Jerusalem Yesterday, Today and Tomorrow: A Halachic Perspective

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At this point in history, with Jerusalem the focus of attention in political negotiations, it seems particularly appropriate to revisit the topic of the holy city and its unique halachic status. The point of this essay is not to dictate Israeli policy, but to view the exalted city through the halachic prism, which informs the totality of our lives. Doing so will, I hope, call attention to some of the singular aspects of Jerusalem and enhance our awareness and appreciation of what is at stake.

Jerusalem is mentioned more than 650 times in Tanach. However, the city name does not appear even once in the Torah itself. Rambam1 suggests three possible reasons for this glaring omission, all of which resonate, to different degrees, in the contemporary political climate: a. to deter the nations of the world from recognizing the city’s potential, and thus from controlling it in order to keep the Jews out; b. to prevent the nations of the world from deciding to destroy the city or from making it a center of idolatry and c. to ensure that the tribes of Israel do not battle one another for the right to have Jerusalem in their territory. In order to avoid such a conflict, the exact location of the holy city was not made known until after a Jewish king was appointed.2

It is not surprising that Jerusalem evokes much emotion. As former Sephardic Chief Rabbi Eliyahu Bakshi Doron notes,3 the imagery used to depict the relationship between the Jewish people and Jerusalem throughout much of our liturgy is that of a mother and her a child.4 The Talmud notes that the parent-child metaphor implies a strong physical and emotional connection to the city. The Jewish people’s connection to Jerusalem transcends words, as well as time and space. Within the Jewish soul, there is a longing for Jerusalem that defies rational explanation.

Jerusalem is “central” in every sense of the word. It is considered the center of the universe.5 It is central in uniting Jews scattered across the world, physically and spiritually—the Talmud Yerushalmi calls Jerusalem the place that makes “all of Israel into fellows”6 and “unites Israel.”7 It is central during times of prayer, when Jews all over the world face in its direction, and it is central at every occasion of joy, when its welfare is invoked “above our highest celebration.” Its centrality is a halachic axiom, reflected in such concepts as the determination of the Jewish International Date Line.8

The sanctity of the city can be traced back to the Akeidah (according to some, even earlier),9 at the moment Avraham bound his son upon Mount Moriah and established it as the “place that God will choose” (Devarim 12:5) as the site for the Holy Temple.10

But the holiness of Jerusalem in the modern era is the subject of debate among Rishonim. Rambam,11 for example, maintains that the sanctification of Jerusalem made by Kings David and Solomon remains in force for all time. This is due to the fact that the holiness is a result of the Shechinah, and, according to Rambam, “the Divine Presence can never be nullified.”12 Significantly, the great authority Magen Avraham13 rules in accordance with this view.14

Within the Jewish soul, there is a longing for Jerusalem that defies rational explanation.

Other Rishonim are of the opinion that Jerusalem is no longer sanctified. According to the Ra’avad,15 when the land was re-acquired and re-sanctified in the time of Ezra, the sanctification was never of a permanent nature, apparently because Ezra knew that in the future there would be a greater sanctification. A third view held by some Rishonim16 is that Jerusalem no longer has sanctity, not because it expired but rather because it was negated by invasion. This is conveyed by the verse,17 “I will also turn My face from them, and they shall profane My secret place; and robbers [“paritzim”] shall enter into it and profane it.”

Rabbi Avraham Avidan18 observes that the loss of holiness due to paritzim has halachic implications. According to some later rabbinic opinions,19 the effect of the paritztim is negated once their occupation ends. Thus, Jewish sovereignty over Jerusalem may actually restore the holiness of the city. While there is a non-Jewish presence in the Old City to this day, the Talmud Yerushalmi20 indicates that as long as taxes are paid to a Jewish government, the government’s authority is established. Thus, Jewish control of Jerusalem may have profound consequences for sustaining the sanctity of Jerusalem.

