All that is recorded in the Torah is written for the sake of peace; and although warfare is recorded in the Torah, even warfare is recorded for the sake of peace.
TANHUMA, ẒAV 3
The considerations of Jewish law and eithics as they apply to war in general, and to the Lebanese conflict of the summer of 1982 in particular, are complex. Halakhah does recognize a category of war "to deliver Israel from the enemy." Such war is not only legitimate but mandatory. Jewish law also recognizes as a category of permissible war, wars undertaken in order "to diminish the heathens so that they shall not march against them." And, of course, Halakhah recognizes the legitimacy of self-defense which need not be justified in terms of halakhically applicable categories of war. Any discussion of the Halakhah as it pertains to preemptive war must, of necessity, begin with an analysis of Sotah 44b, and of the exceedingly complex rabbinic commentaries thereto, as well as of the ruling of Rambam, Hilkhot Melakhim 5:1, which, as will be seen, lends itself to a variety of possible interpretations.
Jewish law recognizes two distinct types of war: milḥemet mizvah, i.e., war commanded by the Torah and milḥemet reshut, i.e., war that is not commanded but that is permitted and hence is "discretionary." The primary locus of the talmudic formulation of these two categories of war is the final Mishnah of the eighth chapter of Sotah and the accompanying discussion recorded in the Talmud, Sotah 44b. The Mishnah presents an elucidation of the scriptural verses that provide for a number of exemptions from military service. Deuteronomy 20:5-7 states:
And the officers shall speak unto the people, saying: who is the man who has built a new house and has not begun living in it? let him go and return to his house, lest he die in the battle and another man begin living in it. And who is the man who has planted a vineyard and has not redeemed [its fruit in the fourth year]? let him go and return to his house, lest he die in the battle and another man redeem it. And who is the man who has betrothed a wife and has not taken her? let him go and return to his house, lest he die in the battle and another man take her.1The immediately following verse, Deuteronomy 20:8, provides yet another exemption: “And the officers shall speak further unto the people and they shall say, who is the man who is fearful and faint-hearted? let him go and return to his house, and let him not make the heart of his brethren faint as [is] his heart.” This exclusion, however, applies with regard to milḥamot miẓvah as well as to milḥamot reshut; see Radbaz, Hilkhot Melakhim 7:1, and commentaries ad loc.
The Mishnah concludes with the statement:
To what does the foregoing apply? To discretionary wars, but in wars commanded by the Torah (milḥamot mizvah) all go forth, even a bridegroom from his chamber and a bride from her canopy. R. Judah says: To what does the foregoing apply? To wars commanded by the Torah (milḥamot mizvah), but in obligatory wars (milḥamot ḥovah) all go forth, even a bridegroom from his chamber and a bride from her canopy.2Regarding the apparent provision for conscription of women in obligatory wars see Radbaz, Hilkhot Melakhim 74:4, but cf., Rambam, Sefer ha-Miẓvot, introduction, concluding section of shoresh 14.
The Gemara, as understood both by Rashi and by Rambam in his Commentary on the Mishnah, establishes that no controversy exists between R. Judah and the Sages with regard to the definition and scope of these basic categories. Insofar as the regulations specifically addressed by the Mishnah are concerned, the terms "ḥovah" ("obligatory") and "mizvah" ("commanded") are to all intents and purposes synonymous in connotation. All agree that wars waged by the House of David for the purpose of territorial expansion were discretionary and hence were governed by the provisions of Deuteronomy 20:5-7; similarly, all agree that the wars waged by Joshua for the conquest of the land of Canaan were obligatory and hence were not governed by the provisions of Deuteronomy 20. Nevertheless, the Sages carefully employ the term "commanded" (mizvah) in speaking of the latter while R. Judah uses the term "obligatory" (ḥovah) with equal precision, even though both are in total agreement with regard to the specific wars excluded from the provisions of Deuteronomy 20. The Gemara introduces a new category of war, viz., wars "to diminish the heathens so that they shall not march against them," and posits a peripheral dispute between the Sages and R. Judah in order to explain their respective choice of nomenclature. The Gemara assumes that both the Sages and R. Judah agree that the provisions of Deuteronomy 20 apply not only to the wars of the House of David but also to preemptive strikes "to diminish the heathens so that they shall not march against them. "The Sages regard such wars as "discretionary" because they are not undertaken in fulfillment of a biblical commandment and because such preemptive wars are conducted in the absence of any imminent danger. Accordingly, the Sages employ the terms "commanded" (mizvah) and "discretionary (reshut) as antonyms. R. Judah, although he concedes that for statutory purposes such preemptive wars are included among the discretionary wars to which the provisions of Deuteronomy 20 apply, refuses to term such wars "discretionary;" R. Judah, despite the absence of an explicit biblical injunction, views the waging of such wars as constituting a mizvah. According to R. Judah, preventive war, although not obligatory, constitutes the fulfillment of a mizvah when necessary for purposes of security. Hence R. Judah finds it necessary to seek a different term to describe wars that are explicitly commanded by Scripture, e.g., the wars of Joshua for the conquest of Canaan. The latter are termed "mandatory" (ḥovah) by R. Judah. His use of the appellation "mizvah" in reference to preventive war notwithstanding, R. Judah concedes that only wars specifically mandated by Scripture are excluded from the provisions of Deuteronomy 20.
The Gemara seeks to discover a concrete halakhic application, as distinct from a purely semantic difference, of the issue that divides the Sages and R. Judah. A practical difference arising from their controversy is found by the Gemara in the application of a general principle that provides that a person engaged in performance of a mizvah is exempt from the fulfillment of other commandments. R. Judah considers the waging of preemptive war to constitute fulfillment of a mizvah; hence, according to R. Judah, combatants are exempt from fulfilling other commandments while engaged in military duties associated with preemptive war. The Sages regard such incursions as discretionary in nature and hence regard soldiers engaged in such battles as being fully obligated with regard to the fulfillment of other commandments.3The text of the Gemara reads as follows:
The Gemara does not tell us explicitly whether it is R. Judah or the Sages who consider war “to diminish the heathens” to constitute a commanded war. Rashi and Rambam, in their respective commentaries, explain that R. Judah deems such war to be commanded while the Sages consider such war to be discretionary. (The interpretation of these authorities have been followed in the parenthetical interpretations within the translation above.) Indeed, Rashi’s interpretation is taken directly from the words of R. Yoḥanan: [A war which is designated] as permitted by the Sages is identical with [war which is designated as] commanded by R. Judah, i.e., there is a category of war which is deemed to be “commanded” by R. Judah while, according to the Sages, the identical war is merely “discretionary.” The war in question is then identified by Rava as war “to diminish the heathens so that they shall not march against them.” Thus there is no dispute between Rava and R. Yoḥanan; Rava merely amplifies the statement of R. Yoḥanan. According to both, the dispute between the Sages and R. Judah is with regard to whether participants in a war “to diminish the heathens” are exempt from fulfillment of other precepts. All are in agreement that the provisions of Deuteronomy 20:5-8 that apply to discretionary wars apply as well to war undertaken “to diminish the heathens.”
This interpretation is contradicted by Me’iri in his commentary on Sotah 43a. Me’iri declares that it is the Sages who deem such war to be commanded while R. Judah regards it as merely “permitted.” Of course, this understanding appears to be at variance with the statement recorded by the Gemara in the name of R. Yoḥanan.
R. Eliezer Waldenberg, Hilkhot Medinah, II, sha’ar 4, chapter 1, secs. 2-3, explains that Me’iri must have posited a dispute between R. Yoḥanan and Rava: R. Yoḥanan declares the sole controversy between the Sages and R. Judah to be entirely a matter of nomenclature having no practical application; Rava contradicts this analysis and, referring directly to the Mishnah, declares that the Sages posit a “commanded” war that is governed by the selfsame regulation that applies to obligatory wars, viz., the nonexclusion from military service of the individuals described in Deuteronomy 20. R. Judah, on the other hand, equates such war with “discretionary” wars and maintains that those persons described in Deuteronomy 20 are conscripted only in obligatory wars but not for service in wars “to diminish the heathens.” The phraseology employed by Rava, “The difference is with regard to [application of the principle that] one who is engaged in performance of a commandment is exempt from the performance of [another] commandment” is understood by Me’iri as referring to exemption from an obligation associated with warfare itself, i.e., the obligation devolving upon those described in Deuteronomy 20 to recuse themselves from battle. That obligation is variously regarded as based upon the words expressed repeatedly in Deuteronomy 20 “let him go and return to his house” or the verse “he shall be free for his house one year” (Deuteronomy 24:5). See Rashi, Deuteronomy 20:7, Sotah 43a, and Rambam, Hilkhot Melakhim 7:10. The Sages regard participation in war “to diminish the heathens” as a miẓvah and hence incumbent upon even those enumerated in Deuteronomy 20. Since participation in a war “to diminish the heathens” constitutes a miẓvah, such participation serves to exempt those enumerated in Deuteronomy 20 from the commandment to remove themselves from the battle arena.
[The Tosefta, Sotah 7:15, as apparently understood by Rashi, Deuteronomy 20:7, and Rambam, Hilkhot Melakhim 7:11, maintains that those exempt from conscription in milḥamot reshut may not serve even on a voluntary basis. See also the discussion in Sotah 44a concerning a prohibition against a bridegroom’s participation in battle. Rabbi Waldenberg’s analysis of Me’iri is apparently predicated upon this premise. One difficulty with this explanation lies in the fact that Rambam, on the basis of Sotah 44a, maintains that military service by such individuals involves, not a simple violation of a positive commandment, but transgression of two negative commandments, viz., “When a man takes a wife he shall not go out in the army, nor shall he be charged with any matter” (Deuteronomy 24:5). The principle that one engaged in fulfillment of a miẓvah is exempt from fulfillment of other precepts applies only to positive commandments but does not permit violation of negative precepts. (The usual explanation of why the exclusions from military service found in Deuteronomy 20 do not apply to commanded or obligatory wars is based upon rabbinic exegesis of the prefatory phrase in that section. “Ki teẓei la-milḥamah” is understood as meaning “If you go forth to war” rather than “When you go forth to war.” The reference must then be to discretionary war since commanded war cannot be described in hypothetical terms.)
See also Sefer ha-Ḥinnukh, no. 581, who apparently maintains that the exclusion of those enumerated in Deuteronomy 20 means simply that they cannot be compelled to perform military service but does not forbid voluntary enlistment. If so, the phrase “let him go and return to his house” cannot be understood as a miẓvah. However, Rava’s comment may be understood in an alternative manner. It may be understood to mean that the dispute between the Sages and R. Judah is also with regard to application of the principle that one who is engaged in fulfillment of a commandment is exempt from the fulfillment of another commandment. It would be regarded as self-understood that exemption or non-exemption from participation in a war “to diminish the heathens” flows from its categorization as miẓvah or reshut. See Knesset ha-Gedolah, Hilkhot Melakhim, chapter 5, appended to Knesset ha-Gedolah, vol. IV.]
Rabbi Waldenberg finds support for Me’iri’s interpretation in the parallel discussion found in the Palestinian Talmud that reports that R. Yoḥanan declared that the dispute between the Sages and R. Judah is entirely one of nomenclature, while R. Ḥisda declared that there is a substantive dispute between them. The identical controversy, according to this analysis, is posited by the Babylonian Talmud as a dispute between R. Yoḥanan and Rava.
This analysis of Me’iri’s comments yields a conclusion of crucial halakhic import. In this controversy the normative halakhah is decided in accordance with the majority position, i.e., that of the Sages. According to the interpretation of Me’iri, the Sages maintain that war to diminish the heathens is a milḥemet miẓvah rather than a milḥemet reshut.
It should, however, be noted that there is a distinct possibility that the text of the Me’iri’s commentary contains a scribal error and that Me’iri actually wrote that war “to diminish the heathens” is a milḥemet miẓvah according to R. Judah but a milḥemet reshut for the Sages. In citing the text of Me’iri’s remarks, R. Shlomoh Yosef Zevin, Le-Or ha-Halakhah (Tel Aviv, 5717), p. 13, makes precisely this correction without further comment.
