Though it is unclear, precisely, what was the sin that caused God to punish Am Yisrael to wander for forty years in the desert, it is clear that an important component is their rejection and distaste for Eretz Yisrael. The psukim teach this by referring to Eretz Yisrael as “et haaretz asher meastem”, the land which you showed distaste for. From a halachik perspective, living in Eretz Yisrael constitutes a mitzvah. The Ramban notes that this can be learned from the pasuk in Devarim introducing the story of the meraglim, the spies who misled the Jewish people: “Reah natan Hashem elokeicha lefaneicha et ha’aretz aleh raish”(Devarim 1/21) see, God has put the land before you, go and conquer it. The precise nature and status of this mitzvah needs further clarification.
The Ramban, in his list of mitzvot that the Rambam omitted from his count of 613, lists (as the fourth omitted mitzvah) the mitzvah of Yishuv Eretz Yisrael, settling the land of Israel. In actuality, the Ramban speaks of a mitzvah to conquer and inherit the land. Settling the land is a form of conquering according to this understanding. This mitzvah is not a one time act but an ongoing commandment. Therefore, the Ramban states: “We are commanded to come to the land and conquer the lands and to settle our tribes on it…” Should the tribes choose to do so and then go conquer another land to live in, they may not do so since the commandment is to conquer and settle the land. The Ramban goes even further stating that residing in Eretz Yisrael is a mitzvah that applies to each individual, not just the public, which applies at all times even at a time of exile.
As indicated by the Ramban’s heading “mitzvot which the Rambam forgot to include,” it would show that the Rambam does not include settling in Eretz Yisrael as one of the 613 mitzvot. What then is the Rambam’s position on settling in the land of Israel?
In the opinion of the Megilat Ester (a commentary on the Rambam who defends the Rambam’s position against the views of the Ramban), the Rambam is of the opinion that mitzvat yishuv ha’aretz applied at the time that Yehoshua conquered the land. It then applied again in the form of settlement until the destruction of the Beit Hamikdash and the first exile. It does not apply now until the coming of Mashiach. Therefore, it is not included in the 613 mitzvot which are meant to apply continually.
Others take a similar view to that of the Megilat Ester but add that there is a Rabbinic decree to settle in Eretz Yisrael even when the biblical one does not apply. A third approach claims the Rambam is in agreement with the Ramban that settling in Eretz Yisrael today is a biblical commandment. This can be seen in the latter part of the fifth chapter of Hilchot Melachim of his Mishneh Torah. Particularly, it is reflected in the last halacha where the Rambam states: “One should reside in Eretz Yisrael, even in a city whose population is mostly non-Jews and not in a city of Jews in the diaspora.” The reason the Rambam did not include this mitzvah in the count of 613 mitzvot is technical. Some suggest that settling in Eretz Yisrael is an inclusive mitzvah, a mitzvah that is an umbrella to several other mitzvot. The Rambam is of the opinion that the individual mitzvot should be counted and not the inclusive mitzvah. Therefore, though settling the land is a mitzvah, it is not included in the count of 613 mitzvot. Some suggest that according to the Rambam the mitzvah of settling the land is included in one of the other mitzvot (see Rav Shaul Yisraeli, Eretz Chemda pp 33-34).
Rav Moshe Feinstein (Igrot Moshe: YD vol 3 res. 122, EH 1 Res. 102) rejects the possibility of a rabbinic mitzvah to settle in Eretz Yisrael today. At the same time he understands that according to most authorities, as opposed to the Ramban, there is no biblical requirement to leave the diaspora and settle in Eretz Yisrael. Rav Feinstein’s conclusion, therefore, is that there is no chiyuv, requirement, to pick up and settle the land today but certainly there is a kiyum, fulfillment of a mitzvah when settling in Israel. (For more on chiyuv and kiyum see last week’s article).
It seems clear that everyone agrees there is a mitzvah of Yishuv, settling, Eretz Yisrael. The question is what precise status does this mitzvah have at different times.