Yerushalayim and the World

This is not the first time that my choice of topic has been motivated by current events, but usually I have not stated this explicitly. In the relatively short time that I have had this blog, until now no news item was significant enough in my eyes to deserve the dedication of an entire article. Although politics is important to me, this blog is strictly for Torah and in my view not everything that is important fits into this category.

I know that many will disagree, but I see the recognition by the American President of Yerushalayim as our capital city as a point of great significance in the history of the Jewish People. As such, it was immediately obvious to me that I would try to explain this from a Torah perspective.

The function of Yerushalayim

The first thing we must try to clarify is what the significance of Yerushalayim is to us. The well-known Midrash tells us that Yerushalayim is the ‘light of the world’ and the light of Yerushalayim is Hashem.[1] How does this express itself?

The answer is also in a well-known source:

הַדָּבָר אֲשֶׁר חָזָה יְשַׁעְיָהוּ בֶּן אָמוֹץ עַל יְהוּדָה וִירוּשָׁלִָם: וְהָיָה בְּאַחֲרִית הַיָּמִים נָכוֹן יִהְיֶה הַר בֵּית ה' בְּרֹאשׁ הֶהָרִים וְנִשָּׂא מִגְּבָעוֹת וְנָהֲרוּ אֵלָיו כָּל הַגּוֹיִם: וְהָלְכוּ עַמִּים רַבִּים וְאָמְרוּ לְכוּ וְנַעֲלֶה אֶל הַר ה' אֶל בֵּית אֱ-לֹהֵי יַעֲקֹב וְיֹרֵנוּ מִדְּרָכָיו וְנֵלְכָה בְּאֹרְחֹתָיו כִּי מִצִּיּוֹן תֵּצֵא תוֹרָה וּדְבַר ה' מִירוּשָׁלִָם: וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:

(ישעיה ב, א-ד)

The (prophetic) word that Yeshayahu, the son of Amotz saw concerning Yehuda and Yerushalayim: “At the end of days the Mountain of Hashem will be prepared at the top of the mountains, loftier than hills, and all the nations will flock to it. Many nations will go, and say “Let’s go and ascend to the Mountain of Hashem, to the House of the G-d of Ya’akov, so that He will teach us from His ways and we will go in His paths.” Because the Torah will emanate from Zion, and the word of Hashem from Yerushalayim. He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”

(Yeshaya 2:1-4)

The Torah is Hashem’s way to give spiritual light to the world,[2] and this light is supposed to emanate from Yerushalayim. Chazal learn from these verses that the ultimate authority to decide halacha is with the Sages of Yerushalayim and Eretz Yisrael, unless there is someone in the Diaspora unmatched by anyone in Eretz Yisrael.[3]

Direction of Prayer and Monotheism

Just as the Torah emanates from Yerushalayim, Jews all over the world direct their prayers to Yerushalayim.[4] The main form of worship during the times of the Beis Hamikdash, the offering of korbanos, can only be done in Yerushalayim. As I have written before, the emphasis on one place reinforces the worship of one God,[5] and the same is true about the centrality of Yerushalayim in regards deciding halacha.

The message of monotheism has taken a long time to emanate from Yerushalayim. For much of the period of the first Beis Hamikdash, it was the pagan world outside that influenced Yerushalayim and not the other way round. This eventually led to the destruction of the Beis Hamikdash.[6]

Ultimately, shortly after the building of the second Beis Hamikdash the leaders of the Jewish People concluded that this problem would not be overcome by natural means. The only solution was to pray that the inclination for idol worship should be terminated, a prayer that was answered in the affirmative.[7] It seems that this ended all (or virtually all) Jewish pagan practice, setting the stage for the rest of the world.

A few hundred years later Christianity started.[8] At the time, and for many centuries, this religion was theologically no better than the pagans beforehand. Although it claimed to be monotheistic, the ‘one’ god believed in by the Christians had three parts.[9] And although there were no graven images worshipped, the belief in incarnation was an equivalent.

However, the Rambam writes that the birth and proliferation of Christianity was a step towards bringing Mashiach. Despite the claim that the mitzvos of the Torah no longer apply, Christianity and Islam made the words of the Torah known to the world, and caused people to think and talk about them.[10]

In modern times we have seen a positive process that the Rambam did not see. Gradually, philosophy has led many sects of Christianity to shed their corporeal take on monotheism. The decline in antisemitism of the Church as a whole is certainly connected to this process.

Education or Submission

Monotheism is a crucial part of the light of Torah, but there is far more to it than that. The main struggle we face today is with a religion whose monotheism is not in question. But this religion does not have the same goal described by Yeshayahu. Instead of wanting to teach the world the ways of Hashem, its aim is to force the world to submit.

