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What do you think of Rabbi Frand's taped lecture on returning the territories?

Dec. 2, 2007

Dear Rabbi,

In your news section you have written a lot recently about the Agudah advocating Jewish sovereignty over Jerusalem. You characterized this as a departure from Agudah's traditional views.

But we have where I live a
weekly shiur given at the Agudah by Rabbi Yisachar Frand. He is an
internationally reknowned speaker on many Torah topics who has a great deal
of depth and breadth of Torah knowledge. The first part of his shiurim is a
45 minute halachic shiur, with the last 15 minutes on hashkafa. I've
attended many of his shiurim over the years. Most all of them are also
available on tape at the Agudah library. Rav Frand spoke about 15 years
ago on the topic of the halachic question of hachzaras shtachim. His shiur included many of the halachic issues I've mentioned to
you, such as the concept of milchemet mitzvah vs. danger to life. His
conclusion was that although it would be forbidden to relinquish
territories, since pikuach nefesh is not docheh the mitzvah of milchement
mitzvah, since a milchemet mitzvah was created with an inherent danger (as
per the Minchas Chinuch), and a milchemet mitzvah is an halachically
defined mitzvah as per Rambam in hilchot melachim, and more precisely in
hilchot Ta'aniot, nevertheless, he concluded with the case of R. Yochanan
Ben Zakai in Gittin where all of eretz yisroel, including the beis
hamikdash, was given away to the gentiles in order to save the Yeshivas of
Yavneh. He derived from this that a mitzvah-war that is suicidal, one in
which there is no chance of winning, in that case we may give up
territories as R. Yochanan did. He concluded by saying that he, Rav Frand,
was not going to determine if today's situation was a case of a suicidal
milchemet mitzvah or not...that is something to be determined by those in
eretz yisroel. But you see from this that that one of the most prominent
Rabbi's of Agudah held that it is indeed a national halachic question/issue;
in other words, he did not discount it as a non-issue/question due to the
oaths in Kesubos. Thus, I really don't think that the Aguda's views have
changed significantly.

Dear Meir,

I listened to Rabbi Frand's shiur. He begins by explaining lo sechanem. It includes all nations, not just the seven Canaanite nations. It does not include gerei toshav, but a Muslim cannot be a ger toshav since we don't accept gerei toshav nowadays. The Chazon Ish paskens this way.

Then he asks: perhaps giving them sovereignty is not technically a sale and doesn't fall under lo sechanem. He says this depends on the whether lo sechanem forbids technical mechira, or any act that gives them permanence. This was the dispute between the poskim over selling land to the gentiles for Shmittah. So - says Rabbi Frand - according to those who permit selling the land for Shmittah on the grounds that it is not permanent (he cites Rabbi Tzvi Pesach Frank and Rabbi Yitzchok Elchonon Spector) it would be forbidden to return the territories to Arab sovereignty, because that would be giving them permanence. But according to those who forbid selling the land for Shmittah (he cites the Chazon Ish) it would be permitted to give them sovereignty because that's not a technical sale.

Rabbi Frand does not say which posek makes the case that giving them sovereignty could fall under lo sechanem if we understand the spirit of lo sechanem to be that they should not have permanence. I would dispute this because the principle of taama dikra. We do not usually determine halacha based on our speculative reasons for mitzvos. In this case apparently we do, because the Rambam says that the basis for permitting rental is that the Torah only forbids permanence. However, taama dikra can only work to limit the application of a prohibition; it cannot create a new prohibition. For example, Rabbi Shimon holds that when the Torah forbids taking the garment of a widow as collateral, it means only a poor widow (Bava Metzia 115a). But he does not use his reasoning to extend the prohibition to all poor people. Here too, if you want limit lo sechanem to permanent sales and thus permit the sale of land for Shmittah, that's one thing, but it doesn't give you the right to extend lo sechanem to something that is not a sale at all.

Rabbi Frand continues and says that even if we go with the opinion that returning land is forbidden, it would be permitted for pikuach nefesh. And what do those who forbid it say? They say it's milchemes mitzvah and the Minchas Chinuch says that there's no heter of pikuach nefesh. Why is it milchemes mitzvah? Because the Rambam says that defending the Jewish people from an attack is milchemes mitzvah. Why is this an attack? Aren't the Arabs only interested in getting the land? The Rambam says in Hilchos Taanis that we must blow shofar and fast if the gentiles are coming to take away our land. So that classifies it as a milchemes mitzvah.

