Volume 17 Number 29
Produced: Thu Dec 15 23:25:52 1994
Subjects Discussed In This Issue:
Army Service - a Halachic Perspective
[Shaul Wallach]
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From: Shaul Wallach <F66204@...>
Date: Wed, 07 Dec 94 23:21:32 IST
Subject: Army Service - a Halachic Perspective
It was indeed a pleasure to see the latest postings on army
service for yeshiva students. While we naturally differ over many of
the details, I do sense that we have achieved somewhat of a consensus
on the major issues, and in a separate posting I would like to make
a few more comments and sum up my views on the practical side of the
matter. Here, however, I would like to devote a little more attention
to the more theoretical aspect of the problem, especially now that
Yaakov Menken has commented that their exemption follows from the
Talmud itself.
As we have noted before, the problem of army service for yeshiva
students has been the subject of debate among scholars ever since it
arose here in 1948. The sources cited by Rav Kook ZS"L in his letter
have been thoroughly discussed and quite a number of publications
have appeared. Some of them have been quoted in previous postings,
and a further listing is given below. Time and space obviously rule
out a comprehensive discussion of the material, and the interested
reader is kindly referred to the references. What I would like to
attempt here instead is to present a more basic introduction to the
subject. For the sake of brevity I will not always give a quotation
for every opinion I cite, but most of them can be found among the
references cited at the end of this posting.
When I first asked one of my rabbis about the source of the
exemption for yeshiva students, his immediate reaction was "Shevet
Levi", referring to the Rambam at the end of Hilkot Shemita We-Yovel
(13:12-13). In Halacha 12 the Rambam lists the ways in which the tribe
of Levi is different from the other tribes of Israel, including the
fact that they do not make war. Then in Halacha 13 the Rambam adds that
anyone who wishes to devote himself to pursuit of the Divine Knowledge
and not to engage in wordly affairs is likewise sanctified like the
Levites. The reasoning is that since Talmidei Hakhamim are likened to
the Levites who are exempt from military service, it follows that they
too are exempt just like the Levites.
The problem I have with this Rambam is that it has no halachic
source. R. Isaac Klein, in his English translation ("The Code of
Maimonides, Book Seven: The Book of Agriculture", Yale University
Press, New Haven, 1979), cites the Talmud Berakhot 32b and Avoda Zara
19b, but these are Aggadot and mention the blessings that come from
piety and Torah study. Moreover, as R. Yosef Qafeh notes in his
commentary, the Rambam here is very general and talks about everyone
in the world (Kol Ba'ei `Olam), not just Talmidei Hakhamim or even
Jews, and mentions Divine Knowledge rather than Torah study in
particular. Therefore, it seems likely, as R. Zvi Yehuda Kook ZS"L
and others have pointed out, that this halacha of the Rambam was
itself intended as an Aggada, as a promise of blessings for the pious,
not as a ruling that confers any privileges upon Talmidei Hakhamim.
Accordingly, I have no recourse but to fall back upon Ha-Rav Kook
ZS"L and the Talmudic sources which he cited for exempting Talmidei
Hakhamim from military service. Instead of going into detail on these,
let us instead attempt to present the concepts of war and military
service from first principles and try to see how Talmidei Hakhamim fit
into it all. While I do take sides at certain stages of the ensuing
discussion, nothing is intended, of course, as a final halachic
opinion, something that I am not qualified to express in any case.
The Torah (Deut. 20) devotes several sections to the waging of war.
In particular, verses 5-8 specify who is exempt from military service.
This includes one who has planted a vineyard, built a house, betrothed
a bride or is cowardly. However, the Torah does not tell us what kind
of war we are dealing with here.
The Mishna (Sota, Ch. 8) goes into greater detail on the exemptions
and the types of war. The last Mishna in this chapter (Sota 44b), after
discussing what "afraid" means, finally specifies to which kind of war
all the exemptions previously mentioned apply:
To what does this apply? To a Milhemet Reshut. But in a Milhemet
Mizwa everybody goes out, even a groom from his chamber and a bride
from her canopy. Said Rabbi Yehuda: To what does this apply? To a
Milhemet Mizwa. But in a Milhemet Hova everyone goes out, even a
groom from his chamber and a bride from her canopy.
