By Rabbi Yair Hoffman for 5tjt.com

Recently, it was widely reported that Ben Shapiro and others travelled to and entered he Temple Mount. While the sentiment that lies behind his action is certainly admirable in that he wishes to ensure Jewish sovoreignty over har habayis, the action itself lies in stark contrast to the position of the great poskim of the generation, Rav Edelstein shlita, Rav Elyashiv zatzal, Rav Chaim zatzal, Rav Shlomo Zalman Auerbach zt”l, and so many others. What follows is a halachic analysis of why we should not, at this point, be praying on the Har Habayis. The author feels bad because Ben Shapiro is someone that the author admires greatly.

WHY IS IT CALLED HAR HABAYIS?

Har HaBayis is certainly the holiest place in our physical universe. Its name is not, however, a recent appellation. Where does it come from? The Rash in his commentary on the Mishnah (Midos 2:1) writes that the name “Har HaBayis” is based upon a verse in Isaiah (2:2), “Nachon yiheye har bais hashem b’rosh heharim – The mountain of Hashem will be on mountaintops.”

WHERE IS IT LOCATED?

In order to determine whether we may enter Har HaBayis, we must first get a background in the geography of the area and where Har HaBayis is located, and then some of the history.

THE GEOGRAPHY

The Kidron Valley, Nachal Kidron, is the valley on the eastern side of the Old City of Jerusalem, separating Har HaBayis from Har HaZeisim. It continues eastward through the Judean Desert, toward the Dead Sea. It travels some 20 miles, and descends a total of 4000 feet along the way.

In TaNach it is called “Emek Yehoshafat” or Valley of Jehosophat. It appears in the nevuos of Klal Yisroel regarding Moshiach, which include the return of Eliyahu HaNavi, followed by the arrival of Mashiach, and Milchemes Gog uMagog, and Judgment Day.

The Tyropoeon Valley (also known as the “Valley of the Cheesemakers”) is the name given by Josephus the historian (Wars of the Jews 5:140) to the valley within the Old City of Jerusalem. Once, this valley separated Har haBayis from Har Tzion Zion and emptied into the valley of Hinnom. The Tyropoeon Valley is now completely filled up with debris, and a plain of sorts. It is spanned by bridges including Zion Bridge. The bridges were the method of communication between Herod’s palace on Har Tzion and the Bais HaMikdash.

So where is Har HaBayi? It is what forms the northern portion of the narrow part of that hill that slopes from the north to the south. It rises above the Kidron Valley to the east and Tyropoeon Valley to the west. The slope from north to south is very sharp.

The peak of Har HaBayis reaches a height of 2,428 feet above sea level.

THE HISTORY

In around the year 19 BCE, Herod the Great extended the natural plateau of Har HaBayis by enclosing the area with four massive retaining walls and filling up the areas with earth and rocks.

This artificial expansion resulted in a very large flat area. This flat area is now what makes up the eastern section of the Old City of Jerusalem. The trapezoid shaped platform measures a total of 37 acres. Its dimensions are 488 meters on the west side, 470 meters on the east side, 315 meters on the north and 280 meters on the south side. In total it is approximately 150,000 square meters.

NORTHERN AND SOUTHERN WALLS

The northern wall of the Temple Mount, together with the northern section of the Kosel, is hidden behind buildings.

The southern section of the western side is open and is the Kosel as we know it. The plaza behind the Kosel was made by city planners after we had recaptured eastern Yerushalayim after 1967.

The retaining walls on these northern and western sides go down many meters below the ground. A northern portion of wall on the west may be seen from within the Western Wall Tunnel, which was recently excavated through some of the buildings.

SOUTHERN AND EASTERN SIDES

On the southern and eastern sides the retaining walls are almost completely visible to their full original height. The platform itself was separated from the rest of the Old City by the Tyropoeon Valley. This valley is no longer the deep valley it was, however.

The platform can be reached through a street in the Muslim Quarter called “Bridge Street” – a funny name. Presumably it is called that because it is a street on a huge bridge but the area that was below the bridge was filled up. However, you can still see that it was once a bridge from the view in the Western Wall Tunnel.

