War and Peace

From the moment of the declaration of the State of Israel in 1948, the country got used to war as the default situation. All had to come to terms with this, including rabbis and poskim of all persuasions in their halachic rulings. In those times it was clear to all that war and peace cannot be treated equally, according to both the Torah and secular law.

In the last twenty-five years or so, after peace treaties with some of our neighbours and the pre-occupation of most of the others with their own internal conflicts, how to treat various issues has become less obvious. The first question that we have to deal with is which situations justify the declaration of war. War clearly endangers human life, and is a serious problem if there is no justification.

Milchemes Mitzva and Milchemes Reshus

The Mishna tells us that various exemptions for individuals from going to war apply only to milchemes hareshus (optional war), not to milchemes mitzva. The tana’im disagree over these classifications, and the gemara explains by giving examples. The wars of Yehoshua to conquer Eretz Yisrael were certainly mandatory, and the wars that David HaMelech fought for the purpose of financial gain were not.

The dispute is when the purpose of the war is to deplete the population of enemy nations, to prevent them from initiating conflict (pre-emptive strikes). R’ Yehuda says that this type of war is also a mitzvah, while the other tana’im count this as optional.[1]

The rishonim seem to disagree over what was special about the war of Yehoshua. The Ramban writes that we are commanded to take possession of Eretz Yisrael, irrespective of who lives there at the time.[2]

The Rambam differs. He understands that the mitzvah of wiping out the Canaanite nations applies even outside of Eretz Yisrael, and writes that milchemes mitzvah includes the ‘war of the seven nations’.[3] It sounds like he understands that the wars of Yehoshua were singled out because of the enemy involved, and not because of the land.[4]

Concerning pre-emptive strikes, all agree that the halacha is not in accordance with R’ Yehuda’s view, and they do not count as milchemes mitzvah. However, the Rambam clarifies that when the enemy has already initiated war, defending is considered a mitzvah according to both views.[5]

Practical application

Based on the above, one might conclude that the Six-Day War, started by the bombing of the Egyptian air fields, was not a mitzvah. However, it is not hard to see that this is a mistake, even if we ignore the fact that the Arab armies were preparing to strike any moment. War is not over when the sides take a break from direct combat in order to re-arm, and what happened in 1967 was merely a continuation of the war initiated by the enemy almost twenty years earlier.[6]

As mentioned, this point was clear to the vast majority at the time of the Six-Day War. What people sometimes forget is that this same war continues today, albeit with an enemy that is less clearly defined. But the truth is that as long as there is an organised force that actively seeks to fight the Jewish People, the war is not over. We need to clarify the practical halachic/moral ramifications of this.

Laws of warfare

The special rules that apply to war are numerous, and the Rambam codifies them in chapters 6-8 of Hilchos Melachim. I would like to deal specifically with the way we look at human life during war.

As mentioned already any war endangers human life, and we must ask how this can be justified even for mitzvah purposes.[7] We know that only three cardinal sins must be avoided even at expense of life, and seemingly none of the mitzvos involved in war are related to these sins.

One might answer that wars can also ultimately save human life, especially when we are merely defending enemy attacks. We could even justify the wars of Yehoshua along these lines, as it was not naturally viable to sustain a nation of millions of people without a homeland. However, this argument fails when it comes to the war against Amalek and the seven nations.

The simple explanation for all this is that national issues cannot be viewed in individual terms. For a nation to exist and function, it is inevitable that life will be lost. This is true regarding many aspects of running a country, even outside the context of war. For example, although even a single human life is priceless, there is a limit to the amount of public money that can be spent on individual medical costs.[8]

The enemy

If the above is true even when it comes to the lives of our own people, it is true all the more so when it comes to the enemy. During peacetime, if someone tries to kill we have the right to kill him first, but only if there is no other option.[9] Obviously, a war cannot be fought on the same terms.

The Torah relates this idea unequivocally:

ואם לא תשלים עמך ועשתה עמך מלחמה וצרת עלֽיה. ונתנה ה' אלקיך בידך והכית את כל זכורה לפי חרב.

(דברים כ, יב-ג)

“If it (the city) doesn’t make peace with you, and wages war, you shall besiege it. Hashem your G-d will deliver it in to your hands, and you shall kill all its males by the sword.”

(Devarim 20:12-3)

This parsha clearly tells us that even after the battle has been won and the enemy city is under our control, we have the right to wipe out the adult male population (the next verse excludes women and children from this). No exceptions are made, even though there may be some who wanted to make peace. What is the justification for this?

