Rabbi J.D. Bleich
Contemporary Halachic Problems Vol. 1
The State of Israel has experienced numerous major armed conflicts: the War of Independence of 1948, the Sinai campaign of 1956, the Six-Day War of 1967 and the Yom Kippur War of 1973 , the war in Lebanon of 1983 etc. The venerable Rabbi Shlomoh Yosef Zevin, general editor of the Encyclopedia Talmudit, addresses himself to the emotion-laden topic of halachic sanction for wars in a scholarly, objective manner and endeavors to show that definite halakhic sanction does in fact exist for each of these wars. The basic issues with which Rabbi Zevin grapples are at the core of the theological controversy concerning the establishment of the state. Rabbi Zevin's views are contained in an article appearing in the 5731 Torah She-be-'al Peh annual.
The prime argument cited in objection to the War of Independence, and indeed to the very establishment of the state itself, is based upon a literal understanding of the Talmud, Ketubot 111a. In an aggadic statement, the Talmud declares that prior to the exile and dispersal of the remnant of Israel, God caused the Jews to swear two solemn oaths: (1) not to endeavor to retake the Land of Israel by force, and (2) not to rebel against the nations of the world. Rabbi Zevin maintains that these talmudic oaths are not binding under circumstances such as the ones which surrounded the rebirth of the Jewish state. In support of this view he marshals evidence from a variety of sources. Avnei Nezer, Yoreh De'ah, II, 454:56, notes that there is no report in any of the classic writings regarding an actual assemblage for the purpose of accepting these oaths, as is to be found, for example, in the narrative concerning the oaths by which Moses bound the community of Israel prior to the crossing of the Jordan. The oaths administered before the exile are understood by Avnei Nezer as having been sworn by yet unborn souls prior to their descent into the terrestrial world. Such oaths, he argues, have no binding force in Halakhah. Similarly, the Maharal of Prague in his Commentary on the Aggada, Ketubot 111a, and in chapter 25 of his Nezaḥ Yisra'el, interprets these oaths as being in the nature of a decree or punishment rather than as injunctions incumbent upon Jews in the Diaspora. There is obviously no transgression involved in attempting to mitigate the effects of an evil decree. A third authority, R. Meir Simchah of Dvinsk, author of the Or Sameaḥ, accepts the premise that these oaths do apply in a literal sense. However, he expresses the opinion that following the promulgation of the Balfour Declaration, establishment of a Jewish homeland in Palestine no longer constitutes a violation of the oath concerning rebellion against the nations of the world. The text of Or Sameaḥ's statement on this important issue is reprinted by Z. A. Rabiner, Toledot R. Meir Simḥah (Tel.Aviv, 5727), p. 164. Rabbi Zevin adds that this argument assumes even greater cogency subsequent to the United Nations resolution sanctioning the establishment of a Jewish state.
There is yet another line of reasoning on the basis of which Rabbi Zevin denies the binding nature of these oaths at the present juncture of Jewish history. He advances a forceful argument which, particularly in the present post-Holocaust era, must find a sympathetic echo in the heart of Jews who have witnessed an unprecedented erosion of all feelings of humanity among the nations of the world which permitted the horrendous oppression and torture of the Jewish people. The Talmud, loc. cit., records that the two oaths sworn by the people of Israel were accompanied by a third oath which devolves upon the nations of the world; namely, that they shall not oppress Jews inordinately. According to Rabbi Zevin and others who have advanced the same argument, these three oaths, taken together, form the equivalent of a contractual relationship. Jews are bound by their oaths only as long as the gentile nations abide by theirs. Persecution of the Jews by the nations of the world in violation of this third oath releases the Jewish people from all further obligation to fulfill the terms of their agreement.
Objections to the Sinai campaign and the Six-Day War are founded upon completely different considerations. According to Halakhah, the declaration of an offensive war requires the affirmative act of both the Sanhedrin and the king (Sanhedrin 2a and 20b), but in our day we possess neither Sanhedrin nor monarch. R. Abraham Isaac Kook, Mishpat Kohen, no. 144, sec. 15, has argued that the latter requirement is not a literal one because declaration of war is not a royal prerogative. The king, in performing this function, merely serves as the agent of the nation. In the absence of a monarchy, authority for the declaration of war is vested in the established state authority. This contention is borne out by the words of Ramban in his addendum to Maimonides' Sefer ha-Mizvot, no. 17. Discussing the declaration of war, Ramban states that this is the prerogative of "the king, the judge, or whosoever exercises authority over the people." In contrast, the second requirement, namely, concurrence of the Sanhedrin, is crucial. Accordingly, Rabbi Zevin concludes that there is no possible halakhic authority for the waging of an offensive war in our time.