Now let’s get to the Halachic section.

WHY MOST POSKIM FORBID

As mentioned in the beginning, most major poskim forbid walking on Har HaBayis nowadays. Some Rabbis disagree with them, however. Those Rabbis who permit it draw a distinction between the current area of the Temple Mount and the dimensions of Har HaBayis that are discussed in the mishnah in Midos (2:1).

DISCREPANCY BETWEEN MISHNA AND NOW

The Mishnah in Midos tells us that Har HaBayis is 500 amos by 500 amos. The current area of Har HaBayis is 1,601 feet by 1,542 feet. On the north-south side, it is less (1,033 and 919 feet).

The first supposition that those who permit it make is that the current state of Har HaBayis is that it is double the size of what is mentioned in the mishnah.

TWO PROBLEMS WITH THE SUPPOSITION

There are two problems with this.

Firstly, Torah sources sometimes round off or approximate measurements. The number 500 by 500 can certainly be an approximation. It also may be a total square ammahage, so to speak.

The second problem is that we do not know the exact dimensions of an amah. Some say it is 18 inches; others say 21.25 inches or 23 inches; and a good argument can be made that it is less than 18 inches as well.

For 18 inches

1067 Amos by 1028 688 by 612

For 21.25 Rav Moshe 1.77 feet

904.5 Amos by 871 amos 583 by 519

For 23 inches chazon ish 1.92

833 Amos by 803 538 by 479

DID IT INCLUDE THE THICKNESS?

Another issues is that the midos discussed in the Mishna may not have included the thickness of the wall either which may have been 27 feet thick according to some sources – this could make it better or make it worse.

There is also the view of Rav Emanuel Rikki in his Aderes Eliyahu in a Kuntrus Mei Niddah #37 that for Kodesh an Ammah is different – it is an Ammah and 2/3. Now we may think that this ridiculous, but Rav Rikki is the author of one of the fundamental sfarim in Kabbalah. The Vilna Gaon held him in very high esteem. If Rav Rikki is, in fact, correct then we have to re-analyze what Herod did exactly and the expansions that he made.

A NEW ISSUR

The second supposition made by those who permit entry onto Har HaBayis is that Rashi’s p’shat in the Gemara in Yevamos (7b) is in error. Most Poskim contend, however, that Rashi’s p’shat is the authoritative understanding of the underlying issue, and has been the normative halachah for many centuries.

But let’s give a brief background.

Yehoshafat, the king of Yehudah, was under intense pressure. The powerful armies of Ammon, Moav, and Seir had combined forces to attack Eretz Yisrael (see Divrei HaYamim II 20:5).

WHAT IS CHATZER CHADASH?

Frightened, Yehoshafat turned to Hashem, declared a fast, and gathered the people to Yerushalayim to the Beis HaMikdash to daven fervently to Hashem. He davened in the “new courtyard.”

There are three interpretations to the term “new courtyard.”

The RaDak and Metzudas Dovid both suggest that it is possible that some sort of improvement was made in the courtyard.

The Gemara in several places, according to Rashi, tells us that there was a new enactment involving the Beis HaMikdash, promulgated at that very time, forbidding a t’vul yom from entering into the Camp of the Levi’im-the Temple Mount. This additional enactment endowed the entire Makom HaMikdash with a higher level of sanctity. The term “new courtyard” refers to this new enactment, and the courtyard that is referenced is the entire area.

The third interpretation is that the “new courtyard” refers to the ezras nashim only.

AUTHORITATIVE PSHAT

The Kaftor Vaferach (a Rishon who tells us the minhagim of the Jews in Eretz Yisrael and the Makom HaMikdash) in chapter six tells us that Jews observe the second definition of “new courtyard” as being the exact walls of the then current Har HaBayis. Since he lived in the 1300s, the reference is to our contemporary wall dimensions.

The Teshuvas Ramoh (#25) cites this ruling as authoritative and, until very recently, it has always been observed.

