Rabbi J.D. Bleich
Contemporary Halachic Problems Volume 2
The prophet Habakkuk asks plaintively, "Why … are You silent when the wicked swallows up the man more righteous than he? For You make men as the fish of the sea" (
Habakkuk 1:13–14). Among the myriad species of the animal kingdom there is virtually none which preys upon its own kind. Carnivorous animals will devour other animals but not members of the same species. Preying upon members of the creature's own species is a phenomenon which is found only among the fish of the sea. Even a fish will swallow only a fellow creature smaller than itself. Man is unique among land animals in his propensity for attacking and destroying his fellow man. Man outdoes the fish in destroying not only others smaller and weaker than himself, but also in attempting to swallow up others equal to and better than himself.
"Pray for the welfare of the government, for without fear of [the government] men would swallow one another alive," advises the Mishnah, Avot 3:2. The base instincts of man are curbed only by fear. Individuals have reason to fear the power of the state. States, however, are subject to no higher temporal authority and hence have no reason for fear. Nations, as human institutions, give collective expression to the selfsame base instincts which are inherent in the individuals of whom they are comprised. As a result, nations, in their relationships with one another, behave precisely in the manner which the Mishnah putatively ascribes to individuals: they "swallow one another alive."
The nations of the world have indeed attempted to regulate warfare, but its elimination remains a utopian ideal which eludes mankind. The Geneva Convention, the United Nations Charter and international treaties of friendship have certainly not effected a metamorphosis in the basic nature of man. There is a story told about a missionary who was sent on a mission into the wilds of Africa. When asked by his superiors to submit a report there was little of a positive nature for which he could claim credit. "Well," he was asked, "did you at least succeed in eradicating cannibalism in your area?" "No," he replied, "the natives are still cannibals, but at least they now eat with knives and forks." Renunciation of chemical and biological warfare, humane treatment for prisoners of war, etc., are certainly marks of "civilized" peoples, but on a more fundamental level such matters are little different from a convention requiring cannibals to eat with knives and forks. "Civilized warfare" is inherently a self-contradiction.
Halakhah, as it applies to Jews, recognizes that man has no right to make war against his fellow. War is sanctioned only when commanded by God, i.e., when divine wisdom dictates that such a course of action is necessary for fulfillment of human destiny. Even a milḥemet reshut, or "discretionary war" is discretionary only in the sense that it is initiated by man and does not serve to fulfill a divine commandment. But even a milḥemet reshut requires the acquiescence of the urim ve-tumim; the message transmitted via the breastplate of the High Priest is a form of revelation granting divine authority for an act of aggression. Judaism sanctions violence only at the specific behest of the Deity. Human reason is far too prone to error to be entrusted with a determination that war is justified in the service of a higher cause. Such a determination can be made only by God Himself.
The teachings of Judaism with regard to non-Jews are somewhat more complex. Non-Jews are not held to the same standards of behavior as Jews. Although the Noachide Code, which embodies divine law as it is binding upon non-Jews, prohibits murder it does not necessarily prohibit as an act of murder the taking of human life under any and all circumstances. It is quite clear that when confronted by a situation in which an individual's life is threatened, all persons, non-Jews as well as Jews, have an absolute right to eliminate the aggressor in self-defense.12 "Ha-ba le-horgekha hashkem le-horgo—If one seeks to kill you, kill him first" (Sanhedrin 72a) is a principle which applies to Noachides as well as to Jews. Accordingly, a defensive war requires no further justification.
In situations in which an individual's own life is not directly threatened, but a threat exists with regard to the life of another human being, Jews are bound by the law of the "pursuer" (rodef). Jewish law not only permits, but demands, that anyone finding himself in the position of being able to save the life of an intended victim must do so, even if such rescue necessitates sacrificing the life of the pursuer.
The question which requires examination is whether the law of pursuit which mandates intervention by a third party in order to save the life of an intended victim extends to Noachides as well. Minḥat Hinnukh, no. 296, concludes that Noachides have discretionary authority to intervene in such situations but do not have an absolute obligation to do so.
The Gemara, Sanhedrin 73a, attempts to derive the "law of the pursuer" from the commandment "You shalt not stand idly by the blood of your neighbor" (
Leviticus 19:16). This commandment establishes a general obligation to come to the aid of a person whose life is endangered. Ultimately the Gemara derives an obligation to preserve the life of the victim even if it is necessary to sacrifice the life of the pursuer in order to accomplish this end from the verse "For … the betrothed damsel cried and there was none to save her" (
Deuteronomy 22:27). From this statement the Gemara infers that were a bystander to be present he would be obligated to preserve the betrothed damsel from violation by any means possible, including summary execution of the would-be rapist. By virtue of the juxtaposition (hekesh) of homicide and rape of a "betrothed damsel" in the immediately prior verse the Gemara derives a binding obligation requiring any and all bystanders to intervene and to preserve the life of the intended homicide victim by any means possible.