Knesset ha-Gedolah, IV, Hilkhot Melakhim, chapter 5, similarly explains that there is a dispute between R. Yoḥanan and Rava. According to Knesset ha-Gedolah, Rava declares that both the Sages and R. Judah maintain that war “to diminish the heathens” is a milḥemet miẓvah in the sense that the exemptions recorded in Deuteronomy 20 do not apply in the conduct of such warfare. The sole dispute is whether combatants engaged in such warfare are exempt from fulfilling other precepts. According to the Sages they are exempt while according to R. Judah they are not exempt. For that reason R. Judah terms such war milḥemet reshut, i.e., participants are not viewed as engaged in an activity exempting them from fulfillment of other precepts. It is the view of Knesset ha-Gedolah that Rambam rules in accordance with the opinion of the Sages and includes preemptive war in the category of war “to deliver Israel from an enemy” which is classified by Rambam as a milḥemet miẓvah. This interpretation of Rambam is, however, contradicted by Rambam’s own comments in his Commentary on the Mishnah, Sotah, 8:7; see below, note 14.
The question of whether a preemptive war is included in the category of milḥemet mizvah or milḥemet reshut is crucial with regard to yet another aspect of Halakhah. The Mishnah, Sanhedrin 2a, stipulates that a discretionary war may be undertaken only upon the acquiescence of the Great Sanhedrin composed of seventy-one members. A subsequent Mishnah, Sanhedrin 20a, implies that a discretionary war may be undertaken only by a monarch. Thus, a discretionary war cannot be justified unless undertaken by the king4Ramban, addenda to Rambam’s Sefer ha-Miẓvot, miẓvot aseh, no. 4, states that the requirement that war be undertaken only by a king must be understood as including not only a monarch but any sovereign authority. Thus he states that war may be undertaken by “a king, a judge or whosoever exercises jurisdiction over the people.” For sources discussing Rambam’s possible disagreement regarding this point, see Contemporary Halakhic Problems, II, 207, note 27. with the permission of the Great Sanhedrin.5Rabbi Judah Gershuni, Torah she-be-‘al Peh, XIII (5731), 150f., advances the thesis that approval of the Sanhedrin is required only if the monarch finds it necessary to compel the populace to go to war and to conscript soldiers against their will, but that when the nation voluntarily agrees to go to battle approval of the Sanhedrin is not required. A similar view is advanced by Einayim la-Mishpat, Sanhedrin 16a. This view is supported by the comments of Me’iri, Sanhedrin 16a, who remarks that approval of the Sanhedrin is required in order to compel the populace to go out to battle. See also R. Abraham I. Kook, Mishpat Kohen, no. 145, and R. Saul Israeli, Amud ha-Yemini, no. 14 and no. 16, chap. 5, secs. 6-7. Cf., Amud ha-Yemini, no. 16, chap. 5, sec. 24. Moreover, in the context of a discussion of discretionary war, the Gemara, Berakhot 3b and Sanhedrin 16a, declares that the king may not undertake military action other than upon the approval of the urim ve-tumim.6Upon the twelve precious stones of the urim ve-tumim were engraved the names of the twelve tribes of Israel. In response to a specific query, various letters became illuminated. By means of the Divine Spirit the High Priest was enabled to combine the letters in order to discern the intended response.
Since no discretionary war could be undertaken other than upon approval of the urim ve-tumim, even discretionary war must be deemed to be undertaken with explicit divine approval and, conversely, no war could be undertaken other than with such divine sanction. Thus Abigail addresses King David and declares, “… for the Lord will certainly make a sure house for my lord because my lord fights the battles of the Lord” (I Samuel 25:28). Rambam, Hilkhot Melakhim 7:15, cites this verse and applies it to discretionary wars in stating:
Moreover, many ritual prohibitions are suspended even when discretionary wars are fought. Thus, once a discretionary war has been undertaken, it is permissible to wage such war on the Sabbath and combatants are permitted to partake of forbidden foods. The woman of “beautiful countenance” described in Deuteronomy 20:11 is permitted only to combatants engaged in discretionary wars but not to those engaged in commanded wars. It is thus clearly evident that even discretionary wars, when undertaken in accordance with the prescriptions of Halakhah, must be understood as undertaken by virtue of divine mandate. See Hilkhot Medinah, II, sha’ar 4, chapter 1, sec. 6. Indeed, Mekom Shmu’el, no. 8, suggests that the term “reshut” should be understood not as “permitted” or “discretionary” but as “licensed” or “sanctioned” in the sense that such war requires reshut Bet Din, i.e., sanction of the Sanhedrin, as distinct from wars that are obligatory by reason of explicit scriptural mandate. Although in Hilkhot Melakhim Rambam fails to mention consultation of the urim ve-tumim as a necessary precondition,7Cf., R. Yechiel Michael Epstein, Arukh ha-Shulḥan he-Atid, Hilkhot Mela-khim 74:7, who suggests that, even with regard to discretionary wars, consultation of the urim ve-tumim, although biblically mandated, is “perhaps” not a necessary condition of war. Although consultation of the urim ve-tumim constitutes a miẓvah and is required by virtue of biblical command, failure to engage in prior consultation, contends Arukh ha-Shulḥan he-Atid, does not affect the legitimacy of the war itself. See also, Le-Or ha-Halakhah, p. 12, and cf., Einayim la-Mishpat, Sanhedrin 16a. nevertheless, in the introduction to his Sefer ha-Mizvot, shoresh 14, Rambam does state that a High Priest is required for the undertaking of war; i.e., the king and the Sanhedrin may not undertake military action other than upon acquiescence of the urim ve-tumim which is attached to the breast-plate worn by the High Priest. Hence, absent a High Priest8See, however, Rambam’s reference to the function of the urim ve-tumim in Hilkhot Klei ha-Mikdash 10:11. who can consult the urim ve-tumim, offensive war in conformity with the stipulations of Jewish law is impossible. Ramban, in his addenda to Rambam's Sefer ha-Mizvot, mizvot lo ta'aseh, no. 17, declares that the requirement for consultation and approval of the urim ve-tumim is not limited to discretionary wars but applies with equal force to obligatory wars as well.9Rashi, in his commentary on the verse “and he shall stand before Eleazar the priest, who shall inquire for him by the decree of the Urim before the Lord” (Numbers 27:21), remarks that “even Joshua” was required to consult the urim ve-tumim “when he had need to go out to battle.” Since the wars of Joshua were all commanded wars, i.e., for the conquest of the territory inhabited by the Seven Nations, it must be inferred that Rashi agrees with Rambam in maintaining that consultation of the urim ve-tumim was necessary even in conjunction with commanded wars. See R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melak-him 5:2.
For a discussion of whether war against Amalek requires consultation of the urim ve-tumim, see R. Judah Gershuni, Torah she-be-‘al Peh, XIII (5731); cf., Contemporary Halakhic Problems, I, 16-18.
Since both the Sages and R. Judah agree that war "to diminish the heathens" is discretionary rather than mandatory, it follows that preemptive war may be waged only by a sovereign with the approval of the Sanhedrin and permission of the urim ve-tumim. Rambam, Sefer ha-Mizvot, shoresh 14, expressly declares that "war and conquest of cities may not be other than by a king and upon the counsel of the Sanhedrin and a High Priest" and hence since Mizvot associated with a "… king or a discretionary war … are not incumbent other than during the existence of the Temple" it is self-understood that such Mizvot cannot be fulfilled in our day. Thus, it would appear that, in our day, preemptive war "to diminish the heathens" cannot be sanctioned by Jewish law since, at present, there exists neither Sanhedrin nor urim ve-tumim to grant prior approval.
The concept of preemptive war and the situations in which such military action may be undertaken, even within the context of a milḥemet reshut, is the subject of considerable controversy among rabbinic commentators. A number of conflicting views center around the correct understanding of Rambam's formulation of this concept.
It might be anticipated that, in deciding between the conflicting views of R. Judah and the Sages, the normative halakhic ruling would be in accordance with the majority opinion, i.e., in accordance with the opinion of the Sages. Therefore, Rambam's formulation of the Halakhah is somewhat puzzling. In his Mishneh Torah, Hilkhot Melakhim 5:1, Rambam rules:
The king may first wage only a milḥemet mizvah. What is a milḥemet mizvah? It is the war against the Seven Nations,10The obligation to annihilate the Seven Nations assumes two distinct forms. A communal obligation to engage in war against those nations is here posited by Rambam, Hilkhot Melakhim 5:1, and by Sefer ha-Ḥinnukh, no. 425. A personal obligation to eliminate the members of those nations is formulated by Rambam, Hilkhot Melakhim 5:4, and by Sefer ha-Ḥinnukh, no. 425.
Various aspects of the commandment may be explained on the basis of this two-fold formulation. Sefer ha-Ḥinnukh declares that the obligation to annihilate the Seven Nations is incumbent upon both males and females equally and also expresses the view that the obligation is suspended when fulfillment would entail self-endangerment. Minḥat Ḥinnukh notes two apparent contradictions: (1) Sefer ha-Ḥinnukh, no. 525 and no. 603, in contradistinction to Rambam, Sefer ha-Miẓvot, introduction, shoresh 14, rules that women are exempt from participation in all wars including milḥamot miẓvah. (2) The waging of war, almost by definition, entails self-endangerment. Hence a commandment to wage war must be understood as explicitly requiring the placing of one’s life at risk in fulfilling that obligation.
These problems are resolved if it is understood that the obligation is two-fold in nature: a communal obligation to wage war against the Seven Nations and a personal obligation to eliminate the members of those nations. Although women are exempt from conscription for purposes of engaging in communal warfare, they are required to eliminate members of the Seven Nations by virtue of their personal obligation. Conversely, in the absence of a state of war declared by the sovereign, no individual is obligated to endanger his life in an attempt to discharge his personal obligations with regard to eradication of the Seven Nations. See R. Moshe Sternbuch, Mo’adim u-Zemanim, II, no. 164; R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melakhim 5:2; and R. Shlomoh Goren, Torat ha-Mo‘adim, (Tel Aviv, 5714), pp. 180f.
One significant difficulty remains. The biblical source of the commandment to annihilate the Seven Nations is the injunction “you shall utterly destroy them” (Deuteronomy 7:2 and Deuteronomy 20:7). This biblical passage might well be interpreted as establishing either a communal or a personal obligation; it is difficult to deduce a two-fold obligation from a single phrase.
In order to resolve this difficulty, it should first be noted that in delineating a milḥemet miẓvah the Gemara, Sotah 44b, speaks of the “wars of Joshua to conquer,” i.e., war for the conquest of the land of Canaan. Rambam, Hilkhot Melakhim 5:1, speaks, not of conquest of the land of Canaan, but of war against the Seven Nations. Of course, conquest of the land of Canaan involved war against the indigenous inhabitants, viz., the Seven Nations. However, Rambam’s substitution of his own terminology for that of the Gemara is significant in that it places negative emphasis upon such war as serving to destroy the Seven Nations rather than upon its positive aspect as a war for the conquest of the Land of Israel.
