Zionist Argument: The Three Oaths are Only Aggadah

Claim: The Three Oaths are aggadah, not halacha. The poskim don’t bring them down as halacha. 

Facts:

The Gemara begins with the story of Rabbi Zeira and Rav Yehuda. Rabbi Zeira did not want Rav Yehudah to know he was moving to Eretz Yisroel, because Rav Yehuda held, based on the Three Oaths, that it was halachically forbidden even for an individual to move to Eretz Yisroel. Rabbi Zeira countered that the Oaths apply only to the Jewish people as a whole, not to individuals. This was clearly a halachic dispute.

True, the Rambam and Shulchan Aruch don’t bring the oaths, but we never reject something as halacha simply because it is not brought down in those two works. The commentaries on the Rambam and Shulchan Aruch are full of halachos that these poskim didn’t bring down, and explanations are sought and found as to why they didn’t bring them down. The law is included in another law, contradicted by another law, etc. Every yeshiva student knows this.

In this case, the Rambam makes it clear in his Letter to Yemen that he did in fact view the oaths as binding law. The Megillas Esther in Sefer Hamitzvos (end of Mitzvos Aseh, responding to the Ramban’s argument that the Rambam should have counted living in Eretz Yisroel as a positive commandment) also makes clear that the Rambam viewed the oaths as binding law.

As to why he did not include them in his Mishneh Torah, one simple explanation is that the Rambam did not need to do so, because he describes the process of the coming of moshiach (Hilchos Melachim 11:1), and the oaths are implicit in that process. He writes: “The king moshiach will arise and restore the dynasty of David to its original power. He will build the Temple and gather the dispersed of Israel.” If moshiach will be the one who gathers in the Jewish people, then it is clear that we are not allowed to gather ourselves in before the coming of moshiach.

This idea is really explicit in the Midrash (Shir Hashirim Rabbah 2:20), which tells us the reason for the oath against going up as a wall: “If so, why does the king moshiach have to come to gather the exiles of Israel?” The Maharzu explains that it is moshiach’s job to bring all of Israel up together from the exile, and if, G-d forbid, they do this on their own, they will lose the redemption of the moshiach. The Yefei Kol understands it the same way: “If we come up as a wall from exile, why will the king moshiach have to come to gather the exiles of Israel? And since we know from many verses in Tanach that moshiach will gather our exiles, we cannot gather ourselves together.”

The Satmar Rebbe offered a different answer as to why the Rambam had no need to bring the oaths: he writes in Hilchos Teshuva 7:5 that the Jewish people will be redeemed only after they do teshuva. Thus, if they haven’t yet done teshuva, then the redemption can’t come in any case, so obviously we can’t take any action to bring it at that point, and if they do teshuva, it will come immediately.

The Shulchan Aruch has no Hilchos Melachim, and so he does not discuss moshiach’s criteria at all. Generally, the Shulchan Aruch is not an all-inclusive work; for example, such important laws as the laws of lashon hara are not mentioned in it.

Furthermore, the Shulchan Aruch doesn’t cover the principles of Jewish belief, although all would agree that they are important. The Three Oaths are more than halacha – they define our belief in Hashem as the only one who can end the exile, who watches over us and protects us in exile, and puts us in the place that is best for us. 

The following is a brief list of some of the poskim who do discuss the Three Oaths as binding: Rashbash 2, Rivash 101, Piskei Riaz Kesubos 111, Kaftor Vaferach chapter 10, p. 197, Maharashdam Choshen Mishpat 364, Pe’as Hashulchan Laws of Eretz Yisroel, Chapter 1, Section 3, Aruch Hashulchan Choshen Mishpat 2:1, the Gadol of Minsk in Sinai v. 6, p. 213.  

And here are some well-known commentators who discuss the oaths as binding: Rabbeinu Bachya on Vayishlach, Abarbanel Bereishis 15:11, Maharal in Netzach Yisroel 24, Ohr Hachaim Hakadosh Vayikra 26:33, Rabbi Yaakov Emden in Sefer Hashimush 66b, Yismach Moshe Tehillim 127:2, Rabbi Samson Raphael Hirsch, Siddur p. 703.

When the Zionist movement began, countless rabbanim and poskim spoke out against it, stating clearly that it violated the oaths. Here are a few of them: Rabbi Naftali Adler, Rabbi Eliyahu Chaim Meisel, Rabbi Sholom Ber Schneersohn, Rabbi Yisroel Zev Mintzberg, Rabbi Moshe Hager, Rabbi Mordechai Leib Winkler, the Rogachover Gaon, the Minchas Elazar, Rabbi Mordechai Rottenberg, Rabbi Shaul Brach, Rabbi Ben Zion Halberstam of Bobov, Rabbi Elchonon Wasserman, Rabbi Yitzchok Weiss of Spink, Rabbi Shlomo Zalman Ehrenreich, the Chazon Ish, Rabbi Michoel Ber Weissmandl, the Brisker Rav and Rabbi Yonasan Steiff. To read these quotes and more, get the book “I Will Await Him.”

