In 1936, the Rav published a then little-noted article in a jubilee volume honoring R. David Levinthal of Philadelphia (it was later reprinted in קובץ חידושי תורה). The article seemingly dealt with a technicality of the laws of war, namely whether or to what extent the standard prewar Jewish speech mandated in Devarim 20 was delivered before a מלחמת מצוה as well as a מחלמת רשות. However, the Rav’s technical argument reinterprets the halakhic category מלחמת מצוה in such a way as to allow the philosophic/moral contention that war, even when acknowledged as fulfilling a מצוה, is always regarded as at best a negative means for achieving a noble end, at best בדיעבד.
This point may appear trivial to some: How could the mass killing of other human beings ever be regarded as לכתחלה? To others, it may appear blasphemous: as the Torah in several places explicitly commands and/or commends such killings, on what basis do we subject them to our moral evaluation? To the first group, I present the second.
The second group, however, requires a more extended answer, beginning with a definition of terms. I cannot argue that it would be better for the Divine Will not to be fulfilled. Nonetheless, I think it well settled that there are mitzvot which come into play only as the result of unfortunate circumstances. Divorce, for example, is a mitzvah according to Rashba and others, yet I think no one feels that they have failed religiously by not fulfilling this mitzvah as the result of remaining happily married; divorce is always in that sense בדיעבד. Furthermore, I think everyone would agree that there are better and worse ways of fulfilling each mitzvah; this is the standard meaning of the term בדיעבד.
Can we apply these categories to מלחמת מצוה? In the only universally agreed case of מלחמת מצוה, the initial Jewish conquest of Canaan, The Torah seemingly offers no choice of means. We are explicitly commanded “You must not leave any soul alive”. However, we were required to offer the Canaanites the option of leaving their land peacefully, and in that sense we can say that war was forced upon us. It is also true that the genocide of the Canaanites is commanded as a result of their sins, and one might argue that Hashem would have preferred that they not sin, certainly not so extensively.
In the almost universally agreed case of מחיית עמלק, one might similarly argue that war was forced upon us by their attack, or by their character. But this seems like a very stretched use of the term בדיעבד, nearly the equivalent of suggesting that all the mitzvot of Pesach are בדיעבד because we would rather the Egyptians had not enslaved us. It is also true that some commentators suggest that the obligation to offer peace applies in principle to Amalek as well, although not in practice, as the obligation applies only once per war and the initial war with Amalek has never ended. Again, however, this does not make the category בדיעבד meaningful.
The meaning of בידעבד which I seek to apply here assumes a real choice of ours in the present; it is what one might call “prospective בדיעבד”, a statement that a particular action would retrospectively be viewed as fulfilling a מצוה despite the fact that a better alternative exists in the present. My claim is that the Rav’s understanding of מלחמת מצוה allows enough room for creative reinterpretation, both halakhic and philosophic, of the מצוה of מחיית עמלק, to enable the application of that definition.
I have no way of knowing whether allowing this argument was the Rav’s purpose in publishing the article, or whether it is simply a conclusion that can reasonably be derived from a חידוש that he published in the pure spirit of תורה לשמה, but for obvious reasons I am happier believing the former.
Let us begin by quoting the prewar speech in its Torah context.
When you go out to war against your enemy, and you see that he has steeds and chariots, and outnumbers you, do not be frightened by them, for Hashem your God is with you, Who lifted you out of the Land of Mitzrayim.
When you actually near battle, the priest will approach and speak to the nation. He will say to them:
Listen, Israel: Today you are nearing battle with your enemies. Let your hearts not soften! Do not fear or panic, and don’t be intimidated by them! For Hashem your God is the One who goes with you to battle for you and to provide victory for you.
The guardians will then speak to the nation, saying:
Any man who has built a new house and not inaugurated it – let him go return to his house, lest he die in the war and another man inaugurate it.
Also, any man who has planted a vineyard and not yet eaten its produce – let him go return to his house, lest he die in the war and another man eat its produce.