Conquest of the land of Canaan as an end in itself, as well as settlement in the Land of Israel, is deemed by Ramban to be mandated by the verse “And you shall drive out the inhabitants of the land and dwell therein” (Numbers 33:53). See Ramban, Commentary on the Bible, ad loc., and idem, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4. Rambam, as is well known, fails to record any positive commandment predicated upon that verse. Hence it may be assumed that, for Rambam, neither settlement in the land of Israel nor conquest of the territory so designated constitutes a miẓvah. (See, however, Megillat Esther, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4, who asserts that Rambam understands this passage as establishing a commandment to conquer the land, but that this commandment was binding only upon the generation of the original conquest rather than for posterity.) Indeed, Rashi understands the verse as constituting only prudent counsel, viz., in order to assure permanence of settlement it is necessary first to drive out the inhabitants. See Contemporary Halakhic Problems, II, 193-99. It may be suggested that Rambam views the first clause of this passage as a commandment or, more precisely, as an amplification of the commandment recorded elsewhere, viz., “you shall utterly destroy them.” The latter passage establishes a personal obligation with regard to annihilation of the Seven Nations. That obligation is quite independent of considerations of settlement. Sefer ha-Ḥinnukh explains that eradication of paganism is the rationale underlying the commandment “you shall utterly destroy them.” Indeed, the commandment is presented in precisely that context both in Deuteronomy 7 and in Deuteronomy 20. “You shall drive out the inhabitants of the land and dwell therein” may well have been understood by Rambam as a reiteration of the commandment recorded in Deuteronomy 7:2 and Deuteronomy 20:7 and hence this injuction is not enumerated by Rambam as a new commandment. However, in Numbers 33:53 an entirely different telos is presented, viz., “and dwell therein:” Annihilation of the Seven Nations makes permanence of settlement a greater likelihood. Since, according to Rambam, residence in the Land of Israel is not a personal obligation, establishment of a permanent settlement must be a matter of communal concern. Hence “You shall drive out the inhabitants of the land” (in contradistinction to “you shall utterly destroy them”) must also be addressed to the community in general rather than to individuals qua individuals. Thus the communal obligation to wage war against the Seven Nations is derived from Numbers 33:53 but is not deemed by Rambam to be a distinct miẓvah. Rather, he regards it as merely supplementary to the general commandment formulated in Deuteronomy 7:2 and Deuteronomy 20:7 that serves to establish a personal obligation. the war against Amalek and [a war] to deliver Israel from an enemy who has attacked them (she-ba aleihem). Thereafter he may wage a milḥemet reshut, which is a war against other people in order to enlarge the borders of Israel and to enhance his greatness and prestige.11Rashi, Sotah 44b, describes the “wars of the House of David” as wars “which he fought in Aram Zoba in order to annex it to the Land of Israel and against others of his neighbors in order that they bring him tribute and servants to do taskwork.” A literal reading of a narrative reported in Berakhot 3b and Sanhedrin 16a would yield the inference that a milḥemet reshut may be undertaken for economic reasons; see, however, below, notes 42 and 51.
Rambam employs the terms milḥemet mizvah and milḥemet reshut in establishing dichotomous categories in accordance with the nomenclature adopted by the Sages. The Sages, it will be remembered, regarded a preemptive war "to diminish the heathens so that they shall not march against them" as being entirely in the nature of a discretionary war and hence had no need to introduce a third term, viz., milḥemet ḥovah, in order to distinguish between preemptive war and war for the conquest of Canaan. The term "milḥemet ḥovah" is employed only by R. Judah in order to distinguish the various "commanded" wars from preemptive war.12See Leḥem Mishneh, ad loc.
Rambam's formulation is puzzling on two counts: (1) Rambam fails to state that preemptive wars are discretionary and hence can be undertaken only by a monarch with the approval of the Sanhedrin. Indeed, Rambam completely fails to rule upon or to record the status of preemptive war.13A novel view with regard to the purposes for which a milḥemet reshut may be undertaken is presented by R. Isser Zalman Meltzer, Even ha-Azel, Hilkhot Melakhim 5:1, on the basis of an inference from the phraseology employed by Rambam in his Commentary on the Mishnah. Even ha-Azel asserts that the Gemara focuses upon war “to diminish the heathens” only because of the need to categorize such warfare as milḥemet miẓvah according to R. Judah. Milḥamot reshut, argues Even ha-Azel, are not circumscribed by specifically enumerated motives. Rather, since approval of the Sanhedrin is required for a milḥemet reshut, it is to be presumed that such permission will not be forthcoming unless there exists good and sufficient reason for waging war. Rambam, in his Mishneh Torah, omits all reference to war “to diminish the heathens,” explains Even ha-Azel, because, according to the Sages who view hostilities undertaken for that purpose as a milḥemet reshut, such motivation is not of unique halakhic significance. However, this explanation does not really resolve the problem of Rambam’s omission of this category of milḥemet reshut since Rambam does find it necessary to refer specifically to other considerations for which a milḥemet reshut may be undertaken. (2) Among milḥamot mizvah Rambam posits a category of war for which there is no apparent talmudic reference, viz., "[a war] to deliver Israel from an enemy."
A facile solution to both problems might be found were it to be assumed that Rambam's use of the phrase "[a war] to deliver Israel from an enemy" is intended simply as a reformulation of the Gemara's concept of a preemptive war.14Precisely such an interpretation is offered by Knesset ha-Gedolah, IV, Hilkhot Melakhim, chapter 5. Knesset ha-Gedolah understands the phrase “the deliverance of Israel from an enemy she-ba aleihem as meaning “the enemy who comes (i.e., who is about to come) upon them.” Knesset ha-Gedolah suggests that this concept is synonymous with the category of war “to diminish the heathens so that they shall not march against them” discussed in Sotah 44b. Moreover, Knesset ha-Gedolah interprets the Gemara’s discussion in a manner entirely at variance from that of Rashi and other commentaries with the result that a war “to diminish the heathens” is described as a milḥemet miẓvah according to the Sages; see above, note 3. Knesset ha-Gedolah himself concedes that this interpretation of the talmudic discussion is tortured and concludes by saying, “But what can I do, for the difficulty with the words of our master [Rambam] brought me to this.” However, such interpretation of Rambam's statement cannot be sustained for a number of reasons: (1) The appropriate canons of halakhic decision-making require a ruling in accordance with the majority opinion, i.e., in accordance with the opinion of the Sages. (2) If Rambam rules in accordance with R. Judah's opinion it would have been necessary for him to employ terminology distinguishing between milḥemet mizvah and milḥemet ḥovah. (3) Finally, although, according to R. Judah, a preemptive war is analogous to war against the Seven Nations and war against Amalek and, since it does constitute fulfillment of a mizvah, participation in such a war exempts those so engaged from fulfilling other commandments, nevertheless, even according to R. Judah, the waging of preemptive war requires a monarch and the consent of the Sanhedrin. Since, in the very next paragraph, Hilkhot Melakhim 5:2, Rambam proceeds to state that the wars that he has categorized as milḥamot mizvah do not require consent of the Sanhedrin, it is clear that war "to deliver Israel from an enemy" is not identical with the war depicted by the Gemara as undertaken "to diminish the heathens so that they shall not march against them."
Moreover, the phraseology employed by Rambam in this context—"she-ba aleihem"— although not entirely unequivocal, is most readily understood as referring to defensive warfare in response to an armed attack rather than as referring to a preemptive strike. Thus Hazon Ish, Oraḥ Hayyim-Mo'ed 114:2, carefully defines the term "she-ba aleihem" as meaning "she-kvar ba aleihem—who has already attacked them."15Cf., however, Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim 74:4, who apparently understands the phrase “she-ba aleihem” as meaning “who is coming upon them” and declares that Rambam’s ruling applies only in situations in which “there exists a suspicion that they will attack us.” It is difficult to reconcile this statement of Arukh ha-Shulḥan he-Atid with Arukh ha-Shulḥan he-Atid’s own statement in the immediately preceding section, Hilkhot Melakhim 74:3, in which, in a different context, he categorizes preemptive action under the identical circumstances as a milḥemet reshut rather than as a milḥemet miẓvah. Arukh ha-Shulḥan he-Atid declares that the categorization of such war in Sotah 44b as milḥemet reshut is solely for the purpose of excluding from military service those individuals described in Deuteronomy 20:5-8; however, insofar as military response to a potential aggressor is concerned, Arukh ha-Shulḥan he-Atid maintains that all are in agreement that such response constitutes a milḥemet miẓvah. Cf., also, Amud ha-Yemini, no. 16, chap. 5, sec. 25 and below, note 23. This interpretation of Rambam is reflected in the comments of an early authority, R. Menachem Me'iri, in his Bet ha-Beḥirah, Sotah 43a. Me'iri indicates that the controversy between the Sages and R. Judah is limited to preemptive war against a potential aggressor. However, asserts Me'iri, in a situation in which an attack is already underway, all agree that military action in response constitutes an obligatory war. Me'iri writes, "[R. Judah and the Sages] disagree only when they go to war against their enemies because they fear lest [their enemies] attack or when it is known by them that the enemies are preparing themselves [for attack]," thereby implying that once the attack has commenced a defensive military response constitutes an obligatory war.
There is also a discrepancy between Rambam's definition of milḥemet reshut and the description of such war which is recorded by the Gemara. The Gemara, Sotah 44b, speaks of milḥamot reshut as "the wars of the House of David for territorial expansion (le-revaḥah)" while Rambam speaks of war not only "to enlarge the borders of Israel," but also "to enhance [the monarch's] greatness and prestige."
Leḥem Mishneh endeavors to resolve these difficulties by interpreting Rambam's categorization of war "to enhance [the monarch's] greatness and prestige" as coextensive with war described by the Gemara as designed "to diminish the heathens so that they shall not march against them." The phrase "to enhance his greatness and prestige" is understood by Leḥem Mishneh, not as a reference to vainglorious considerations, but as a reference to war undertaken in order to instill fear in potential enemies so that they refrain from attack. War of this nature can, of course, be undertaken only with the approval of the Sanhedrin and the consent of the urim ve-tumim. Rambam, then, according to Leḥem Mishneh, rules entirely in accordance with the opinion of the Sages and does not fail to include preemptive war in the category of milḥemet reshut.
Leḥem Mishneh's equation of Rambam's phrase "to enhance his greatness and prestige" with the Gemara's notion of a war "to diminish the heathens so that they shall not march against them" serves to broaden the latter category so greatly as to make it all-inclusive.16See Arukh ha Shulḥan he-Atid, Hilkhot Melakhim 74:3. Arukh ha-Shulḥan he-Atid states that the phrase “so that they shall not march against them” contradicts Leḥem Mishneh’s assumption and “clearly implies that they hear of this and have some indication that this is indeed the case;” absent such indication even a milḥemet reshut would not be warranted. See also Ḥazon Ish, Oraḥ Ḥayyim-Mo’ed 114:2. The Gemara's phrase certainly has the connotation that the heathens against whom the preemptive strike is undertaken constitute at least a potential danger. However, according to Leḥem Mishneh's understanding, terrorization even of nations possessing no capability for harm would be justified as a milḥemet reshut on the grounds that such action is designed to instill fear in all and sundry.
Leḥem Mishneh's analysis of Rambam's views yields but one of a number of definitions of "war to diminish the heathens" and hence constitutes one of a number of positions with regard to the permissibility of preemptive war. A somewhat more restrictive definition of war "to diminish the heathens so that they shall not march against them" is advanced by Shiyurei Korban (addenda to Korban ha-Edah, a standard commentary on the Palestinian Talmud). Shiyurei Korban, Palestinian Talmud, Sotah 8:10, defines as a milḥemet reshut a war undertaken "against neighbors in the fear that with the passage of time they will wage war [against Israel]; therefore [the king] wages war against them at the present time in order to decimate them so that they not possess the might to attack Israel." According to Shiyurei Korban, preemptive war is warranted even in the absence of any fear of imminent attack but is justified only when directed against a potential aggressor and designed to thwart development of military capacity for attack.
The definitions of war "to diminish the heathens" presented both by Leḥem Mishneh and by Shiyurei Korban are contradicted by Rambam's statement in his Commentary on the Mishnah, Sotah 8:7. In explaining the controversy between R. Judah and the Sages, Rambam, according to the standard Ibn Tibbon translation of the Commentary on the Mishnah, declares, "But they disagree only with regard to killing those who kill them in order to weaken them so that they will not kill [the people of] Israel and not do battle in their land." As depicted in this source, the war in question is hardly preemptive; it is directed against "those who kill them" and hence, in common parlance, would be termed a defensive war. If understood literally, Rambam here declares war against "those who kill them" to be a milḥemet reshut requiring for its conduct a king, Sanhedrin and urim ve-tumim and hence precluded in our day. According to this position, military action that is entirely of a preemptive nature does not qualify even as a milḥemet reshut and hence is never legitimate.
Apart from the conceptual difficulties associated with a position that regards defensive action as being subject to the restrictions placed upon a milḥemet reshut, a literal reading of the Ibn Tibbon text of the Commentary on the Mishnah is contradicted by Rambam's own earlier-cited statement in Hilkhot Melakhim 5:1 in which Rambam enumerates war "to deliver Israel from an enemy which has attacked them" as an instance of milḥemet mizvah.