The Sefer HaManhig (s.v. “Baal keri”), citing the rulings of the Geonim, explains that it was only during the Temple times that a t’vul yom could immerse and wait a day. However, nowadays, when it is impossible to rid ourselves of the impurity of the dead, removing the tumah of baal keri is impossible while we still retain the impurity of the dead.

Why?

Because regarding a tvul yom it says uvah hashemesh v’taher – he needs to be completely tahor and on account of the fact that nowadays we have no way to purify this person cannot because he is still tamei mais. Let’s not forget, however, that in the times of the Mishna and the early yerushalmi there was still a way to be metahair and it was only lost much later.

So even though the mishnah in Keilim indicates that the impurity of the dead does not necessarily directly impinge upon going onto Har HaBayis itself, it does do so by not allowing our tumas keri to be completely removed.

Those that advocate treading upon Har HaBayis either disagree with this Sefer HaManhig, with the Geonim he cites, or have figured some other reading of this Sefer HaManhig.

This position fits the normative practice cited in Rav Ovadiah Bartenura’s letter to his father that Jews would not go up to Har HaBayis even if the Muslims would have allowed them (the letter is cited in the responsa by Dayan Weiss).

[It should be noted that Rav Moshe Feinstein I.M. O.C. vol. II #113 does seem to disagree with the Sefer HaManhig’s understanding of undoing impurity, but the other issues are still relevant. Also, most of the other poskim seem to abide by the Sefer HaManhig.]

HIGHER THAN IT WAS

A third supposition that is made is that the area of Har haBayis has placed layer after layer and it is much higher than it was originally. The Gemorah in Psachim 85b cites Rav as ruling that Gagin v’aliyos lo niskadshu.. Rashi explains that this refers to the roofs of Yerushalayim regarding kedushas yerushalayim for kadshim kalim or to the lishkos of the azarah roofs. In Shavuos 17b, Rashi writes that the gagin and aliyos were never sanctified – just the floors up to the roofs.

There are a number of answers to this. The first is that this concept is misunderstood because it refers to the original buildings. However, after the buildings are gone, the floored area still has kedusha and therefore when a building is built afterward the kedusha is not blocked. This is clear in the Radbaz itself (Siman 691). Furthermore, Rav Zelig Reuvain Bengis in his liflagos Reuvain volume 6 writes that this is only when there was a space, but if it is made of solid material there is still kedusha there.

Some, believe it or not, question the whole archaeology of it because it says “aru aru ad hayesod bah” – that it was entirely destroyed down to the foundation. They suggest that it is not higher than it was.

IS THE AL SAKARA THE EVEN SHESIYA?

Another supposition made by those who advocate going onto Har HaBayis is that their measurements are accurate based upon the idea that the current rock known as the al Sakara is one and the same as the Even Shesiya discussed in the mishnah in Yuma. Many Torah authorities as well as secular archaeologists question this identification.

Some say that it is the Makom HaMizbeach (Rav Shlomo Goren). Others say that it is, in fact, the Even Shesiya.

If it is the Even Shesiya, another question arises. When the second Bais HaMikdash was rebuilt, why did they need neviim prophets to establish its location? Why couldn’t they calculate based upon this Even Shesiya that was known? This question is brought down in the Sefer Avodah Tamah. Some Poskim have concluded from the strength of this question that it is not the Even Shesiya.

WHERE WAS THE EVEN SHESIYA?

But even if it is the Even Shesiya, where was the even shesiya in terms of the Beis HaMikdash? Was it in the center, the west side of it or the east side of it? Perhaps this was the safaik that they had when they built the second bais haMikdash and now it is known. The problem with this is that the debate is still after Bais HaMikdash #2.

Another problem is that the water coming in, which was used as a mikvah for purifying the Kohanim does not correlate well to this location as the even shesiyah. Drawing water from it would produce the problem of drawn water.- mayim she-uvim. There are a few solutions to this problem, but who knows which one is true?