The sanctity of Jerusalem can be traced back to the Akeidah at the moment Avraham bound his son upon Mount Moriah and established it as the “place that God will choose” as the site for the Holy Temple.

The question of sanctity discussed so far applies to the borders of the Old City, which constitutes ancient Jerusalem. Assuming there is sanctity to the Old City nowadays, the obvious question is, Can that sanctity can be extended to include other areas? This question is a theoretical first step in considering the status of contemporary Jerusalem, which extends far beyond the borders of the Old City.

It is clear from the Talmud that expanding the sanctity of Jerusalem is, conceptually, a possibility. According to Rambam,21 this expansion can encompass as much territory as the Sanhedrin wishes, although the special sanctity granted to the azarah is limited to the Temple Mount.22 However, additions to Jerusalem are not easily sanctified. According to the Talmud, such sanctification requires a substantial list of factors: “a king, a prophet, the Urim Vetumim, the Sanhedrin of seventy-one, two todah offerings and with song.”23 A Talmudic debate24 ensues as to whether all these elements are required, or if any one of the factors alone suffices. Rambam rules that all of them are necessary,25 a standard clearly impossible in contemporary times.

Rabbi Shlomo Zalman Auerbach asserts26 that modern Jerusalem lacks the halachic status of the Old City. And even if one were to view the current Israeli government as capable of expanding the sanctity of Jerusalem, clearly the government did not have that intent when it expanded the boundaries of contemporary Jerusalem.

In addition to the issue of sanctity, there are other factors that should give us pause in considering the division of Jerusalem. The Talmud informs us that Jerusalem was never parceled out, not even among the tribes of Israel: “Yerushalayim lo nitchalkah l’shevatim.”27 This principle apparently negates the possibility of individual ownership in the Old City, and thus affects a number of halachot. Most strikingly, there exists a prohibition against charging rent in the Old City (although some Rishonim maintain this only applied during the festival pilgrimages to the Temple). Furthermore, certain Biblical laws pertaining to ownership do not apply to Jerusalem, such as ir hanidachat, an “afflicted house” and the requirement of eglah arufah.28 As Rabbi Norman Lamm analyzes,29 there are at least two ways to understand why Jerusalem was not to be parceled out: a. the city is not associated with any individual but is the legacy of the Jewish people as a nation or b. the Jewish people own Jerusalem together as a type of partnership.30 Either possibility raises serious questions about dividing Jerusalem.

Rabbi Hershel Schachter, rosh yeshivah at the Rabbi Isaac Elchanan Theological Seminary (RIETS), describes at length31 the religious significance of Jerusalem and defines it by two distinct aspects: a. it is the holy city, partaking in the sanctity of the Temple that stands within it and b. it is the “Kiryat Melech Rav,”32 the “City of the Great King”—the political capital of the Kingdom of God.

Awareness of these characteristics opens the door to considering “Greater Jerusalem” to be significant, separate and apart from considerations of its sanctity. The Talmud33 relates that there were two marshes on the Mount of Olives, a lower one that was sanctified, and an upper one that had not been sanctified.34 Having a part of the city that was unsanctified confused the unlearned populace as to what was halachically permitted and forbidden in that location, but, as the Talmud relates, the situation was created nonetheless, because “it was the exposed part of Jerusalem, [which] was more easily conquerable from there.”

Rabbi Schachter understands the Talmud’s conclusion to be relevant to modern times. Even though there are areas that are not technically part of classic Jerusalem, the incorporation of these areas into the city creates a stronger, more defensible city with a “buffer zone.” Thus, similar to Talmudic times when the Sages granted religious significance to areas in the city that were not sanctified, Greater Jerusalem today may not have sanctity in the halachic sense, but it still has religious significance because of its importance with respect to security.