These apparently contradictory statements may perhaps be reconciled if due consideration is given to the concluding phrase found in the Commentary on the Mishnah: "… so that they will not kill [the People of] Israel and not do battle in their land." Although the explanation is somewhat tenuous, the contradiction is resolved if it be postulated that Rambam views such wars as discretionary only when required for purposes of defense at a time when the enemy has as yet not penetrated the territory of the Land of Israel as is evidenced by the words "and not do battle in their land." Rambam's statement in the Mishneh Torah describing war "to deliver Israel from an enemy" as a mandatory war would then be understood as restricted solely to defensive war conducted within the boundaries of the Land of Israel.17Precisely such an interpretation of Rambam’s statement in the Mishneh Torah is advanced by R. Ovadiah Hedaya, Talpiyot, III, no. 3-4 (Nisan 5708), pp. 381-82, on entirely different grounds. See also R. Raphael Katzenellenbogen, No’am, XVI (5733), 45ff. According to this analysis, military action designed only to defend the populace is categorized as discretionary; war for defense of the territorial integrity of the Land of Israel constitutes an obligatory war just as the original conquest of Erez Yisra'el is categorized a milḥemet mizvah.
This resolution of the apparent contradiction found in Rambam's statements is far from incontrovertible.18This understanding of Rambam seems to be contradicted by Eruvin 45a. See our discussion in section III and below, note 31. Cf., R. Raphael Katzenellenbogen, No’am, XVI, 45ff. Moreover, as demonstrated in Contemporary Halakhic Problems, II, 193-99, there is strong reason to assume that Rambam maintains that conquest of the territory of the Land of Israel (as distinct from annihilation of the Seven Nations) either does not constitute a miẓvah or, more likely, constituted a miẓvah only during the period of the original conquest. See also above, note 10. In addition, the term “ezrat Yisra’el” employed by Rambam appears to connote aid rendered to people rather than the defense of territory. The difficulty might well be resolved in an alternative manner by reinterpretation of Rambam's phraseology in the Commentary on the Mishnah. It is therefore not at all surprising to find that Hazon Ish, Oraḥ Hayyim-Mo'ed 114:2, understands the phrase "those who kill them" employed by Rambam in his Commentary on the Mishnah in defining war "to diminish the heathens" as referring, not to a situation in which Israel is under attack, but to a situation in which "they kill [people of] Israel intermittently but do not engage in battle … but when they come upon an individual Jew or a group [of Jews] they kill him." The situation depicted by Hazon Ish is roughly analogous to a war of attrition. According to Hazon Ish, then, participation in military action in response to a war of attrition, although it does not constitute a milḥemet ḥovah, does, nevertheless, constitute fulfillment of a mizvah according to R. Judah who, as will be remembered, describes war "to diminish the heathens" as a milḥemet mizvah. Hazon Ish, in his subsequent comments, seemingly has no difficulty in not equating response to a war of attrition with defensive action against an enemy engaged in formal battle which is deemed obligatory. Hazon Ish does, however, express ignorance of any possible consideration that might explain the Sages' refusal to designate participation in such action as constituting the fulfillment of a mizvah.
The Kapaḥ edition of Rambam's Commentary on the Mishnah contains an entirely different reading. According to that version, Rambam declares, "They disagree only with regard to a war against nations which wage war against [Israel] in order to weaken [those nations]." The situation described cannot be understood as one involving actual hostilities against Israel because, as stated by Me'iri, a war of defense constitutes a milḥemet mizvah even according to the Sages. Such defensive war is recognized by Rambam himself as constituting a milḥemet mizvah as indicated by his inclusion of war "to deliver Israel from an enemy who has attacked them" in the category of milḥamot mizvah in his codification of this concept in the Mishneh Torah. Hence the situation depicted as a milḥemet reshut undertaken "to diminish the heathens so that they shall not march upon them" must involve circumstances in which the heathens have as yet not engaged in actual hostilities but whose aggressive intentions are announced or are readily apparent.19Rema’s ruling is, of course, entirely consistent with the position espoused by Arukh ha-Shulḥan he-Atid. However, as noted earlier, the preponderance of rabbinic authority is contra the position of Arukh ha-Shulḥan he-Atid. Thus, for example, Ḥazon Ish, as noted, declares that war “to deliver Israel from an enemy” constitutes a milḥemet miẓvah only when the enemy has actually “come upon them”—terminology directly contradictory to that employed by Rema.
It should be noted that, in a statement dated 9 Tammuz 5742, the Chief Rabbinate Council of the State of Israel declared the war of Shalom ha-Galil to constitute a milḥemet miẓvah. The war is described as necessary “to deliver Israel from an enemy” and Rema, Oraḥ Ḥayyim 330:6, is cited as broadening this category to encompass deliverance from a putative attack. It is, however, difficult to determine whether that proclamation is intended to be understood as halakhic or hortative in nature. The same statement continues with a discussion of the conduct of the Israeli Defense Forces and cites the verse “and your camp shall be holy” (Deuteronomy 23:15) in what can only be described as a homiletic vein. In its halakhic context, Deuteronomy 23:15 constitutes an exhortation to implement certain hygienic measures. This statement was published in its entirety in the Algemeiner Journal, July 16, 1982, p. 5. An English translation appeared in the London Jewish Chronicle, July 23, 1982, p. 35. The circumstances depicted in the Kapaḥ version of the Commentary on the Mishnah are roughly the equivalent of a state of belligerence as distinct from a state of war.
Regardless of which text of Rambam's Commentary on the Mishnah is accepted as authentic, it is clear that, contrary to Leḥem Mishneh, war for the purpose of creating a climate of fear could not be sanctioned even as a milḥemet reshut; nor, contrary to the position of Shiyurei Korban, would Rambam sanction, even as a milḥemet reshut, military action undertaken simply to prevent a military build-up.
Me'iri, in his commentary on Sotah 43a, adopts a definition of war "to diminish the heathens" that is somewhat broader than that formulated by Rambam. Me'iri defines war "to diminish the heathens so that they shall not march against them" as an action undertaken by Israel "against their enemies because they fear lest [their enemies] attack or when it is known that the [enemies] are preparing themselves for attack." Me'iri's definition encompasses not only a declared state of belligerence but also a situation involving a military build-up or a situation in which it is known that the enemy is otherwise actively engaged in preparations for an attack. However, absent clear aggressive design on the part of the enemy, a military response does not qualify as a milḥemet reshut and is illegitimate even according to R. Judah.
In summary it may be stated that six diverse definitions of the category of war "to diminish the heathens so that they shall not march against them" may be gleaned from the writings of rabbinic commentators:
1. According to a literal reading of the Ibn Tibbon translation of Rambam's Commentary on the Mishnah, such military activity is sanctioned as a discretionary war against "those who kill them," i.e., if the enemy has actually been engaged in the taking of Jewish lives.
2. According to Hazon Ish, who understands Rambam to be referring to a situation in which "they kill [people of] Israel intermittently but do not engage in battle," only military response to a war of attrition is sanctioned as a discretionary war.
3. According to the Kapaḥ edition of the Commentary on the Mishnah, preemptive action is legitimate as a discretionary war only against "nations which wage war against [Israel]," i.e., against nations with regard to which a state of belligerence already exists.
4. According to Me'iri, such war is discretionary when there is cogent reason "to fear lest [their enemies] attack or when it is known that the [enemies] are preparing themselves for attack," i.e., in response to a military build-up or when it is known that the enemy is otherwise actively engaged in preparations for attack.
5. According to Shiyurei Korban, a preemptive strike is a legitimate form of discretionary war when directed against a potential aggressor in order to prevent the enemy from developing a military capability.
6. According to Leḥem Mishneh, military hostilities directed against any foreign power are justified as a form of discretionary war when designed to demonstrate military superiority in order to instill fear in potential aggressors.
In arriving at a normative halakhic ruling in light of these conflicting positions, consideration must be given to the fact that the last two definitions of war "to diminish the heathens," both of which are extremely broad in nature, are opinions advanced by latter-day scholars that cannot be deemed authoritative when contradicted by the statements of authoritive early decisors such as Rambam and Me'iri.
It must be reiterated that, even when sanctioned by Halakhah, preemptive war constitutes a milḥemet reshut. Since a milḥemet reshut is precluded in our day, a resolution of the conflict between the various authorities who seek to define the concept of a war "to diminish the heathens" is not a matter that demands normative resolution because, regardless of how the term is defined, no milḥemet reshut may be waged in the absence of a king, Sanhedrin and the urim ve-tumim.20See Mishpat Kohen, no. 145; Le-Or ha-Halakhah, p. 10; and Amud ha-Yemini, no. 16, chap. 5, sec. 4. Military action in the guise of a milḥemet reshut requires a sovereign at whose sole initiative such war may be undertaken,21See above, note 4. prior permission of a Sanhedrin22See above, note 5. and acquiescence of the urim ve-tumim. Moreover, puzzling as his position may be, Rambam, in his codification of the law in the Mishneh Torah, neglects to enumerate preemptive war as a form of milḥemet reshut thereby apparently rendering such action illicit under all circumstances.
Accordingly, since discretionary war cannot be sanctioned in our day due to the absence of a Sanhedrin and urim ve-tumim, it might appear that a definitive decision with regard to the legitimate parameters of "war to diminish the heathens" is of no practical concern. This, however, is not entirely the case. We are confronted with two distinct categories of war, viz., war "to diminish the heathens" and war designed to "deliver Israel from an enemy." Excluding wars of aggression, these categories appear to be dichotomous. Wars that are not to be categorized as designed "to diminish the heathens" would then be encompassed within the category of war "to deliver Israel from an enemy." Military action categorized as designed "to deliver Israel from an enemy" constitutes a milḥemet mizvah. Thus, for example, according to the Kapaḥ version of the Commentary on the Mishnah, war against a professed enemy who poses no immediate danger is discretionary but hostilities undertaken "when it is known that the [enemies] are preparing themselves for attack" would constitute a milḥemet mizvah, while according to Me'iri such an undertaking would be in the nature of a milḥemet reshut.
This point is of extreme importance in understanding what must be regarded as a seventh opinion with regard to the distinction between war "to diminish the heathens" and war designed "to deliver Israel from an enemy." R. Yechiel Michal Epstein, Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim 74:3-4, addresses himself to Rambam's omission of any reference to war "to diminish the heathens" in his Mishneh Torah and resolves the question in a manner that yields a completely different understanding of the applicable Halakhah. Arukh ha-Shulḥan he-Atid asserts that the dispute between the Sages and R. Judah with regard to proper categorization of war "to diminish the heathens" is limited solely to the issue of whether the bridegroom must go forth from his chamber and the bride from her canopy. But, asserts Arukh ha-Shulḥan he-Atid, all are in agreement that, even according to the Sages, the king is obligated to engage in battle, not only to defend Israel against overt aggression, but also against potential aggressors "even when there is [only] a suspicion that they may attack us." Contrary to the interpretation of Hazon Ish, Arukh ha-Shulḥan he-Atid argues that Rambam's phraseology in the Mishneh Torah, viz., "war … to deliver Israel from an enemy she-ba aleihem" refers not only to an enemy who has already attacked Israel but also to an enemy who is suspected of harboring aggressive intentions. War "to deliver Israel from an enemy she-ba aleihem" is described by Rambam as commanded and, according to Arukh ha-Shulḥan he-Atid, that categorization includes war against a suspected enemy as well.
It must however be stated that Arukh ha-Shulḥan he-Atid's analysis of Rambam's position is not parallelled in any other commentary. According to both Me'iri and Hazon Ish, war "to deliver Israel from an enemy" is legitimate only in response to an overt act of aggression.
