Rabbi Yitzchak Leon ben Eliezer ibn Tzur, in his commentary Megillas Esther (published 1592), attempts to explain why the Rambam does not count living in Eretz Yisroel as one of the 613 mitzvos.
It seems to me that the reason why the Rambam did not count it is because the commandment to take over the land and live in it applied only in the days of Moshe, Yehoshua and Dovid, and until the Jews went into exile from their land. But after they went into exile from their land, this commandment did not apply for all generations until the time of the coming of moshiach, for on the contrary, we were commanded as Chazal say at the end of Kesubos (daf 111) not to rebel against the nations, to go and conquer the land by force, and they proved this from the verse “I have adjured you, O daughters of Jerusalem…” Chazal derived from here that Israel should not go up as a wall. [1]
And regarding what the Ramban says that the Sages say that conquering the land is a Milchemes Mitzvah – this was true as long as we were not subjugated to the nations.
And regarding what he says further that the Sages spoke highly of living in the land – this was only in the time when the Temple stood, but nowadays there is no mitzvah to live there. And so Tosafos comments on the law in the Mishnah (Kesubos 110b) that one spouse can force the other to emigrate to Eretz Yisroel. [2]
There is another proof that there is no mitzvah from the fact that Chazal [Rav Yehuda] say there (ibid.), “Anyone who goes up from Babylonia to Eretz Yisroel transgresses a positive commandment, as it is written, to Babylonia they shall be brought and there they shall be.” Now if there was a mitzvah to live in Eretz Yisroel all times, how could a prophet come after Moshe to contradict his words? Isn’t there a rule that no prophet after Moshe can establish any new law, and he certainly cannot abrogate a law of Moshe? [3]
And the statement that he [the Ramban] quotes from the Sifri that they [Tannaim who lived after the destruction of the Temple, when on their way out of Eretz Yisroel] cried and read the verse, “You shall conquer it and live in it” – I would say that they cried because they were not able to fulfill this verse, because the Temple had been destroyed. This is evident from the fact that they rent their garments, indicating that they were mourning for the destruction. But if this commandment were applicable even after the destruction, why did they cry and rend their garments? Couldn’t they just fulfill the mitzvah now? Therefore we must say that certainly, this commandment does not apply after the destruction of the Temple, may it be built soon in our days, amein. [4]
Notes:
[1] The Avnei Nezer, Rabbi Chaim Palagi and Vayoel Moshe all object that this doesn’t explain why the Rambam didn’t count it as a mitzvah. The mitzvah to live in Eretz Yisroel will apply once again in the times of moshiach, and the Rambam counts mitzvos that will come back into force only then, such as terumah, maaser, challah, and all the mitzvos of the Temple service. Still, these Acharonim don’t dispute the Megillas Esther’s use of the Three Oaths as a line of reasoning.
Some have mistakenly associated the dispute between the Ramban and the Megillas Esther with the dispute between Zionism and anti-Zionism. The Zionists, they claim, are following the Ramban and settling Eretz Yisroel, while the anti-Zionists follow the Megillas Esther. However, the truth is that the two disputes are unrelated. It is possible to hold that there is no mitzvah nowadays, yet allow conquest of Eretz Yisroel by explaining away the three oaths in some manner. And the converse is also true: it’s possible to hold like the Ramban that there is a mitzvah even today to settle Eretz Yisroel peacefully, but not permit conquest due to the three oaths.
[2] It is difficult to understand why the Megillas Esther cites Tosafos as supporting his position. Tosafos does not say that the mitzvah to live in Eretz Yisroel does not apply today; he just says that there are considerations that make this mitzvah difficult (the dangers of travel, and the difficulty of keeping the special mitzvos of the land) and therefore nowadays one spouse cannot force the other to move there.
[3] See Rabbi Yehoshua of Kutna who understood the Ramban to mean that the real mitzvah is conquest, and living in the land is merely a preparation for the mitzvah, just like baking matza is a preparation for the mitzvah of eating matzah. (Yeshuos Malko, Yoreh Deah 66) Accordingly, the Ramban could answer the Megillas Esther’s question: Rav Yehuda forbids living there so he is not directly contradicting or abrogating the mitzvah of conquest. And although the Gemara implies that Rav Yehuda also agrees to the Three Oaths, which seem to forbid conquest, we could say that Rav Yehuda understand the oaths to forbid mass immigration and settlement, not conquest.
Rabbi Zeira, who disagrees and permits the individual to settle in Eretz Yisroel, would understand that the oath prohibits only conquest. Settlement is always permitted, even in large numbers. He would then understand the mitzvah of Yishuv Eretz Yisroel the opposite of how Rabbi Yehoshua of Kutna explains it. Conquest would be the preparation and settlement would be the actual mitzvah. Thus the prophet (in this case Shlomo Hamelech, author of Shir Hashirim) never contradicted the actual mitzvah of settlement; he only forbade conquest.
[4] The Avnei Nezer comments that the Megillas Esther must not have seen the Sifri inside, because the Sifri continues to relate that those Tannaim indeed turned around and went back to live in Eretz Yisroel. However, there are other ways to resolve the Sifri with the opinion of the Megillas Esther that there is no mitzvah nowadays. Firstly, Rabbi Chaim Palagi wonders if the Tannaim mentioned in the Sifri may have lived earlier, during Temple times. After all, one of them was Rabbi Yehuda ben Beseira, who is famous for helping catch a non-Jew who was illegally taking from the meat of the Korban Pesach (Pesachim 3b). Secondly, the Satmar Rebbe (Yishuv Eretz Yisroel 36) quotes the Ramban himself on Chumash (end of Acharei Mos) who explains the Sifri differently: the Tannaim were upset not over the mitzvah of living in the land, but because mitzvos performed in the land had more value.
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