Furthermore, there are a number of halachot that may indeed define Jerusalem in the broader municipal sense. These may include the following, though some are subject to debate:

* With regard to a get, those residing in Greater Jerusalem refer to the city as Jerusalem.35
* Megillat Esther is read throughout most of the world on the Adar 14. However, in cities that have been walled from the days of Yehoshua ben Nun, such as Jerusalem, the Megillah is read on Adar 15. The Talmud teaches that the status of Jerusalem is extended to that which is “seen” (nireh). Some Rishonim understand this to refer to areas that are perceived as being part of the city, and thus, with regard to Megillah reading, many contemporary authorities view areas outside of the Old City as part of Jerusalem. 36
* According to the Talmud,37 the prohibition of delaying a burial is intensified within Jerusalem.38 Rashi understands this to be a tradition without a given reason, while Radbaz39 attributes it to a desire to not allow impurity to linger in the holy city. There are those who, by custom, extend the practice of never delaying burial to modern Jerusalem as well.40
* Halachically, one can compel his or her spouse to move to the Land of Israel, and, within Israel, to move to Jerusalem.41 According to some authorities, this refers not only to moving to the Old City, but to anywhere in Jerusalem. In a similar vein, Rabbi Moshe Sternbuch42 poses the question of whether the special merit associated with living in Jerusalem is limited to residents of the Old City or is extended to those who live in Greater Jerusalem; he assumes the latter to be the case.43

The rabbis of the Talmud predicted that, ultimately, Jerusalem would expand enormously.44 As Rabbi Shlomo Yosef Zevin notes,45 it is unclear whether the new territory would have the sanctity of historic Jerusalem. Nonetheless, it is apparent that this widening of the borders is a part of the rabbinic vision of redemption. Accordingly, those areas that already bear the name of Jerusalem are harbingers of that vision, and to step back from that point and reverse the trend would have untold consequences for the morale of the Jewish people.

Jerusalem has been the heart of the Jewish nation for millennia and unites the Jewish people in our concern for its welfare. As we continue to place Jerusalem at the center of our thoughts, we hope and pray that our spiritual, emotional and physical bonds to the city only grow stronger.

Rabbi Feldman is an instructor at Yeshiva University’s Stone Beit Midrash Program and is the director of rabbinic research at Yeshiva University’s Center for the Jewish Future. He is also the rabbi of Etz Chayim of Teaneck and the author of The Right and the Good: Halakhah and Human Relations (New Jersey, 1999) and three volumes of Binah BaSefarim.

