I know these past two weeks have been so painful and difficult for us all. As I approached the task of preparing a drash for this Shabbat, I tried to balance the need to mourn and grieve, with the need to act now, and look forward with optimism and hope. Although I will try to remain focused on the texts, the images and stories keep rising to the service, so I apologize for every time I digress.
Parshat Noach contains verses all too relevant to the massacre on Simhat Torah. Only three p'sukim into the Parsha we read this morning, we encounter this ominous line:
וַתִּשָּׁחֵ֥ת הָאָ֖רֶץ לִפְנֵ֣י הָֽאֱלֹהִ֑ים וַתִּמָּלֵ֥א הָאָ֖רֶץ חָמָֽס׃
The earth became corrupt before God; the earth was filled with lawlessness.
The Torah describes the world as "filled with Hamas". Indeed, communities and army bases bordering on Gaza were filled with Hamas. Although the literal meaning of "hamas" in the pasuk is larceny, or maybe lawlessness, the sound of these words echoes in my mind over and over and over. The scenes described by the Israeli survivors echo every dark time in our history. These words from Ha'azinu, seem as if they were written about Kibbutz Be'eri or Kfar Azza.
As shall the terror within,
To youth and maiden alike,
The suckling as well as the aged.
We have all cried so many times over the past two weeks. And different images, different stories trigger each of us in different ways. When I saw the picture of the table that had been set out by the Jewish community in Rome, with 203 empty chairs, it was one of those moments. When I saw the empty high chairs, I couldn't hold back my tears. Empty high chairs.
Faced with such horror, there are several classic Jewish reactions. A good starting place might be the rejoinder offered in UNataneh Tokef, after enumerating the many ways in which a person could die.
T'shuvah, T'filah, and Tzedaka.
All of these responses have been on display in the Jewish world over the past two weeks:
T'shuvah - The soul searching and criticism of the Israeli military and political leadership, by pretty much every Israeli, and reflected upon daily in the Israeli press.
T'filah - beyond our personal prayers, we have added so many community events and prayer, such as our Na'aleh service last week.
Tzedaka - the outpouring of money, time, and love from Jews in Israel and all over the world
To these I will add
Milhama - fighting back,
and Limmud Torah - This is my response today.
When we danced with. the Torah, crying, on Simhat Torah, we were not celebrating a scroll. We were not celebrating a long list of laws, many which are irrelevant or obsolete in our time. We were not even celebrating our ritual and religious culture. We were celebrating the word of God, but more so, we were celebrating our privilege to engage in studying, discussing, arguing, and finding our place in this beloved Torah.
Jews have turned towards Torah study and Halacha in the darkest of times. A fascinating example of this is the book "Sheilos U'Teshuvos min Hama'amakim" - Questions and Responsa from out of the Depths, composed by R. Ephraim Oshry, a rabbi who survived the war in the Kovno ghetto in Lithuania. He addresses questions one would never have raised in normal times. - can one use tea instead of wine for the Seder? Does one have a duty to risk his own life to plead for the release of others?
Rabbi Oshry summarizes his book with the following words:
―In a more positive vein, . . . the inquiries on Jewish law and practice to which I had to respond were neither academic questions posed by scholars, nor scenarios proposed . . .in theoretical games of What if . . .?‘ They were made by ordinary Jews who . . . tenaciously upheld their obligation under the Divine Covenant: to observe to the best of their ability, even in the ghetto, the commandments of God‘s Torah . . . .‖15
Halachic responsa are in some ways the cutting edge of our attempt to reconcile our lives with the precepts of Torah. The responding rabbi must consider not only the canonical texts, and the knowledge passed down through the generations, but the present needs and challenges of the community. The Jews of the Kovno Ghetto could have just skipped the seder. They also could have just made do as best they could. By asking their rabbi, they attempted to put their lives, their struggles in the context of Torah.
Within days of the attacks, I have already seen responsa from Israeli poskim. Rabbi David Stav was himself called up, and wrote his teshuvah while serving with an artillery battalion on the Gaza border. He was asked if religious soldiers could take the word of those delivering food to the bases, that the food was kosher. (The answer is yes, based on the principle that one witness is sufficient for kashrut, and that we generally trust other people and take them at their word).
So today, I will attempt to teach a bissel Teyrah, a bit of Torah, and maybe this will help us connect to something larger.
I decided to teach about Hilchot Milchama - the laws of war.