The conclusion that war "to deliver Israel from an enemy" is legitimate only in response to an overt act of aggression appears to be contradicted by Rema, Oraḥ Hayyim 229:6. Shulḥan Arukh codifies the ruling found in the Gemara, Eruvin 45a, to the effect that it is permissible, even on the Sabbath, to attack non-Jews who besiege Jewish cities when they threaten the lives of Jews and, in the case of a border city, even if they are intent only upon plunder or economic gain. Rema, in his gloss, appends a comment indicating that this ruling applies "even if they have as yet not come but they intend to come." The obvious import of Rema's comment is that a preemptive response is warranted, on the Sabbath no less than on weekdays, even if the enemy has not engaged in an overt hostile act. In light of the preceding discussion, such a situation could justify only a milḥemet reshut. But, since a milḥemet reshut is precluded in our day, it is difficult to explain the legitimacy of military action that is entirely preemptive in nature.23Amud ha-Yemini, no. 16, chap. 5, sec. 25, notes this contradiction and, in effect, rules in accordance with Or Zaru’a as against Me’iri. However, Amud ha-Yemini fails to analyze the various definitions of war “to diminish the heathens” that serve to distinguish such undertakings from defensive war and hence serve to delineate the latter category as well.
However, if the source cited by Rema is examined carefully an entirely different conclusion may be drawn. Rema's ruling is derived from Or Zaru'a, Hilkhot Shabbat 84:13. The phraseology employed by Or Zaru'a is extremely instructive:
… in a city close upon the border even if they come only for matters of hay and straw one goes out against them with arms and violates the Sabbath because of them…. And no distinction should be made between a situation in which they have already besieged [the city] and [a situation in which] they say they intend to come and plunder; rather, when the news (kol) goes forth to the effect that they intend to come to plunder, even though they have as yet not come, it is permissible to transport arms to safeguard [the city] and to generate a tumult in the city so that they shall not come, for it is not necessary to be cautious with regard to [situations requiring] preservation of life….
A careful examination of the text shows that Or Zaru'a posits two entirely distinct rulings. The first permits military hostilities even on the Sabbath. In that context the reference is solely to an enemy actively conducting a siege. The second ruling contains a statement explicitly negating any distinction between an enemy actually engaged in a siege and one who merely contemplates hostile action. However, in the latter context no mention is made of any military action whatsoever. On the contrary, reference is made only to bearing arms, i.e., transporting arms through a public thoroughfare, for the purpose of creating a tumult in order to frighten the enemy so that he will not act upon his malevolent designs. Or Zaru'a thus formulates two distinct rules: (1) An armed attack is warranted only when the enemy has actually commenced hostilities; only then is military action designed to take human life permitted as a milḥemet mizvah "to deliver Israel from an enemy." This is a ruling that is encompassed within the rubric of hilkhot milḥamah—the laws of war: defensive war is proper and legitimate in response to an attack.24Actually, the first ruling posited by Or Zaru’a need not be regarded as a ruling bearing upon the conduct of a milḥemet miẓvah. As will be shown later, response to actual attacks, at least to the extent necessary to repel the aggressor, is entirely justified on the basis of self-defense. (2) Preemptive action that does not entail the taking of life but only violation of Sabbath restrictions is entirely permissible. Thus, arms may be donned and transported on the Sabbath, not for attack, but in order to frighten the enemy. This is a ruling that is encompassed within the rubric of hilkhot Shabbat—the laws of Sabbath: violation of Sabbath restrictions for preemptive purposes is entirely permissible. The distinction is summed up in the final phrase: "for it is not necessary to be cautious (ein medakdekin) with regard to preservation of life." Sabbath laws are suspended even upon remote possibility of loss of human life; however, the taking of life in the course of war to "deliver Israel from an enemy" is warranted only in response to actual aggression.25The statement of the Gemara, Eruvin 45a, permitting a military response in a situation in which a border settlement is besieged solely for purposes of plunder may be understood as limited to situations in which the enemy has already commenced hostilities.
Rema's comment is culled from the second ruling of Or Zaru'a and presented in the context of hilkhot Shabbat. Rema appends his comment directly upon the phrase "and one may violate the Sabbath because of them." The import of his gloss is that one may violate the Sabbath, not only in response to actual aggression, but even in response to putative aggression. However, Rema sanctions only violation of Sabbath restrictions, e.g., transport of arms; nowhere does he sanction actual warfare in the absence of overt hostilities.
Accordingly, neither the statement of Or Zaru'a nor that of Rema, serves to negate the conclusion that war is legitimate only in response to an overt act of aggression.26Cf., however, Arukh ha-Shulḥan he-Atid 74:3; R. Shlomoh Goren, Maḥanayim, no. 69 (Iyar 5722), p. 15, reprinted in Torat ha-Shabbat ve-ha-Mo‘ed (Jerusalem, 5742), p. 356; Amud ha-Yemini, no. 16, chap. 5, sec. 25; and the statement of the Chief Rabbinate Council cited above, note 19.
Limiting the category of milḥemet mizvah to situations in which the enemy has already exhibited aggressive conduct (in the terminology of Hazon Ish: she-kvar ba aleihem) does not necessarily yield the conclusion that a potential aggressor must be permitted the advantage of the first strike. A limited form of preemptive action may be justified on much more elementary grounds than either milḥemet mizvah or milḥemet reshut. In order to elucidate this point, let us return to an earlier noted difficulty with regard to Rambam's formulation of the various categories of milḥemet mizvah.
Rambam includes "[a war] to deliver Israel from an enemy who has attacked them" in his enumeration of milḥamot mizvah. Although the concept is entirely cogent, this type of war is not specifically mentioned by the Gemara as an instance of milḥemet mizvah. Mareh Panim, in a gloss on the Palestinian Talmud, Sotah 8:10, points to the following statement recorded in that section of the Palestinian Talmud as the source of Rambam's ruling:
R. Judah used the term milḥemet mizvah: e.g., when we attack them; milḥemet ḥovah: e.g., when they attack us.27The translation follows the reading of Pnei Mosheh. This opinion, as recorded in the Palestinian Talmud, posits a dispute between R. Judah and the Sages concerning the status of a purely defensive war in response to an enemy attack. According to Pnei Mosheh’s reading, R. Judah regards such a war to be a milḥemet ḥovah, while the Sages regard it as a milḥemet reshut. Pnei Mosheh, in his Mareh Panim, states that the Babylonian Talmud accepts R. Judah’s thesis since it views only preemptive war as the subject of dispute and maintains that the Sages agree with R. Judah’s position. Korban ha-Edah records a variant textual reading according to which R. Judah views defensive war as milḥemet reshut while the Sages categorize it as milḥemet miẓvah. See R. Judah Gershuni, Mishpat ha-Melukhah 5:1; cf., Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim 74:3.
Defensive wars are herein explicitly described by the Palestinian Talmud as milḥemet ḥovah or obligatory wars. Although the Palestinian Talmud ascribes this view to R. Judah, Mareh Panim argues that there exists no dispute between the Sages and R. Judah with regard to this point and hence Rambam incorporates "a war to deliver Israel from an enemy," i.e., a defensive war, in his list of milḥamot mizvah.28See also Keren Oraḥ, Sotah 44b. Cf., Le-Or ha-Halakhah, pp. 13-15; Mishpat ha-Melukhah 5:1; and R. Ovadiah Hedaya, Talpiyot, III, no. 3-4, pp. 380-84.
A more obvious source of Rambam's characterization of a defensive war as a milḥemet mizvah may perhaps lie in a statement found in the Babylonian Talmud.29R. Aaron Soloveichik, Or ha-Mizraḥ, Tevet 5730, posits Midrash Tanḥuma, Parshat Pinḥas, sec. 3, as Rambam’s source. Deuteronomy 26:17-18 states, “Harass the Midianites and smite them; for they harass you.” Tanḥuma comments: “On the basis of this verse our Sages said, ‘If [a person] comes to slay you, arise and slay him.’ ” In context, the mandated response is not merely individual self-defense but a defensive war. As noted earlier, the Gemara, Eruvin 45a, declares that it is permissible to resist aggression likely to result in loss of life by going to battle even on the Sabbath.30See also Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim 74:3. Cf., however, R. Shlomoh Goren, Maḥanayim, no. 69, p. 9, and Torat ha-Shabbat ve-ha-Mo‘ed, p. 345; cf., also, below, note 31. The Gemara must be understood as sanctioning such military activity in the guise of a milḥemet mizvah rather than as a milḥemet reshut for two reasons: (1) A milḥemet reshut requires a monarch, Sanhedrin, and the urim ve-tumim, none of which were available during the period of the Amora'im. (2) A milḥemet reshut may not be initiated on the Sabbath. Indeed, the Gemara, Shabbat 19a, followed by Rambam, Hilkhot Shabbat 2:25, declares that a siege may not be commenced within a three-day period prior to the Sabbath. Rashi, Deuteronomy 20:19, and Leḥem Mishneh, Hilkhot Shabbat 2:25, declare that this restriction applies only to discretionary wars but not to milḥamot mizvah.31Since the Gemara, Eruvin 45a, permits military action in defense of border settlements even when no certain threat to life exists, the response that is sanctioned cannot be understood to be in the nature of collective self-defense but must be in the nature of a halakhic category of war. This distinction will be elucidated below. See also, above, note 25.
Parenthetically, it is evident that there exists no requirement for acquiescence of the urim ve-tumim prior to initiating the type of warfare described in Eruvin 45a. No mention is made of such requirement either in association with the talmudic discussion or in the various expositions of this provision of normative Jewish law as recorded in Shulḥan Arukh, Oraḥ Hayyim 329:6. It is logical to assume that, although, as noted earlier, Ramban posits a requirement for acquiescence of the urim ve-tumim as a prior condition for waging a milḥemet mizvah as well as for waging a milḥemet reshut, such permission is not required in the case of defensive war. In light of the fact that the dictum recorded in Eruvin 45a sanctioning defensive war was expressed in absolute terms by R. Judah in the name of Rav at a time when the urim ve-tumim was no longer extant that statement may serve as a source for the conclusion that defensive war does not require prior dispensation of the urim ve-tumim.
It should not be assumed that inclusion among obligatory wars of a war "to deliver Israel from the enemy" is simply the application of the law of the "pursuer" (rodef).32Cf., Shiyurei Korban, Palestinian Talmud, Sotah 8:10, who erroneously assumes that the law of pursuit incontrovertibly establishes an obligation to go to war to defend the victim of aggression. Jewish law requires that a bystander must intervene in order to save the life of an intended victim.33Sanhedrin 72b; Rambam, Hilkhot Roẓeaḥ 1:6-7 and 1:9; Shulḥan Arukh, Ḥoshen Mishpat 425:1. This rule is subject to the qualification that the life of the aggressor is forfeit only if the intended victim cannot be saved other than by killing the aggressor.34Sanhedrin 49a, 56a and 74a; Baba Kamma 28a; Rambam, Hilkhot Roẓeaḥ 1:7; and Shulḥan Arukh, Ḥoshen Mishpat 425:1. Thus, the law of rodef would require that assistance be rendered to victims of military aggression. It is clear, however, that the category of milḥemet mizvah requires intervention even under circumstances in which the law of rodef would not mandate, or even permit, intervention.
According to virtually all authorities, a person need not jeopardize his own life in order to preserve the life of another.35See Teshuvot Radbaz, III, no. 1,052; Pri Megadim, Mishbeẓot Zahav 328:7; Shulḥan Arukh ha-Rav, VI, Hilkhot Nizkei Guf va-Nefesh 7; Arukh ha-Shulḥan, Ḥoshen Mishpat 426:4; and Pitḥei Teshuvah, Ḥoshen Mishpat 426:2. Cf., however, Kesef Mishneh, Hilkhot Roẓeaḥ 1:14, and Bet Yosef, Ḥoshen Mishpat 426. Thus there is no obligation to eliminate a rodef if it is necessary to risk one's own life in order to do so. Yet war, virtually by definition, constitutes a threat to the lives of all combatants. Hence any individual who might otherwise seek refuge and thereby protect his own life could not be obligated by virtue of the law of pursuit to engage in battle in order to "deliver Israel from an enemy."