However, Rabbi Zevin asserts that these objections do not affect the halakhic status of the armed conflicts in which modern Israel was involved. A defensive war does not require the sanction of either the king or the Sanhedrin. These requirements apply only to wars of aggression carried out for purposes of exacting tribute, of territorial aggrandizement or of enhancing national prestige. Rabbi Zevin concludes that no objections can be raised against any of Israel's wars since they were all defensive in nature. Although Rabbi Zevin's article appeared before the events of October 1973, the conclusions he reaches apply with equal logic to Israel's most recent war as well.
These questions are also discussed by Rabbi Judah Gershuni, whose contribution dealing with this topic appears in the same issue of Torah She-be-'al Peh and in the Tevet 5731 edition of Or ha-Mizraḥ. Rabbi Gershuni asserts that the acquiescence of the Sanhedrin for the declaration of a war of offense may be dispensed with in our day. Quoting Meshekh Hokhmah, Parshat Bo, Rabbi Gershuni argues that only in the absence of a general desire on the part of the nation to engage in war is the agreement of the Sanhedrin necessary. Meshekh Hokhmah contends that the sanctification of the New Moon, ordinarily a prerogative of the Sanhedrin, may be performed by the community as a whole in the absence of the Sanhedrin. Rabbi Gershuni avers that this provision may be extended to declarations of war as well. Hence, in Rabbi Gershuni's opinion, the approval of the Sanhedrin is necessary only when the populace is unwilling to engage in battle of its own accord.
Moreover, declaration of war by the king and the concurrence of the Sanhedrin is not required with regard to obligatory wars such as the conquest of Erez Yisra'el. Although some authorities disagree, Ramban is of the opinion that the commandment "And you shall inherit the land and dwell therein" (Num. 33:53) is binding in all generations. In his commentary on the above passage, Ramban clearly states that this mizvah includes the commandment to conquer the Land of Israel.
Rabbi Gershuni, however, notes that another condition must be satisfied even with regard to obligatory wars. Both Ramban, in the previously cited gloss to the Sefer ha-Mizvot, and Maimonides, Sefer ha-Mizvot, shoresh 14, declare that even obligatory wars require consultation and guidance of the urim ve-tumim. Rabbi Gershuni argues that since this prerequisite cannot be fulfilled at the present time, war for the sake of conquering the territory of the Land of Israel cannot be sanctioned even according to Ramban.
There is, however, one category of warfare which does not require guidance of the urim ve-tumim: viz., the war against Amalek. It is usually assumed that because population shifts have occurred and ancient peoples are no longer ethnically identifiable, this mizvah cannot be fulfilled. Rambam, Hilkhot Melakhim 5:4–5, states that the commandment to eradicate the seven Canaanite peoples has lapsed because of precisely these considerations but fails to make a similar statement with regard to the people of Amalek. Rabbi Gershuni quotes an unpublished comment attributed to R. Chaim Soloveitchik of Brisk in resolution of this difficulty. R. Chaim is purported to have declared that the commandment to destroy Amalek extends not merely to genealogical descendants of that ancient people but encompasses all who embrace the ideology of Amalek and seek to annihilate the Jewish nation. Hence, the "war of God against Amalek" continues "from generation to generation" against the professed enemies of Israel, and in our day is directed against those Arab nations which seek to eradicate the people of Israel. Since the battle against Amalek is in the nature of a continuous and ongoing war, it does not require the sanction of the urim ve-tumim.
Another version of what appears to be an identical attempt to resolve this difficulty is cited by Rabbi Joseph B. Soloveitchik in the name of his father, the late Rabbi Moshe Soloveitchik, in a footnote to his "Kol Dodi Dofek," Ha-Dat ve-ha-Medinah, ed. M. Rottenberg (Tel Aviv, 5724), pp. 192–93.7 Rabbi Soloveitchik argues that the commandment with regard to Amalek is really a twofold one: (1) an obligation devolving upon each individual Jew to destroy the genealogical descendants of Amalek; (2) a communal obligation to defend the Jewish people against any enemy threatening its destruction. These differing obligations are indeed recorded as separate commandments. The commandment recorded in Deuteronomy 25:19, "you shall erase the memory of Amalek," is addressed to all individual Jews and refers only to genealogical descendants of Amalek. Exodus 17:16, which speaks of "the war of God against Amalek," is addressed to the community as a whole and lends sanction to a preemptive war undertaken in the face of impending danger. Since the latter type of warfare, although categorized as a war against "Amalek," must be waged against any would-be aggressor, Rambam eliminates mention of the fact that the genealogical descendants of Amalek are no longer identifiable. This thesis leads to a conclusion contradictory to that of Rabbi Gershuni. While Rabbi Gershuni's explanation would lend sanction to a war of aggression against professed enemies, according to this analysis only preemptive or defensive wars may be undertaken even against the avowed foes of the people of Israel.