In Judaism, although war can be a mitzvah, it is never ‘holy.’[11] It is a necessary evil in order to lead to the world peace described by Yeshayahu. The nations who will flock to Yerushalayim in the future will do so out of realisation of the truth, and not out of fear.

The recognition of Yerushalayim as the Jewish capital is, at least to an extent, a recognition of the superiority of the vision of Yeshayahu. It also shows an understanding that terror will not be defeated by the traditional Christian method of turning the other cheek.[12]

What next?

Despite the significance of the new policy of the most powerful nation in the world, it is no secret that there is still a long way to go. The decision was not exactly met with the universal praise that it deserved. I am not even convinced that the Israeli government were as delighted about it as they made out to be. However, so far at least the expected violent reaction has been limited, perhaps indicating that some progress has been made even within the Muslim world.

What happens next is to a great extent in our own hands. The US President rightly did not say anything definite about final arrangements, leaving it up to us to make the truth clear to the world. This task is multi-faceted, and starts from our own understanding of the significance of Yerushalayim.

With this understanding, we can remember to focus all our religious activity on Yerushalayim and not on other sites (see He has no physical form). We must do all that we can to hasten the building of the Beis Hamikdash, by teshuva but also by practical action (see Building the Beis Hamikdash). And in order for Torah to once again emanate from Yerushalayim in the ideal way, we must create the unity necessary to re-establish the Sanhedrin (see 'Ubitul Sanhedreya'). If we fail in these tasks, the opportunity given to us by the US may be wasted.

Chazal dispute whether redemption is dependent on teshuva or not. R’ Eliezer says that if we do teshuva we will be redeemed, and if not we will not. R’ Yehoshua responds that this is unthinkable. Rather, (if we don’t do teshuva of our own accord) Hashem will bring a king whose decrees are as hard as those of Haman, and we will be forced to repent.[13]

The straightforward understanding is that just in the times of Purim, the evil decree of Haman succeeded in uniting us in teshuva, if necessary a similar decree will force us to do teshuva in the future. In light of recent events, maybe we can suggest a different explanation.[14]

The declaration of the US President was for many ‘as hard as the decree of Haman.’ Much of the world reacted with outrage, and even some of our own people (and possibly leaders) weren’t exactly delighted about it. But it has forced us to say to the world that yes, Yerushalayim is our eternal capital. Let’s hope that no further decrees will be necessary to bring us to full teshuva!

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[1] Bereishis Rabba, Chayei Sara 59:5

[2] See Mishlei 6:26

[3] Berachos 63a-b

[4] See Berachos 30a, based on Melachim 1, 8:44

[5] See He has no physical form

[6] Yoma 9b

[7] Sanhedrin 64a, based on Nechemia 9:4

[8] According to Sanhedrin 107b, ‘Yeshu the Nazarine’ was a disciple of Yehoshua ben Perachia, which would place his birth only about two hundred years after the building of the Second Beis Hamikdash. Although non-Jewish accounts put him considerably later, it is likely that this was engineered by the Christians in order to depict the destruction of the Beis Hamikdash as punishment for his execution. Further elaboration is beyond the scope of this post.

[9] Although some understood this belief as being permitted for non-Jews, this was based on a probable misunderstanding of earlier sources. See Pischei Teshuva, Yoreh Deah 147:2.

[10] Hilchos Melachim 11:4

[11] A search on the Bar-Ilan Responsa Project for the term מלחמה קדושה (holy war) returned not a single entry.

[12] As Christianity has no national aspect to it, it can have no concept of a mitzvah to go to war. It is no coincidence that the Vatican continues to take the side of the Arabs (it also remains attached to the belief in incarnation). Although the truth is that the traditional Christianity prevalent in Ashkenazi countries has often influenced our own leaders, leading to failed appeasement policies.

[13] Sanhedrin 97b

[14] Bearing in mind what we wrote in Drush and Divrei Agada

Hoda'as ba'al din (and its limitations)

For many readers who learnt in yeshiva, at least some of the intricacies of this topic will be familiar. For the benefit of those who didn’t, I will try my best to explain clearly. The common denominator for virtually all religious Jews is that this discussion has important practical ramifications.

Basic principles

The gemara tells us in many places that a litigant’s admission of liability (hoda’as ba’al din) is equivalent to the testimony of a hundred witnesses. The basic case is a law that will be obvious to all- if Reuven claims that Shimon owes him money and Shimon admits that the claim is true, no further evidence is needed and Shimon must pay.