The answer is again that on a national level, individual concerns must give way. If the enemy knows that the consequences of waging war and losing are minimal, this is a national disaster, potentially on an existential level.

Nevertheless, this detail of the annihilation of the enemy civilian population is not listed as a mitzvah. It seems that it is not an obligation, but a guideline.[10] Today, when international law clearly prohibits such actions, doing so would likely defeat the objective and would therefore not be advisable.

The mitzvah that does obligate is stated in more general terms, that we must not hesitate in front of the enemy.[11] The Rambam explains that this mitzvah obligates us to be strong and steadfast in war, and not to flee.[12]

In modern warfare the issue is far more subtle. Strict control and training means that the possibility of individual soldiers breaking down and fleeing is remote. The responsibility to be decisive in war rests mainly on the heads of those giving orders, whose lives are not even in danger. And often the challenge is not fear of the direct enemy, but of those who indirectly support them by applying pressure internationally.

Incapacitated terrorists

In light of all the above, we can understand what the attitude should be to a terrorist who no longer poses direct danger. If we mistakenly view him as a civilian criminal, there is no justification for an individual taking the law into his own hands. But if we understand that we are dealing with war against the enemy, there is no reason to have any mercy.

This does not mean that an individual soldier should act independently, against orders. An army cannot function if everyone makes his own decisions, and violators should receive the standard punishment for disobeying orders. But when the orders themselves are erroneous, action needs to be taken to prevent repetition. There is necessity for both a change of attitude, and legislation to differentiate between combat-related actions and domestic ones.

This message was once transmitted by the Kohen anointed for war:

ואמר אלהם שמע ישראל אתם קרבים היום למלחמה על איביכם אל ירך לבבכם אל תיראו ואל תחפזו ואל תערצו מפניהם.

(דברים כ, ג)

He shall say to them: “Hear Israel, today you are waging war on your enemies. Your hearts must not soften, do not fear, panic or hesitate facing them.”

(Devarim 20:3)

Chazal explain that the Kohen stresses that the war is against the enemy. He reminds the soldiers that unlike in civil war, if anyone falls captive no-one will take pity on him.[13] Until the prophecies of eternal world peace are fulfilled, we must act accordingly.

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[1] Sotah 44a-b

[2] Sefer Hamitzvos, Mitzvah 4 in his collection of positive mitzvos that the Rambam ‘forgot’.

[3] Hilchos Melachim 5:1. See also 5:4, that the remnant of the seven nations has already been destroyed.

[4] However, there is an apparent paradox within the words of the Rambam. He continues by defining Milchemes Reshus as as a war fought in order to extend territory or to increase the prowess and fame of the king. He also stipulates that the first war that a king fights must be a milchemes mitzva, seemingly precluding the possibility of the Redemption coming through war (as the seven nations no longer exist). But later on (11:4) he does say that the Mashiach will fight wars.

[5] Ibid.

[6] This point is made by R’ Shaul Yisraeli in Amud Hayemini, siman 16, from subsection 25 onwards.

[7] See Minchas Chinuch, Mitzva 425

[8] For further elaboration on this topic see B’Ikvei Hatzon (by R’ Herschel Shechter) siman 32.

[9] See Sanhedrin 57a

[10] Although the Rambam does state this guideline in Hilchos Melachim 6:4.

[11] Devarim 7:21

[12] Sefer Hamitzvos, negative mitzvah 58. Although the Ra’avad and Ramban argue that this pasuk is just an assurance that Hashem will give us the strength and not a mitzvah, they clearly agree that the ideal situation is one where we do not fear. See also Megilas Esther.

[13] Sotah 42a

The Get from Tzfat

Background

Although this is an old story, it has now resurfaced in the form of an appeal to the Beis Din HaGadol. Virtually all the publicity has centred on the politics associated with the case and not on halacha, once again leaving the impression that halacha is not really a factor. My main purpose here is not to state my view, but to help the issues be understood.