We'll start with the foundational Mishnaic text regarding the obligation to fight in the wars of Israel, and the definitions of the different types of war a nation may wage.
Reading this Mishnah, I had another flashback: The Israeli news has been highlighting marriages celebrated at the front lines, between men who would not leave their units, and brides who chose to forego the lavishly decorated hall, the beautiful dress, and the overflowing buffet for a dusty army base, and a groom in a dirty uniform. In one of the stories, the bride and groom both had to return to their units immediately after the ceremony. In another story I read on Friday, the groom's brother is presumed captive in Gaza. And they held the chuppah despite everything - laughing and crying at the same time.
The distinction between "elective wars", and "obligatory wars" is fascinating, and lays the groundwork for an ethical framework how to conduct war, and in what circumstances. I want to bring your attention to the difference between Chachamim and. R. Yehudah. They use very different terminology to describe the war in which even a bride and groom must join the fight. The Rabbis speak of milhemet mitzvah - a war we are commanded to conduct, and R. Yehudah calls this milhemet chovab - an obligatory war. This distinction demonstrates how in R. Yehuda's mind, this mitzvah is categorically different from all other mitzvot. To whom do we owe this obligation, chovah, that R. Yehudah speaks of? Each other? The eternal honor of the Jewish people? We are obligated to fulfill 613 mitzvot - but this one is different. A deeper and more profound motivation drives Israelis, many of whom are completely secular, to fulfill this mitzvah to its terrible end of killing another human, and sometimes, tragically, your own death. Chovah. The obligation to stand up, and defend our nation is so embedded, that it goes beyond mitzvah. We don't go to war because we are commanded by an external authority. We go because of our internal sense of duty.
Specifically, I want to address the question of civilian casualties. Halachically, may a Jewish army utilize tactics that will necessarily lead to civilian deaths?
I would love to imagine that Bibi, Benny Ganz, and Yoel Gallant, Israel's war cabinet are studying Rambam in Hevrusa with Hertzi Levi, Chief of the General Staff, and Tomer Bar, Commander of the Israeli Air Force. Even though they probably aren't, the principles I found in the words of the Sages through the generations are so similar to the issues we are facing today, and these very questions are debated everywhere from the Op-Ed page of the New York Times, to the inside of a roaring tank on the Gaza border.
The source from which the rabbis learned about this question is from the story of Jacob, and specifically, the kidnapping and rape of Dinah, and the ensuing massacre of the inhabitants of Shchem by Jacob's son, Shimon and Levi. The Torah is very ambiguous regarding the morality of this act. Jacob initially criticizes them for their action, but in the end he does bless Shimon and Levy, and refers to their military prowess. However, neither tribe receives a portion of the land.
My source for this discussion is an essay by Rav Hayim Jachter, from Teaneck New Jersey, in his book Gray Matter.
The most basic premise in this discussion, is that outside of justified war, and the rare capital punishment enacted by the Sanhedrin, taking the life of another human being is absolutely prohibited. It's actually in this week's Parsha:
By human [hands] shall that one’s blood be shed;
For in the image of God
Was humankind made.
So I'll start with the Rambam, or Maimonides. The Rambam lived in North Africa from 1134 - 1204. He was a rabbi, philosopher, physician, and the first sage to take up the task of turning the vast sea of Talmud into an organized, coherent, and accessible body of knowledge.
Although I included the soruces in their entirety, it is not necessary to read them. The language is very dense, so I tried to summarize.
A Noachide who transgresses these seven commands shall be executed by decapitation. For this reason, all the inhabitants of Shechem were obligated to die. Shechem kidnapped. They observed and were aware of his deeds, but did not judge him.
A Noachide is executed on the basis of the testimony of one witness and the verdict of a single judge. No warning is required. Relatives may serve as witnesses. However, a woman may not serve as a witness or a judge for them.
So here we are back to the Parsha. The sons of Noah - i.e. all non Jews - are commanded to abide by seven laws, the first of which is to establish a lawful society. Since the people of Shechem obviously failed in this most basic requirement, they were not merely collateral damage in the punishment of their leader. They had forfeited their right to exist as a society. We are hearing those who ascribe similar transgressions to the Palestinians living in Gaza. That by electing and supporting a corrupt and murderous leadership, they become legitimate targets. To be very clear, no military or political leaders are actually talking about indiscriminate bombing of civilian targets. However, the perception of Gaza as a society without just law, in which kidnapping and rape are actually celebrated, does seem to make the specter of civilian casualties somehow less horrific, and does justify dismantling of the Hamas government, beyond just destroying its military capabilities.
