Rabbi Kuk’s solution is even more surprising, since it originates precisely in the Religious Zionist camp. It turns out that the ultra-Orthodox leave the land in Jewish hands, while the Zionists sell the land of Israel to gentiles! It is faithful to the letter of the law but not to its spirit. In order to observe the sabbatical laws in "the land that I assign to you" (Leviticus 25:2), "all the land, vegetation, plants, fruit trees, and all kinds of trees that we have in our holy Land of Israel" (this is the text of the document used today) is sold to an Arab dignitary for a period of two years! How bizarre!
Most Israeli rabbis assume that the mitzvah of Shmita in our day is rabbinic, basing themselves on the opinion of Rabbi Judah the Prince in both the Jerusalem and Babylonian Talmuds.
The Rishonim (early decisors, ca. 1000-1500 c.e.) explain these Talmudic passages in three ways:
a) A small minority maintains that Shmita in our days is biblical, but very few later authorities accept this approach.
b) Many Rishonim rule like Rabbi Judah that Shmita in Talmudic times was a rabbinic prohibition. However, there is still disagreement regarding Shmita after Talmudic times. Many Rishonim ruled that Shmita in their day was still rabbinic, according to Rabbi Judah's opinion in the Talmud.
c) However, many Rishonim maintained that when Rabbi Judah ruled that Shmita was rabbinic, he was referring to the Second Temple period and his own time, but today (i.e. in the Middle Ages) Shmita is a middat hassidut – an act of piety – and no more.
But if so many Rishonim agree with this opinion, why is it that most modern rabbis ruled that Shmita in our day is rabbinic? This is because they did not see most of the Rishonim who belonged to the third school of thought! Rabbi Kuk and his contemporaries only saw this opinion in the writings of Rabbi Zeraḥia Halevi and the Ra'avad. Since the Ra'avad may have contradicted himself in another place, modern rabbis decided that Shmita as an “act of piety” is a da’at yahid, the individual opinion of Rabbi Zerahia Halevi. Indeed, Rabbi Kuk and Rabbi Joseph Engel used this individual opinion as a sneef (auxiliary reason) in order to support the Heter Mechira.
Today, however, we know that Rabbi Zerahia’s opinion was never an individual opinion! Rabbi Menahem Kasher has proved that many rabbis in Provence and elsewhere considered Shmita in our day an act of piety. In addition to Rabbi Zerahia and the Ra'avad, this opinion is mentioned or supported by R. Yitzhak Ben Moshe of Vienna in the name of the Rashbam; R. Yitzhak ben Abba Mari; R. Menahem Hameiri; R. Nissim Gerondi; and the Rashbash in the name of Hukot Hadayanim who quoted Halakhot Gedolot, Rabbi Judah of Barcelona, Ba'al Ha'ittur and Rabbi Judah ben Rabbi Yakar, Naḥmanides' teacher.
Indeed, the Me'iri testifies that "many of us, many of the Geonim and rabbis who are with us" agree with him that Shmita in our day is only an act of piety. The Rashbash also writes that "many important authorities consider that it does not apply today even rabbinically".
Therefore, the opinions are evenly balanced: a large group of Rishonim ruled that Shmita in our day is rabbinic and another large group (including most of the rabbis of Provence'!) ruled that Shmita in our day is an act of piety. Since the farmers of Israel are in a difficult financial situation, and since the Heter Mechira itself is very problematic as explained above, it is preferable to follow the widespread opinion that Shmita in our day is an act of piety and no more.
Finally, one should add another sneef that supports the more lenient position. Even though we rule according to Maimonides, there is still considerable doubt as to whether the year 5768 is really a Shmita year.
Therefore, we should observe the laws of Shmita today as an "act of piety". In other words, it is laudable to observe as much as possible, but farmers who cannot observe it due to financial pressure can sow and do all other necessary activities during the Shmita year. If possible, the following laws should be observed: sowing gardens before Rosh Hashanah; avoiding biblically forbidden work, such as sowing, pruning, harvesting and plowing; avoiding the planting or tending of ornamental gardens if they are not essential for preventing erosion.
It is also advisable to perform various symbolic and educational acts such as leaving one field with a large sign as the "Shmita corner" in which all laws of Shmita will be observed and holding public study sessions of the laws of Shmita.
In the final analysis, what is the purpose of Shmita? “That the poor of thy people may eat" (Exodus 23:2). Today, almost no one fulfills the commandment's purpose as it appears in the Torah. Therefore, it would be most appropriate for all Jewish farmers in Israel to donate a percentage or a fixed amount of the Shmita year's profits to poor people. In this way, the original purpose of Shmita will be achieved.
Rabbi Prof. David Golinkin is the President of the Schechter Institute of Jewish Studies in Jerusalem.