The argument from Hilchos Taanis is very weak in my opinion. Again, Rabbi Frand doesn't say whom is he quoting. Furthermore, the entire first half of Rabbi Frand's shiur becomes superfluous at this point. Because if you define a situation where gentiles want to take away our land as milchemes mitzvah, where a Jew is obligated to go to war and give up his life if necessary, then of course you can't give back the land, and now you don't need lo sechanem anymore. Lo sechanem is only necessary for a case where an individual gentile wants to buy land from an individual Jew in a peaceful, lawful manner. But if the gentiles are coming to conquer the land through warfare, it's forbidden to give it up because it becomes a milchemes mitzvah. Rabbi Frand doesn't make this clear.

Then he brings the story of Rabbi Yochanan ben Zakai and asks, how will those who call this a milchemes mitzvah explain that story? He answers that there it was an unwinnable war and then the Minchas Chinuch's logic does not apply. He finished by saying that that is the question we face today: is the war to retain the occupied territories a winnable war or an unwinnable war?

But earlier in the shiur Rabbi Frand brought two other perfectly good reasons why giving back land should be permitted: 1) if the halacha is like the Chazon Ish and others that lo sechanem only forbids a technical sale (and I believe most of the Chareidi world follows this ruling today in regard to Shmittah), then here there is no technical sale. 2) even if it is lo sechanem, it's permitted for pikuach nefesh and we do not classify this a milchemes mitzvah. So why at the end of the shiur did he ignore those two reasons? Why did he say that the question is only whether it's winnable or not?

Furthermore, all the Zionist wars were started by the Zionists, since they originate from the Zionists' declaring a state in 1948. Had they not declared a state, the Arab nations would not have attacked. So how can anyone define that as milchemes mitzvah on the grounds that it is defending lives or even land? Even if one argues that the land (in terms of sovereignty) was not taken from any previous owner because the British pulled out, still, how can you say that Jews may just seize a piece of land and then defend it and call it milchemes mitzvah? Where's the mitzvah?

Furthermore, lo sechanem can only apply to land legally owned by a Jew. But if a Jew steals a piece of land from a gentile, he obviously must give it back, and there is no lo sechanem here. If we are going to extend lo sechanem to political sovereignty, then the same would apply: if Jews committed theft on a national level, stealing land for their state, then it would not be forbidden to give it back because it was never legitimately theirs.

Furthermore, Rabbi Frand totally ignores the oaths, according to which we today are living in an era of golus during which it is forbidden to have any sovereignty, and thus of course whatever sovereignty we have should be given up. During golus it is unthinkable to apply lo sechanem to sovereignty.

I have listened to many of Rabbi Frand's tapes, and I respect his learning greatly. Therefore I would be quite surprised if he totally ignored the concept of golus and mipnei chataeinu galinu meartzeinu and the shalos shvuos and so on.

I am inclined to believe that Rabbi Frand compartmentalizes his shiurim, trying to keep them clear and structured and not going off on tangents. Thus, he felt that the whole discussion of the oaths was too much and would not fit into the scope of his shiur. Perhaps he has dedicated a separate shiur to the oaths. But in this shiur, he purposely confined himself to outlining the different points of view within the non-oaths camp.

Similarly, I once listened to Rabbi Frand's tape on teaching Torah to women. He discussed all the laws in relation to the Bais Yaakov schools: Chumash yes, Mishnah and Gemara not, etc. But he totally left out the shitah of the Satmar Rav, the Chazon Ish and (I would claim) every other posek up until the time of Bais Yaakov, which hold that girls and women may only learn the pesukim of Tanach with translation and no commentaries, as well as laws and mussar that are relevant to them. I wrote him a letter asking him how Bais Yaakov schools are permitted in view of certain sources: a Tosafos in Sotah, a Shulchan Aruch, a Taz, a Chofetz Chaim. He replied briefly that he doesn't know the answer to my question, but it must be permitted, because the Bais Yaakov in Baltimore was founded under the guidance of Rabbi Yaakov Kamenetsky and he surely had a heter. He wrote, "Other poskim, certainly of Chassidic circles, disagree, but that is our mesorah."

In other words, he confined his shiur to a certain range of opinions that he felt were within "our mesorah". He considered my questions to be outside that box.

I don't think it would be useful to write Rabbi Frand a letter questioning why he neglected the oaths, because as I said, this is how he structured the shiur. I also don't think it would be useful to write him asking my other questions on the shiur, all asked from within the non-oath camp. His shiur was not meant to be a complete sefer; it was a watered-down, highly condensed version of a complex halachic topic. To really understand this or any topic, one must look up all the relevant seforim and learn through them.