Volume 20 Number 60
                       Produced: Sun Jul 23 11:58:58 1995

Subjects Discussed In This Issue: 

"Pikuach Nefesh" factor in territorial compromise.
         [Gilad J. Gevaryahu]
         [Israel Botnick]
Psak of Rabbanei Yesha
         [Shmuel Himelstein (n)]
R' Amital's Critique of the "psak" (fwd)
         [Martin Lockshin]


From: <Gevaryahu@...> (Gilad J. Gevaryahu)
Date: Fri, 21 Jul 1995 11:34:56 -0400
Subject: "Pikuach Nefesh" factor in territorial compromise.

The use of "Pikuach Nefesh" (i.e., the invocation of one mortal danger
as a halachic argument) reasoning in the discussion of territorial
compromise needs some qualifications.

Some people on the "right" say that any withdrawl from Yehudah, Shomron,
Aza, and Golan will increase the risk for the Jewish population there
(and maybe elsewhere), and that, therefore, due to Pikuach Nefesh, a Jew
who follows halachah should not compromise on or return these
territories.  Others, mostly on the "left", using the very same logic,
say that having these territories with over a million Arab residents
living on them is very dangerous, and therefore invoke pikuach nefesh as
the reason FOR territorial compromise. I have read numerous articles by
generals (on active duty or retired) in the Israeli Defence Forces, and
for every one of them who thinks that it is dangerous to return the
territories, there is another who will say the opposite.

Therefore, the discussion about the return of these territories must be
based on halachic arguments without using pikuach nefesh. Pikuach nefesh
is the fig leaf of politics on this issue. One side may well be correct
on the short term while the other might be right on the long term, and
therefore both groups might be correctly invoking "Pikuach Nefesh".

The halachic debate should deal with 1) mitzvat yishuv ha'aretz
(settling the land) in our time; 2) selling or giving part of Israel to
gentiles ; 3) defining the borders of Eretz Israel; 4) applying Dina
De'Malchuta Dina (i.e., the law of the land is the law) to Medinat
Israel; and 5) using safek (i.e., doubtful) Pikuach Nefesh as an
argument for or against; 6) invoking the three shvuot (i.e., the famous

This is by no means a suggestion that Pikuach Nefesh is not a valid
halachic argument, but rather that in this case its use is not
contributing to the discussion.

Gilad J. Gevaryahu


From: <icb@...> (Israel Botnick)
Date: Fri, 21 Jul 95 13:38:18 EDT
Subject: IDF

< from <turkel@...>
< One thing I have never understood is what should a unit do during a
< "real" war when there base is threatened and they have no realistic way
< of defending themselves. Are they required to fight to the death to
< avoid the transfer of authority to the enemy? Once one concedes that
< they need not committ suicide then it is a question of degree. under
< what conditions can they surrender and not give up their lives? Maybe a
< peace treaty that saves many lives is enough of a justification. If one
< does believe that such a peace process is possible that is a political
< decision and not a halakhic decision.

This may sound good on paper but is very disturbing given the reality of
the situation. Even if this is a political decision, the important
question is, who should decide, the Rabbis or the politicians.  Too
often politicians make decisions because they serve their own best
interests, especially when an election is coming up. I would prefer the
decision be made by a group of talmidei chachamim who are aware of the
political situation and whose sole concern is the welfare of clal

Rav Goren used to say that when a doctor is needed to decide if a person
is sick enough to violate shabbos for them, the doctor to consult should
be someone who has a feeling for the seriousness of violating shabbos,
because that also needs to be taken into consideration.  Similarly, the
decision of giving up parts of eretz yisrael should be made by those who
have a feeling for the holiness of the land. Not by politicians who make
statements like "the Golan Heights is not holy land it is tank land".

Izzy Botnick


From: Shmuel Himelstein (n) <himelstein@...>
Date: Fri, 21 Jul 1995 10:40:32 GMT
Subject: Psak of Rabbanei Yesha

[Rabbanei Yesha - Psak]

I must say that the entire Psak of Rabbanei Yesha leaves me more than a
little perturbed. While there are no doubt great Torah scholars among
them, other great rabbis - Rav Ovadya Yosef, Rav Amital and Rav
Lichtenstein, for example - have been opposed, which leads one to
believe that this is ruling is not necessarily a monolithic
Pronouncement from Sinai. Below are some of my concerns:

a) This ruling is based, among others, on the rabbis' interpretation of
the dangers to Jewish lives with any withdrawal (from bases or
settlements is now irrelevant, based on this ruling). Hypothetically, if
a person is ill and might possibly need to eat on Yom Kippur, whom does
one consult? A rabbi or a doctor? Similarly, how is that Rabbanei Yesha
have decided to issue a Psak based, among others, on THEIR
interpretation of the dangers involved, rather than on the military and
the government, which - whether one agrees with it or not - have greater
access to information about what is happening and what the dangers might