From here we. will move on to a diametrically opposed position, that of Ramban, or Nachmanides. Ramban lived in Catalonia from 1194 - 1270. He was also a physician, rabbi, and philosopher. Nachmanides had many disagreements with Maimonides, and in general had a more mystical bent, while Maimonides was more rational.
Ramban posits that Shimon and Levi did not do the right thing, and were severely admonished by their father Jacob. He gives several reasons:
1.The Noahide laws are a set of specific civil and criminal laws, but there is no demand to establish a just society.
2. Establishing a just society is a positive commandment, and there is no death penalty, or indeed any penalty in Jewish law for not fulfilling a mitzvat aseh.
3. Even if it was a grave sin, Jacob and his sons were not personally responsible for bringing them to justice.
4. The people of Shchem had already agreed to peace with the sons of Jacob, and had even circumsised themselves. Maybe they really were going to renounce the evil of their leaders.
There is a question which may be raised here. It would appear that they answered with the concurrence of her father and his advice for they were in his presence, and it was he who understood the answer which they spoke with subtlety, and, if so, why was he angry afterwards? Moreover, it is inconceivable that Jacob would have consented to give his daughter in marriage to a Canaanite who had defiled her. Now surely all the brothers gave that answer with subtlety, while Simeon and Levi alone executed the deed, and the father cursed only their wrath. [But if all the brothers shared responsibility for the answer and the plan, why did Jacob single out only Simeon and Levi for chastisement?] The answer is that the craftiness lay in their saying that every male of theirs be circumcised, as they thought that the people of the city will not consent to it. Even if perchance they will listen to their prince and they will all become circumcised, they will come on the third day, when they were in pain, and will take their daughter from the house of Shechem. Now this was the advice of all the brothers and with the permission of their father, but Simeon and Levi wanted to take revenge of them and so they killed all the men of the city.
It is possible that Jacob’s anger in cursing their wrath was because they killed the men of the city who had committed no sin against him; they should have killed Shechem alone. It is this which Scripture says, And the sons of Jacob answered Shechem and Hamor his father with subtlety, and spoke, because he had defiled Dinah their sister, for they all agreed to speak to him craftily because of the base deed which he had done to them.
Now many people ask: “But how did the righteous sons of Jacob commit this deed, spilling innocent blood?” The Rabbi (Moshe ben Maimon) answered in his Book of Judges, saying that “sons of Noah” are commanded concerning Laws, and thus they are required to appoint judges in each and every district to give judgment concerning their six commandments which are obligatory upon all mankind. “And a Noachide who transgresses one of them is subject to the death-penalty by the sword. If he sees a person transgressing one of these seven laws and does not bring him to trial for a capital crime, he who saw him is subject to the same death-penalty. It was on account of this that the people of Shechem had incurred the death-penalty because Shechem committed an act of robbery and they saw and knew of it, but they did not bring him to trial.”
But these words do not appear to me to be correct for if so, our father Jacob should have been the first to obtain the merit of causing their death, and if he was afraid of them, why was he angry at his sons and why did he curse their wrath a long time after that and punish them by dividing them and scattering them in Israel? Were they not meritorious, fulfilling a commandment and trusting in G-d Who saved them?