In reality, the statement that the admission is as good as a hundred witnesses does not convey the full halachic power of hoda’as ba’al din. Even if the admission is contradicted by countless witnesses, as long as no-one else stands to lose the witnesses are ignored.[1]

The above probably seems obvious, but the strength of hoda’as ba’al din goes further. There is a dispute in the gemara in a case where Reuven claims that he lent money to Shimon, who denies the claim. Witnesses say that Reuven did in fact lend Shimon, but Shimon subsequently paid back the money. Here it is not automatically obvious who we should believe.

The halacha is that although no actual liability was admitted, Shimon’s denial of borrowing implicitly incudes an admission that he did not pay back. As witnesses support Reuven’s claim that he lent the money, Shimon’s denial is not accepted. And as Shimon has admitted that he did not pay back, this part of the testimony of the witnesses is ignored. The result is that Shimon must pay.[2]

Belief or Authority?

Based on the above (and other proofs), the Ktzos HaChoshen concludes that hoda’as ba’al din does not work by creating a new obligation. If so, it could only obligate when liability is accepted. Rather, it must be that we believe the admission. Although we cannot believe what the litigant says entirely, when only he stands to lose the Torah tells us to believe him.[3]

However, the Ktzos concludes that there is a difficulty with this explanation. Rashi explains that the Torah source that tells us to rely on hoda’as ba’al din appears within the halacha of one who admits liability only for part of the debt claimed. The fact that the Torah says that he must take an oath denying the other part of the claim is an indication that he is believed about the part that he admits.[4]

The problem is that this source does not prove that hoda’as ba’al din should be believed even in a case where witnesses contradict. And the necessity to bring a source from a pasuk indicates that logic alone is not sufficient to prove this point. Thus the Ktzos is left with a difficulty that he has no answer to.

R’ Shlomo Fisher שליט"א explains hoda’as ba’al din differently, in a way that eliminates the difficulty raised by the Ktzos. When a litigant admits liability, or a fact which leads to liability, there is no need for us to deliberate whether or not to believe him. The Torah gives a litigant the authority to rule for himself about any detail which leads only to his own liability, irrespective of how believable his statement is.[5] The strength of hoda’as ba’al din against witnesses is a clear corollary, as the litigant has the right to ignore witnesses and rule to his own disadvantage.[6]

Could it be more?

With the above explanations in mind, we can move to a case in the gemara that some understand as extending the concept of hoda’as ba’al din even further.

The gemara tells us the story of Issur Giyora, a convert whose biological child Rav Mari was conceived prior to conversion (of his mother) but born after conversion. When Issur was about to die, he realised that as Rav Mari was not halachically his son, he would not naturally inherit his significant estate. As someone with no halachic inheritors, his money would become ownerless after his death. Various ways were suggested to circumvent this problem, but technical problems existed with all of them.

Rav Ikka came up with a brilliant but controversial solution:

ולודי איסור דהלין זוזי דרב מרי נינהו, וליקנינהו באודיתא! אדהכי נפק אודיתא מבי איסור. איקפד רבא, אמר: קא מגמרי טענתא לאינשי ומפסדי לי!

Let Issur admit that the money in fact belongs to Rav Mari, and he will acquire them through udisa (admission)! After this (suggestion was made), an admission was issued from Issur’s house. Rava (who could have taken possession of Issur’s money after it became ownerless) objected to this, saying “They teach claims to people and cause me a loss!”[7]

There seems to be a contradiction within this passage as to what this admission achieves. Rav Ikka says that through the admission Rav Mari will acquire the money. However, Rava objects and describes this idea of Rav Ikka a claim. The rishonim dispute which term is the accurate one.

Rashbam explains that this gemara deals with a regular admission, and proves from this story that the admission of one close to death is taken at face value.[8] Tosfos object to this explanation, and instead explain that here the admission can be used as a means of transferring ownership (a kinyan). In the first variation they suggest, this use of an admission is limited to one on his death bed. Their second suggestion is that according to the conclusion of the gemara, anyone can perform a kinyan just by ‘admitting’ that something in his possession in fact belongs to someone else.

