzvat yishuv haAretz as a mitzva is because it’s not applicable during galut (and the Rambam only counts mitzvoth 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 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, also during galut, even if the Land is in the hands of the gentiles!Additionally, in hil. Mlachim 5, 12, the Rambam says". The Rambam should have sufficed with his opening statement ("a person shouldlive 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 galut), where we (or the Megilat Esther!) may have thought otherwise!Another unquestionable proof regarding the Rambam’s opinion is in hilchot 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 ErY. As usual, the Rambam takes his halachot straight from the Talmudic sources, in this case from the Yrushalmi 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.I personally think that it is not kavod to the Megilat Esther even to quote his opinion which he clearly did not check up in the Mishneh Torah, where the Rambam’s consistent shita (see footnote 1 ) is that it’s a mitzva D’oraita 2 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 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 ("… after we were exiled, this mitzvah is not practiced until the coming of the Machich… that conquering the Land is a mitzvah". 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 Megilat Esther would agree, for even if the mashiach has yet to come,we are already in what the Rambam terms (ibid) "the days of Mashiach"!].If so, why doesn’t the Rambam count aliya as one of his 613 mitzvot? The following are several, among many explanations: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, and need not be counted as "only"one 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. For example: all agree with the gmara in Ktuvot 72a, that it’s asur m’doraita for a married woman not to cover her hair, yet no opinion counts it as a mitzva because it’s, the Torah infers it as a given ("when a Sotah is brought to the Mikdash, her hair isuncovered"- inferring that it obviously was covered, as is obvious to any tzanu’a women in modest countries (not America!- to this very day). So too, anyone who reads the Tanach sees that it isaddressing Am Yisrael who is living in Eretz Yisrael. Ex.: Even when Moshe or Y’hoshua are on the east bank of the Jordan river, it’s still called "ever haYarden" (="theside of the Jordan"), because theis living on the west bank, in Eretz Kna’an. Similarly, the western wind is called "yam" (literally: "from the sea") even in Egypt where "the sea" is north- not west! Because for the reader, who isto be living in Israel, west is called "from the sea" (see Rashi, Shmot, 10’ 19). 3 It is inferred as a "given" and need not be commanded as 1 of the 613.6. 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.In addition to the Megilat Esther, the other common halachic opinion cited for not making aliya is the opinion of R. Chaim HaKohen in Tosafot Ktuvot 110b who is quoted as if there is no mitzvah today to live in Israel because it’s difficult to fulfill the mitzvoth haTluyot baAretz.On the other hand, the ba’alei haTosafot in Gittin 8b, Bab Kama 80b, and many other places, agree with Ramban that it’s a mitzva today. See also the Mordechai at the end of Ktuvot who goes so far as to say that the printed edition of Tosafot citing R. Chaim, is just "a miscopy of a mistaken student". A proof can be drawn from the fact that the Tosafot on this part of Ktuvot is edited by R. Shimshon of Shantz (see Ktuvot 90a) who himself led the aliya of 300 rabbanim, who risked their lives under dire conditions to fulfill this mitzva. The Shla (Sha’ar haOtiot 75b) adds that that the quote from R. Chaim is illogical, as if we should run away from the mitzvot hatluyot baAretz (!), for there’s no reason we can’t fulfill them today. On the contrary, we are supposed to run after mitzvot, not away from them! The Chida (Yosef Ometz 52) suggests that he must be referring to the time when there was a machloket which year was shmitta, an uncertainty which was already decided several hundred years ago! Alternatively, the Chayei Adam (Chochmat Adam, sha’ar Mishpitei HaAretz, 11, 3) suggests that it is referring to times when people did not know how to fulfill the agricultural mitzvoth, something which surely doesn’t apply today when consumers can easily buy produce with rabbinic supervision that the trumot and ma’asrot etc. have already been tithed.Additionally, it’s wrong to pit R. Chaim HaKohen against the other rishonim as if they are two equal but conflicting opinions. The Pitchei Tshuva (Even haEzer 75, 5) points out that between the two opinions, the Shulchan Aruch as well as "" hold like the Ramban in this issue. 