The case involves a man who has been in a vegetative state for a number of years, leaving his wife as an aguna. The Beis Din of Tzfat, led by a distinguished dayan, R’ Uriel Lavi, ruled that in such a case a divorce may be performed on behalf of the husband.[1] In an attempt to quash the controversy that this could cause, he requested approval from a number of leading authorities and indeed received approval from at least one of them.[2] However, due to various considerations no public endorsement was given, leaving the floodgates wide open.[3]

‘Zachin’- acting on behalf of another

R’ Lavi’s ruling was mainly based on the principle of ‘zachin’, that one has the right to act in the interests of someone in his absence. For example, if one wants to give a present to someone else, he can give it to a third party who legally acquires it on behalf of the recipient.[4]

The principle is not limited to monetary matters. Theoretically, if it is completely clear that is in the interests of a woman to get divorced, a get may be given to someone else on her behalf.[5]

The argument made was that in the case in question, it is clearly in the interests of the husband to free his wife to remarry. No-one has ever recovered from being in a vegetative state for so long, so there is no chance that he will be able to live any kind of married life. His medical needs are also guaranteed, irrespective of whether or not he remains married.[6] By his wife being divorced on his behalf, he will surely only gain spiritual reward for easing her sorrow.

The halachic status of the mentally incapacitated

The main issue that has to be clarified here is whether the principle of ‘zachin’ can be applied to a person with little or no mental capability (in halachic terms a shoteh).

The potential source in the gemara to learn from here is in Gittin 70b. Here there is a dispute regarding one who gave instructions to divorce his wife, and subsequently fell into a kind of trance, an illness called ‘kordaykus’ (perhaps epilepsy). All agree that this kind of mental incapacity renders any decisions made at the time invalid, the question involves whether we can carry out previous instructions.

R’ Yochanan says that as we are not able to immediately wake the man from his trance, he is akin to a shoteh and therefore the get cannot be given. Reish Lakish argues that since he will recover after time, his state is more similar to sleep and we can proceed with the divorce.

All the poskim are in agreement that the halacha is that the get may not be given, based on a general rule to follow R’ Yochanan against Reish Lakish.[7] There is however a dispute as to what the status of the get is if it was given to the wife. The Rambam writes that is invalid only rabbinically,[8] whereas the Tur says that even Biblically it is worthless.[9]

The assumption of the Ktzos HaChoshen (188:2) is that the Rambam’s ruling is not limited to a case of ‘kordaykus’, but that even the agent of someone who became a shoteh can on a Biblical level carry out the instructions given to him while he was sane. Only rabbinically he cannot do so, in order to prevent a misconception that a shoteh can divorce.

This assumption is far from straightforward, as we would usually expect the Rambam to tell us when his rulings apply to a shoteh.[10] The Kesef Mishne (R’ Yosef Karo’s commentary on the Rambam) takes it as a given that nothing can be done on behalf of a shoteh, to the extent that he limits the ruling of the Rambam to one who we are able to wake from his trance.[11]

R’ Lavi accepts the position of the Ktzos HaChoshen, but even this is not enough to explain how the get can be given in our case. Firstly, even according to the Rambam the get is invalid rabbinically. Secondly, he is not willing to permit potential adultery based on the view of the Rambam when the Tur argues.

R’ Lavi claims that in this case neither one of these problems exist. He cites various acharonim who explain that the Tur invalidates the get because the instructions were given by someone who is now a shoteh. Here, where no instructions were given, this problem does not exist.[12]

When it comes to the rabbinical invalidation out of fear for the misconception that a shoteh can divorce, R’ Lavi explains that this fear only exists when there is a possibility that the same person may come to give the get himself.[13] Here, when the husband has been in a coma for such a long time, this possibility can be discounted.

Opposition

Unfortunately, most of those who attacked the ruling of the Tzfat Beis Din chose not to explain their arguments. They decried the decision as a perversion of halacha and personally accused the dayanim of acting without the due reverence for such a decision. To refute these kind of arguments it is only necessary to read a little of what R’ Lavi has written in the past.[14]

One of those who did explain their opposition in a serious and respectful way was R’ Binyamin Be’eri, formerly the head of the Beis Din of Ashkelon and a member of the Beis Din Hagadol.[15] In short, his arguments are:

1) It is not necessarily in the interests of the husband to divorce his wife. We do not know for sure that a person in this state has no feelings, his wife may help ensure he has the right medical care, and there is also a small chance that he may recover.

2) According to some, even if it is in his interests the principle of ‘zachin’ does not apply when we are taking something away from the person in question (zachin me’adam).[16]

3) ‘Zachin’ according to many is based on acting as the agent of the person involved, and cannot apply to someone incapable of doing the act himself. Although in monetary matters there is a concept of ‘zachin’ for a child, and according to the ruling of the Shulchan Aruch this applies also to a shoteh, this is a rabbinic institution and cannot apply to divorce.[17]

4) The writing of a get requires explicit instruction from the husband, unlike other actions.[18]

What do we take from this?