Notes
1. Moreh Nevuchim 3, chap. 45
2. See also Rabbeinu Bachya, Devarim 12:5.
3. Responsa Binyan Av 4, 76:1
4. For example, one of the berachot recited under the chuppah refers to the joy of Zion with “her children.” The reference parallels Yeshayah 54:1, where Jerusalem in ruins is compared to a barren woman with no children.
5. Sanhedrin 37a and Yechezkel 38:12; Tanchuma, Tzav, 10; Zohar, Terumah, p. 157a. See Rabbi Yechiel Michel Tukachinsky, Ir Hakodesh Vehamikdash 1, pp. 3-5.
6. Chaggigah 3:6
7. Bava Kama 7:7
8. See Rabbi David Pahmer, “The International Date Line and Related Issues,” Journal of Halacha and Contemporary Society 21: 60-73.
9. The Maharam Shick, in his Sefer Hamitzvot (no. 255), asserts that Jerusalem was sanctified from the Six Days of Creation.
10. See Asher Grossberg, “Techumehah Hamokdashin shel Yerushalayim,” Techumin 19: 469-487, for a detailed history of the sanctification of various parts of Jerusalem.
11. Hilchot Beit Habechirah 6:14
12. Rambam bases this understanding on Vayikra 26:31 (see Megillah 28a). The complete text reads:
“Why do I say that the original consecration sanctified the [Beit Ha]mikdash and Jerusalem for [all] future times, while in regard to the sanctification of the remainder of Eretz Yisrael, in regard to [the observance of] the Sabbatical year, the tithes, and the like, [the original consecration] did not sanctify it for [all] future times?
Because the sanctity of the [Beit] Hamikdash and of Jerusalem stems from the Divine Presence and the Divine Presence can never be nullified….
The obligation to keep [the laws of] the Sabbatical year and the tithes in Eretz [Yisrael], by contrast, stemmed from the fact that [the land was] conquered by the people as a community. Accordingly, when the land was taken from them, the [original] conquest was nullified, and there was no obligation to give tithes or to observe the Sabbatical year, according to the Torah. For [this produce was not grown] in Eretz Yisrael.
When Ezra returned and consecrated [the land], he did not consecrate it through conquest, but rather by manifesting possession over it. Therefore, all the places possessed by the people who returned from Babylonia and which were consecrated a second time by Ezra are sanctified at present. We are obligated to observe the Sabbatical year and the tithes [in regard to their produce] even though the land was later taken [from them].”
(Trans. courtesy of Sichosinenglish.org.)
13. Orach Chaim 561:2
14. The technicalities of an immutable sanctity deriving from the Shechinah, and the implications in contemporary times, require additional explanation and are the subject of significant halachic analysis. For example, see Rabbi Menachem Mendel Schneerson, Sha’arei Eretz Yisrael, pp. 218-225, and Rabbi Shlomo Wahrman, Sherit Yosef 2, 25.
15. Glosses to the Rambam, ibid.
16. Ramban and Ritva (Makkot 19a). The Chatam Sofer (Responsa Yoreh Deah 233) understands this to be the basis for the Ra’avad’s opinion as well.
17. Yechezkel 7:22
18. Masa Bahar, pp. 120-125
19. Responsa Beit Yitzchak, Orach Chaim 27
20. Demai 2:1
21. Hilchot Beit Habechirah 6:10
22. See Ohr Sameach for the source of this limitation, which the Kiryat Sefer disputes.
23. Shevuot 14a
24. Ibid. 16a
25. Hilchot Beit Habechirah 6:14
26. In a letter quoted in “Gevulei Yerushalayim—Hebeti Halachah,” Techumin 10: 138-139.
27. Yoma 12a; Megillah 26a
28. Bava Kama 82b
29. “Merkaziyutah shel Yerushalayim Belev Haumah,” Torah Shebeal Peh 22: 145-156.
30. See Responsa Chatam Sofer (Yoreh Deah 234) and Torah Temimah (Devarim 15, no. 22), who assert that the preference for giving charity to the residents of one’s hometown extends to the residents of Jerusalem. Responsa Shevet HaLevi 5, 135:5 questions this, noting that it would only apply to the Old City of Jerusalem.
31. Beikvei Hatzon, no. 33. See also 18:10 for the implications of this duality to the practice of keriyah in contemporary times.
32. Tehillim 48:3
33. Shevuot 16a
34. Although see Responsa Maharit 2, Yoreh Deah 37.
35. See Pitchei Teshuvah, Even Haezer 128.
36. See Rabbi Eliyahu Shlesinger, Responsa Shoalin Vedorshin 5, 78, and Rabbi Yisrael Meir Lau, Responsa Yacheil Yisrael 3, 12:10.
37. Bava Kama 82b
38. See Gesher Hachaim (1:7:3), quoting Rabbi Shmuel Salant.
39. Responsa 1, 633
40. See Shoalin Vedorshin, ibid.
41. Ketubot 110b
42. Moadim Uzmanim 8, 348
43. Concerning the question of burial in “outer” Jerusalem compared with elsewhere in the land of Israel, see Responsa Tzitz Eliezer 11, 75, and Responsa Chelkat Ya’akov, Yoreh Deah 204.
44. See Zechariah 14:20, Pesachim 50a, Bava Batra 78b and Shir Hashirim Rabbah, chap. 7. Also, Rabbi Yoel Schwartz, Yerushalayim Ir Hakodesh Vehanetzach, pp. 41-43.
45. L’Ohr Hahalachah, p. 380

This article was featured in Jewish Action Summer 2008.

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