Frittered away sovereignty

Before we can tackle shemitta, and, indeed, before we can even study shemitta we need to study Leviticus 26, the tokhachah, the chapter that describes the exile and the attitude of the remnants of Israel who are living in exile and trying to come to terms with the failures of the generations that lost the homeland and frittered away its sovereignty. 

The more serious problem for the Jewish people is deep pessimism that masquerades as dark humor but that, in fact, keeps anyone from daring to undertake bold things in and through the halachic world. 

The observant have become cowards, and cowards cannot merit a homeland. Had the Lubavitcher Rebbe really wished to hasten the coming of the Messiah, he would have done better to teach the observant the merits of fortitude. 

Haqhel

Deuteronomy 15:1-18 talks about shemittat kesafim. In Deuteronomy 31:10-13, not unlike that day at Mount Sinai, the day is called yom haqhel. 

The assembly is an emblem of covenant. 

Shemitta is the year which is lo zarua, it is a midbar. 

The haqhel returns the people to the desert where they were dependent on God, and to the moment of the covenant. 

Egel maasseikha & shemitta

If God is once again to risk allowing His Presence to manifest among the Children of Israel in a pre-mishkanic fashion, then He must first be sure the Children of Israel will not provoke His wrath as they did with the ma’assei ha’egel. 

He therefore tells them to refrain from making what amounts to an analogue to the egel maasseikha while at the same time exhorting them during the six active years to guard the shabbat and fear the miqdash when they build the sub-structure for the year of shemitta. 

Embrace the sabbath year

Rabbinic legend has it that the Messiah will come when the Jewish people keep two Sabbath days in a row. 

Curious that, since it deflects from the true source of Messianic return, when the Jewish people once again embrace not the sabbath day but the sabbath year. 

Joseph's 'shemitta'

Let us define chuqim umishpatim as the supporting practices and regulations that go into promoting the shemira and the assiya of a mitzvah. 

• The choq defines the assiya and the mishpat defines the shemira. 
• Chuqim umishpatim can thus comprehend much of what the ChZ”l call Torah sh'baal peh. 
• The chuqim and mishpatim of shemitta are the surrounding assiya and shemira of the sabbatical year. 

The institutional centerpiece of those chuqim umishpatim is the retail outlet that manages the supply chain for agribusiness. The Josephite administration defined the character of that agribusiness supply chain management. The seven fat and seven lean years were a massive application of the principles of shemitta. Joseph’s brothers failed in not doing with their surplus what Joseph did with Egypt's. The two dreams of Joseph both spoke to the two aspects of the shemitta laws: the first spoke to the produce of the land; the second spoke to the power relations within the family. When Yaaqov hears the second dream he shamors the davar. 

The consequence of their not heeding Joseph's 'shemitta' forecasts was that the Children of Israel had to abandon their lands. 

• Rachel's children led Israel's children out of Mesopotamia and into Egypt. 
• Leah had einayim rakhim (Genesis 29:17) rather than a rakh lev (Deuteronomy 20:8). 

The impact of the laws of shemitta are exactly the reverse of the impact of the administration of Joseph. According to the laws of shemitta, the land must stay in the hands of the general public and the power cannot become concentrated in the hands of an elite few. Indeed, the food cannot be sold during the year of famine. 

The mandate of the supply chain administrator is: 

1. to arrange for agricultural sabbaticals; 
2. to distribute and sell yashan food during the sabbatical years; 
3. to feed the poor during the sabbatical years; and 
4. to administer the JNF for keeping the land within the widely distributed ownership control of the members of the agricultural collective. 

Thus administered, shemitta is about, once every seven years, moving the locus of power away from the agricultural. It would be a proper mandate for an ecologically configured JNF. The ecological impulse puts the JNF into the social welfare business in addition to the business of planting trees and acquiring land. 

Shemitta thus forces a whole-design approach onto the matter of providing necessities to the society. Shemitta is thus fundamental and sets the tone and offers a template for institutions that provide for the general population's material needs similar to the way the mishkan is fundamental and sets the tone and offers a template for institutions that provide for the general population's spiritual needs. 

Shabbos is thus temporal and thus intangible but focused on the material while mishkan is situational and thus tangible but focused on the spiritual. 

