The Shul and its Sanctity

Introduction

Thank G-d communities in Eretz Yisrael are now all able to return to our shuls with no restrictions, safely and legally. Over the past 18 months or so, something that we took for granted for so long has been difficult and at times dangerous and impossible. We must now be appreciative of the ability to daven as normal, and it is appropriate to write about the manner in which our holy places must be treated at all times.[1]

As the laws pertaining to shuls are numerous, I will concentrate on two issues. I will start with a discussion of the overall nature of the sanctity involved, and then move on to analyse the halachos relating to some of the questionable practices that are common in shuls today.

What makes a shul holy?

This might seem like a strange question, as we are used to the notion that nothing could be holier than a place of worship. This is the common understanding in the secular world, as well as within most religions. However, it is actually not so clear-cut that this is the Jewish view. The concept of a shul does not appear in the Torah or even clearly in Tanach, for reasons we shall discuss.

The term קדושה (holiness or sanctity) in halacha usually applies to things that are set aside (מוקדש) for Hashem, such as sacrifices. The word of G-d, found in Torah scrolls or in tefilin and mezuzos, also has inherent sanctity and these objects therefore must be buried when they are no longer usable.

Ramban writes that shuls do not fall into the categories above, and as such do not have any inherent sanctity. There are explicit halachos relating to the sale of a shul building, but following the sale, the building may be used for mundane purposes. If the sale was authorised by the city leaders in the presence of the people of the city, the proceeds of the sale may also be used for non-sacred purposes.[2] This is not the case with inherently sacred objects.[3]

Therefore, Ramban concludes that the respect that we must have for shuls and the related laws stem only from the shul's use in performing a mitzvah (prayer). Other objects used for mitzvos, such as a lulav or a sukka, have a similar status and must not be treated with contempt, but are not sacred.

The Ran rejects this explanation, arguing that if there were no sanctity to a shul, there would also be no restrictions whatsoever on the use of the proceeds of the sale. Rather, as sacred matters (דברים שבקדושה, including parts of our davening such as kedusha and kaddish) are recited in shuls, Chazal assigned them sanctity on a Rabbinic level.[4]

This view, that the status of a shul stems only from Rabbinic decree, is consistent with the lack of Scriptural reference to shuls, as mentioned above. I believe that this 'omission' is for good reason – the Torah prescribes just one, centralised place of worship for us all to focus on. The concept of multiple shuls only became a positive idea once there was no other choice, when we were scattered to the corners of the earth and were no longer able to serve Hashem as one geographically.[5]

The centralised place of worship is of course the Beis HaMikdash (or the Mishkan beforehand). The obligation to treat the Beis HaMikdash with respect, or more precisely, to be in awe of it, is an explicit Biblical command.[6] Chazal tell us that shuls and batei midrash (study halls) are the miniature 'Mikdash' that Hashem promised Yechezkel that the Jews would have in exile.[7]

Based on this concept, R' Eliezer miMetz (Western Europe, 1140-1237) writes that the mitzvah to be in awe of the Mikdash extends to shuls. The related halachos are therefore of Biblical origin, although Chazal defined the boundaries of what is appropriate in each place, according to its level of kedusha.[8]

Before we move on, it is important to note that although the view of R' Eliezer miMetz seems logical, it is certainly not obvious. Although Chazal called the shul a miniature Mikdash, this only appears in aggadic passages and there is no clear indication that this has halachic ramifications. It is presumably for this reason that Ramban and the Ran looked for other explanations for the halachos of shuls.

Eating and Drinking

The gemara quotes a Beraisa which explicitly prohibits eating and drinking in shuls and batei midrash.[9] However, in almost every active shul that I have davened in, consumption of some form of food and drink has been common and virtually unquestioned. We need to analyse the reasons for this discrepancy, and to decide whether the common practice is justified and when.

Two leniencies appear in the continuation of the gemara. One is that these prohibitions do not apply to the Chachamim and their students, as the shul is their house.[10] The Rambam writes that this leniency only applies out of great necessity,[11] although the Tur does not make this stipulation.[12] Either way, it does seem clear that this dispensation only applies to those who spend a significant portion of their time studying in shul, and we need to look for something more extensive.