Moreover, the law of pursuit can be invoked, and the life of the aggressor becomes forfeit, only when failure to intervene will certainly, or almost certainly, result in the death of the intended victim.36See Rashi, Sanhedrin 72a., s.v. hakhi garsinan, and Rashi, Pesaḥim 2b, s.v. hakhi ka-amar; Teshuvot Koaḥ Shor, no. 20; and Iggerot Mosheh, Ḥoshen Mishpat, II, no. 69, sec. 2, s.v. ve-la-khen. Cf., however, Bi’ur ha-Gra, Ḥoshen Mishpat 388:74 and this writer’s article, “Hasgarat Poshe’a Yehud, she-Baraḥ le-Ereẓ Yisra’el,” Or ha-Mizraḥ, Nisan-Tammuz, 5747, pp. 260-61. However, the Gemara, Eruvin 45a, sanctions defensive action, on the Sabbath as well as on weekdays, against heathens who besiege a border settlement even though the marauding forces seek only "straw and hay," i.e., they are intent only upon looting or exacting economic concessions. It is clear that in such situations there exists no imminent danger; it is not at all certain that any life will be endangered. There is, however, reason to fear that even if the aggressors' immediate pecuniary or economic goals are achieved without resistance, having penetrated border defenses, the enemy may engage in warfare at some future time and thereby endanger Jewish lives. The loss of fortified border settlements would leave the entire country exposed and defenseless. Hence defensive measures are warranted. Such measures could not be justified on the basis of the law of pursuit since it is not at all certain, or even likely, that failure to respond militarily would result in loss of life. Nevertheless, defensive war is clearly justified by Halakhah under such circumstances. Thus, while the law of pursuit may be invoked only in face of imminent danger to life, defensive war is justified in order to forestall even remote future danger.
Perhaps of even greater significance is the fact that war almost inevitably results in civilian casualties as well as the loss of combatants. The taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit could not be invoked even by the intended victim, much less so by a third party who is himself not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process since to do so would only entail the loss of another innocent life. In such situations the talmudic principle "How do you know that your blood is sweeter than the blood of your fellow?" (Sanhedrin 74a) is fully applicable.37Amud ha-Yemini, no. 16, chap. 4, discusses the applicability of this principle to the question of the sacrifice of gentile lives for the preservation of Jewish lives. Notwithstanding terminology employed by Rashi, Sanhedrin 74a, s.v. mai ḥazit, Rabbi Israeli rules that it is forbidden to take the life of a non-Jew in order to save the life of a Jew. Cf., Tiferet Yisra’el, Bo’az, Oholot 7:10; Noda bi-Yehuda, Mahadura Tinyana, Ḥoshen Mishpat, no. 59; Perashat Derakhim, Derush 17; Minḥat Ḥinnukh, no. 296; and R. Eliezer Waldenberg, Ẓiẓ Eli’ezer, X, no. 25, chap. 5, sec. 4. Cf., however, Palestinian Talmud, Shabbat 14:4, and R. Mordecai Halperin, Assia, vol. X, no. 4, (Tammuz, 5725), pp. 22-23. For an analysis of the problem posed by the Palestinian Talmud see this writer’s discussion in Or Ha-Mizraḥ, (Nisan-Tammuz 5748), pp. 293-295.
See Ra’avan, Baba Kamma 111b, and Kesef Mishneh, Hilkhot Roẓeaḥ 2:11, who declare that taking the life of a non-Jew is encompassed in the prohibition against homicide; see also Mekhilta, Mishpatim 4:58. The line of reasoning employed by Ḥakham ẓevi, no. 26, and Ḥut ha-Meshulash, no. 17, with regard to theft of property belonging to a non-Jew would appear to apply, mutatis mutandis, to homicide as well. Meshekh Ḥokhmah, Parshat Mishpatim, s.v. ve-yitakhen, avers that the slaying of a non-Jew is a more severe transgression than taking the life of a Jew and that it is precisely for that reason that “punishment is reserved to Heaven.” See also Ibn Ezra, Commentary on the Bible, Exodus 21:21. Cf. R. Simchah Shustal, Koveẓ Nehora’i, I (5740), pp. 86-91.
Were war to be sanctioned solely on the basis of the law of pursuit, military action would perforce be restricted to situations in which loss of life is inflicted only upon armed aggressors or upon active participants in the war effort; military action resulting in casualties among the civilian populace would constitute homicide, pure and simple. However, not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians,38Amud ha-Yemini, no. 16, chap. 5, sec. 1. but, to this writer's knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem.39For a contemporary discussion of this issue see Amud ha-Yemini, no. 16, chaps. 3-5. It may be noted that Scripture records that, prior to engaging in battle against Amalek, Saul said to the Kenites, “Go, depart, go down from among the Amalekites” (I Samuel 15:6). The clear implication is that, had the Kenites not heeded this admonition, Saul might have slain them with impunity in the course of the battle against Amalek.
Thus specific sanction for defensive war beyond application of the law of pursuit is required in order: (1) to justify conscription, i.e., coercion to endanger one's life in defending others; (2) to sanction defensive war to ward off aggression even when danger to life is remote; and (3) to sanction military activity that is likely to result in casualties among noncombatants. Nevertheless, a voluntary response posing no danger to civilians may be undertaken in face of imminent danger even in a preemptive manner. In halakhic terms, such resistance is not encompassed within the rubric of war and does not require sanction as either milḥemet mizvah or milḥemet reshut. Such response is essentially not an act of war but of simple self-defense. Individual self-defense is permitted by virtue of the principle "If [a person] comes to slay you, arise and slay him" (Berakhot 58a and 62b; Sanhedrin 72a). Such response, which is entirely legitimate on the part of any individual victim of putative aggression, is, mutatis mutandis, legitimate when undertaken by society as a whole as an aggregate of individual victims.
Categorization of a preemptive attack as a milḥemet reshut is problematic regardless of the precise circumstances under which such war is justified. Such action is not deemed mandatory but is nevertheless permitted as a milḥemet reshut despite the apparent absence of specific scriptural authorization.40Although not explicitly demanding participation in military activity designed to “deliver Israel from an enemy,” Judges 5:23 pronounces a curse against Sisera: “ ‘Curse ye Meroz,’ said the angel of the Lord, ‘curse ye bitterly the inhabitants thereof because they came not to the help of the Lord, to the help of the Lord against the mighty.’ ” Cf., R. Shlomoh Goren, Maḥanayim, no. 20 (Erev Ḥanukkah, 5714), p. 7, reprinted in Torat ha-Mo‘adim, p. 166, and Maḥanayim, no. 97 (5725), p. 7, reprinted in Torat ha-Shabbat ve-ha-Mo‘ed, p. 360. Korban ha-Edah, Palestinian Talmud, Sotah 8:10, suggests that the legitimacy of preemptive war as a milḥemet reshut is derived by the Palestinian Talmud from the scriptural paradigm of King David's war against the Philistines.41See, however, Panim Yafot, Parshat Shoftim, s.v. u-mi ha-ish, who notes that the area inhabited by the Philistines, although not conquered by Joshua, was within the boundaries of Ereẓ Yisra’el. Hence King David’s war against the Philistines constituted a milḥemet miẓvah since it served as a war of conquest for territory integral to the Land of Israel. Military action against the Philistines, asserts Korban ha-Edah, was not undertaken in order to conquer territory belonging to the Seven Nations indigenous to the land of Canaan or to expand the boundaries of the Land of Israel, but in order to prevent acts of aggression.
It may well be the case that preemptive war undertaken in order to prevent future attack is justified as a milḥemet reshut analogous to war for territoral aggrandizement or economic gain. The Gemara, Berakhot 3b and Sanhedrin 16a, seemingly indicates that discretionary war is warranted, not only when undertaken in order to enlarge the territory of the Land of Israel, but also when motivated by economic considerations.42Cf., however R. Reuben Margulies, Margaliyot ha-Yam, Sanhedrin 16a, secs. 22 and 23, and idem, Niẓoẓei Or, Berakhot 3b, who asserts that the hostilities in question were not undertaken for stark economic advantage but were directed against marauding bands who disrupted the economy. Dispensation for such war is subject to approval of the Sanhedrin and acquiescence of the urim ve-tumim. Acquiescence of the urim ve-tumim is tantamount to explicit divine sanction. Positing this requirement implies recognition that war may be undertaken only upon divine behest. Divine sanction for war in limited situations may be forthcoming even when there exists no imminent threat. Accordingly, it may be understood that it is not economic gain per se, or territorial aggrandizement or enhancement of the prestige of the monarch which justifies war; rather any cogent benefit may serve as justification, subject to divine approval as conveyed through the intermediacy of the urim ve-tumim.43Cf., Even ha-Azel, Hilkhot Melakhim 5:1. Hence, prevention of a possible, albeit remote, danger is no less worthy a motive than economic gain. Therefore, according to the Sages, preemptive war is encompassed within the category of milḥemet reshut but participation in such warfare fails to constitute a mizvah. However, R. Judah's view, which raises such participation to the level of fulfillment of a mizvah, but not to that of ḥovah or a mandatory undertaking, requires further clarification.
Quite apart from the foregoing, the nature of the dispute between R. Judah and the Sages is extremely difficult to explain. All agree that, as a discretionary war, an incursion "to diminish the heathens so that they shall not march against them" requires a monarch and a Sanhedrin; yet R. Judah and the Sages disagree with regard to whether participation in such a venture constitutes fulfillment of a mizvah.
R. Judah's position may perhaps be understood on the basis of another consideration. In matters not involving war, it is clear that society has an obligation to anticipate future dangers and to prevent possible loss of life even when such danger is remote. The Gemara, Baba Batra 7b, declares that the inhabitants of a city may compel one another to contribute the funds necessary for the erection of fortifications, including construction of a wall circumscribing the city, doors in the wall and bolts to secure the doors. The wall is designed to serve as a means of fortifying the city in order to secure it against armed attack. Since the wall is constructed in order to preserve the lives of the inhabitants, all the townspeople may be compelled to contribute equally in order to defray the expenses incurred on the grounds that all derive equal benefit from the fortifications.
Fortifications represent more than a simple amenity; they are designed to protect against loss of life. Were construction of fortifications to be deemed necessary in order to eliminate an imminent danger to human life, each person would be required to do everything within his power to obviate or mitigate the danger. Were construction of the fortifications not to be feasible otherwise, each and every individual would be personally liable to bear the entire expense. At best, any individual who defrays such expenses would have a cause of action against his fellow townspeople for reimbursement of funds expended on their behalf—but each person capable of doing so would be required to act on his own initiative and to act without delay.
Such an obligation does not exist with regard to construction of fortifications; no individual is liable for more than his proportionate share of the total expenditure. This is so because, in the circumstances described, there exists no imminent danger. Fortifications are commonly erected, not to protect against present danger, but in anticipation of future contingencies. Precaution against future danger is not an individual obligation but a societal one. Society as a whole must assure that there are lifeguards, physicians and firemen trained to perform their functions and must provide facilities and incentives for the training of such personnel, but no individual is obliged to enter those professions or to volunteer his services in performing such functions. Any member of society may demand that a wall be constructed and that locks and bolts be provided. An individual who expresses a legitimate concern with regard to possible danger and proposes a cogent means for its alleviation must be heard and his demands fulfilled. The obligation to protect against danger of this nature rests upon society as a whole rather than upon any individual.44See this writer’s Judaism and Healing (New York, 1981), pp. 13-16.
A war "to diminish the heathens so that they shall not march against them" may be undertaken and the right forcibly to conscript soldiers for this purpose may be understood as flowing from the societal obligation to forestall future danger. Society has an obligation to prevent danger from arising. Granted that biblical sanction exists for undertaking preemptive war and that such action constitutes a legitimate means of forestalling danger, society, through its sovereign, may be called upon to protect its members by engaging in military activity in order to forestall danger.
At the very minimum, prevention of possible future danger constitutes a matter of societal welfare. The Gemara, Baba Batra 8a, states that townspeople may levy taxes and compel one another to contribute the funds necessary to provide amenities such as a well from which to draw water. Rambam, Hilkhot Shekhenim 2:5, records a similar prerogative with regard to construction and maintenance of roads and streets. Nevertheless, participation in the provision of social amenities does not constitute fulfillment of a mizvah45Persons engaged in providing social amenities should not be confused with individuals who “occupy themselves with the needs of the public” and who are therefore exempt from recitation of the shema. The latter category includes those engaged in preservation of endangered property but not persons engaged in providing social amenities. See Shulḥan Arukh, Oraḥ Ḥayyim 70:4 and accompanying commentaries. Cf., Teshuvot Imrei Esh, Yoreh De‘ah, no. 52. even though members of society are entitled to institute legal proceedings in order to compel participation by their fellow citizens. Hence the position of the Sages may be understood by ascribing to them the view that prevention of future danger is regarded as entirely similar to providing other amenities, viz., an actionable prerogative, but not a mizvah. Accordingly, preemptive war may, under certain conditions, be compelled but participation in such military activity does not constitute fulfillment of a mizvah. It therefore follows that a person participating in such military activity is not exempt from fulfillment of other mizvot.