Tosfos conclude that their first variation is superior, i.e. only one on his deathbed can transfer ownership by admission. The Ri Migash explains similarly, and this also is the position of the Tur and Shulchan Aruch.[9]

The reason for the special dispensation given for someone on his deathbed is clear. Elsewhere we are told of an institution of Chazal that no kinyan is necessary when one on his deathbed wishes to give a gift. This institution was necessary in order to protect someone ill from losing his mind out of fear that he would not manage to complete the necessary transaction. His word is considered as written and signed, with the proviso that if he recovers he may retract.[10]

For a healthy person to be able to transfer ownership by ‘admission’ seems counter-logical, according to any explanation of how hoda’as ba’al din works. Furthermore, in my humble opinion the easier reading of the gemara is that no kinyan was involved in the story of Issur Giyora. An obvious difficulty with the story is the surprising response of Rava to Rav Ikka’s suggestion. Why was Rava so upset that Rav Ikka helped someone on his deathbed bequeath his inheritance to the person he wanted?

If this ‘admission’ did not cause any transferral of ownership, we can understand why. Rav Ikka taught Issur a deceitful way to mislead Beis Din. The money which belonged to Issur would in reality become ownerless after his death. However, Beis Din would have no choice but to believe the admission that the money belonged to Rav Mari, even if a hundred witnesses contradicted him.

Practical Applications

The Rambam and Shulchan Aruch never mention any option of enacting a transfer of ownership by admission, in concurrence with most of the opinions we have seen above. However, in at least two cases the poskim do make use of the dissenting view.

A common halachic problem in writing contracts is the issue of asmachta, conditional obligations. For example, the gemara tells us that if a contractor takes on to sow a field with a large penalty for reneging, this penalty is void.[11] The logic is that one who agrees to a disproportionate penalty never really considered the possibility of reneging and having to pay.

The laws of asmachta are complicated, but one common means of overcoming this problem is performing a kinyan in front of a distinguished beis din.[12] The Rema, quoting the Maharam Mirotenburg, rules that even this is not necessary. It is sufficient for the person taking on the obligation to sign on a statement that he has performed a kinyan in front of a distinguished beis din. Even though the statement is false, hoda’as ba’al din is as good as a hundred witnesses.[13]

This ruling is clearly predicated on the idea that admission can create a kinyan out of nothing. Surprisingly, none of the major commentators point out the fact that this is a minority opinion and even contradicts other rulings of the Shulchan Aruch.[14] The use of this trick is widespread, and virtually any contract written with halacha in mind will include such a clause.

Another important use of kinyan by admission was started by the Ktzos Hachoshen. Due to various disputes between the poskim as well as practical difficulties, there is a question about which kinyan to use for the sale of chamtez to a non-Jew. The Ktzos suggests that one should simply ‘admit’ that the chametz belongs to the non-Jew, automatically transferring ownership.[15] In practice, to cover all bases many different kinyanim are performed, and one of them is this ‘admission’.

Finally, the pre-nuptial agreement enforced by the Rabbinical Council of America includes two uses of false admission. One of them is the standard statement of a kinyan in a distinguished beis din, to avoid the problem of asmachta. Additionally, the husband waives his rights to the earnings of the wife after separation, and ‘admits’ that this waiver is repeated at the time of the wedding.[16]

Here, not only is the admission false, but the husband is admitting something that hasn’t even taken place yet! Support for this can be found from the words of some poskim, but it seems to defy logic. I would be much happier if the waiver really was repeated at the time of the wedding, despite the extra half-a-minute this would add to the marriage ceremony.

As I have written before, all of this could be different if halachic rulings were issued from first principles, not by automatically accepting rulings from the past while losing sight of the inherent understanding of the concepts involved.[17] All the above issues have alternative (if less convenient) ways of working, without resorting to tricks that make the Torah seem illogical to the world.

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[1] See Bava Metsia 3b where the gemara says that one’s own admission cannot be effectively contradicted. The exception, when someone else stands to lose, appears in Kesuvos 19a.

[2] Shevuos 41b, Choshen Mishpat 79:1

[3] Ktzos HaChoshen 34:4. It might seem strange to say that we believe one statement for some purposes but not for others, but what we mean to say is that the admission is some degree of evidence of the truth of the liability. This degree of evidence is sufficient in order to obligate the litigant who makes the admission, but not in order to obligate others.

[4] Kiddushin 65b (ד"ה הודאת בעל דין). See also Rambam Eidus 17:1 for another source.

[5] Beis Yishai siman 90

[6] In the case of the gemara above, the defendant rules against the witnesses that he did not pay back the loan. As he has no authority to rule that he didn’t borrow, here beis din accept the testimony of the witnesses and obligate him to pay.

[7] Bava Basra 149a

[8] And not as an effort to conceal the wealth left to his inheritors.

[9] Choshen Mishpat 250:3

[10] Bava Basra 146a-147a.

[11] Bava Metsia 104b

[12] Nedarim 27b

[13] Choshen Mishpat 207:15.