Minḥat Hinnukh cogently argues that the commandments expressed in
Leviticus 19:16 and
Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. Minḥat Hinnukh does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, Sanhedrin 72b, cites the verse "Whosoever sheds the blood of man, by man shall his blood be shed" (
Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in
Exodus 22:1. In the course of the same discussion, the Gemara, Sanhedrin 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." Tosafot, Sanhedrin 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that
Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to Tosafot, is expressed solely in
Deuteronomy 22:27. Minḥat Hinnukh assumes that Tosafot intends this comment to apply as well to the interpretation of
Genesis 9:6, which presents the same difficulty. The phrase ba-adam damo yishafekh, according to Minḥat Hinnukh's understanding should thus be translated "by man may his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.13 Accordingly, concludes Minḥat Hinnukh, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.
Another authority, R. Meir Dan Plocki, Hemdat Yisra'el (New York, 5725), p. 178, citing Zekhuta de-Avraham, argues that a non-Jew is not only permitted but, according to Rambam, is obligated to kill an aggressor in order to preserve the life of the intended victim. Hemdat Yisra'el bases his argument upon Rambam's understanding of the mizvah of dinim, the last of the seven commandments which constitute the Noachide Code. According to Rambam, the commandment of dinim establishes an obligation binding upon non-Jews to enforce the provisions of the Noachide Code and to punish Noachide transgressors. Accordingly, argues Hemdat Yisra'el, a non-Jew must kill the aggressor, not by virtue of the "law of the pursuer," but because of the mizvah of dinim which obliges every Noachide to enforce the provisions of the Noachide Code which inter alia provides for the execution of murderers. Hemdat Yisra'el does express some reservation with regard to this argument. He expresses uncertainty with regard to whether the commandment of dinim mandates only execution of transgressors after the fact, or whether it requires intervention in the sense of "prior restraint" as well in order to prevent an infraction of the Noachide Code. However, examination of Rambam's ruling in Hilkhot Melakhim 9:14 should dispel any doubt with regard to this point. Rambam rules that Noachides are required, by virtue of the mizvah of dinim, to establish a judiciary system. The courts are required both to execute judgment and "to admonish the populace." The obligation "to admonish the populace" certainly establishes an obligation with regard to prior restraint in enforcing the Noachide Code. Although Rambam does not explicitly state that Noachides are empowered to use lethal force in preventing such infractions it may well be argued that the Noachide court may use whatever coercive measures the situation may require in order to accomplish this end. Since the mizvah of dinim is incumbent not only upon an established judiciary but also upon every individual Noachide it then follows that any Noachide may use lethal force, if necessary, in order to prevent commission of a capital transgression by another Noachide.
Three other authorities, R. Isaac Schorr, Teshuvot Tevu'ot Shor, no. 20, p. 32b; R. Isaac Schmelkes, Teshuvot Bet Yizḥak, Yoreh De'ah, II, no. 162, sec. 4; and R. Chaim Soloveitchik, Hiddushei Rabbenu Hayyim ha-Levi al ha-Rambam, Hilkhot Rozeaḥ 1:9, clearly state that Noachides no less than Jews are obligated to eliminate an aggressor in order to preserve the life of an intended victim. These authorities maintain that the law of pursuit constitutes an obligation binding upon Jew and gentile alike.
It may be inferred from Rambam's ruling, Hilkhot Melakhim 9:4, that a Noachide may execute a pursuer in order to preserve the victim. Jewish law specifies that if it is possible to preserve the life of the intended victim by merely maiming the pursuer it is forbidden to take the life of the latter. However, should a Jew take the life of the pursuer when, in fact, it is not absolutely necessary to do so,
Rambam, Hilkhot Rozeaḥ 1:13, rules that he is culpable only at the hands of Heaven but is not to be executed by a human court. In Hilkhot Melakhim 9:4, Rambam makes a distinction between a Jew and a Noachide with regard to this provision and rules that a Noachide who might have preserved the victim by merely maiming the aggressor is to be put to death for having taken a human life. The clear inference of this statement is that when it is necessary to take the life of the pursuer in order to preserve the victim, it is permissible, and perhaps even obligatory, for a Noachide to do so.14
The "law of pursuit" is certainly no less applicable when it is an entire community or nation, rather than an individual, which is pursued. Thus, military action is certainly justifiable when undertaken either in self-defense or on behalf of a victim of aggression.