Contemporary Halachic Problems Vol. 1
The State of Israel has experienced numerous major armed conflicts: the War of Independence of 1948, the Sinai campaign of 1956, the Six-Day War of 1967 and the Yom Kippur War of 1973 , the war in Lebanon of 1983 etc. The venerable Rabbi Shlomoh Yosef Zevin, general editor of the Encyclopedia Talmudit, addresses himself to the emotion-laden topic of halachic sanction for wars in a scholarly, objective manner and endeavors to show that definite halakhic sanction does in fact exist for each of these wars. The basic issues with which Rabbi Zevin grapples are at the core of the theological controversy concerning the establishment of the state. Rabbi Zevin's views are contained in an article appearing in the 5731 Torah She-be-'al Peh annual.
The prime argument cited in objection to the War of Independence, and indeed to the very establishment of the state itself, is based upon a literal understanding of the Talmud, Ketubot 111a. In an aggadic statement, the Talmud declares that prior to the exile and dispersal of the remnant of Israel, God caused the Jews to swear two solemn oaths: (1) not to endeavor to retake the Land of Israel by force, and (2) not to rebel against the nations of the world. Rabbi Zevin maintains that these talmudic oaths are not binding under circumstances such as the ones which surrounded the rebirth of the Jewish state. In support of this view he marshals evidence from a variety of sources. Avnei Nezer, Yoreh De'ah, II, 454:56, notes that there is no report in any of the classic writings regarding an actual assemblage for the purpose of accepting these oaths, as is to be found, for example, in the narrative concerning the oaths by which Moses bound the community of Israel prior to the crossing of the Jordan. The oaths administered before the exile are understood by Avnei Nezer as having been sworn by yet unborn souls prior to their descent into the terrestrial world. Such oaths, he argues, have no binding force in Halakhah. Similarly, the Maharal of Prague in his Commentary on the Aggada, Ketubot 111a, and in chapter 25 of his Nezaḥ Yisra'el, interprets these oaths as being in the nature of a decree or punishment rather than as injunctions incumbent upon Jews in the Diaspora. There is obviously no transgression involved in attempting to mitigate the effects of an evil decree. A third authority, R. Meir Simchah of Dvinsk, author of the Or Sameaḥ, accepts the premise that these oaths do apply in a literal sense. However, he expresses the opinion that following the promulgation of the Balfour Declaration, establishment of a Jewish homeland in Palestine no longer constitutes a violation of the oath concerning rebellion against the nations of the world. The text of Or Sameaḥ's statement on this important issue is reprinted by Z. A. Rabiner, Toledot R. Meir Simḥah (Tel.Aviv, 5727), p. 164. Rabbi Zevin adds that this argument assumes even greater cogency subsequent to the United Nations resolution sanctioning the establishment of a Jewish state.
There is yet another line of reasoning on the basis of which Rabbi Zevin denies the binding nature of these oaths at the present juncture of Jewish history. He advances a forceful argument which, particularly in the present post-Holocaust era, must find a sympathetic echo in the heart of Jews who have witnessed an unprecedented erosion of all feelings of humanity among the nations of the world which permitted the horrendous oppression and torture of the Jewish people. The Talmud, loc. cit., records that the two oaths sworn by the people of Israel were accompanied by a third oath which devolves upon the nations of the world; namely, that they shall not oppress Jews inordinately. According to Rabbi Zevin and others who have advanced the same argument, these three oaths, taken together, form the equivalent of a contractual relationship. Jews are bound by their oaths only as long as the gentile nations abide by theirs. Persecution of the Jews by the nations of the world in violation of this third oath releases the Jewish people from all further obligation to fulfill the terms of their agreement.
Objections to the Sinai campaign and the Six-Day War are founded upon completely different considerations. According to Halakhah, the declaration of an offensive war requires the affirmative act of both the Sanhedrin and the king (Sanhedrin 2a and 20b), but in our day we possess neither Sanhedrin nor monarch. R. Abraham Isaac Kook, Mishpat Kohen, no. 144, sec. 15, has argued that the latter requirement is not a literal one because declaration of war is not a royal prerogative. The king, in performing this function, merely serves as the agent of the nation. In the absence of a monarchy, authority for the declaration of war is vested in the established state authority. This contention is borne out by the words of Ramban in his addendum to Maimonides' Sefer ha-Mizvot, no. 17. Discussing the declaration of war, Ramban states that this is the prerogative of "the king, the judge, or whosoever exercises authority over the people." In contrast, the second requirement, namely, concurrence of the Sanhedrin, is crucial. Accordingly, Rabbi Zevin concludes that there is no possible halakhic authority for the waging of an offensive war in our time.