[14] Although the Sm”a explains that the purpose of this admission is to demonstrate that there is true intent to obligate oneself, thus negating the problem of asmachta, in reality this is hard to support. The general practice is to include this clause in the small print of the contract, and it often isn’t even read by the signatories.

[15] 194:3

[16] For a lengthy explanation of this, including another perceived problem with the PNA and my rejection of this ‘problem’, see here.

[17] I do not chas v’shalom mean that these earlier rulings were issued without a proper grasp of these concepts, or without grounding in the gemara. What I mean is that they should not be relied upon unless this grounding is fully understood by the one using them. See “How does halacha work?”

Torah and Morals

This is perhaps a topic that warrants more than a blog post to discuss, but I believe I can at least summarise the important sources here. With regards the relationship between Torah and morals, theoretically there are many possibilities. Here is a non-exhaustive list of some of the more sensible options, not all necessarily mutually exclusive:

1) Man is completely incapable of deciding what is moral by his own intellect. Hashem gave us the Torah in order to dictate to us what is moral, and only by studying it can we know.

2) Man can have some sense of what is morally correct, and some parts of the Torah could have been worked out by human logic. Other areas relating to higher spheres are beyond human intellect, and here the Torah tells us what to do without the possibility of us understanding why.

3) All of the Torah makes sense to human logic, and we can understand the reasons for all the mitzvos. However, without the Torah we could not have figured it all out alone.

4) The Torah is not supposed to teach us morals. We must keep it because Hashem told us to, but through Torah alone one will not necessarily be a moral person.

Reasons for Mitzvos

One major part of this topic is the nature of the reasons for mitzvos in general, if there are reasons at all. In the words of Chazal there are countless implications that there are reasons for mitzvos, although two sources seem to indicate the opposite and need to be resolved.

The Midrash asks why Hashem should care whether we slaughter animals from the front or the back of the neck, and concludes that in fact mitzvos were only given in order to ‘purify’ people.[1] In a similar vein, the Mishna tells us that we silence one who proclaims (during davening) that Hashem’s mercy extends to a nesting bird, in reference to the mitzvah of sending away the mother before taking the chicks or eggs. One of the reasons the gemara gives for this is that is incorrect to describe the traits of Hashem as mercy when in fact they are just decrees.[2]

The Rambam explains that the details of mitzvos need not have reasons, and this is the meaning of the Midrash about shechita.[3] However, there are logical reasons for every mitzvah as a whole, and with only a few exceptions he lists these reasons. The mitzvah of sending away the mother bird is in fact motivated by mercy, and although the Mishna says otherwise he follows a different view in Chazal.[4]

Ramban explains slightly differently, that although mitzvos have a purpose for us, Hashem has no personal need for them. He does not gain anything by us doing shechita the way we do it, but we learn the attribute of mercy. Furthermore, there is no inherent need to be kind to animals, as they are only here to serve us. But being cruel to animals will have a negative effect on a person’s character, and for this reason it is forbidden.[5]

The Chinuch also follows the general principle of the Rambam and Ramban, giving logical reasons for all of the mitzvos while admitting in his introduction that he may make mistakes.

In contrast, the Kuzari writes that there are logical mitzvos, but the reasons for ‘G-dly mitzvos’ are repelled by human intellect. Even logical mitzvos have many elements to them that are understood only by Hashem. We accept them like the instructions of a doctor, without understanding their benefit.[6]

Maharal goes even further. He rejects the explanations of the Rambam and the Ramban at length, and argues that mitzvos have no purpose connected to nature. Most of them have no reason known to us, and are decrees from Hashem to purify our souls. As the soul is divine, only Hashem understands what is good for it. We do get benefit from doing the mitzvos, but this is not their purpose.[7]

Many will instinctively take one side of this debate, but philosophically it is hard to prove one way or another. However, in this case the Rambam points out a clear proof from a simple reading of these pesukim in the Torah:

רְאֵה לִמַּדְתִּי אֶתְכֶם חֻקִּים וּמִשְׁפָּטִים כַּאֲשֶׁר צִוַּנִי ה' אֱ-לֹהָי לַעֲשׂוֹת כֵּן בְּקֶרֶב הָאָרֶץ אֲשֶׁר אַתֶּם בָּאִים שָׁמָּה לְרִשְׁתָּהּ: וּשְׁמַרְתֶּם וַעֲשִׂיתֶם כִּי הִוא חָכְמַתְכֶם וּבִינַתְכֶם לְעֵינֵי הָעַמִּים אֲשֶׁר יִשְׁמְעוּן אֵת כָּל הַחֻקִּים הָאֵלֶּה וְאָמְרוּ רַק עַם חָכָם וְנָבוֹן הַגּוֹי הַגָּדוֹל הַזֶּה: כִּי מִי גוֹי גָּדוֹל אֲשֶׁר לוֹ אֱ-לֹהִים קְרֹבִים אֵלָיו כּה' אֱ-לֹהֵינוּ בְּכָל קָרְאֵנוּ אֵלָיו: וּמִי גּוֹי גָּדוֹל אֲשֶׁר לוֹ חֻקִּים וּמִשְׁפָּטִים צַדִּיקִם כְּכֹל הַתּוֹרָה הַזֹּאת אֲשֶׁר אָנֹכִי נֹתֵן לִפְנֵיכֶם הַיּוֹם:

(דברים ד, ה-ח)

See that I have taught you statutes and laws, as Hashem my G-d commanded me in order to act accordingly in the land that you are coming into to possess it. You shall guard and keep (the Torah), as it is your wisdom and understanding in the eyes of the nations that will hear all these statutes. They will say “This great nation is undoubtedly a wise and understanding people.” For which great nation has G-d close to it, like Hashem our G-d is whenever we call him?

(Devarim 4:5-8)

How will the nations of the world understand the greatness of the Torah and its laws if most of them are not understandable to man?[8] In all of the lengthy argument of the Maharal he does not explain these pesukim or similar proofs brought by the Rambam. Although I am sure if he was here today he would have some answer, we can only judge based on what we have in front of us.

We can conclude that the Torah teaches us morals, and that most of the mitzvos can be understood simply in moral terms. If a certain halachic detail seems to contradict our view of morality, we must re-examine either our view of morality, the understanding of this halachic detail, or both.[9]

Is there something more?

We still need to ask whether the Torah includes all of morality, or if there is something more.

To answer this question we first need to explain the term morality. For the purposes of this article, I will define as ‘moral’ any good act, speech or thought. Of course this definition doesn’t really help that much, as we still need to define what is considered ‘good’. But this is already the start of the answer.

Goodness can be determined only by accepting someone else’s definition or by following one’s own gut feelings. As I am not prepared to blindly accept the definition of any human, the first category will include only what Hashem has set out in the Torah and inferences from it.

If the Torah does not contradict, I may be able to include my own gut feelings as part of morality.[10] However, just like I will not accept someone else’s gut feelings, it would be unreasonable to expect someone else to accept mine. I may personally feel disgusted by another person’s conduct, but if I cannot point to any Torah transgression, all I can do is to appeal to his own intellectual honesty and hope that he will understand what is obvious to me.

In summary, the answer to our original question lies somewhere between possibilities 2 and 3 above. The Torah as a whole and the reasons for mitzvos can be understood by human logic, although most of us will have difficulty finding reasons for a minority of the mitzvos. There may be morals not found in the Torah, but these cannot be proved.

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[1] Bereishis Rabba, Lech Lecha 44:1

[2] Berachos 33b

[3] Moreh Nevuchim 3:26. He gives the example of korbanos, where there certainly is a reason for the mitzvah as a whole (see He has no physical form). However, there may be no reason for the number of animals we are instructed to bring, as some number had to be given.

[4] Ibid. 3:48 (there he also explains that the idea of shechita is to kill in the most painless way possible). See also Hilchos Tefila 9:7 where the Rambam does write that we silence one who praises Hashem’s mercy on the mother bird for the reason above, in a seeming contradiction. In my view the best resolution of this contradiction is to differentiate between halacha, where the Rambam is bound by the Mishna and Gemara, and philosophy where he is not. See Divine Providence, Free Will and Coincidence.

[5] Commentary to Devarim 22:6. The Ramban does concede that understanding the reason for some mitzvos like para aduma (the red heifer) is beyond the intellectual capabilities of most people, and the Rambam seems to agree with this in Moreh Nevuchim 3:47. There the Rambam attempts to find reasons for the different purification processes in the Torah, but has to admit that many of the reasons are not known to him.

[6] Ma’amar 3, paragraph 7. See also paragraph 11 where he lists Mila, Shabbos and the prohibitions of incest, cross-breeding, shmita and sorcery as ‘G-dly mitzvos’. This is at clear odds with the Rambam, who gives reasons for all of these mitzvos.

[7] Tiferes Yisrael ch. 6-8. At the end he does write that Moshe Rabbeinu and other chachamim know the reasons of mitzvos according to their wisdom, an apparent contradiction.

[8] See Rabenu Bachya on these pesukim who says that the nations will see the wisdom of the understandable mitzvos and conclude that even the mitzvos without a clear reason must be beneficial. However, this definitely presumes that most of the mitzvos can be understood by most people.