In the Gemara, R. Yohanan explains that Hakhamim (the majority anonymous
view) and R. Yehuda differ only over the names they give to the various
kinds of wars but not over who is exempt from what. Rava then says that
everybody agrees that the war waged by Yehoshua waged to conquer the
Land of Canaan was a Milhemet Hova (obligatory war, even though Hakhamim
used the name "Mizwa"), in which everybody goes out. Similarly, everyone
agrees that the wars King David waged to enlarge his territory were
Milhemet Reshut (permitted war), to which the exemptions apply. They
differed, Rava says, over a war waged to prevent idolaters from
invading. Hakhamim call it Milhemet Reshut, while R. Yehuda calls it
Milhemet Mizwa (commanded war). However, as Rashi explains, everyone
still agrees that the exemptions apply to this latter type of war as
well. The only practical difference is that since R. Yehuda considers
it a Mizwa, someone already occupied with it would be exempt from
performing another Mizwa that happened to come by, while according
to Hakhamim (who call it Reshut and not Mizwa) he would be obliged to
interrupt his service and perform the Mizwa.
The Talmud Yerushalmi brings the explanation of R. Yohanan similarly
to the way it is brought in the Bavli above, but then adds that Rav
Hisda says Hakhamim and R. Yehuda actually differ over the definitions:
Rabbanin say: Milhemet Mizwa - this is the war of Dawid; Milhemet
Hova - this is the war of Yehoshua.
Rabbi Yehuda used to call a Milhemet Reshut like (one in which) we
go out against them; Milhemet Hova like where they come against us.
While the text as given is difficult to square with the Bavli above, the
distinction Rabbi Yehuda makes between an offensive and defensive war
is one that later scholars have made use of. Thus, we can reasonably
propose that the third category discussed by the Bavli above includes
a preemptive war where we go out against them to keep them from coming
to attack us, and that this would be called a Milhemet Reshut to which
the exemptions apply.
Thus the Rambam (Hil. Melakhim Wu-Milhamoteihem 5:1) defines
Milhemet Mizwa as "the war against the seven nations (of Canaan - S.W.),
and the war against Amaleq, and helping Israel against an enemy who
comes against them (She-Ba `Aleihem)." Note the last words, which
seem to be drawn from what Rabbi Yehuda calls Milhemet Hova in the
Yerushalmi. From this language it appears that only when the enemy
has already come and attacked us do we call it a Milhemet Mizwa. This
has serious practical implications in view of the next halacha (5:2),
by which a Milhemet Reshut needs approval of the Sanhedrin.
According to the plain sense, it would very tentatively seem to
me that all the searching operations against terrorists (before they
actually come to us), as well as most of the operations in Lebanon
would fall into this category of Milhemet Reshut. Many scholars today
hold, however, that all (or nearly all) of our military operations are
Milhemet Mizwa.
This issue seems to be interrelated with the question of whether
we have the commandment today to conquer Erez Yisrael, over which the
Rambam and the Ramban differed. The Rambam did not list it in his Sefer
Ha-Mizwot and the Ramban added it (see his Positive Commandment 4 in
his comments on the Rambam). In this connection R. Ovadia Yosef wrote
as follows recently in a controversial article that appeared in Tehumin
(Vol. 10, 5749, p. 43):
And according to this we learn, that even according to the
Ramban there is no commandment in our time to go out to war and
to enter into danger to life in order to defend the control of
the territories that are occupied by us against the will of
the nations of the world.
According to R. Ovadiah Yosef, operations in the territories would then
be considered Milhemet Reshut, to which the exemptions in the Torah
apply and which would require consent of the Sanhedrin.
Even in the opinion of those who consider military service today a
Milhemet Mizwa, it is still not clear to me that the Mishna in Sota
would require Talmidei Hakhamim to serve, just as Rav Kook ZS"L argued
in his day. My reasoning is as follows: When the Mishna quoted above
says "Ha-Kol Yoze'in" ("everyone goes out"), it does not necessarily
mean literally everyone (including Talmidei Hakhamim), but only those
who were exempted previously (one who planted a vineyard, built a house,
etc.). We have a principle (`Eruvin 27a) "Ein Lemeidin Min Ha-Kelalot"
which means that we cannot make generalizations wherever the Mishna
uses the word "Kol" because there might be execptions. In our case the
Talmidei Hakhamim would be the exceptions as Rav Kook ZS"L first argued.
