It is clear and obvious to all that the implementation of the political process by the Government of Israel has come as a great shock to many sectors of Israeli society. The most severe blow has been dealt to the religious right, who has anchored its ideology on halakhic rulings, and includes the concept of Greater Eretz Yisrael as one of the fundamental religious principles – the Land of Israel, the Nation of Israel, and the Torah of Israel.

In this article, I will attempt to present an alternative religious-Zionist stance, one which negates the enlistment of Halakhah for the service of political claims, despite the fact that in principle one may sincerely hold that the return of captured territories is forbidden. In essence it may be said that most of the Torah argumentation in favor of this thesis is rooted in the words of Nachmanides (Ramban), who ruled unequivocally that the conquest and settlement of the entire Land are Biblical commandments. This ruling of the Ramban has been known for over 700 years, but because the appropriate Halakhic conditions were lacking, it was not able to be implemented.

The question is, of course, whether the conditions at present are sufficiently different to enable the fulfillment of Nachmanides’ words. The answer to this question can be obtained by placing his words in the proper context, which can be done by consulting the words of Maimonides (Rambam).

When we look at the words of Maimonides in the beginning of his Laws of Kings, and in the comments of Nachmanides to the Sefer HaMitzvot (Pos. Command 4; Neg. Command 11), we see that both agree on the following points: that the settlement of the Land and the conquest of the Land are two separate commandments; that wars, of both the obligatory and optional types, are not personal affairs, but are rather the responsibility of the King in the time of the Temple and of the Sanhedrin; that a King may be installed only by a 71-member Rabbinical court (Kings 1,3); that the appointment of a King precedes the obligatory war against Amalek (ibid. 1,2); that a High Priest, anointed with the Oil of Anointment, must be appointed to speak with the nation at a time of war (ibid. 7,1); and other points.

Ramban, in fact, even adds conditions that must be present for war that Maimonides did not list. In his opinion, the King must consult with the Sanhedrin not only for an optional war, but even for an obligatory one. In Ramban’s words: “It appears to me that the King (or whoever is in control of the Nation) is Biblically commanded to consult with the Urim V’Tumim before beginning an obligatory or optional war, and to act in accordance with its directions… It is known that wars and conquests shall be carried out only with a King and by directive of the Sanhedrin and the High Priest; this is truly not a recommendation but a commandment in effect for all generations” (-end of 17th neg. commandment of Nachmanides in Sefer haMitzvot).

However, there is a dispute between them concerning two laws. Maimonides does not count the commandment of conquering the Land as one of the King’s obligations. In his opinion, the King is commanded to wage war only against a) the Seven Nations, whose existence endangers the Jewish religion (and who by now have already disappeared from the face of the earth), b) Amalek – when we are certain of their identity, and c) enemies who are planning to attack Israel. Nachmanides, however, in his list of positive commandments in Sefer HaMitzvot, opposes Rambam on this point, and writes: “Don’t err and think that this commandment [of conquering the Land] is the command to war against the Seven Nations.” Rather, he says, conquest of the Land is an additional commandment incumbent upon the King of Israel – “and this is that which the Sages call an Obligatory War.”

It is apparent that the above dispute revolved around the question whether the conquest of the Land is included among the obligatory wars in which the Messiah King will be obligated. To show the irrelevancy of this dispute to our present reality, note the words of Nachmanides: “It appears to me that the King (or whoever is in control of the Nation) is Biblically commanded to consult with the Urim V’Tumim…”

The second point in dispute is related to the commandment of living in and settling the Land. The Rambam expounds greatly upon the merits of this command: “It is forbidden to leave the Land of Israel; the Great Sages would kiss the ground upon arriving in the Land; even one who walked four cubits in the Land merits the World to Come; one should always prefer to live in the Land of Israel, even in a city that is mostly of Gentiles…” and the like. However, he does not count this as one of the 613 Biblical commandments. The Ramban comes out against this opinion, and states: “I say that this commandment that the Sages so greatly praise – living in the Land of Israel – is part of the positive Biblical command to inherit the Land and dwell in it; it is binding forever, and each and every one of us is obligated to fulfill it, even in the time of Exile…”

In other words, the Ramban holds that the commandment of dwelling in the Land is derived from the command to conquer it, and that both are Biblical. The difference between them is that the command to inherit – i.e., conquer – the Land is for the times of the Messiah, while the command to dwell in the Land is applicable even during the times of the Exile. This tells us clearly that there is nothing in the words of Nachmanides anything to support the ideological position mentioned above; for he holds that the command to conquer the Land is not applicable in our day. It appears that the command to dwell in the Land, which is in effect today, applies equally to any place within the Land.

To this analysis of Nachmanides, we may add the following consideration. In his commentary to the Torah (Deut. 20,1), he writes: “…they will be saved during the war, and not one of them will die. This is why Joshua cried out when 36 of them died in the battle of Ai, for in his obligatory war it was supposed to be that not a hair of their heads would be harmed, for ‘to G-d is war.’” It is evident, therefore, that according to Nachmanides, an obligatory war is to be run by miraculous Divine guidance, and not one of the Jewish fighters is to be killed. It is inconceivable to him that Israel would be obligated in a commandment that would endanger their lives.

An additional halakhic claim is brought by those who would use the Halakhah for right-wing purposes, unconnected to the Ramban. They posit that we are commanded not to retreat from territories of Eretz Yisrael because the experts are in disagreement as to the results of such a retreat. There are those who hold that a withdrawal would increase the danger to human life, while others say that the lack of withdrawal would cause such a danger. There are those who say that the more time goes by, our chances to succeed in holding onto all of the Land decrease; others say the opposite. This situation may be compared to a person who is ill, about whom the expert doctors are in dispute: some recommend that he undergo an operation, while others say not to. In such a case of doubt, the Halakhah says to “sit and refrain from acting.” Similarly in the case of the territories, goes this argument: since the situation is unclear, we should not retreat from areas of the Land of Israel.

The basic assumption of this argument is, apparently, that our continued control over Judea and Samaria is considered “refraining from an action.” But the fact is that this Halakhic rule applies only to cases where it is clear that there is no action at all on our part. Examples of this include the Rabbinic enactment not to blow the Shofar on Rosh HaShanah that falls on Shabbat, or not wearing tefillin on Chol HaMoed. However, it is obvious to all that in the areas of Judea and Samaria, the IDF must continuously carry out actions against terror and the like, and that therefore this is clearly a case of “get up and perform an action.” We are therefore forced to say that in the present case, any ruling – whether to continue to control the areas, or whether to give them up – is a case of “get up and do.” Consequently, this political decision is no longer a Halakhic issue, but is rather now in the field of prophecy. Maimonides, in his Introduction to the Mishnah, taught us that only a “prophet, who can see the future before it happens,” is authorized to command us to “make war on such-and-such city” – but not Torah scholars.