[9] As I have written before (in the name of the Rambam), a common cause of this perceived contradiction is the unrealistic expectations that a physical world should be perfect and that mitzvos should have favourable results all of the time. The undesirable results of mitzvos (e.g. the suffering of a mamzer for no fault of his own) must be weighed against their overall benefit (in this case the deterrent from adultery and incest).

[10] Gut feelings should not be discounted, as we have already seen that the Torah values the fact that the justness of its laws will be recognised by the peoples of the world. Even if the Torah’s omission could be used to refute the validity of one’s feelings, this refutation could only be confirmed by someone who knows the entire Torah with all the inferences from it.

Who has to serve in the army?

This question has gone backwards and forwards between the government and the High Court for several years now, and I thought it would be useful to put a halachic perspective in writing.

Firstly, it is important to differentiate between two parts of the question:

1) Who should the army be made up of ideally? (a question that the court should not deal with)

2) After the government have decided the rules (even in an unideal way), how should an individual act?

Without a king

                                                                                                                     

The first question is not an easy one to answer, as we are anyway in an unideal situation. Ideally the king is the one in charge of leading the army and deciding who is fit to serve, and has special powers for doing so.[1]

Nevertheless, it is fair to assume that we can to a great extent model what the army should look like without a king on the ideal situation with a king. The lack of a king raises questions of where the authority lies, but it should be obvious that there needs to be someone who has the power to do what it is necessary to protect the country from its enemies.

Before discussing who if anyone is supposed to have a special exemption from serving, a major decision that needs to be made is who should be included in the draft in the first place. Clearly only a small percentage of the population need be in the army at any given time, and the question is what should decide who these people should be.

One obvious factor involved is physical and mental ability. It goes without saying that we wouldn’t want to draft someone into a job that he is incapable of performing effectively, but to what extent we measure this ability is not clear-cut. One extreme would be to select only the most able-bodied (and able-minded where appropriate) for the army, in order to maximise our ability to defeat enemies.[2] However this extreme is impractical to implement, and how much testing of abilities is something to be decided by those who know best what works.

The current system is that with the exception of those who have various exemptions, all are drafted at the age of eighteen[3] for three years. At twenty-one soldiers are released, but still have to do reserve duty for a few weeks a year depending on what is needed. Those who want to can apply to serve longer or to take a permanent job in the army, and if they are suitable and there is a need they will be accepted.

In principle, this system is based on an estimate of how many soldiers are needed at any one time, and a calculation of how long eighteen-year-olds need to serve to reach these numbers. However, the reality is that there is not really a need for so many soldiers. Only a minority of those drafted are fit to serve as combat soldiers, and the three-year term is necessary to ensure that there are enough of these.[4] This results in a surplus of non-combat soldiers, one drawback of this system.

The obvious alternative is the system used by most countries, where there is no compulsory draft. Ensuring the necessary numbers is achieved by paying a salary high enough to draw people to serve voluntarily, and generally those who do serve will make this their job for life.[5]

The major advantages of this alternative system are the increased professionalism of a permanent army, and the alleviation of the necessity to force people to serve against their will. The major disadvantages are the cost to the taxpayer, and the almost inevitable deprivation of family life from those who choose to be soldiers.[6]

Does the Torah tell us how to decide on this question? R’ Yosef Carmel, Rosh Kolel of Eretz Chemda, suggests that it does. He sees the prohibition on the king from having too many horses as a way of preventing the establishment of a permanent army.[7] However, he also agrees that not all understood this prohibition in the same way.[8] At most this is a favoured direction given by the Torah, and not an obligation. As such, the decision depends on the circumstances and the judgement of those responsible.

Exemptions

The Torah exempts various people from going to war, due to tasks they have started but not yet completed or because of fear.[9] However, these exemptions do not apply to a milchemes mitzvah.[10] I explained the definition of milchemes mitzvah in War and Peace, and it should be clear that virtually all activity of the Israeli army nowadays falls into this category.[11]

There is one group who seem to be exempt even from milchemes mitzvah. The Rambam writes that the tribe of Levi do not wage war, and does not distinguish between milchemes mitzvah and milchemes reshus.[12] This exemption was given in order to allow the levi’im to be free to serve in the Beis Hamikdash, as well as (most of their time) teaching Torah.[13]

Ideally we may have wanted to apply this exemption for levi’im (and kohanim) today as well, although one could argue that it does not apply when there is no Beis Hamikdash. But I doubt discrimination of this kind would be possible under international law, and in any case it would not be practical to suddenly expect all levi’im to spend all their time teaching Torah.

