As a part of the “for is the tree of the field a man?: a halachic project for “T Bishvat“, we are glad to publish Rabbi David Bigman’s response regarding the issue of tree uprooting. First list
We invited different rabbis to take on the challenge and express their opinion regarding olive tree uprooting. The question we posed was:
A. What is the halacha’s stand regarding fruit tree uprooting or destroying, whether these are trees which belong to non-Jews and whether these are trees which belong to Jews.
B. What is the halacha’s stand regarding planting of (usually) olive trees on the lands of a country where this act is considered by many as an attempt to prove ownership over the land in order to take over it.
C. We ask to know if the cases mentioned above have a halachic prevention of “Do not destroy”. The prohibition regarding the uprooting and destroying of trees is from the Torah and applies also to times of war and in the city. If that is so, what is there to do?
D. Is it possible to distinguish between trees which are rooted in the soil and young trees that were recently planted? And does the fact that the olive tree can be easily uprooted and replanted in a different place change the halacha?
Below is the answer that we received from Rabbi David Bigman, Head of Ma’ale Gilboa Yeshiva:
“The prohibition on cutting down fruit trees is not related to whether the trees are owned by a Jew or a non-Jew. Generally, if the land and the trees belong to a person, we have no right to damage him even if the case is not destruction (of property).
There are special permits when necessary, even if the person simply needs a place, because this does not count as destruction, but then the need must be clear.
When it comes to a person, Jewish or non-Jewish, whose plantings are not legal and are not within his or her property, the person who is damaged or the country have the right to uproot in order to protect its assets and prevent robbery and trespassing. This is only in the case when there is no legal dispute and a perfectly clear reality.”
“The law of the country is the law, and therefore every act is allowed only when it is legal”
reflects that he does not perceive the issue of olive tree uprooting to be related to a national or religious conflict. His stand is that the discussion should focus on the merits, not on private cases. When the ownership over the land is established and clear or even when there is legal dispute over it, there is still no permission to uproot trees. When the trees were planted on land that does not belong to the owner of the trees—they are allowed to uproot them. However, in his response there is a restricting phrase: when there is a need, even if it is only the need for a place, it is allowed to be uprooted.
The rabbi claims that there is no distinction between a Jew and a non-Jew on this matter. For instance, we grew to know the phenomenon of land expropriation in favor of paving roads. Toward the ending of his response the rabbi adds the rule of “the law of the country is the law”, probably in order to state that the need which leads to an act of uprooting must be coordinated with the existing law.
1. Is declaring a need for a place, which permits the act of uprooting trees, affected by political and national opinions?
2. When was the last time Jewish olive trees in the occupied territories were uprooted on the grounds of lack of space?
3. Do question 1 and 2 undermine Rabbi Bigman’s claim that there is no distinction between Jews and Arabs on this matter?
4. What about the decision of uprooting trees due to a security reason. Who is qualified and is there a need for the military rabbinate’s backup on the halachic status of such move?
5. What is necessary to allow uprooting trees against presumption of ownership, and is the “Do not destroy” prohibition a part of these considerations?
Later we will publish answers of rabbis who hold different opinions than that of Rabbi Bigman. We thank the rabbi for his answer and invite the reader to comment and continue the discussion.