b) Rav Avraham Shapira, as quoted by the _Jerusalem Post_ of last Friday
(July 14), stated that there is no problem with the Psak in practice,
because enough other soldiers can be found to carry out the orders even
if there are conscientious objectors. This argument seems to me more
than passing strange. In a landmark Psak, the then chief chaplain, the
late Rabbi Shlomo Goren, ruled on a basic question - a religious young
man in the army had been assigned some work which involved Chilul
Shabbat. He wished to know if he could switch duties with a
non-religious young man, who did not mind doing the work on Shabbat. Rav
Goren's reply was classic: if the work was needed in terms of Pikuach
Nefesh (and there are many such areas in the army), the young man should
do it himself. If it was not such a type of work, then it was forbidden
even for the non-religious young man. In short, the Israeli army was not
to be built on a _Shabbat goy_ concept, with the non-religious doing
what the religious would not do. Yet Rav Shapira is telling us exactly
that! If, indeed, the action of evacuating a base is forbidden by
Halachah, that ruling should thunder from Sinai and should be addressed
to all Jews, religious and non-religious alike.

c) Every since the founding of the Chief Rabbinate, under the late
sainted Rav Avraham Yitzchak Hakohen Kook, the National Religious Party
(Mafdal), under this name and its previous names, has thundered about
the supremacy of the Chief Rabbinate in matters religious. By Israeli
law (not always enforced) there can be no private Hechsher on food
EXCEPT if it is in addition to a Chief Rabbinate Hechsher. Officially,
only the Chief Rabbinate can deal with marriage and divorce. The Mafdal
has always stressed that the Chief Rabbinate must be THE supreme
authority. Yet here, where some of its members were afraid that the
Chief Rabbinate might not rule as they wished, they instead met on their
own, issuing a ruling which deliberately snubs and bypasses the Chief
Rabbinate. It almost smacks of running around from one rabbi to the next
until one finds a Psak that one likes.

d) Do the rabbis involved realize the hornets' nest they've opened? In
addition to the unbelievably strong opposition to their Psak across the
entire political spectrum, much more, as some of them now admit, than
they expected, we now have the specter of conscientious objection to be
used by whoever wishes to. As some have said, the next step will be that
non-religious soldiers will refuse - as conscientious objectors - to
serve in the "territories," as they call them. If there is wholesale
conscientious objection, the settlements will be left in far worse
condition, with no soldiers - or only few - guarding them. THAT might be
even a greater Pikuach Nefesh to the settlements than that Rabbanei
Yesha envision in the peace accords now being hammered out. And what
about the not-so-unreal threat of a civil war - Heaven forbid - between
Dati Leumi and the secular? What about the chasm that the ruling has
created between the religious soldier and the non-religious one? I
wonder if all of these factors were taken into account.

It will be of great interest to me to hear who those who support the
ruling react to the points above.

       Shmuel Himelstein
Phone: 972-2-864712   Fax 972-2-862041
<himelstein@...> (that's JerONE not Jer-L)
             Jerusalem, Israel


From: Martin Lockshin <lockshin@...>
Date: Fri, 21 Jul 1995 10:51:58 -0400 (EDT)
Subject: R' Amital's Critique of the "psak" (fwd)

From: Meimad <meimad@...>
22 Tamuz 5755     20 July 1995 

A Halachic Critique of the Psak Halacha to Disobey I.D.F. Orders

                        Rabbi Yehuda Amital
                 Rosh Yeshivat Hesder Har Etzion 
     Chairman, Meimad, The Movement for Religious Zionist Renewal

The halachic ruling ("psak halacha") that was issued by rabbis of the
religious Zionist movement, according to which soldiers must disobey an
I.D.F. order to dismantle a military base in Judea or Samaria, has given
cause for serious thought from a number of different points of view.  I
intend here to relate to the psak from the point of view of the halacha,
and to demonstrate that as a halachic ruling, the psak is baseless.

I do not intend to relate to the well-known differences of opinions
regarding the mitsva to settle the Land of Israel, nor to the question
as to when this mitsva is or is not superceded by the overriding concern
for the welfare of the people of Israel. The great halachic authorities
of our generation have already given opposing answers to these
questions, and there are no unanimous conclusions.  The psak under
consideration, relies among other things on the Ramban's position, and
therefore contradicts the opinions of Rav Shaul Yisraeli, z'l, and Rav
Ovadia Yosef, shlit'a, who have written that the position of the Ramban
is irrelevant to the issue at hand.  Yet even according to those who
believe that the projected dismantling of I.D.F. bases would be
prohibited, it is still not clear that an individual soldier should have
to refuse to obey an order to participate in such a dismantling.