R. Judah, on the other hand, may be understood as maintaining that forestalling future danger is qualitatively different from providing social amenities. Although, in the absence of imminent danger, no individual member of society is personally obligated to take such action, nevertheless, according to R. Judah, action that serves to eliminate future danger, when undertaken, does constitute fulfillment of a mizvah because it is designed to preserve life.46Cf., Amud ha-Yemini, no. 16, chap. 5, sec. 27.
If this analysis is correct, a similar dispute would exist with regard to the question of whether workmen engaged in erecting fortifications around the city are exempt from performance of other mizvot. According to the Sages, since no immediate danger exists, the status of laborers engaged in erecting fortifications is entirely similar to that of workmen engaged in providing social amenities and does not constitute the fulfillment of a mizvah. According to R. Judah, such activity, although not obligatory upon any individual, nevertheless, when undertaken, does constitute a mizvah kiyumit, i.e., such activity does constitute fulfillment of a mizvah. Hence, workmen engaged in erection of fortifications, according to the position of R. Judah, would be exempt from performance of other precepts.
This analysis notwithstanding, preemptive war is not entirely analogous to construction of fortifications. Any individual citizen has a right to demand the erection of fortifications and the right to compel his fellow townspeople to share the financial burden. Yet no individual enjoys the right to compel a preemptive strike even under circumstances in which fear of future danger is entirely cogent. Preemptive war as a form of milḥemet reshut may be undertaken only upon the initiative of the sovereign with the consent of the Sanhedrin and acquiescence of the urim ve-tumim.
The respective roles and functions of the king, the Sanhedrin, and the urim ve-tumim require elucidation. It is unlikely that this tripartite requirement for declaration of war is designed to provide a system of checks and balances or simply to render actual warfare halakhically difficult. It is certainly cogent to presume that each is designed to satisfy a separate and unique halakhic requirement and hence it is necessary to endeavor to discern the function fulfilled by each.
The role of the monarch may be understood in light of a general difficulty associated with the obligation to engage in wars of defense in order "to deliver Israel from an enemy." The obligation to participate in war against the Seven Nations and in war against Amelek is, of course, rooted in specific biblical commandments. However, since the obligation with regard to participation in a defensive war is not based upon either the law of pursuit or upon the obligation to come to the aid of an endangered person, the precise reason why participation in a war "to deliver Israel from an enemy" is deemed obligatory is not readily apparent. Since there exists no explicit biblical imperative to engage in such warfare it is difficult to comprehend the basis for compelling self-endangerment.
It is precisely for this reason that a monarch is required for the purposes of waging war. Jewish law recognizes that society has inherent power, albeit limited in nature, with regard to expropriation of the resources of its members. Thus society may levy taxes for the common welfare and compel payment. However, society lacks power to force individuals to place themselves in jeopardy even when endangerment of some is necessary to avert greater danger to the greater number. Jewish law endows the monarch with powers beyond those vested in society. The essence of monarchical power is the power of coercion. A monarch is empowered to force the populace to do his bidding. The king may expropriate property and may conscript soldiers to fight in his wars. Only the sovereign enjoys the power to compel his subjects to endanger their lives.47See also, Mishpat Kohen, no. 143 and R. Alexander Epstein, Niv ha-Midrashiyah, Winter-Spring 5728, pp. 72-80. The verse “Lest he die in the war” (Deuteronomy 20:5) as understood by Sifrei, ad loc., and the earlier cited Mishnah, Sotah 44b, speaks of possible loss of life in the context of milḥemet reshut. Similarly, Rambam, Sefer ha-Miẓvot, Miẓvot aseh, no. 191, in speaking of the function of the address delivered prior to battle by the mashuaḥ milḥamah, (i.e., the “priest annointed for war” for the purpose of addressing the troops), describes the address as designed so that “their hearts be aroused to war and he bring them to endanger themselves.” Rambam, Hilkhot Melakhim 5:2, defines the role of the king with regard to milḥemet mizvah: "He forces the people to go forth." Thus, Halakhah requires not only that milḥemet reshut be initiated by the king but also that milḥemet mizvah be undertaken only upon the initiative of the monarch. Since war requires conscription of soldiers whose lives are placed in jeopardy, war may be declared only by the king. Absent a monarch, there exists no power of conscription and each citizen may decline to participate in battle. Accordingly, despite the general obligation to preserve life and to render assistance to one whose life is in jeopardy, a king is necessary for the proper conduct even of a war "to deliver Israel from an enemy" because, in the absence of a decree of the king committing the populace to war, no person is obligated to jeopardize his own life in order to save the life of his fellow.48Cf., R. Raphael Katzenellenbogen, No‘am, XVI, 45ff., who fails to recognize this salient point. Cf., also, the somewhat different analysis of R. Saul Israeli, Torah she-be-‘al Peh, X (5728), 49f.
The role of the Sanhedrin in the declaration of war is somewhat less obvious but is discernible nonetheless.
The law of pursuit has two distinct formulations. When the pursuer is intent upon the death of his victim there is an absolute duty to eliminate such threat. Even a bystander must intervene and dare not plead that he declines to save one human life at the cost of another. Rambam, Hilkhot Rozeaḥ 1:9, writes, "This, too, is a negative commandment: not to spare the life of a pursuer." The positive obligation is cited by Rambam, Hilkhot Rozeaḥ 1:7, and predicated upon the verse "And you shall cut off her hand, your eye shall not pity her" (Deuteronomy 25:12). Yet another formulation of the law of pursuit is found in Exodus 22:1: "If a thief be found breaking in, and be smitten that he die, there shall be no blood shed for him." Scripture here provides that one who kills a thief incurs no punishment. The Gemara, Sanhedrin 72a, explains that it is to be assumed that a person will not permit his property to be seized unlawfully without offering resistance. The thief is deemed to be well aware of this instinctive psychological reaction and hence it is presumed that he is prepared to use lethal force should he meet with resistance in carrying out his design. Accordingly, the thief is presumed to be a "pursuer" whose life is forfeit. However, in codifying this law, Rambam, Hilkhot Geneivah 9:7, states only that "All persons have permission to kill [the thief] whether on a weekday or on the Sabbath" but fails to posit an absolute obligation to eliminate the thief as a pursuer. It may be posited that the distinction between the thief who is the subject of this ruling and the aggressor described in Hilkhot Rozeaḥ whose life is always forfeit lies in the fact that the latter is actually intent upon an act of aggression while the former, although he may become an aggressor, is not yet engaged in an actual act of aggression. Elimination of the thief is a preemptive act. Such an act is permissible but is not mandatory.
A similar distinction may be drawn in regard to war. Defensive response to an attack is mandatory in order to save lives. Yet, although a preemptive strike is warranted when there is reason to anticipate danger, such preemptive action is not mandatory in the absence of overt aggression. There are manifold considerations that may serve to render preemptive war imprudent. Rambam, Hilkhot Geneivah 9:12, rules that a householder who is certain that the thief will not kill him has no right to execute the burglar peremptorily in order to preserve his property. A householder who fully intends to offer no resistance when confronted with the threat of force has no right to take the life of the would-be thief preemptively simply in order to preserve his property.49The victim may, however, be entitled to wilfully and consciously refuse to accede to theft of his property and, recognizing that his determination to offer resistance serves to endanger his life, may then avail himself of the law of pursuit in defending himself against the oppressor. See R. Shlomoh Zalman Auerbach, Moriah, Sivan-Tammuz 5731, pp. 22-23, reprinted in his Minḥat Shlomoh (Jerusalem, 5746), no. 7, sec. 2. Indeed, it would be highly prudent for the householder to comply with the demands of an armed intruder without offering resistance. Similarly, when it is anticipated that danger to the lives of the populace can be averted by other means, preemptive war may well be imprudent.
Moreover, as poignantly noted by Minḥat Hinnukh, no. 425, milḥamot mizvah are obligatory even though all war, by its very nature, involves endangerment of the lives of combatants. Nevertheless, the obligation regarding even milḥamot mizvah does not require the undertaking of suicide missions. War is obligatory only when there is sound military reason to assume that Israel will be victorious.50Cf., R. Shlomoh Goren, Torat ha-Mo’adim, p. 179. It would seem that the need to eliminate a potential aggressor is an imperative causus belli that renders even preemptive war permissible "in order to diminish the heathens so that they shall not march against them" only when the lives preserved are greater in number than the lives whose loss may be anticipated as a result of armed conflict. The justification of war in such circumstances is the saving of lives, not the punishment of the enemy.
Accordingly, the role of the Sanhedrin is readily discernible. The Sanhedrin is charged with assessing the military, political and economic realia and determining whether a proposed war is indeed necessary and whether it will be successful in achieving its objectives. Hence, the role of the Sanhedrin is limited to milḥamot reshut. Consent of the Sanhedrin is not required to sanction milḥamot mizvah since the latter are commanded by God directly and must be carried out by virtue of divine fiat.51Rashi, Berakhot 3b, commenting on an incident related by the Gemara, states that the Sanhedrin was consulted “so that they might pray on their behalf.” R. Reuben Margulies, Margaliyot ha-Yam, Sanhedrin 16a, sec. 23, and Niẓoẓei Or, Berakhot 3b, explains that the military action under discussion constituted a milḥemet miẓvah that did not require statutory consultation of the Sanhedrin. Alternatively, approval of the Sanhedrin may not have been required since, in the incident recorded, the war was undertaken upon the initiative of the populace. See Einayim la-Mishpat, Sanhedrin 16a and above, note 5. Cf., Amud ha-Yemini, no. 16, chap. 5, sec. 6.
The role of the urim ve-tumim is much more difficult to elucidate. As noted earlier, Ramban maintains that acquiescence of the urim ve-tumim was required not only for milḥamot reshut but for milḥamot mizvah as well. Yet war "to deliver Israel from an enemy" does not require consultation of the urim ve-tumim.
Although the matter is not raised by any of the commentators on the Mishneh Torah, it is difficult to explain why it is that war for "deliverance of Israel from an enemy" does not require consultation of the urim ve-tumim. As noted earlier, the absence of such a requirement may be inferred on the basis of Eruvin 45a. Certainly, it is implicitly assumed by all who discuss the topic that war for this purpose requires no such consultation. The reference to consultation of the urim ve-tumim in the concluding section of the introduction to Rambam's Sefer ha-Mizvot and in Ramban's addenda to that work may be understood as speaking of this requirement only in conjunction with wars of conquest. It is, of course, readily understandable that acts of violence undertaken by an individual in self-defense do not require permission of the urim ve-tumim. It is understandable that military action undertaken by a nation as a means of self-defense similarly require no specific ad hoc dispensation. However, as has been shown, military action undertaken in guise of a milḥemet mizvah "in order to deliver Israel from an enemy" goes beyond acts that an individual in similar straits might justify as a legitimate form of self-defense. Why, then, does this type of warfare not require sanction of the urim ve-tumim?
Conversely, the requirement for acquiescence of the urim ve-tumim prior to engaging in war against the Seven Nations is particularly puzzling. Acquiescence of the urim ve-tumim is required, according to Ramban, not only for milḥamot reshut but also for milḥamot mizvah, including war against the Seven Nations, despite the ongoing obligation to annihilate all members of the Seven Nations indigenous to the land of Canaan. This obligation is completely independent of the obligation to conquer the land of Canaan and to establish a Jewish homeland therein. The latter obligation may well be construed as contingent upon the advice and consent of the urim ve-tumim by virtue of its nature as a commandment whose fulfillment devolves upon the community as a whole. However, apart from a communal obligation to wage war against the Seven Nations, the commandment establishes an obligation devolving upon each individual that is personal in nature and, so long as the members of the Seven Nations were identifiable, was binding at all times and in all places.52See Rambam, Hilkhot Melakhim 5:4; and Sefer ha-Ḥinnukh, no. 525. See also above, note 10. An individual was clearly not required to consult the urim ve-tumim prior to taking the life of a member of the Seven Nations. The obligation of society as an aggregate of its individual members is certainly in no way inferior to the obligation of an individual qua individual. Accordingly, the role of the urim ve-tumim in war against the Seven Nations is problematic.
