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]
[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
[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.
[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