To dismantle military bases is a political decision made by the
government, and that decision is to be carried out by the army.
Removing military equipment from a particular area is not the
determining factor in whether that area is to be considered "abandoned".
One could pull out of a military base leaving it completely intact, but
that surely would not solve the problem of abandoning/evacuating areas
of the land of Israel!  Dismantling a base would be at most a visible
expression of the evacuation.

As such, an individual soldier's participation in dismantling a base can
be defined as--at most--indirectly abetting a forbidden act (assuming
that evacuating territory is in fact forbidden by the halacha).  In the
case under examination, would such abetment be prohibited?

The Gemara Masechet Avoda Zara 8b asks: "From whence do we know that one
may not offer wine to a Nazirite?...  The Torah says: 'Thou shalt not
put a stumbling block before the blind.'"  Tosafot point out that
putting a "stumbling block" is prohibited in all kinds of cases.  Yet,
the Gemara later limits the prohibition to a case of "two sides of the
river", i.e., where a Nazirite is on one side of a river, and the person
offering the wine is on the other side, so that without the active
assistance of a second party (reaching over the water to offer the
wine), the Nazirite could not have transgressed his vow [to abstain from

Let us now examine the status of one who assists in a transgression when
the transgressor would/could have committed his sin without assistance.
Tosafot (Shabbat 3a) are of the opinion that even though there is no
prohibition from the Torah to abet a transgression in such cases, the
rabbis did prohibit doing so.  Other authorities (Rabbenu Yerucham,
SeMaG, and others) are of the opinion that there is no prohibition even
from the rabbis, and abetting a transgression in such a case is in fact
permitted.  The Rema (Yoreh Deah 151,5) cites both opinions in the case
of selling articles that could be used for idolatry, to a non-Jew.  The
Shach explains that the two opinions reflect the two different cases
referred to in the Gemara: (a) where the principles are situated on "two
sides of a river" [and the transgressor needs the assistance of the
other party], and (b) where the transgression could have occurred even
had the other party not assisted. Is abetting in the second case
permissible, or have the rabbis forbidden it?  The Rema rules that it is
the custom to be lenient in such cases, and we permit the abetment.

It is interesting to note the opinion of the Dagul Me'revava, who
believes that only in a case where the transgressor transgresses
unwittingly must we refrain from abetting him.  If he is aware of his
sin, we are not obliged to dissuade him.

The case under question is clearly not one of "two sides of the river".
Even without the participation of soldiers who might abide by the psak,
the bases will be dismantled.  It is eminently clear, therefore, that
carrying out an order to dismantle a base would involve no prohibition
from the Torah, and it is very questionable if it is prohibited even by
the rabbis.

As we know, where there are extenuating circumstances, the rabbis were
often lenient concerning rabbinic (rather than Torah) prohibitions,
especially if there was a doubt if a prohibition in fact applied.
"Safek d'rabanan..." [a case where it is doubtful if even a rabbinic
ordinance is being violated] "...l'kula" [may be judged leniently]. In
such cases, the rabbis would examine the value which stood in opposition
to abiding by the rabbinic ordinance.

The case before us has far-reaching consequences.  One of the most
important elements of religious Zionism from the beginnings of the
State, has been service in the Israeli Defense Forces--service which has
too often been costly, but which has proven its value in every one of
Israel's wars. There is no need to describe the damage that would be
done to the unity both of the nation and of the army if large numbers of
religious soldiers would begin to disobey orders.  Can there be any
question if this inestimable damage is significant enough to outweigh
what is at most a "safek d'rabbanan"?

Had the recent call of the abovementioned rabbis been issued as a social
or political protest, it could be discussed as such.  However, the
halachic authority which the rabbis attempted to bestow upon their
declaration, it seems, is utterly baseless.

In conclusion, let me relate to these rabbis' claim that dismantling
bases constitutes "pikuach nefesh" [a threat to life].  The first thing
we must determine is who is authorized to make such a claim.  In cases
where a medical judgement is needed before we can determine the halacha,
we are instructed to consult with medical experts (Orach Chaim 328,10).
So too in cases where a military judgement is needed, it is reasonable
that we should consult with military experts.  Just as the authority to
lead the people to war in the face of what it considers a threat to
national security is vested in the government of Israel, so too the
authority to evaluate other situations as threats to national security
is in the hands of the government and the heads of the military.

Therefore, those who cherish the values of religious Zionism and the
unity of the people of Israel must do all they can to avoid dividing the
nation, and they must consider their actions carefully in light of the
halacha.  We must be especially cautious not to disguise political
aspirations as halachic imperatives.  To do so is to deceive all those
who look to the halacha as a guide, and who now stand perplexed when
confronted by a "psak" such as this one.

We welcome your responses to this and all Meimad material.  Please send 
them to:
e-mail: <meimad@...>    
P.O.Box 8067,  91080 Jerusalem, Israel    
Fax: (972-2) 612340


End of Volume 20 Issue 60