Im eshkacheich Yerushalayim, tishkach yimeenee

If I forget Yerushalayim, my right hand should forget her skills.

Tehillim 137:5

Throughout the generations of exile, the Jewish People never lost hope of returning to their land. The above noted verse from Tehillim became our continued declaration. We never forgot our land and we never lost hope of returning to it. Regardless of how long we were absent from Eretz Yisrael and/or regardless of who may have lived there in the interim, our consciousness was full with the recognition that it was our land. It was and is our hope. We never forgot.

This continuous declaration regarding our connection to Eretz Yisrael may actually have more significance, pursuant to our moral and halachic sensitivities, than as solely a poetic and charged assertion of allegiance to and love for our land. Within the halachic system, the concept of yi'ush is a significant concept in defining ownership in various circumstances. Even though one may lose practical control of property through such occurrences as a loss or theft, legal ownership is not deemed as even able to be passed unless and until the original owner has despaired of regaining his/her property. Yi'ush is this construct of despair and until there is yi'ush, pursuant to Halacha, ownership is simply non-transferable. Halachically, legal transfer of ownership can never be recognized in a case initiated by loss or theft without yi'ush.

With this in mind, one can now see that the powerful declaration in Tehillim, repeated continuously over the centuries, that we have not and will never despair from regaining our land, may have an important theoretical, halachic ramification. One could argue that even though the land of Israel was clearly, historically ours -- even if one agreed that, historically, it was given to the Jewish nation by God -- one could contend that the subsequent settlement of this land by others made it no longer the case. The original "thief" -- i.e. the original conqueror who took this land from the Jews (Rome) -- may be eternally barred from claiming ownership over the land, yet subsequent settlers who occupied the land, it could be argued, could have a claim to ownership. Such a claim could be similar to the halachic concept of shinui reshut, a subsequent change in the control of property after the original theft, which can affect legal ownership according to Halacha. Yet shinui reshut only can affect ownership if there is also yi'ush and, in this regard, the Jewish people never have despaired of regaining its control as owner of the land. Without yi'ush ownership is not transferable and since Klal Yisrael never despaired -- Im eshkacheich Yerushalayim -- the land, according to Halacha, must continue to be seen as ours.

In truth, there would seem to be some halachic debate on whether the concept of yi'ush is even applicable to land. This would seem to be tied to the issue of whether land can be stolen. See, further, Encyclopediat Talmudic 5:477-479, Gezel, B'Karka'ot. Within the classical understanding of this issue, it would seem that an owner of land inherently never despairs of eventually regaining practical ownership and control of his/her land. Thus, there is never yi'ush in the case of land and, simply, legal ownership of the land of Israel could, inherently, never be transferred through conquest. As such, according to this view, even without such declarations as this powerful verse in Tehillim, the result would still be that, according to Torah law, the land of Israel will always continue to be our land. This would be the halachic conclusion, based on the inherent inapplicability of yi'ush to land: Eretz Yisrael continues to be our land regardless of what has transpired on the land itself afterwards.

The idea that yi'ush is inherently not applicable to land, though, is not universally accepted. Trumat Hakree, Choshen Mishpat 262:8, note 2 specifically raises the case of a strong armed non-Jew who takes land, through force, from a Jew and states that there would seem to be positions that would consider the concept of yi'ush to potentially be applicable in such a case. Within this perspective, the continued declaration by our nation, exemplified by this famous verse in Tehillim that we have not and never will despair of returning to Israel, may truly have a powerful halachic significance beyond its emotional and philosophic import. The verse declares that yi'ush was never reflected in the attitude of the Jewish Nation towards its land. As such, even according to the view that yi'ush is potentially applicable to land, there was never yi'ush in our case and, as such, pursuant to our moral structure of Halacha, Eretz Yisrael still continues to legally be our land.

Yet, what significance is there to this recognition that pursuant to Halacha we have a legal right to Israel? The nations of the world do not apply Halacha in their determinations regarding sovereignty so this argument has little import to them. The argument, though, is important for us to recognize, As with the famous comments of Rashi, Bereishit 1:1 that explain that the Torah began with Bereishit to give reason to the Jewish right to Eretz Yisrael -- since all the land is created by God, He has the right to give it to whomever He wishes -- this presentation regarding yi'ush is not meant for the non-Jews. These arguments are meant for us, for Klal Yisrael. It is important for us to know that our right to Eretz Yisrael is consistent with the moral and ethical structure and guidelines of Torah and Halacha. Rashi's concern in raising the issue of how we will respond if the nations of the world declare us to be thieves was not intended to direct us to develop an answer for them. It was directed to us, for us to know why, pursuant to our value system, we are not thieves. (See my Nishma Spark of the Week 5754-03.) This presentation regarding yi'ush is meant for the same purpose. The non-Jewish world may not have a concept of yi'ush and thus may contend, pursuant to their systems of property, that we have no or a limited, right to Israel. That is not a concern for us (beyond, perhaps, a pragmatic one). We, though, should be concerned that we are consistent with the ethical rules of the Halacha. Thus, it is, according to Rashi, to answer a legitimate question for ourselves that God began the Torah with Bereishit; because it is important for us to know the morality of our position according to our system of morality.