In my opinion, the meaning of “Laws” which the Rabbis have counted among their seven Noachidic commandments is not just that they are to appoint judges in each and every district, but He commanded them concerning the laws of theft, overcharge, wronging, and a hired man’s wages; the laws of guardians of property, forceful violation of a woman, seduction, principles of damage and wounding a fellowman; laws of creditors and debtors, and laws of buying and selling, and their like, similar in scope to the laws with which Israel was charged, and involving the death-penalty for stealing, wronging or violating or seducing the daughter of his fellowman, or kindling his stack, or wounding him, and their like. And it is also included in this commandment that they appoint judges for each and every city, just as Israel was commanded to do, but if they failed to do so they are free of the death-penalty since this is a positive precept of theirs [and failing to fulfill a positive precept does not incur the death-penalty]. The Rabbis have only said: “For violation of their admonishments there is the death-penalty,” and only a prohibition against doing something is called an “admonishment.” And such is the purport of the Gemara in Tractate Sanhedrin. And in the Jerusalem Talmud they have said: “With respect to Noachide laws, a judge who perverts justice is to be slain. If he took a bribe he is to be slain. With respect to Jewish laws, [if after having heard both parties] you know perfectly well what the proper legal decision should be, you are not permitted to withdraw from the case without rendering a decision, and if you know that it is not perfectly clear to you, you may withdraw from the case. But with respect to their laws, even though you know the law perfectly well you may withdraw from it.” From this it would appear that a non-Jewish judge may say to the litigants, “I am not beholden to you,” for it is only in Israel that there is an additional admonishment — “Lo thaguru’ (ye shall not be afraid) of the face of any man, meaning, “You shall not gather in, [i.e., restrain], your words before any man” — and surely he is not to be slain for failing to make himself chief, overseer, or ruler in order to judge superiors. [Ramban thus disagrees with Rambam, who writes that the people of Shechem had incurred the death-penalty by not having brought Shechem to justice.] Moreover, why does the Rabbi [Moshe ben Maimon] have to seek to establish their guilt? Were not the people of Shechem and all seven nations idol worshippers, perpetrators of unchaste acts, and practitioners of all things that are abominable to G-d? In many places Scripture loudly proclaims concerning them: Upon the high mountains, and upon their hills, and under every leafy tree, etc.; Thou shalt not learn to do after the abominations, etc.? For all these abominations have the men of the land done, etc. However, it was not the responsibility of Jacob and his sons to bring them to justice.
But the matter of Shechem was that the people of Shechem were wicked [by virtue of their violation of the seven Noachide laws] and had thereby forfeited their lives. Therefore Jacob’s sons wanted to take vengeance of them with a vengeful sword, and so they killed the king and all the men of his city who were his subjects, obeying his commands. The covenant represented by the circumcision of the inhabitants of Shechem had no validity in the eyes of Jacob’s sons for it was done to curry favor with their master [and did not represent a genuine conversion]. But Jacob told them here that they had placed him in danger, as it is said, You have troubled me, to make me odious, and there, [i.e., at the time he blessed the other children], he cursed the wrath of Simeon and Levi for they had done violence to the men of the city whom they had told in his presence, And we will dwell with you, and we will become one people. They would have chosen to believe in G-d and trust their word, and perhaps they might have indeed returned to G-d and thus Simeon and Levi killed them without cause for the people had done them no evil at all. It is this which Jacob said, Weapons of violence are their kinship. And if we are to believe in the book, ‘The Wars of the Sons of Jacob,’ their father’s fear was due to the fact that the neighbors of Shechem gathered together and waged three major wars against them, and were it not for their father who also donned his weapons and warred against them, they would have been in danger, as is related in that book. Our Rabbis have mentioned something of this conflict in their commentary on the verse, Which I took out of the hand of the Amorite with my sword and with my bow. They said, “All the surrounding nations gathered together to join in battle against them, and Jacob donned his weapons to war against them,” just as Rashi writes there. Scripture, however, is brief about this because it was a hidden miracle, for the sons of Jacob were valiant men, and it appeared as if their own arm saved them. Scripture is similarly brief about the matter of Abraham in Ur of the Chaldees, and it did not at all mention Esau’s wars with the Horites. Instead, Scripture mentions here that there was the terror of G-d upon the cities that were round them, and they did not all assemble to pursue after the sons of Jacob for they would have fallen upon them as the sand which is on the sea-shore in multitude. And this is the meaning of the terror of G-d, for the terror and dread of the military prowess they had seen fell upon them. Therefore Scripture says, And Jacob came to Luz… he and all the people that were with him, in order to inform us that not one man among them or their servants was lost in warfare.
So we have seen that Rambam condones inflicting civilian casualties on an unjust society, while Ramban looks deeper into the nuances, and finds several reasons why this act should be condemned.
A third opinion is that of the Maharal of Prague, who lived in Prague between the years 1526 - 1609. He was a rabbi, a mystic, and mathmetician. Legend associates the Maharal with creation of the Golem.
Maharal begins by questioning Rambam:
You cannot hold an entire society, especially those living under tyranny, responsible for their leaders.
However, he still justifies the act of Shimon and Levy, because when nations go to war, the act of the individual represents the entire nation. He ends his essay with words of resignation: Such are all wars.
