The Biblical Laws of War
The most concentrated legal treatment of war is found in Deuteronomy 20:1–21:14.[1]
These laws prescribe what to do with the people against whom Israel
wages war: Canaanites living in the land must be annihilated, while
people living outside the land may surrender and become subjects;
otherwise, if they fight and are defeated, the males are killed and the
women and children are taken as booty (20:10–18).
These laws also determine which soldiers should be exempt from
entering battle (20:1–9), prohibit destroying fruit-bearing trees around
a besieged city (20:19–20), and deal with a situation in which an
Israelite solider is sexually attracted to a foreign captive (21:10–14).
Some of these laws—those dealing with the fate of enemy populations,
and the female captive having to marry her captor against her will—are
horrific from a modern moral standpoint. But I would like to draw
attention to another matter, namely, the limited scope of these laws.
Limited Scope of War Laws in Biblical and Rabbinic Literature
The Torah’s laws on war are not at all comprehensive. This comes as no surprise to readers familiar with the Torah; no area of law in the Torah is treated in a thorough manner.
For this reason, rabbinic law tries to fill in the gaps. But the laws
of war are something of an exception in this regard. The most extensive
discussion of laws of war in the Talmud is in the eighth chapter of
Tractate Sotah, the bulk of which deals with the instructions in
Deuteronomy 20 concerning which soldiers are exempt from battle.
Otherwise, issues concerning war are treated tangentially, in
relation to other issues. For example, as part of a discussion
concerning carrying on Shabbat, the Babylonian Talmud (b. Eruvin 45a)
states that if soldiers go out to save Jewish lives on Shabbat, they may
return with their weapons in hand, even though this violates the laws
of Sabbath limit (techum) and the prohibition of carrying.
Medieval and early modern rabbinic literature also treat laws of war in a
very cursory fashion.
Temple Laws vs. War Laws
It is not entirely clear why the rabbis did not have more discussion
on the laws of war. It may be that because the rabbis lived at a time
when Jews did not have a state or an army, they were not interested in
these laws. Yet, there were other areas of Jewish law that were no
longer practiced in the rabbinic and medieval times but received a great
deal of attention from the rabbis, such as the laws of sacrifices and
impurity that were in abeyance since the destruction of the Second
Temple. Why were the laws of war different?
It may be that the rabbis never envisioned Jews having to fight wars
again once the exile had begun. Jews would certainly have a state in
messianic times, but God would pave the way for that era by directly
punishing the nations who had oppressed the Jews. That is, God would
wage war, not the Jews. Also, according to the biblical text, the
messianic period would be one in which peace would reign between the
nations, so there would be no need for wars then either.
Thus, the rabbis saw no need to discuss laws of war. Laws of
sacrifices and impurity, by contrast, would certainly be relevant in the
messianic period, since the Temple would be built again, and the rabbis
were thus interested in laws pertaining to these issues. This may
explain why we have tractates full of laws about impurity and sacrifices
but just a handful of passages dealing with war.
The State of Israel
None of this would have mattered much had it not been for the
establishment of the State of Israel in 1948. When Israel came into
existence, religious Zionists, namely Orthodox Jewish Zionists living in
accordance with Jewish law, were faced with an unprecedented challenge.
Israel was at war from the moment it was established, and yet Jewish
law provided little guidance on war, and practically none on wars of
self-defense, the type of war that Israel had to fight in 1948 and would
fight many more times thereafter.
Zionist settlers in Palestine, of course, had been attacked by
Palestinians for decades prior to 1948; however, religious Zionist
rabbis did not seem to consider these attacks to be a war in the formal
sense because there was no Jewish state just yet. Therefore, this
violence could be regulated by laws regarding violence in non-war
situations of which there were plenty in Jewish law. The war of 1948 was
an entirely new challenge.
The leading rabbis of the religious Zionist community therefore had to formulate an entire body of law on war,[2]
displaying remarkable ingenuity and creativity in stretching the few
sources in Jewish law about war as far as they could. They even made use
of sources that had nothing to do with war originally. To illustrate
the kinds of challenges that the religious Zionist rabbis faced here,
and how they solved them, I will offer the single example of how they
dealt with the issue of conscription, or the drafting of soldiers.
Conscription
Conscription is about as basic an issue as there is in laws of war.[3]
Yet, the corpus of Jewish law presents a serious obstacle to it. On the
one hand, Jewish law certainly permits an individual to kill in
self-defense. As we are told in the Gemara (b. Berakhot 62b), הבא להרגך
השכם להרגו, “He who comes to slay you, slay him first.”[4]
Jewish law also requires a person to kill in defense of another
individual who is being pursued by an assailant intent on killing them
(ניתן להצילו בנפשו, “he may save him by taking the pursuer’s own life”;
b. Sanhedrin 73a). On the other hand, that is only when a
person does not have to put their own life in danger, which Jewish law
does not require.[5]
But if this is the case, Jewish law, in effect, prohibits a Jewish
state from drafting soldiers for defensive wars, since these wars will
require soldiers to risk their lives to defend their fellow countrymen.