The other leniency is that shuls in Bavel (Babylon) are built conditionally, i.e. with a stipulation that not all of the prohibitions will apply. The gemara qualifies that it is nevertheless forbidden to use them for mundane purposes such as accounting, but the extent of what is allowed is not explicitly defined.

Tosfos and many other rishonim infer from other cases in the gemara that even in Bavel, shuls may not be used for one's own personal benefit, such as for protection from the elements. They conclude that the stipulation made with these shuls only has effect once the shul falls into disuse. This is also the ruling of the Shulchan Aruch.[13] Thus this leniency too appears to be insufficient.[14]

However, several questions remain. Firstly, we need to try to understand why the Rambam does not mention any halachos regarding shuls built conditionally, even when they are no longer in use. Secondly, why is it that stipulation works only after a shul is defunct? Finally, if shuls can be built with such a stipulation, why would any community limit themselves by building a shul without any conditions?

Tosfos write further that the stipulation only applies to shuls in Chutz La'aretz, as the sanctity of these shuls will anyway terminate when Mashiach comes. Shuls in Eretz Yisrael are consecrated forever, and no conditions can be made. This answers our last two questions – the 'stipulation' is not made by choice, rather exists automatically for shuls in Chutz La'aretz, which can only have temporary sanctity.

The Rambam clearly does not subscribe to this position, as he would certainly have recorded such a major difference between shuls in Eretz Yisrael and Chutz La'aretz if he held of it. I would therefore like to suggest an alternative approach.[15]

I believe that the Rambam omitted the halachos of a 'conditional shul' because there is actually no novelty involved. The Rambam does write that if people start davening in a building (or room) without designating it as a shul, the halachos of a shul do not apply.[16] Communities in Bavel used a logical extension of this, designating shuls on a temporary basis only.[17]

When shuls are built (or existing buildings designated for tefila) with clear intention to be used for non-sacred purposes as well, it could be argued that de facto these 'shuls' do not have the halachos of a shul. Thus it would be permitted to eat and drink in them, without limitation. However, it is crucial to point out that under normal circumstances, communities are obligated to build a fully consecrated shul to daven in.[18] Where possible, it is certainly preferable to daven in a shul that is used for prayer and Torah study alone.[19]

Implementation

Much of the responsibility to maintain appropriate conduct in shul lies with community leaders. However, enforcement of the ideal standard described above will usually not be practical, unless members of the community can see the benefit of having a shul dedicated for sacred matters. This involves efficient running of services, cutting out unnecessary delays and creating a feeling of relevance.[20] Without this, we should not be surprised if shuls become mere community centres, where people come to chat and to read colourful newsletters.

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[1] After starting to write this post, the outbreak of the Delta Variant has cast doubts over how long this return to normal may last. This doubt should serve as a further reminder not to be complacent, and to use our shuls appropriately.

[2] Mishna and gemara, Megila 25b-26a

[3] Chidushei HaRamban, Megila 25b

[4] Ran, Rif Megila 8a

[5] I have written about this concept at length previously, in He has no physical form.

[6] Vayikra 19:30

[7] Yechezkel 11:16; Megila 29a

[8] Sefer Yere'im, siman 409. This explains why despite being part of the same mitzvah, wearing shoes and carrying certain items are forbidden on Har HaBayis but permitted in a shul.

[9] Megila 28a-b

[10] Ibid. Although it is not so clear from the gemara exactly which of the restrictions are relaxed for Chachamim, from the words of the rishonim it is clear that the leniency applies at least to eating and drinking.

[11] Hilchos Tefila 11:6. The acharonim discuss where the Rambam may have learnt this from, but I have not found any convincing answer.

[12] Orach Chaim 151. The Rashba differentiates between shuls and batei midrash in this regard, writing that in the beit midrash, talmidim are allowed to eat and drink even without great need (nowadays many shuls function as batei midrash outside of davening times, and this leniency would therefore apply).