II
More fundamental is the question of whether or not there exists a general exclusion to the prohibition against homicide which justifies the taking of human life under conditions of war. Insofar as the halakhah applicable to Jews is concerned there are obviously conditions, limited though they may be, under which this is the case. The various categories of obligatory war (milḥemet mizvah) and discretionary war (milḥemet reshut) encompass situations in which there exists no immediate danger to the warring party. War is nevertheless permissible under at least certain restricted conditions even though the taking of human life is inevitable. These categories are, however, limited to Jews. The war against Amalek and war for the conquest of Erez Yisra'el are wars which only Jews may undertake. A milḥemet reshut or discretionary war may be undertaken only upon the initiative of the monarch of the Jewish commonwealth with the approval of the Sanhedrin and the urim ve-tumim. No analogous provision is found in Noachide law. It is therefore not surprising that virtually no discussion of whether or not a Noachide may legitimately engage in warfare is to be found in the writings of early authorities.
One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, Ha'amek Davar,
Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." Ha'amek Davar understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. [Permitting killing based on a diyuk in a pasuk??? He wasn't paskening Halacha - E.E.]. Again, in Ha'amek Davar,
Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, Gur Aryeh, Parshat Va-Yishlaḥ, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, Hatam Sofer cites the discussion found in Sanhedrin 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (lav benei kibush ninahu). Hatam Sofer demonstrates that the Gemara, Gittin 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase "lav benei kibush" must then be understood, argues Hatam Sofer, as meaning that non-Jews have no right to engage in war for purposes of conquest even though post factum they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, Dvar Avraham, I, no. 11 and by R. Menachem Ziemba, Zera Avraham, no. 24. These authorities are in agreement with Hatam Sofer's view that non-Jews may not engage in a war of aggression under any circumstances.
III
Jewish participation in a war between non-Jews is a complex problem. According to the authorities who maintain that Noachides are forbidden to wage wars of aggression it would follow that Jews are forbidden to participate in such wars. To aid and abet a non-Jew in commission of a transgression of the Noachide Code is a violation of the prohibition "Thou shalt not place a stumbling block before the blind" (
Leviticus 19:14). Moreover, it is clear that if the war is illicit for non-Jewish combatants there is no operative principle which conveys upon Jews the right to engage in battle. It is perhaps for this reason that Tosafot, Avodah Zarah 18b, cites the opinion of Rabbenu Elchanan who rules that Jews may not participate in such wars.
R. Ze'ev Wolf Leiter, Teshuvot Bet David, no. 71, forbids voluntary enlistment in time of war because of the danger involved and describes the death of a soldier who does enlist in the armed forces as tantamount to suicide. Rabbi Leiter also decries this practice because of the possibility that the enlistee will take the lives of Jewish soldiers in the "enemy" army. Teshuvot Hatam Sofer, VI, no. 29, although also decrying voluntary enlistment, permits a conscript to hire a Jewish substitute. Hatam Sofer forbids enlistment because of lack of kosher food in the armed forces and the necessity for violation of Shabbat restrictions, but fails to mention the intrinsic prohibition against military aggression which he posits in the earlier cited responsum. This consideration may have been omitted because Hatam Sofer certainly intends his criticism to encompass peacetime enlistment and enlistment in armies engaged in wars of defense permitted to non-Jews. Hatam Sofer permits the hiring of a substitute only because the person hired would readily find others prepared to engage him as a mercenary and hence would in any event violate dietary and Sabbath restrictions.
Of particular import is the statement of Mishnah Berurah 329:17, who rules that Jews must allow themselves to be conscripted in accordance with the "law of the land." The reason advanced is particularly noteworthy, viz., that failure to do so will enrage the citizenry and may result in loss of Jewish life. It is precisely this reason which is given by Rema, Oraḥ Hayyim 334:25, in permitting a Jew to extinguish a fire on Shabbat even though the fire poses no danger to life. Mishnah Berurah does not at all discuss the legitimacy of war on the part of non-Jews but permits Jews to participate simply as a matter of pikuaḥ nefesh.
Rabbi Zevin also cites the verses in
Obadiah 1:11-13 addressed to Edom:
In the day that you did stand aloof,
In the day that strangers carried away his substance,
And foreigners entered into his gates
And cast lots upon Jerusalem,
Even you were as one of them
But you should not have gazed on the day of thy brother,
In the day of his disaster …
Yea, you should not have gazed on their affliction
In the day of their calamity.
The prophet chastizes Edom for standing by silently while aggression is committed against Israel. The implication, argues Rabbi Zevin, is that Noachides have an obligation to do battle against an aggressor.