However, Rabbi Zevin asserts that these objections do not affect the halakhic status of the armed conflicts in which modern Israel was involved. A defensive war does not require the sanction of either the king or the Sanhedrin. These requirements apply only to wars of aggression carried out for purposes of exacting tribute, of territorial aggrandizement or of enhancing national prestige. Rabbi Zevin concludes that no objections can be raised against any of Israel's wars since they were all defensive in nature. Although Rabbi Zevin's article appeared before the events of October 1973, the conclusions he reaches apply with equal logic to Israel's most recent war as well.
These questions are also discussed by Rabbi Judah Gershuni, whose contribution dealing with this topic appears in the same issue of Torah She-be-'al Peh and in the Tevet 5731 edition of Or ha-Mizraḥ. Rabbi Gershuni asserts that the acquiescence of the Sanhedrin for the declaration of a war of offense may be dispensed with in our day. Quoting Meshekh Hokhmah, Parshat Bo, Rabbi Gershuni argues that only in the absence of a general desire on the part of the nation to engage in war is the agreement of the Sanhedrin necessary. Meshekh Hokhmah contends that the sanctification of the New Moon, ordinarily a prerogative of the Sanhedrin, may be performed by the community as a whole in the absence of the Sanhedrin. Rabbi Gershuni avers that this provision may be extended to declarations of war as well. Hence, in Rabbi Gershuni's opinion, the approval of the Sanhedrin is necessary only when the populace is unwilling to engage in battle of its own accord.
Moreover, declaration of war by the king and the concurrence of the Sanhedrin is not required with regard to obligatory wars such as the conquest of Erez Yisra'el. Although some authorities disagree, Ramban is of the opinion that the commandment "And you shall inherit the land and dwell therein" (Num. 33:53) is binding in all generations. In his commentary on the above passage, Ramban clearly states that this mizvah includes the commandment to conquer the Land of Israel.
Rabbi Gershuni, however, notes that another condition must be satisfied even with regard to obligatory wars. Both Ramban, in the previously cited gloss to the Sefer ha-Mizvot, and Maimonides, Sefer ha-Mizvot, shoresh 14, declare that even obligatory wars require consultation and guidance of the urim ve-tumim. Rabbi Gershuni argues that since this prerequisite cannot be fulfilled at the present time, war for the sake of conquering the territory of the Land of Israel cannot be sanctioned even according to Ramban.
There is, however, one category of warfare which does not require guidance of the urim ve-tumim: viz., the war against Amalek. It is usually assumed that because population shifts have occurred and ancient peoples are no longer ethnically identifiable, this mizvah cannot be fulfilled. Rambam, Hilkhot Melakhim 5:4–5, states that the commandment to eradicate the seven Canaanite peoples has lapsed because of precisely these considerations but fails to make a similar statement with regard to the people of Amalek. Rabbi Gershuni quotes an unpublished comment attributed to R. Chaim Soloveitchik of Brisk in resolution of this difficulty. R. Chaim is purported to have declared that the commandment to destroy Amalek extends not merely to genealogical descendants of that ancient people but encompasses all who embrace the ideology of Amalek and seek to annihilate the Jewish nation. Hence, the "war of God against Amalek" continues "from generation to generation" against the professed enemies of Israel, and in our day is directed against those Arab nations which seek to eradicate the people of Israel. Since the battle against Amalek is in the nature of a continuous and ongoing war, it does not require the sanction of the urim ve-tumim.
Another version of what appears to be an identical attempt to resolve this difficulty is cited by Rabbi Joseph B. Soloveitchik in the name of his father, the late Rabbi Moshe Soloveitchik, in a footnote to his "Kol Dodi Dofek," Ha-Dat ve-ha-Medinah, ed. M. Rottenberg (Tel Aviv, 5724), pp. 192–93.7 Rabbi Soloveitchik argues that the commandment with regard to Amalek is really a twofold one: (1) an obligation devolving upon each individual Jew to destroy the genealogical descendants of Amalek; (2) a communal obligation to defend the Jewish people against any enemy threatening its destruction. These differing obligations are indeed recorded as separate commandments. The commandment recorded in Deuteronomy 25:19, "you shall erase the memory of Amalek," is addressed to all individual Jews and refers only to genealogical descendants of Amalek. Exodus 17:16, which speaks of "the war of God against Amalek," is addressed to the community as a whole and lends sanction to a preemptive war undertaken in the face of impending danger. Since the latter type of warfare, although categorized as a war against "Amalek," must be waged against any would-be aggressor, Rambam eliminates mention of the fact that the genealogical descendants of Amalek are no longer identifiable. This thesis leads to a conclusion contradictory to that of Rabbi Gershuni. While Rabbi Gershuni's explanation would lend sanction to a war of aggression against professed enemies, according to this analysis only preemptive or defensive wars may be undertaken even against the avowed foes of the people of Israel.