[13] Orach Chaim 151:11

[14] R' Moshe Feinstein writes that we are forced to say that the prevalent custom is according to the dissenting view of Rashi and the Or Zarua, that stipulation allows use of functioning shuls for non-sacred purposes (Igros Moshe, Orach Chaim 1:45).

[15] The Magen Avraham (151:12) writes that the Rambam's position is that this leniency only applied historically to shuls in Bavel and is not relevant today. This is difficult however, as there does not appear to be any reason why such a stipulation could not be made today as well, and the Rambam should have mentioned this.

[16] Hilchos Tefila 11:21. This point is undisputed.

[17] The Mishna Berura (Biur Halacha 151:11 ד"ה להשתמש בו) writes that such a stipulation prevents any kedusha taking effect on the shul, even on a temporary basis. However, I believe that the Rambam would disagree.

[18] See Rambam, Hilchos Tefila 11:1. This point was already made in Corona Observations.

[19] See Igros Moshe, Orach Chaim 2:44, where R' Moshe Feinstein writes along similar lines. However, his position is that unless it is explicitly stipulated that there will be no kedusha, a building designated for davening does have the halachos of a shul. Stipulation to allow eating and drinking is invalid (according to Tosfos and the Shulchan Aruch), as this conflicts with halacha (מתנה על מה שכתוב בתורה, or מתנה על דברי חכמים). I would argue that while this may have been true historically, now that eating and drinking in shuls has become so common, there is no requirement for an explicit stipulation. It is understood that there is no intention to imbue sanctity on the shul, at least not the halachic sanctity of which Chazal spoke.

[20] See The Text of Tefila regarding possible modifications to our tefila.

Conquering, Annexation and Property Rights

Introduction

The Sheikh Jarrah property dispute raises various halachic, legal, moral and political questions. As usual, here I will concentrate mainly on the halachic and moral issues, although we also need to explain the legal situation briefly by way of introduction.

Much of the land in the Sheikh Jarrah neighbourhood was acquired by Jews during the Ottoman rule, and remained in their possession throughout the British Mandate. Although there have been some claims made questioning the validity of the initial land purchases, the courts have consistently ruled that these are valid.

In 1948, all Jews were expelled from East Jerusalem (and other areas such as Gush Etzion) by the Jordanians, whereas large numbers of Arabs either fled or were expelled from their homes in West Jerusalem and other parts of the country.[1] Some of the Arab refugees were re-settled in the Sheikh Jarrah neighbourhood, in an agreement between the Jordanian government and UNRWA.

It is important to point out that while Israeli law recognises Israeli sovereignty over areas captured in 1948 as well as East Jerusalem and the Golan that were liberated in 1967 and subsequently annexed, it also recognises historical Jordanian sovereignty over Judea and Samaria (including East Jerusalem), during the 1948-1967 period.[2] This is apparent from the partial application of Jordanian law to Judea and Samaria (not including East Jerusalem),[3] as well as from the content of various court rulings. In relation to the Sheikh Jarrah property dispute, had the Jordanian government indeed transferred the ownership of the land to the residents, this would have been valid.[4]

In summary, under Israeli law, a sovereign power that captures and annexes territory has the right to re-allocate abandoned land within this territory to its citizens.[5] This right was exercised by the Israeli government in West Jerusalem and other places, and by the Jordanian government in parts of Judea and Samaria.[6] It was not exercised by the Jordanians in relation to the residents of Sheikh Jarrah, resulting in past and pending evictions from this neighbourhood.

The question we need to ask is whether this right in Israeli law is halachically and morally justified, while bearing in mind that the answer will not have any effect on the status of the land in Sheikh Jarrah, where it was not exercised.