It is beyond the scope of this article to attempt to prove any of the points in question above, in either direction. But from the whole episode there are many things to learn (apart from the obvious point that disagreements between talmidei chachamim are acceptable as long as there is mutual respect).

Firstly, there a few points to remember when dealing with halachic decisions that affect people in distress.[19] No stone should be unturned in the attempt to help, and creative solutions should not be ruled out because of fear of what others will say. But we must also remember that halacha has its limits, and if no solution can be found we cannot engineer one falsely.[20]

Even when we think that the halacha is on our side, careful judgement must be taken over how to make rulings like this in a way that will actually help. In this case it is yet to be seen whether the woman in question will be allowed to remarry. If the appeal is upheld, she will only suffer more.

I would also like to add an argument that will be more controversial. I contend that halachic questions like this (even when the stakes are not as high) will usually remain inconclusive as long as the accepted style of halachic decision making continues. When the case is dependent on issues that have been dealt with hundreds of times previously, it is almost always possible to quote poskim supporting one view or another. Even calculating the majority view is often difficult, as so much depends on the weight attached to different authorities.

In “How does halacha work?” I pointed out an alternative style, where anything written after the gemara is used only as a guide. The final decision is made based on a personal honest reading of the gemara (and sometimes earlier sources), and extrapolating where necessary.

This method will not resolve all disputes (this will be possible only when the Sanhderin is restored). But I believe that the added responsibility that it would place on the dayan or posek involved would greatly increase the chances of the truth coming out.

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[1] The full text of the ruling (in Hebrew) can be seen here (the link sends to the beginning of the extremely lengthy ruling. The continuation can be found from following the links on the website). The ruling starts with the possibility that no get is needed at all, as the woman would never have agreed to marry had she known that the husband would end up in a coma like this (based on a previous ruling of R’ Tzvi Pesach Frank in Responsa Har Tzvi, Even Haezer siman 133). Due to a desire to keep relatively brief, I have not discussed this part of the ruling here.

[2] I personally witnessed the person involved being questioned over the issue (by people who disagreed for halachic reasons), and he remained steadfast. Although he himself may not have given this ruling, he defended its legitimacy strongly.

[3] He believed that it was not appropriate to make rulings like this public. Unfortunately he also came under a lot of mafia style pressure not to endorse the decision.

[4] See Gitin 14a-b

[5] The gemara in Yevamos 118b discusses whether this may be done by a dying husband in order to free his wife from the need to do yibum (levirate marriage) after his death, or (by even a healthy husband) in a case of marital strife. The only question is whether it is clear enough that this in her interests.

[6] This was not the case in the past, explaining why this solution was not used previously in cases of husbands in similar mental states.

[7] See Bava Basra 129b

[8] Geirushin 2:15

[9] Even Haezer siman 121

[10] He writes many laws of a shoteh within Hilchos Geirushin, see for example 6:6-8

[11] He even rules like this distinction in Shulchan Aruch, Even Haezer 121:2.  However, the Chelkas Mechokek and Beis Shmuel there reject this distinction, and maintain that according to the Rambam the divorce can be carried out even on behalf of a shoteh.

[12] Seemingly, according to this the concept of ‘zachin’ circumvents the normal rules. This novel idea clearly requires proof, but R’ Lavi believes that he has proof from the comments of the acharonim.

[13] The proof he brings for this is also from the comments of the acharonim.

[14] See for example R’ Shlomo Amar’s endorsement of the sefer ‘Ateres Devora’, R’ Lavi’s collection of rulings. He criticises R’ Lavi for being overly stringent and rejecting some of the lenient rulings of R’ Ovadya Yosef.

[15] A collection of the words of many of those opposed to the ruling of R’ Lavi, including R’ Beeri (but also including the comments of those who wrote with less respect), can be seen here.

[16] This is the view of the Ktzos HaChoshen, 243:8. However this is a minority opinion, and R’ Lavi claims that we need not be concerned about it when it comes to the plight of an aguna.

[17] This issue is a dispute between the rishonim, perhaps the most crucial point of the argument. It hinges on the text of the gemara in Bava Metsia 71a. R’ Lavi claims that the majority of poskim are of the view that ‘zachin’ is not based on shlichus, and that in a case where the act is 100% in the interests of the person involved all will agree to this.

[18] Based on Gitin 66b.

[19] My firm belief is that both sides of the argument here will agree to these points.

[20] And because the physical world by definition is not perfect, sometimes people will suffer. See Moreh Nevuchim 3:10.