In order properly to understand the consideration underlying the requirement of the urim ve-tumim as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of milḥemet mizvah and milḥemet reshut pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 11, and R. Menachem Ziemba, Zera Avraham, no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.53See Contemporary Halakhic Problems, II, 165. Nevertheless, an opposing view is found in the writings of one noted authority.54A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot. In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, Ha'amek Davar, Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.55This view is also expressed in Ha’amek Davar, Deuteronomy 20:8. See also Amud ha-Yemini, no. 16, chap. 5, secs. 8-24. The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. Ha'amek Davar understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains Ha'amek Davar, there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, Ha'amek Davar concludes that gentiles are not culpable for the taking of human life within the context of warfare.
As noted earlier, Ha'amek Davar's position vis-a-vis the legitimacy of war on the part of non-Jews is contradicted by numerous authorities. Nevertheless, the verse cited by Ha'amek Davar might well be interpreted in a similar manner even by those authorities who maintain that non-Jews have no dispensation to engage in wars of aggression under any circumstances. According to those authorities, the biblical categories of war are limited to Jews exclusively. However, it is not illogical to interpret Genesis 9:5 as excluding from the halakhic prohibition against homicide the shedding of blood within the context of warfare provided that the war itself is legitimately undertaken, i.e., in situations in which the bonds of brotherhood have been severed in a manner sanctioned by Halakhah. In theory, such exclusion is all-inclusive in nature and pertains to any legitimate military activity, whether undertaken by Jew or by gentile. In practice, according to these authorities, the exclusion is applicable solely to Jews since it is established on other grounds that non-Jews may not legitimately engage in any war of aggression. The taking of any life when incidental to biblically sanctioned warfare does not constitute homicide because at such times the relationship between the parties is not analogous to the relationship between man and his brother. It is, however, logical to assume that military action leading to civilian casualties may be regarded as legitimate on this basis only when the loss of civilian life is incidental to military purposes, but not when wantonly undertaken as an end in itself.56See Amud ha-Yemini, no. 16, chap. 5, sec. 32.
Accordingly, it may be argued that the function of the urim ve-tumim is to generate a state of war which is the antithesis of a state in which relationships between peoples are analogous to those which exist between man and his brother. The latter relationship is the divinely mandated norm. Legitimate renunciation of that state requires divine sanction as manifest through the Divine Spirit utilizing the urim ve-tumim as a medium. Only in such a state may actions likely to produce civilian casualties be undertaken. In essence, the urim ve-tumim is required in order to legitimize military action that may cost the lives of innocent victims.
Each individual is indeed commanded to annihilate the members of the Seven Nations and the community as an aggregate of individuals is bound by a similar obligation. It is clearly not necessary to consult the urim ve-tumim prior to discharging that obligation in whole or in part. Permission of the urim ve-tumim is required solely in order to establish a state of war legitimating military action that may result in the death of innocent victims.
However, since war "to deliver Israel from an enemy" is not preemptive but is undertaken only in response to hostile acts, the acquiescence of the urim ve-tumim is not required since such war is entirely defensive in nature. In such cases, the state of normalcy has already been shattered by the aggressor. The response, even if it involves the loss of innocent lives, is justified even without permission of the urim ve-tumim since it occurs in the absence of peaceful relations among nations. Hence, even though casualties among noncombatants may ensue, military activity is justified since the innocent victim's life is not taken by "the hand of his brother."
As has been stated earlier, preemptive war is not sanctioned by Rambam as a form of milḥemet mizvah. Nor could preemptive war be sanctioned in our day as a milḥemet reshut since the necessary conditions for waging a milḥemet reshut, i.e., a monarch, Sanhedrin and urim ve-tumim are absent. Nevertheless, limited types of preemptive incursion may well be justified under the law of pursuit. "If [a person] comes to slay you, arise and slay him," counsels the Gemara (Berakhot 58a and 62b; Sanhedrin 72a). Such action is not only justified but is mandatory under the law of pursuit. However, as has been shown earlier, the conditions under which self-defense may be carried out are quite different from the manner in which war may be conducted. The taking of human life in self-defense is justified only when necessary in order to eliminate a threat that is virtually certain to result in loss of life and only to the limited extent necessary to neutralize the danger. Moreover, in contradistinction to action justified by regulations governing warfare, innocent lives may not be taken when sole justification for military action is the plea of self-defense.
Lest these conclusions be too hastily applied to the recent events in Lebanon several further points must be emphasized:
(1) Action in response to an armed attack is not designated by Halakhah as preemptive even if designed solely to prevent future attack. Accordingly, aggression undertaken by the enemy serves to render any action taken in response a war "to deliver Israel from an enemy" which constitutes a milḥemet mizvah. There is no halakhic requirement that defensive war be limited to elimination of the immediate danger. The crucial issue, then, is whether such actions are entirely preventive in nature or whether a given action is undertaken in response to prior attack. Intermittent cessation of hostilities by the enemy does not signify termination of aggression.57See Amud ha-Yemini, no. 16, chap. 5, sec. 25. On the other hand, the purpose of such war is not punishment of the enemy, but "to deliver Israel," i.e., prevention of Jewish casualties. Hence prudence would dictate that such action be undertaken only if casualties as a result of a military response are estimated as likely to be lower than anticipated losses in the absence of such response.
(2) Preemptive military action undertaken on the basis of the principle "If [a person] comes to slay you, arise and slay him" may well generate a counterattack. Response to the counterattack constitutes a war "to deliver Israel from the enemy" even though the initial attack could not be sanctioned on those grounds. Such resistance constitutes a situation in which "kvar ba aleihem—the enemy has already come upon them" and, accordingly, military response constitutes a war "to deliver Israel from an enemy." Hence, although the initial action must be limited to acts compatible with action under the law of pursuit and, for example, may not be directed against civilians, enemy response to action undertaken in accordance with the law of pursuit results in circumstances warranting a milḥemet mizvah. Once the enemy has actually "marched against them" further military activity is encompassed within the category of war "to deliver Israel from an enemy" and may be carried out in accordance with halakhic regulations governing the conduct of war.
(3) It must also be noted that in some circumstances a milḥemet reshut, once undertaken, may be governed by the regulations applying to a milḥemet mizvah. As noted earlier, Deuteronomy 20:5-7 provides for the deferment of military service for certain categories of men. These exclusions apply only to a milḥemet reshut. Hence, a king may not legitimately undertake a milḥemet reshut unless he is confident of victory without finding it necessary to conscript such persons. However, once a war is declared and the tide of battle threatens to overwhelm the Jewish forces committed to battle, the situation is entirely different, Hazon Ish, Oraḥ Hayyim-Mo'ed 114:2, quite logically asserts that once a battle has been undertaken and there is danger of losing the encounter, response to such danger constitutes a milḥemet mizvah and, accordingly, even those persons otherwise exempt from military service are obligated to participate if their services are necessary to achieve victory. The selfsame consideration would logically apply even in the case of a war whose inception was entirely illicit. The danger of defeat creates a situation requiring the "deliverance of Israel from an enemy" which constitutes a milḥemet mizvah.
Of course, application of these halakhic principles in any given situation requires prior determination of the relevant facts.
Centuries ago King Solomon wrote, "For everything there is a season, and a time for every object of desire under the heavens. … A time to be silent and a time to speak. A time to love and a time to hate. A time for war and a time for peace" (Ecclesiastes 3:1 and 3:7-8). Events of the summer of 1982 illuminate the juxtaposition of the last two verses. Indeed, there is a time to speak of war and of peace and a time when political and military considerations augur for silence. Unfortunately, the lesson that emanates from these biblical verses is not understood by all.
As has been shown, determination of the halakhic propriety of the Israeli incursion into Lebanon is contingent both upon accurate analysis of points of fact as well as resolution of questions of Jewish law. Nevertheless, it is beyond dispute—both as a matter of fact and as a matter of Halakhah—that, once hostilities have commenced, Israel must prevail because the State of Israel cannot afford the luxury of losing a war. Military defeat would assuredly entail the loss of a countless number of Jewish lives. When such threat looms, military action assumes the guise of an obligatory war "to deliver Israel from the enemy." Under such circumstances any action—indeed any word—that gives support to the enemy is an action that endangers Jewish lives and as such is categorically forbidden by Jewish law.
One final comment: The events of the summer of 1982, even though fraught with much pain, are nevertheless not without a redeeming feature. Song of Songs 4:8 declares, "Come with me from Lebanon, my bride, with me from Lebanon you shall come. You shall look me-rosh amanah…." Rashi explains the import of the opening words of this passage by stating that God declares to the children of Israel, "You will come with Me into exile from Lebanon and with Me from Lebanon you will return." The verse alludes to the route traveled by our ancestors as they departed from the Land of Israel. When sent into exile some were driven north through Lebanon.58Indeed, portions of Lebanon are within the biblically designated boundaries of the Land of Israel and, moreover, are part of the territories conquered by the generation of the Exodus. The fourteenth-century traveler and rabbinic authority, R. Estori ha-Farḥi, Kaftor va-Feraḥ, chapter 11, identifies Hor ha-Har specified in Numbers 34:7 as the northern boundary of Ereẓ Yisra’el with a particular mountain in the north of Lebanon and specifically enumerates Tyre, Sidon and Beirut as cities within the consecrated territory of Ereẓ Yisra’el. Scripture testifies that God will go into exile with Israel and together with Israel He will return from the exile. The verse continues, "You shall look me-rosh amanah." Rashi interprets this phrase as meaning "You shall perceive me-rosh—because from the beginning you exhibited emunah." Thus Rashi understands the verse as meaning, "You may anticipate the redemption because from the beginning of exile you manifested belief, faith and trust in God." From the very beginning of galut Israel marched into exile with emunah, with faith and trust that the exile would end. With this faith a priori, we are able to declare with certainty, "Me-levanon tavoi—From Lebanon you shall come."
"The heart of a king is in the hand of God as the watercourses; whithersoever he wishes He turns it" (Proverbs 21:1). There are events in the lives of men that, irrespective of their morality or immorality, are nevertheless harnessed by God and utilized by Him as instruments of divine providence. Proverbs declares that acts of sovereign powers that pertain to the destiny of Israel are integral to God's providential guardianship of His people. Jews believe with enduring faith that a redemptive moment permeates all of Jewish history. "From Lebanon you shall come"—the events of the summer of 1982 in their entirety are but one more link in a long chain of events that will culminate in the complete redemption. May we be privileged to witness the redemption of Israel speedily in our day.
Said R. Yoḥanan: [A war which is designated as] permitted by the Sages is identical with [war which is designated as] commanded (mizvah) by R. Judah; [war which is designated as] commanded by the Sages is identical with [war which is designated as] obligatory (ḥovah) by R. Judah.
Said Rava: All agree that the wars of Joshua to conquer [the land of Canaan] were obligatory [and] all agree that the wars of the House of David for territorial expansion were discretionary. They differ with regard to [wars for the purpose of] diminishing the heathens so that they shall not march against them. One [viz., R. Judah] calls it commanded and one [viz., the Sages] calls it permitted. The difference is with regard to [application of the principle that] one who is engaged in the performance of a commandment is exempt from the performance of [another] commandment.
And whosoever does battle with all his heart without fear and his intention is solely to sanctify the Name is assured that no harm will befall him and he will not meet with misfortune. He will build for himself a lasting house in Israel and he will acquire it for himself and for his children for eternity and he will merit life in the world to come as it is written, "For the Lord will surely make a sure house for my lord because my lord fights the battles of the Lord and evil is not found in you."