Masseikha can mean molten but it can also mean visible. Elohei masseikha could mean visible idols, material idols rather than purely spiritual beings, hence the prohibitions in Leviticus 26:1 on pessel and matzeivah and even maskhis. 

According to justice

Choq respects the boundaries, and is thus the legal embodiment of temperance; mishpat weighs the values, and is this the legal embodiment of justice. 

When scripture says to shamor the mishpat it is because there is no entitlement on one side of the relationship. The bounty of the tithe is a mishpat because the ministers expressly do not have a stake in the patrimony of the land. They have no choq in the adamah. Their choq is in the ritual offerings. 

So with the tithe there is no respecting a boundary, there is only acting according to justice. Ministers have to eat and it is only right for the people to subsidize them. 

Independent of location

In detailing the laws of yovel, Leviticus 25:9 says ta'aviru shofar bekhol artzechem – in all your lands. 

That seems to signify the laws of yovel apply not only to the inhabitants of Israel but also to residents of the diaspora. Clearly the issue of manumission seems to be understood as independent of location. 

It’s not an unreasonable conclusion. 

Fundamental and covenantal

The violation of the laws of sheviit carries with it in particular the consequences of overturning the covenant. 

That's why the laws of sheviit are introduced with the expression 'These are the laws God gave to Moshe at the mountain – bahar." The laws of sheviit apply with the same force as all those covenantal events that transpired at Mount Sinai, which events applied to the people and to God in the wilderness in the immediate setting of the mountain. The laws of sheviit are not simply details about how to do this and that, they go directly to the existence of the covenant, if not in the first place (in the wilderness) then certainly as they apply to the future situation when the Children of Israel will have taken possession of the Land of Israel. 

The laws of sheviit are fundamental and covenantal. The difference between the laws of sheviit and the initial covenantal rites at the mountain is that the laws of sheviit apply only to when the people take possession of the land while the initial covenantal rites apply even outside the land. 

Other laws also take effect only after the people take possession of the land but those laws are not covenantal. The discussion of their violation does not carry with it a disquisition about how, as a result of said violation, the covenant would be overturned and the people expelled from the land and relegated to the ignominy of exile. 

Not shemitta

'Mah inyan shemitta etzel har Sinai' is a malapropism. It should be 'Mah inyan sheviit etzel har Sinai' because the term shemitta never shows up in the laws that were said to be given at har Sinai. 

That error is a telling one because it reveals the presumption on the part of ChZl that the land belongs to the people and not to God, hence their need to shamet the land. I.e., the question reveals a profound misunderstanding of the essential covenantal character of the laws of sheviit – that the land is God's by choq and cannot be tranferred to Man. 

Self-restraint

To honor God's covenant with Man requires Man to work less than the maximum. It requires self-restraint. 

God draws Himself in to make room for Man, and Man must do likewise to make room for God. Man and God exchange self-restraints with each other. The relationship between the parties in covenant is diplomatic. 

Remove the self-restraint and you see revealed hubris. That same self-restraint is essential to the Constitutional balance of power. 

The three co-equal branches of government must exercise self-restraint and diplomatic decorum to honor the covenantal character of their relationship with each other, of their relationship with the several states, and of their relationship with the people. To arrogate power to one branch over the objections of the other branches, or to arrogate power to the Federal branch over the objection of the state branches risks arrogating power away from the populace. 

That trifecta of hubris is precisely what the Cheney/Bush administration was guilty of. 

At the leadership

The reason for the shemitta (relief) of debt and for supporting the impoverished in society is not about the direct support of the poor, it's rather about the politics of extractives vs creatives. 

It's through the management of debt that the extractives manage to maintain strongman rule. 

The edicts to serve God are directed at the leadership, not the general public. 

Fee simple

Sheviit is a statement about how land is owned in the State of Israel. 

There's a question as to whether sheviit could even apply in a society that allows land to be owned according to the modern system of fee simple. 

Legal fiction

Heter makhira is a legal fiction that papers over the rabbinic (what we consider to be) mis-construal of the laws of chag hamatzot. 

• So what would you do with the brewery, assuming the brewer cannot feasibly cleanse his operation? 
• What did God intend when He devised the laws of chometz? 
• Did he foresee a people who wouldn't ever drink whiskey or beer? 