Those who claim that the Three Oaths are “merely Agadta” must realize that there are two types of Agadta in the Gemara. Agadta explains the punishments, rewards, and mussar behind halacha; but sometimes the halacha being illuminated is halacha that is already mentioned elsewhere in the Gemara, while other times the Agadta is the sole source of the halacha. For example, in Sotah 4b it says that anyone who is careless about the ritual washing of the hands is uprooted from the world. That is Type 1. We know from the Gemara elsewhere that one must wash one’s hands. The Aggadah is just coming to tell us a punishment for an established law. Such aggados are not generally codified by the Rambam and Shulchan Aruch.  In Berachos 5b it says that if two people are praying in a shul and one finishes first and leaves, his prayer is torn up, and it quotes a verse from Tanach. That is Type 2: the prohibition on leaving one person alone in shul is not mentioned anywhere else in the Gemara; this Aggadah is the only source. The halacha in this Aggadah is therefore brought down by the Tur in Orach Chaim 90.

To prove more conclusively that novel halachos mentioned in Agadta are codified, take the tractate Berachos, which contains a great deal of Agadta. Berachos contains 41 aggados that derive punishments from verses. Of those 41, 25 contain a unique law. Of those 25, 16 are codified by the Rambam or the Shulchan Aruch. Five are brought by the Magen Avraham. That leaves only four that are not codified, and for each of those four there is a special reason which would take too much time to go into now. The point is that halachic aggados – aggados from which a unique law emerges – do have to be codified, and when they are missing from the codes, there has to be a reason, just like we search for reasons every time the Rambam omits a law mentioned in the Gemara.

Here too, the Three Oaths are certainly aggadah but they contain unique halachos. The poskim (though not the Rambam and Shulchan Aruch) do quote them as halacha.

This point is made by none other than Rabbi Yitzchok Isaac Herzog, the first chief rabbi of the State. I quote:

The Rambam did not include in his great work the subject of the Three Oaths that the Holy One, blessed is He, made Israel swear. It seems he holds they are merely an asmachta (probably he means Agadta). But this is hard to say, for he sometimes includes words of aggadah when they are relevant to halacha. And since there is no one in the Talmud who disagrees [with the Three Oaths], why didn’t he bring it?” (Techukah Leyisroel Al Pi Halacha, p. 125)

There is no such thing as just dismissing a Gemara is “aggadah and not halacha.” If the Gemara contains a novel halacha, it is halacha, even if written in the aggadic style.

The common notion that “we do not derive halacha from aggadah” is probably originated from a misreading of Yerushalmi Peah 13a: “Rabbi Zeira said in the name of Shmuel: We do not derive halacha from the Halachos, the Hagados or the Tosefos, but only from the Talmud.”

Someone probably read this and thought that we don’t learn from Aggadic material in the Talmud. But from the fact that the Yerushalmi contrasts “Hagados” to “Talmud” it’s clear that “Hagados” only refers to material found outside the Talmud, such as the Midrashim. As the Pnei Moshe explains, the Amoraim in the Talmud are the ones who came to a clear conclusion on the practical law, based on comparing and contrasting various teachings, and based on their logic. Midrashim, on the other hand, don’t have their stamp of approval and finality.

Besides, I can prove to you that the oaths are halacha, because they have been treated as such throughout Jewish history whenever opportunities arose to leave exile early. When part of the tribe of Ephraim left Egypt thirty years before the Exodus, they met a bitter end. The Midrash (Shemos Rabbah 20:11) states that 300,000 of them were killed by the Philistines. It also says that the reason why Hashem did not want to take the Jews out of Egypt through the land of the Philistines (Shemos 13:17) was so that they would not see the bones of their brothers from the tribe of Ephraim, which were still strewn on the ground. The Midrash Rabbah on Shir Hashirim 2:7 says that they transgressed the Oath.

When a group of Jews undertook an unauthorized invasion of Eretz Yisroel after the sin of the spies, Moshe Rabbeinu warned them (Bamidbar 14:41), “Why do you transgress the command of Hashem? It will not succeed.” The Ibn Ezra makes this into a general rule: “It will not succeed – ascending to the top of the mountain will not succeed. Or, in transgressing the command of Hashem there cannot be any success.” The end was that “the Amalekites and the Canaanites who dwelt in that hill country came out, and smote them and smashed them to utter destruction.” The Targum Yonasan on Shir Hashirim 2:7 says that they transgressed the Oath.

Fifty or sixty years after the destruction of the Temple, Bar Kochba led a revolt against Rome and established a Jewish kingdom. This is one of the cases listed by the Midrash on Shir Hashirim when the oaths were transgressed. And Rabbi Akiva, who initially supported Bar Kochba, did so only because he thought he was moshiach. Clearly, one who is not moshiach is forbidden to revolt and establish a sovereign state.

In 1826, journalist Mordecai Noah proposed to found an all-Jewish state or colony on Grand Island near Buffalo, New York, and sent letters to the rabbis of Europe asking them to be leaders in the new state. Here is the answer he got from Abraham de Cologna, Chief Rabbi of Paris: 

“The venerable Messrs. Herschell and Mendola, Chief Rabbis at London, and myself, thank him, but positively refuse the appointments he has been pleased to confer upon us. We declare that according to our dogmas, G-d alone knows the epoch of the Israelitish restoration, that he alone will make it known to the whole universe by signs entirely unequivocal, and that every attempt on our part to reassemble with any politico-national design is forbidden, as an act of high treason against the Divine Majesty.”