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 opinions of this particular Tosafot (which we saw even contradicts other Tosafot) and Megilat Esther because it lends legitimicy to the da’at yachid 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 from the Megilat Esther (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 yachidthe Shulchan Aruch regarding any mitzvah m’doraita (!) is when he’s fishing for that yearned-for excuse to live in the beloved gashmi’ut of America.Regarding the opinion of Rav Moshe Feinstein in his Igrot Moshe (Ev. Ha. ,I, 102) , his chiddush that it’s a mitzva d’oraita but not a chova is exactly that, an innovative chiddush not mentioned by the previous generations. There are over 30 rishonim and achronim who davka explicitly use the wordor "dirat chutz laAretz" (prohibition to live in chu"l) for ex. Rashi Yvamot 64a, Ramban (Aseh 4), Ran (end of Ktuvot), Ra’avad (ibid), Sifre Dvarim (11, 10), Chatam Sofer (above), Gra, Chazon Ish, Avnei Nezer, R. Ya’akov Emdin, etc. etc. (compiled in MeAfar Kumi by my friend, R. Tzvi Glatt HYD in an entire chapter on the topic, pp. 66-70). The klal in halacha is "kol hamishaneh, yado al hatachtona= whoever leaves the accepted opinion, the burden of proof is upon him to prove why he left the accepted opinion, to differ. See the aforementioned sources and you will see that the norm is to say that it’s a chova. Not only the rishonim, but even Chazal themselves use this term, Sifre Dvarim 11, 10, "Coming to Eretz Yisrael is an".Rav Ovadia Yosef also rejects R. Moshe’s opinion based on the fact that if it were just optional, why would we break up a great marriage, or write a contract on Shabbat for yishuv haAretz? If it’s just optional, the gmara would say in such situations: "just don’t opt for that option and stay married, or don’t m’chalel Shabbat!R. Avraham Shapira, former Chief Rabbi and Rosh Yeshivat Merkaz HaRav, adds that there is no such thing as an optional mitzvah. If you eat, you areto "bench". If you wear a four-cornered garment, you arein tzitzit. So too, if you "live", you’re obligated to live in Eretz Yisrael. Chazal stress this as well in the Mechilta (midrash halacha on Shmot 23, 13), "and all that I told you to do you must observe", this teaches that there is a prohibition to refrain from doing any positive commandment. 4 If one followsof the leniencies and stringencies of R. Moshe (e.g. his prohibition against using liquid soap on Shabbat) and the Satmar Rebbi (e.g. that a mechitza must reach the ceiling), then this approach is acceptable. But why utilize their opinion on a mitzvahwhich is(Sifre Dvarim Re’eh 12 (=midrash halacha), and Tosefta Avoda Zara 5, 2), just because it’s convenient?! Would they be so lenient regarding not observing Shabbat, Brit Milah, Avoda Zara, Talmud Torah, and Tzedaka, which are similarly "equated with the rest of the mitzvot put together"?In addition, elsewhere, the Rambam writes (Igeret haRambam, p. 64, Mossad HaRav Kook edition) that even if there were two Jewish states, one is obligated to live in that which is "more Jewish". Kal vaChomer if one lives in a non-Jewish state, he must leave and live in a Jewish state. That’s how we know about the Kuzari nation, because R. Hasdai ibn Shiprut inquired one thousand years ago to the land of Kuzar, saying, "we heard that there’s a Jewish State there, and if so, we all should live there! 5 Another common halachic excuse cited for not making aliya is that it’s difficult to make a living in Israel. Nevertheless, here too, upon examination of the sources, we see that this does not apply today.No one says "if you can’t make a living you’re exempted" from aliya. To the contrary, all agree that only if you have tofor a living than you’re patur. There’s a big difference! I published an article in Tchumin (Torani Journal, vol. 22, תחומין כב (תשס"ב), עמ' 355-368) bringing the sources on the topic. The Rambam adds that even during famine (!) when one is allowed to temporarily leave, he shouldn’t do so, for Machlon and Chilyon (Meg. Ruth) were punished with death for leaving during such circumstances (hil. Milachim 5, 9).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 mitzvoth 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?!"R. Hillel m’Shklov, a primary student of the Vilna Gaon (Kol haTor p. 534), complains about even the very religious, who twist and turn and even go so far as tothat there’s no mitzva today of yishuv Eretz Yisrael, that they are simply the modern day version of the cheit hamraglim, who were the very learned leaders of Israel, yet they were blinded by the yetzer to live in chutz laAretz!