Acquisition through Conquest

The idea of 'Right of Conquest', whereby sovereignty can be taken by force through war, is clear in a number of places in Tanach. The halachic significance of this can be seen most clearly from the description in the Torah, subsequently quoted by Yiftach in Sefer Shoftim, of how the Amorite king Sichon conquered the land of Amon, a nation whose land was forbidden to Bnei Yisrael. Capture by Sichon 'purified' this land and made it permissible for Bnei Yisrael to conquer and annex this territory.[7]

The gemara derives from here that individual property rights can also be abrogated through military conquest.[8] This applies to capture from non-Jewish and Jewish individuals alike.[9] However, the nature of this abrogation is subject to dispute. There are three main possibilities:

1)    Ra'avad writes that he has no clear understanding of how private ownership can be terminated without consent. He therefore suggests, for lack of a better alternative, that the captors have only a temporary ownership while they are in control. This ownership forbids a third party from using the property, but the original owner remains the real owner and if he manages to recover his property, the secondary 'ownership' of the captors terminates automatically.[10]

2)    Other rishonim understand that there is nothing extraordinary about property lost during war. Any transfer of ownership is based on the standard principle that owners lose rights to property that they have given up hope of recovering (יאוש).[11] According to this, the captors themselves can only acquire property that was abandoned before they arrived. Active dispossession of the owners is theft, but one who buys from the invaders has no obligation to return the property.[12]

3)    Probably the most widely held view is that there is an inherent Right of Conquest, irrespective of previous owners giving up hope of recovery. According to this view, sovereign powers have exceptional authority during wartime.[13] The idea appears to be an extension of the concept of dina d’malchusa dina (the law of the government has validity).

There is little discussion of these topics among the classical commentators. However, Professor Yisrael Tzvi Gilat of Netanya Academic College writes extensively about the second two views quoted above and the practical differences between them.[14] One undeniable observation that he makes is that conceptually, these two views are almost diametrically opposed.

This can be seen most clearly in the case of an evil but powerful dictatorship that confiscates property without any moral justification.[15] According to the second view above, as the owners will certainly give up hope of recovering their property, they will also lose the halachic right to get it back.[16] According to the third view, an illegitimate government does not have the prerogative of dina d'malchusa.[17]

Modern Norms and Future Aspirations

According to either view, it is clear that in the modern world, where re-distribution of property by a conquering government is viewed as illegitimate, this would in general also not have halachic validity. Those who have their property confiscated usually do not give up hope of retrieving it;[18] neither can dina d'malchusa apply when it differs from commonly accepted practice.¹⁷

However, this illegitimacy is only relatively recent. Until just after World War II, Right of Conquest was an internationally recognised principle.[19] Norms do not change overnight, and it was only natural that the years following World War II were somewhat of a grey area. This uncertainty is probably part of the reason that many issues arising during those years remain unsettled today, and it would be foolish to think that one blog post could provide a definitive solution.

Regarding our future aspirations, it is important to attempt to find a resolution to an apparent conflict between current accepted norms and our halachic obligations in relation to Eretz Yisrael. If we accept the position of the Ramban, we are obligated to take control of all of Eretz Yisrael, irrespective of which non-Jews are living there at the time.[20] How are we to do this if conquest is illegitimate?

The answer is that the obligation to take control does not necessarily require war or the use of force. It may seem far off now, but the ideal solution would be to persuade the non-Jewish residents to either formlly accept the seven Noachide laws, or leave voluntarily. Ramban himself writes that had the rebellion of the spies not taken place, there would never have been any need for war when we first entered Eretz Yisrael. The seven nations would all have left voluntarily, as the Girgashi did.[21]

In the ancient world and until relatively recently, war was the most commonly accepted way to resolve international disputes. Thank G-d we live in a time where this has changed, and superior methods exist. We aspire to see further improvements, where our enemies will stop attacking us and we will have no need for any kind of war.

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[1] This started in 1947, and there is considerable historical dispute as to how many left under what circumstances. Expulsions may have taken place at the hands of fellow Arabs (mainly for military purposes) or Jewish groups such as the Irgun and the Hagana, and many fled either under threat from either of the above, or of their own volition (due to fear, or perhaps just to improve standard of living). See for example Wikipedia.