Residential habitation

We suggest the Jewish people take the laws of chometz seriously. 

Perhaps the laws of chometz apply only in the first place to residential habitation. That would correspond to the condition of the Children of Israel in Egypt, who, in the event, did not own their own wealth – their gold and silver and clothing. The brick-making factories were not in their possession, nor, likely, were the breweries.

 If the laws of chometz applies only to residential property, then breweries would not be a problem and the heter makhira would not be necessary. 

Sabbatical covers everyone

The logic of the heter makhira of chag hamatzot depends on the exclusion of the uncircumsized from the national festival. 

The heter makhira implies that uncircumsized residents could in fact own chometz during chag hamatzot. Let's say that were so. That logic of a heter makhira could nonetheless not apply to the laws of sheviit because the uncircumsized are not excluded from the mandate of sheviit. 

No-one can use the land on the sabbatical year because in the land of Israel no mortal owns the land and therefore during the sabbatical year no-one has title to lease it to another. 

Prerogatives of sovereignty

Perhaps in the early 20^th century before the time of national sovereignty when Rav Kook instituted the heter makhira in the yishuv it made sense to use such a legal fiction for sheviit because there was as yet only a vague notion of who was sovereign over the land of Israel. After the establishment of the State, however, the act of selling the lease to an uncircumsized resident ought not to have any effect. 

The issue of sheviit is the issue of sovereignty over the land, and that sovereignty does not transfer to ethnically excluded residents; nor could individuals transfer sovereignty, in any case. 

Sovereignty is a deeper property right than simple ownership, especially of land. When market transactions bump into the proscriptions of entailment and inalienability they are really bumping into the limit of ownership rights before the prerogatives of sovereignty.

A mockery

If heter makhira could work after the establishment of the State, it would require the Knesset to invoke it. That legalistic gesture would however be a catastrophe. 

Were the Knesset to invoke heter makhira, it would signify that the people of Israel were willing to release their sovereignty over their land and to put that sovereignty in the trust of another people. That would be both preposterous, and it would weaken in their own eyes as well as in the eyes of the world the claim the people of Israel had to the land. 

Furthermore, it would make a mockery of the relation between the people of Israel and God. 

Once sovereign

Sovereignty is inalienable. When other rights are inalienable they derive that inalienability from the inalienability of the sovereign. 

A people cannot sell off to aliens their claim to their land because that would violate the inalienability of the sovereign. 

So long as the Jewish people were not sovereign in the Land of Israel it made sense for them to think they could sell off their private property to aliens during the sheviit year.  Once the Jewish people become sovereign, that option takes on a different meaning. 

If the Jewish people feel they can exercise heter makhira, then ipso facto they are saying they do not have a sovereign claim to the land. It is small wonder the Haredim are comfortable with heter makhira since in the first place they feel no particularly strong connection to the land, and even less so to a sovereign claim on the land. 

Neither palace nor cult

Claims to land are claims to participating in the nation's self-sufficiency. 

Neither the palace nor the cult can make such a claim in ancient Israel. In the biblical regime, the palace and the cult can claim residences and cities but not landed real estate; only God and the tribes and the clans that constitute those tribes are so empowered. 

Under the biblical regime, the economic power of the people may neither be centralized nor aggregated. 

(Egypt under Joseph accomplished just such an illegitimate, centralizing apportionment of the land to both the palace (Pharaoh) and the cult (the priests of Egypt), where the cult functioned as a state temple and the court functioned as a sachral monarchy.) 

Institution building

"The treaty stipulations are themselves presented as a body of teaching. The purpose of biblical law is to shape and form the polity, not merely to address cases and provide remedy." (Joshua Berman, Created Equal, 2008; page 100). 

The treaty stipulations are thus directed to the rulers of Israel and to her privileged classes to build social, political, economic and spiritual institutions to enable within the population the fulfillment of God's directives without the people needing recourse to some functioning leadership. 

Debt relief is taken out of the hands of the newly crowned kings and placed under the body politic's control as an element of membership in the Israelite collective. 

Institutions are direct instruments of self-governance as opposed to government by strongman rule. Likely the Biblical term 'shamor' connotes the responsibilities of institution building.