From a modern academic perspective, the problem here seems to be an
anachronistic one. In the Bible, an Israelite king was an autocrat who
could conscript an army for any war at will. Thus, while technically the
Torah never discusses defensive wars, only wars of conquest, surely the
biblical authors saw no difference between defensive wars and
aggressive wars with respect to conscription. Also, if conscription was
allowed in wars of conquest, isn’t it clear that it would be allowed in
defensive wars as well? Moreover, according to the Bible, the Israelites
fought defensive wars. Was this not proof enough that conscription for
such wars was permitted?
While these arguments may be persuasive to critical scholars, the
religious Zionist rabbis did not think this way. For these figures,
Jewish law is a divine and monolithic entity, functioning in all places
and times, and thus, they felt the need to explain the requirement for
conscription in defensive wars in light of the explicit law that
prohibits forcing individuals to risk their lives to defend others.[6] Given that older sources do not tackle this problem explicitly,[7] these rabbis took the task upon themselves, since, without the conscription of soldiers, Israel could not survive.[8] To do this, they explored a number of possible precedents.
Precedent 1—Maimonides and Mandatory War
Moses Maimonides’ (1138–1204) treatment of war in the Mishneh Torah provides
only one line about defensive war, but it has significance for
conscription. According to Maimonides, wars of self-defense fall under
the category of “mandatory war” (מלחמת מצוה), one of two major
categories of war in rabbinic law, and in wars of this type all Jewish
adults are required to fight (Mishneh Torah, Book of Judges, Laws of Kings, 5:1):
אין המלך נלחם תחלה אלא מלחמת מצוה, ואי זו היא מלחמת מצוה זו מלחמת שבעה עממים, ומלחמת עמלק, ועזרת ישראל מיד צר שבא עליהם, ואחר כך נלחם במלחמת הרשות והיא המלחמה שנלחם עם שאר העמים כדי להרחיב גבול ישראל ולהרבות בגדולתו ושמעו.
A king may initially wage only mandatory war.
Which [war] is a mandatory war? It is a war against the seven
[Canaanite] nations, a war against Amalek, and saving Israel from the
clutches of the enemy that has attacked them. Subsequently, the king may
wage discretionary war, which is war that he wages
with the rest of the nations in order to widen the borders of Israel and
to increase his greatness and prestige.
Because Maimonides deemed defensive wars to be mandatory wars, they
ostensibly required all Jews to fight, and this requirement clearly
overrode any difficultly regarding conscription. All the prominent
religious Zionist rabbis made this argument.[9]
Precedent 2—Nahmanides and the Mitzvah to Conquer Israel
Another precedent to justify conscription is in Moses Nahmanides’ (1194–1270) commentary on Maimonides’ Book of the Commandments. He
argues that God’s instruction to the Israelites to conquer the land of
Israel and settle it is a positive commandment, even though Maimonides
does not seem to think so[10] (Omitted Positive Commandments, #4):
מצוה רביעית שנצטוינו לרשת הארץ אשר נתן האל
יתברך ויתעלה לאבותינו לאברהם ליצחק וליעקב ולא נעזבה ביד זולתינו מן
האומות או לשממה. והוא אמרו להם (במדבר לג:נג) והורשתם את הארץ וישבתם בה
כי לכם נתתי את הארץ לרשת אותה והתנחלתם את הארץ.
The fourth commandment [that Maimonides
omitted] is that we are commanded to inherit the land that God, may He
be blessed and exalted, gave to our forefathers—to Abraham, to Isaac,
and to Jacob—and not leave it in the possession of others among the
nations, nor [to leave it] desolate. This is [the meaning of] His
statement to them, “And you shall take possession of the land and settle
in it, for I have assigned the land to you to possess. You shall
apportion the land among yourselves” (Num. 33:53)….[11]
ואל תשתבש ותאמר כי המצוה הזאת היא המצוה
במלחמת שבע' עממים שנצטוו לאבדם... אין הדבר כן. שאנו נצטוינו להרוג האומות
ההם בהלחמם עמנו ואם רצו להשלים נשלים עמהם ונעזבם בתנאים ידועים אבל הארץ
לא נניח אותה בידם ולא ביד זולתם מן האומות בדור מן הדורות.
Do not be confused and say that this
commandment is the commandment of [waging] war against the seven
[Canaanite] nations that we were commanded to annihilate…. That is not
the case. For we were commanded to kill those nations when they made war
against us, but if they wanted to make peace, we were to make peace
with them, and leave them alone, in accordance with explicit
stipulations. But the land, we were not to leave in their hands nor [in
the hands of] other nations in any generation.