אך קשה אם שכם חטא כל העיר מה חטאו להרוג, ותירץ הרמב"ם (הלכות מלכים פ"ט הי"ד) דבני נח מצווים על הדינין, ועבירה אחת שעובר - נהרג על ידו, וכאן ראו המעשה הרע הזה ולא דנוהו, לכך היו חייבין מיתה שלא היו דנין אותם. ובאמת דבר תימה הם אלו הדברים, כי איך אפשר להם לדון את בן נשיא הארץ (פסוק ב), כי היו יראים מהם, ואף על גב שנצטוו על הדינין - היינו כשיוכלו לדון, אבל אונס רחמנא פטריה (ב"ק כח ע"ב), ואיך אפשר להם לדון אותם:
ונראה דלא קשיא מידי, משום דלא דמי שני אומות, כגון בני ישראל וכנעניים, שהם שני אומות... ולפיכך הותר להם ללחום כדין אומה שבא ללחום על אומה אחרת, שהתירה התורה. ואף על גב דאמרה התורה (דברים כ, י) "כי תקרב אל עיר להלחם עליה וקראת אליה לשלום", היינו היכי דלא עשו לישראל דבר, אבל היכי דעשו לישראל דבר, כגון זה שפרצו בהם לעשות להם נבלה, אף על גב דלא עשה רק אחד מהם - כיון דמכלל העם הוא, כיון שפרצו להם תחלה - מותרים ליקח נקמתם מהם. והכי נמי כל המלחמות שהם נמצאים כגון "צרור את המדיינים וגו'" (במדבר כה, יז), אף על גב דהיו הרבה שלא עשו - אין זה חילוק, כיון שהיו באותה אומה שעשה רע להם - מותרין לבא עליהם למלחמה, וכן הם כל המלחמות.
Maharal, Gur Aryeh, Bereishit 34:14
But it is difficult: If Shechem sinned, what did the entire city sin to be killed? The Rambam answers that the children of Noach are obligated to establish the rule of law, and for any transgression, they are executed. And here they witnessed the wicked act and failed to judge him, therefore they were liable to execution for not trying him.
But really these words are confounding, for how could they have tried the son of the prince of the realm, who they feared? And even though they are commanded to establish the rule of law, that is when they are able to judge, but the Torah exempts those duressed.
But it seems there is no difficulty, as there is no comparison to two nations, for instance Israel and the Canaanites...Therefore it was permissible for them to wage war under the law of any nation waging war on any other, which the Torah permits. And even though the Torah says "When you approach the city to wage war on it, you shall call to it in peace," that is when they have done nothing to Israel. But when they have done something to Israel, as in this one who trespassed in visiting a disgrace upon them, though it was done by but one from among them: since he was from among the nation, and since they trespassed first, it is permitted to exact revenge from them. And here too all the wars on the books, as in "make enemies of the Midianites," though there are many who did nothing, that is no distinction: since they belong to that nation that wronged them [Israel], it is permitted to wage war against them. Such are all wars.
To summarize, I don't think the differences in opinion between the three sources are solely based on their interpretation of Jacob's very ambiguous blessing to Shimon and Levi. The argument is very complex, but I would like to reduce it to a profound machloket on human nature, and the meaning of Tzelem Elokim.
Rambam sees man as rational, and held to a high moral standard. For Rambam, this is the meaning of Tzelem Elohim. Man needs to deserve God's image by living a moral life, both as an individual, and as a society. When this duty is abdicated, man is no longer deserving of life. Thus, Shimon and Levy were justified in their act.
Ramban may be the earliest proponent of moral relativism. Not every society will be just in the same way. In fact, many societies will not be just. However, this does not remove them from the definition of human, of Tzelem Elohim. Is is indeed their failing when they do not establish righteousness. However, no other human is perfect enough to sit in judgement. Jacob indeed cursed his sons, for they killed without justification.
Finally, Maharal's position may be best understood through the lens of a famous quote of his: " Ein midat ha-mishpat midat ha-adam" . The measure of divine justice is not the measure of man. Thus, we cannot engage in philosophical debate about the individual's moral duty, or even the morality of an entire nation. As he says "and such are all wars". No wars are totally just. No wars are totally unjust. No humans are totally righteous, and none are completely evil. Thus, we may inflict civilian casualties in the course of war, but we should never imagine that this is an entirely moral act.
Many contemporary halachic authorities have addressed this issue as well. I will skip over the details for the sake of time, but one salient point that the moderns raise is based on the Maharal's ideas. In the context of Israel facing wars of annihilation, Israel must win. A morality which spares enemy civilians, but ultimately leads to defeat, is not a morality of a nation which desires life.
I would like to finish with words of hope, and bring us full circle back to Noah.