There are actually two significant sides to the lesson inherent in this recognition. The call of the Jew is to meet the highest standards of ethical and moral behaviour pursuant to our yardstick of ethics and morality -- i.e. the Torah, significantly including Torah She'b'ktav and Torah She'b'al Peh -- and not necessarily a yardstick of a different nature. We must strive to meet our standards. We do not have to meet standards defined by another system. Recently, in reaction to one of my recent columns in the Jewish Tribune in Toronto, a person responded by quoting international law and how pursuant to this system, my views on Israel could, and should, be dismissed (see, further, on the Nishma Blog, the entries, regarding this article and the dialogue initiated by this response to the article, at http://nishmablog.blogspot.com/2008/07/yerushalayim.html and http://nishmablog.blogspot.com/2008/07/yerushalayim-letter-and-response.html). Interestingly, a short time after being involved in this dialogue I also read articles in other papers that discussed a non-Jewish lawyer who wrote a Ph.D. thesis in international law which argued that the Jewish nation, pursuant to international law, clearly has dominant rights in regard to Israel. Yet, both to the person who challenged my assertion regarding Yerushalayim and in response to this lawyer who presents an argument that would favour my viewpoint, my answer is the same: except for some pragmatic concerns, whether my view is deemed ethical pursuant to the standards of international law is irrelevant to me. I actually found arguments based on international law, in the presentation of the lawyer who was pro-Israel, that were, pursuant to my sensitivities, problematic. It is not an issue for me whether we meet the standards of morality and ethics as defined by international law. It is an issue for me, though, that I meet my standards.

This was Rashi's point. Lest I think that our assertion that Israel is ours challenges other Torah values, it was important for God to inform us of Bereishit so we maintain a consistency in our understanding and application of Torah values. Similarly, it is important for us to recognize the significance in that our nation never despaired of returning to the land. The non-Jewish world may not care about the concept of yi'ush. They may even disagree with its function in the determination of ownership. They, as such, may still reject our claim to Israel, even calling us thieves. That is not my concern. I just want to understand that I am not a thief pursuant to Torah standards.

This position, though, may not be universally accepted. Within the debate over artificial insemination (see, further, Rabbi Alfred S. Cohen, Artificial Insemination, The Journal of Halacha and Contemporary Society, Volume 13) some of the issues touched upon our relationship with the general world of ethics, the concern for the opinion of others in the determination of proper Torah behaviour and the halachic category of chilul Hashem, profaning God's name." According to Rabbi Yaakov Breisch, Shut Chelkat Yaakov 3:45-51, since the Catholic Church had already banned artificial insemination, it would be a chilul Hashem for us to allow it. Basing himself on the words of Sefer Chasidim 829, Rabbi Breisch contends that it is important for Jews and Judaism to not be seen as more morally lax than others even pursuant to the standards of the others. To be perceived as more morally lax even in such circumstances would be deemed to be a chilul Hashem, a desecration of God's Name. According to this view, there may also be value in showing that our right to Israel and Yerushalayim is even pursuant to the ethics and morality of international law. (Of course, the fact that it may not be would still not override a Torah directive in this regard.)

Rabbi Moshe Feinstein, Dibrot Moshe, End of Ketubot, however, strongly disagreed with Rabbi Breisch. Rav Moshe contends that moral and ethical standards built upon other religious perspectives cannot be guidelines for us. A chilul Hashem is not simply when non-Jews see us as immoral but, rather, may occur when they see us as violating our own Torah standards of ethics and morality even if, technically, we are not. Rav Moshe understands the words of the Sefer Chasidim as not applying to a moral issue but rather in connection to behaviour that non-Jews would find repugnant: we are not permitted to act in a manner, even if halachically permitted, that would be seen as disgusting in the eyes of non-Jews. There is, though, nothing wrong in acting in a halachically permitted manner that a non-Jew would challenge morally pursuant to the non-Jew's moral system. In a similar vein, again except because of possible pragmatic reasons, it is irrelevant to us whether international law deems our view of Israel and sovereignty as immoral and/or unethical as long as we meet the Torah standard. In this regard, though, it is still important for us to understand how our position does meet the many multi-dimensional, ethical and moral demands of our halachic system.

(Regarding this disagreement between Rabbi Breisch and Rabbi Feinstein, much revolved around their different understandings of the words of the Sefer Chasidim. It is interesting to note that both scholars may have been using different editions of this work and that this may have actually played an important role in each individual's understandings of the text. Rav Moshe defends his reading of the text -- asserting that the issue is one of dignity, not morality -- by noting that dignity is also actually the topic of the various statements that surround the specific statement presented by Rabbi Breisch in defense of his argument. Other editions of the Sefer Chasidim, though, have a different arrangement and in other editions this statement presented by Rabbi Breisch is actually found in the context of other statements regarding moral behaviour. The format used in the different publications of Sefer Chasidim, as such, could have been a factor in the different determinations of the context and meaning of the words with this text.)

I, as stated, lean towards the view of Rav Moshe. It is not our task, I believe, to show the world how we meet their definitions of morality and ethics. It is our task, though, to meet the Torah's standards. Of course, in that there are statements within the corpus of Torah thought that call upon us to sometimes incorporate natural morality within our Torah perspective, we cannot totally reject secular considerations in the development, understanding and implementation of our moral and ethical standards. But it is in regard to our standard, the standard decried by Torah, that we must strive for consistency. Shulchan Aruch, Orach Chaim 554:25 states that all who mourn over the destruction of Yerushalayim merit to see the joy of its rebuilding. The connection of mourning and joy may even been more intense. It is the very fact that we felt the pain of sadness for our loss of Yerushalayim but never despaired of our eventual return that actually allowed us to return. In a similar vein, it is in our striving to find and maintain a consistency in understanding and application of our Torah standards of ethics and morality that we will find the method by which to meet the highest goals in our pursuit of Torah and become a "light unto the nations" by showing them that the Torah standards are truly the highest standards of ethics and morality.