Due to this impracticality, some would like to exempt all those who are learning Torah from serving in the army. This may well be a meritorious idea, but there certainly is no obligation to give such an exemption.[14] Obviously, such an idea would only be praiseworthy if those exempted actually learned seriously.

After the rules have been made

Communities have the right to force individuals to pay their share of the needs of the community.[15] The needs of an entire country are no different, and those chosen by the country to decide on these issues have the authority to do so when there is no conflict with the Torah.[16]

Thus unless going to the army involved some kind of Torah violation, it should be clear that those who illegally dodge the army are in the wrong. On the other hand, those who keep to the rules and use the exemptions given by the government cannot be called transgressors. Often the most productive thing for them to do may be to serve in the army, but this should be decided case by case.[17]

The spiritual dangers of the army

It seems to me that the main reason why certain sections of the community are strongly against serving in the army is the fear of spiritual deterioration. Citing the numbers that have stopped adhering to the Torah in the army, they claim that serving inevitably leads to Torah violations and thus the law of the land is pushed aside.

I do not want to discuss statistics here, or to study what the spiritual effects of the army are in depth. I will just say that the spiritual danger is real, and in fact inevitable in any army. The Torah recognises this, and for the purposes of damage limitation allowed (under certain circumstances and with many restrictions) a soldier to enter a relationship with a non-Jewish woman.[18]

Anyone going to the army should be aware of this, and prepare for the challenge to stay strong both physically and spiritually. For someone who is not legally obliged to serve, this should certainly be one of the factors that affect his decision. Although he should also bear in mind that there has to be an army, and the fact that he will likely do a better job than someone less concerned.

I am saddened to have to write this, but for someone who is legally obligated to serve the claim that this is against the Torah is completely incorrect. When there is no alternative way to carrying out a certain task (even one that is not mitzvah related), a person is never obligated to refrain because of the potential pitfalls on the way.[19]

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[1] See Rambam Melachim 4:1-2

[2] This is probably what happened in ancient times, as the Rambam writes that the king takes the strong and the men of valour for his chariots and horsemen (Melachim 4:2).

[3] The age of eighteen is chosen for practical reasons, as this is when compulsory education ends. Some claim that according to the Torah the age should be twenty, as indicated many times (e.g. Bamidbar 1:3). While I do agree that there are advantages of drafting at a more mature age, and of having more time to learn before serving in the army, I do not believe that the age of twenty is something that was meant to be set in stone. I am aware of no halachic source that forbids drafting those under twenty.

[4] Some claim that even for this it is unnecessary to have such a long term, but this is a question for the army to decide.

[5] It is also possible to have a combination of the two systems, shortening mandatory service and increasing the salary of those who continue voluntarily.

[6] This also carries with it a lowering of moral standards within the army.

[7] Devarim 17:16

[8] See his shiur on this topic here.

[9] Devarim 20:5-8

[10] Mishna Sotah 44a-b

[11] As they are defending against enemy attacks. Even though the majority of the time the army are training, planning or even sitting idly rather than engaging in actual combat, it should be obvious that no-one can exempt himself because of this. The nature of modern warfare requires an army to be ready at all times, and one who abstains from these parts of army service will not be able to fight at the crucial time.

[12] Shmita v’Yovel 13:12. See also Derech Emunah there, who points out that many levi’im did serve in the army voluntarily.

[13] See Ma'aser- religious income tax

[14] Although the Rambam continues that even non-levi’im who dedicate their life to Torah and don’t worry about earning a living are holy and inherit Olam Haba, he does not say that they are exempt from going to war.

[15] See Bava Basra 7b

[16] See The right to resist the abuse of power where I wrote about the limits of such power. See also Amud Hayemini siman 7 (the whole book is available here) for an extensive proof of the halachic authority of a democratically elected government. There is enough there to prove that the government have the right not just to collect taxes, but also to force people to serve in the army and other positions. Although even if this was not the case, few would be able to pay for another soldier to replace them.

[17] If the person involved is learning Torah seriously, the general rule is that he does not have to stop in order to do a mitzvah that can be done by others (Rambam Talmud Torah 3:4). However, whether this principle should be used by the government to exempt learners from the army against the will of the majority is extremely questionable. It seems logical that relying on others to do the mitzvah only makes sense when the others are willing, and when this is not the case it is hard to define the mitzvah as something that can be done by others.

[18] See Devarim 21:10-14, Kidushin 21b-22a

[19] See Bava Basra 57b. See also Tosfos Avoda Zara 48b (ד"ה אי)