According to Nahmanides, the commandment to conquer the land of
Israel and settle it is meant not just as an imperative in the time of
Joshua; it is applicable for all time. Thus, fighting in such a war is a
positive biblical injunction, and all Jews must fight in it. Prominent
rabbis in the religious Zionist community made this argument, including
R. Isaac Halevi Herzog (1888–1959) and R. Shaul Yisraeli (1909-1995).[12]
The strategy provided to modern rabbis by Nahmanides is completely
different from the one that relies on Maimonides. Israel’s wars need not
be purely defensive, since Jews settling and ruling the land fulfills
an eternally-binding, biblical commandment, and viewed from this
perspective, these wars entail no difficulty with regard to
conscription. That problem arises only in purely defensive wars in which
Jewish soldiers are being forced to risk their lives for the sole
purpose of defending the lives of other Jews.
Precedent 3—The Survival of the Jewish People
Several religious Zionist rabbis believed that Israel’s War of
Independence in 1948 was so critical for the survival of the Jewish
people both physically and spiritually, that all Jews had to fight in
this war, even if they did not regard it as a formal war according to
Jewish law. For instance, R. Isaac Halevi Herzog (1888–1959), the first
Ashkenazi Chief Rabbi of Israel, says as follows:
אפילו אם נדון בזה רק מתוך ההשקפה המצומצמת
של הצלת ישראל מבחינת פיקו[ח] נ[פש] דרבים, עדיין יש לדון שעל מצוה כזו של
פיקו[ח] נ[פש] של הישוב כולו כופין.
…Even if we judge this [matter of war] only
from the narrow viewpoint of rescuing Israel with respect to [the
commandment of] saving the lives of many [individuals], the ruling would
still be that with regard to this commandment, of saving the lives of
the Yishuv (Jews living in Israel), we force [a person to perform the
commandment].[13]
To support his view, R. Herzog invokes the opinion of his
predecessor, the Chief Ashkenazic Rabbi of Mandatory Palestine, R.
Abraham Isaac Kook (1865–1935). In one of his responsa, R. Kook claims
that when the survival of the entire Jewish people is at stake, Jews
have to risk their lives in order to remedy the situation. This rule, he
argues, applies even in non-war situations.
To support this principle, R. Kook refers to the actions of Queen
Esther: In order to save the Jewish people from destruction, she was
willing to put her life on the line to bring about Haman’s downfall. Any
Jew in a similar situation is obligated to do the same.[14]
The Non-War Precedent: Ideological Compromise
Why did R. Herzog, among others, insist on justifying conscription
even if Israel’s wars were not formally recognized as “halakhic wars” in
Jewish law? Was it not enough to simply argue that Israel’s wars were
mandatory—whether according to Maimonides, or Nahmanides, or both—and
therefore all Jews were required to fight in them?
The answer, I believe, has to do with fundamental divisions between religious Zionists and Charedi (Ultra-Orthodox) Jews regarding the status of the State of Israel. The Charedi
community rejected Zionism and the State of Israel, and, as a result,
it refused to have its constituents serve in the Israeli Defense Forces.
This stance posed a serious challenge to the religious Zionist
authorities.
Practically all the major rabbinic authorities in the religious
Zionist camp in the early years of the state were connected in some way
with the Charedi community. Most of them were brought up in
that community and studied in its institutions. Therefore, they had
personal as well as practical reasons to come up with a rationale for
fighting in the army that would appeal ideologically even to this camp.
At the very least, they had to convince themselves that their path was the correct one.
In other words, they had to demonstrate that from the standpoint of
Jewish law, Jews were required to fight in Israel’s wars even if the
person fighting did not regard these wars as “wars” with legal standing
in Jewish law. These rabbis were intent on preempting the Charedi argument
that since Israel could not be recognized as a legitimate Jewish state,
from the standpoint of Jewish law, its wars were not legitimate either.
The Unique Challenge of Early Zionist Religious Leadership
The leading rabbinic authorities in the religious Zionist community
were in a uniquely complicated position. Like most traditional religious
authorities, they believed that their sacred books, the Torah and the
Talmud, must be the source for questions of proper behavior. And yet,
these sources were written in very different historical circumstances.
The Torah’s laws are never systematic, and whereas rabbinic law is much
more so, the ancient and medieval rabbis never lived in a country run by
Jews and did not try to systematize the laws of war.
Thus, on the eve of Israel’s War of Independence, the religious
Zionist rabbis needed to formulate laws from scratch while making sure
they were both practical as well as grounded in precedent. In
formulating laws of war for the State of Israel, these figures dealt not
only with the question of conscription, but also a host of issues such
as enemy civilian casualties and the observance of Sabbath law in the
course of military service. This discussion about conscription provides
an instructive illustration of the determination and ingenuity of
religious Zionist rabbis to update Jewish law so that it would be
relevant to a modern Jewish state.