Finally, even if we adopt the view that Talmidei Hakhamim are
required to serve in a Milhemet Mizwa, we can still argue as R. Zvi
Yehuda Kook ZS"L did and say that they should serve only when they are
actually needed. This is because someone engaged in Torah study does not
have to stop studying for a commandment that can be performed by others.
Thus the Rambam rules (Hil. Talmud Torah 2:3-4):
3. You have no Mizwa among all the Mizwot which weighs as Talmud Torah,
but rather Talmud Torah weighs as all the Mizwot together, since the
study leads to action. Therefore Talmud Torah takes precedence to
action everywhere.
4. If one has before him the performance of a Mizwa and Talmud Torah,
if it is possible for the Mizwa to be done by others, then he should
not interrupt his study. And if not, then he should perform the Mizwa
and return to his study.
The source of the first part of Halacha 3 will readily be seen as the
Mishna in Pe'a (1:1) which we say every morning, while the rest of
Halacha 3 and Halacha 4 are taken from the conclusion of the passage in
the Talmud Yerushalmi (Pesahim 3:7).
From the general language of the Rambam it appears that even when
the Mizwa to be performed is that of saving lives, such as in a Milhemet
Mizwa, Torah study is not to be interrupted if the Mizwa can be done by
others. On the other hand, there are scholars who hold that saving lives
in a Milhemet Mizwa is different from the other Mizwot in this respect,
and point to the Mishna in Sota quoted above as evidence, since even a
Hatan (groom) is occupied in a Mizwa but still has to go out to such a
war.
However, I do not follow this argument since planting a vineyard
and building a house are not Mizwot in themselves, and the Torah gives
explicit reasons why men engaged in these activities, as well as a
Hatan, are excused from a Milhemet Reshut. Similarly, the year long
exemption for a man who takes a new wife (Deut. 24:5), which also does
not apply for a Milhemet Mizwa, is likewise not due to the fact that
he is engaged in a Mizwa, for otherwise we would expect him to be
exempted from other Mizwot as well, which he is not. Accordingly, since
it is not because they are engaged in Mizwot that they are exempt from
a Milhemet Reshut, I do not see how cancellation of their exemption in
case of a Milhemet Mizwa means that the latter has the power to displace
other Mizwot, least of which Talmud Torah, which weighs as all the
Mizwot put together.
This brings us back to the original thesis; namely that one who is
engaged full time in Torah study is exempt even from the Mizwa of saving
lives in a Milhemet Mizwa, as long as there are others available to
perform the duty.
References
1. R. Yitzhak of Karlin, Qeren Ora on Sota, end of Ch. 8.
2. R. Yissachar Tamar, `Alei Tamar on Sota, end of Ch. 8.
3. R. Alter David Regensberg, Mishpat Ha-Zava Be-Yisrael, pp. 23-26
(5709).
4. R. Y. M. Tikochinsky, Ha-Torah Weha-Medina, Vol. 5-6, pp. 45-52
(5713-5714); reprinted in Ba-Zomet Ha-Torah Weha-Medina, Vol. 3,
pp. 212-220 (5751)
5. R. Shemaryahu Arieli, Mishpat Ha-Milhama, pp. 44-45 (5732).
6. R. Hayim David Halevi, Resp. `Asei Lekha Rav, Vol. 1, No. 21, pp.
68-70 (5736); also Vol. 3, No. 58, pp. 326-329.
7. R. Yehuda Shaviv, Tehumin, Vol. 1, pp. 358-365 (5740).
8. R. Yair Meisles and R. Nadav Schnerb, Le-`Ezrat H' Ba-Giborim (Siwan
5745).
8. R. Aharon Lichtenstein, Tehumin, Vol. 7, pp. 314-329 (5746).
9. R. Avraham Sherman, Tehumin, Vol. 7, pp. 335-350 (5746).
10. R. Yosef Pinhasi, Resp. Yafe To'ar, No. 3, pp. 64-99 (5747).
11. R. Nahum Eliezer Rabinowitz, Melummadei Milhama, pp. 3-8 (5753).
12. R. Dr. Yehezqel Cohen, Giyyus Ka-Halacha (5753).
13. R. Shelomo Avneri, Halichot Zava (Yeshivat Ateret Cohanim), pp.
20-23.
Shalom,
Shaul
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End of Volume 17 Issue 29