THE RADBAZ

While some of those who advocate going onto the Temple Mount cite the Radbaz (responsa #691), who does make this identification with the even shesiya, there are some very serious discrepancies in the responsa of the Radbaz that have been pointed out by the leading poskim of the generation, including Rav Ovadiah Yoseph, Rav Waldenberg, zt’l (Tzitz Eliezer vol. X #1), and Dayan Weiss (vol. V #1).

ISSUES OF KAREIS

When dealing with an issue of Kareis the custom in K’lal Yisrael has always been to be stringent. Here we have three leading poskim who tell us with very stern warnings, “Stay Away!” Also, when it was first recaptured in 1967, a letter went out signed by 52 of the top Poskim in eretz Yisroel. Why ignore them?

THE OLD PICTURE

A fourth assumption made by those who advocate treading upon Har HaBayis is based upon an old picture that was found of Har HaBayis. The assumption is that the raised platform in the photo is the actual Har HaBayis referred to in the mishnah. This too, however, has numerous problems.

There are further indications from various sources in the Acharonim that the walls extend past the areas pointed to in the picture (Pe’as HaShulchan by a student of the Vilna Gaon, Rav Yisroel of Shklov, Eretz Yisrael 3; addendum to Kaftor Vaferach).

RAAVAD VERSUS OTHERS

Many of those whose opinions promote going onto Har HaBayis do rely to some degree on the opinion of the Raavad, who rules that the sanctity of the Temple Mount is not as in force as it was when the Temple stood. Rambam, of course, disagrees, and the Mishnah Berurah and magain avrohom 561:2 rule fully in accordance with the Rambam.

THE RISHONIM

This is also the overwhelming opinion of the Rishonim – I will list them: Sefer HaTruma in his Hilchos Eretz Yisroel, SMag mitzvas assei 163 – he writes that what made it kadosh was the shechina and that never gets undone, whereas other issues were kadsh only leshaasa – a kivush for example regarding trumos and maasrosm Rashi avoda zara 13a venishchatai mishchat – we are obligated on shechutei chutz mideoraisa nowadays – like the rambam, Rash miShantz shviis 6:1, Tosfos Yuma 44a, shvuos 14b, Tosfos HaRosh yevamos 82b – gives a reason because it is called a nachalah which can never be undone, Yereim siman 277, Chinuch in ten different places 284, Tashbatz vol III #201, Rashba megillah daf yud , Ramban shavuos 14b, Ritvah Megillah 10b, and Kaftor vaFerach. Plus, we have the opinion that the Raavad was only referring to the deoraisa aspect of things but miderabanan he was machmir.

Who, among the Rishonim, rules like the Raavad? There is one tzad in the Meiri like this, but elsewhere he says that the psak is like the Rambam.

There is also the notion fund in Rav Chaim Soloveitchik zatzal that there are, two denim, two types of laws, in the issue of the Temple’s holiness – kedusha. The Raavad was only referring to the kareis din but the other din of kedusha is still in effect even though there is no karais.

WHO IS A ZAV?

There is also the issue of whether everyone in contemporary times has the halachic status of a zav. Both Dayan Weiss and the Tzitz Eliezer rule that everyone does. Those who advocate for treading on Har HaBayis disagree with this contention.

Finally, Rav Kook (Mishpat HaKohein #96) himself writes that even according to the view of the Raavad, there is still a Rabbinic prohibition of entering the Temple Mount. He explains that Chazal felt that the reverence and respect for the Makom HaMikdash is greater in not going there, than in visiting it.

REALLY?  DOUBTFUL THAT RAV KOOK WOULD HAVE CHANGED HIS MIND

Modern advocates of treading on Har HaBayis indicate that Rav Kook would have changed his mind if he had been given their new evidence. But intellectual honesty would yield quite a different theory.

In short, the overwhelming view of poskim, chareidi and otherwise, simply do not agree that Jews may or should go up to Har HaBayis. Ben Shapiro should not have gone up.  It is still a very serious issue.

As reported by Vos Iz Neias