[2] This is despite the fact that during the 1948-1967 period itself, the Israeli government, as well as the entire world, did not recognise Jordanian sovereignty over West Jerusalem (the UK recognised their sovereignty over the rest of the 'West Bank'). See Wikipedia.

[3] See Wikipedia (in Hebrew)

[4] Claims to this effect were dismissed by the courts as being unevidenced, but the clear implication is that had they been true, the rulings would have been different. See for example https://www.ngo-monitor.org.il/sheikh-jarrah-property-claims/ (in Hebrew). See also footnote 6 below.

[5] I am not a legal expert and it is possible that there are exceptions to this. The point of this post is to discuss whether the general principle is halachically and morally justified, whether or not it is applied fairly under Israeli law.

[6] Evictions of Jews from Migron, Amona and other places were based on the same principle, where land was classed as privately owned due to the actions of the Jordanian authorities. In these cases, the courts ruled that the Jewish residents must be evicted despite the fact that no individuals proved ownership of the land and were thus unable to reclaim it.

[7] See Bamidbar 21:21-31, Shoftim 11:12-28, Gitin 38a.

[8] The discussion in the gemara is regarding capture of slaves, although it is relevant for other property as well.

[9] Gitin 38a, see Tosfos ad loc. (ד"ה אבל בחזקה). Although Rashi explains the gemara slightly differently, it is still clear that the acquisition discussed is a forced one. See P'nei Yehoshua for an explanation of Rashi's reading of the gemara.

[10] Corrections of the Ra'avad, Rif Gitin 20b. In the case of the gemara that he is dealing with, the 'original owner' is the slave himself and the captors are non-Jews. In this case, if the non-Jewish captors sell the slave to a Jew, their temporary ownership is significant enough to warrant a bill of release from the Jewish buyer before the slave can go free.

[11] Ri Migash quoted in Shita Mekubetzes to Bava Metsia 24b; Tosfos Rid, Gitin 38a; Yad Rama, Sanhedrin 94b.

[12] One who steals cannot acquire through יאוש alone. See Pesakim uK'savim of R' Hertzog, siman 37, who applies this principle to fields abandoned by Arabs in the War of Independence.

[13] Rashba to Gitin 38a writes explicitly that יאוש is not required, as the Torah declared that forced requisition during war is a valid means of transfer of ownership. Responsa of the Rif (quoted by the Itur, Mem – Moda'a 41a) and the Rambam (Blau edition, siman 209) also rule that the king has the power to approve confiscation of property during wartime (however, it is somewhat problematic that the Rambam seemingly omits this concept in Yad HaChazaka).

[14] His 40-page essay (in Hebrew) can be downloaded here.

[15] Professor Gilat shows that rulings of different Batei Din conflict over this issue, in relation to property seized by the Nazis.

[16] If the property was abandoned prior to requisition, or was sold subsequently.

[17] See The right to resist abuse of power. According to this view, יאוש does not have effect on land ownership, even during wartime. This is the reason the Rashba gives for rejecting the second explanation above.

[18] Historically, in times where the vast majority would give up hope, any individual declaration to the contrary would have no effect. See Bava Metsia 24b, which states that such declarations are akin to protests about a house that collapsed or a ship that sunk.

[19] See https://en.wikipedia.org/wiki/Right_of_conquest.

[20] Sefer Hamitzvos, Mitzvah 4 in his collection of positive mitzvos that the Rambam ‘forgot’. See War and Peace for a brief discussion as to the Rambam's position.

[21] Commentary on the Torah, Bamidbar 14:9. R' Nachum Eliezer Rabinovitch claims that even according to the Ramban, we were only permitted to wage war in order to take control of Eretz Yisrael as a one-off event in the time of Yehoshua (see this shiur in Hebrew). Subsequently, this mitzvah is not sufficient justification for the loss of human life. While in my view this is a very difficult reading of the words of the Ramban, I certainly agree that in an era where the world has progressed enough to make aggressive wars unacceptable, we should hold ourselves to the same standard.