Also, any man who betrothed a woman but did not marry her – let him go return to his house, lest he die in the war and another man marry her,
The guardians speak further to the nation, saying:
Any man who is afraid and soft of heart, let him go return to his house, so that he not melt the hearts of his brothers to be like his heart.
When the guardians finish speaking to the people, they will appoint military officers to head the nation.
When you near a city to make war against it, first cry peace to it. If it responds with peace, and opens itself to you, all the people in it will be tributary and serve you. If it does not make peace with you, and you make war with it, and you lay siege to it, and Hashem your God gives it into your hand, you shall put all its males to the sword. However, all the women and children and cattle, everything in the city, all its booty you shall take as spoil, and consume the booty of your enemies which your God has given you.
This is what you shall do to all the distant cities, which are not of the cities of those nations. However, from the cities of those nations whom Hashem your God is giving you as your homestead, keep no soul alive. Rather, utterly destroy them, the Hittites and the Amorites and the Canaanites and the Perizites and the Hivites and the Jebusites, as Hashem your God commanded you, so that you will not learn to act in the manner of all their abominations, which they performed for their gods, which would cause you to sin to Hashem your God.
If you lay a prolonged siege to a city, to make war against it and capture it, do not destroy its trees, waving the hatchet against it; you can eat from it, but not cut it down, for is the tree of a field a human being, that it can escape from you into the fortifications?
However, trees that you know are not food trees, that you may destroy, and you may build fortifications against the city which is making war with you until you bring it down.
In Laws of Kings Chapter 7, Maimonides codifies these laws as follows:
Whether it be a מלחמת מצוה or a מלחמת רשות, a priest is appointed to speak to the nation at the time of the battle. He is anointed with the anointing oil, and called “משוח מלחמה”. The משוח מלחמה speaks twice to the nation: once on the border before they go out but prior to the formation of the battleline, he says to the nation “any man who has planted a vineyard and not yet eaten its produce etc.” so that any such man, upon hearing his words, will return from the line of battle, and once on the battleline he says “Do not fear or panic”. When they are forming the lines and approaching battle, the משוח מלחמה stands on a high place, with all the lines before him, and says to them in Hebrew: “Listen, Israel: Today you are nearing battle with your enemies. Let your hearts not soften! Do not fear or panic, and don’t be intimidated by them! For Hashem your God is the One who goes with you to battle for you and to provide victory for you.”. He speaks to that point, and an underling priest shouts his words loudly to the whole nation. The משוח מלחמה then says “Any man who has built a new house . . . Also, any man who has planted a vineyard . . . Also, any man who betrothed . . . “ The משוח מלחמה speaks to that point, and the guardian shouts his words loudly to the whole nation. Afterward the guardian speaks on his own and says “Any man who is afraid and soft of heart”, and another guardian shouts this to the whole people. After the return of all those allowed to return from the battlelines, they form the lines, appoint military officers at the head of the nation, and establish behind every line strong and forceful guardians, with bronze staffs in their hands. If anyone seeks to retreat from the battle, they have permission to stab their calves, for the beginning of defeat is flight.
In what context was it said that these people may return from the battlelines? With regard to a מחלמת רשות, but with regard to a מחלמת מצוה all go out, even a groom from his room and a bride from her canopy.
The structure of Maimonides’ formulation creates what can be regarded as either a contradiction or an ambiguity as to the role of the משוח מלחמה. At the outset, Maimonides writes that he is discussing both commanded and optional wars. At the end, he writes that his words apply only to an optional war. If these statements are not contradictory, we must assume that at some point his words cease referring to both types of war and begin applying to optional wars alone, but which point is entirely unclear.
The Raavad comments on the opening line as follows:
“Whether it be a מלחמת מצוה or a מלחמת רשות, a priest is appointed to speak to the nation at the time of the battle. He is anointed with the anointing oil, and called “the משוח מלחמה” –
Said Abraham: “This may apply to “Let your hearts not soften!”, but with regard to all the rest of those who return from the battlelines, that was said only with regard to an optional war, but not with regard to a מלחמת מצוה, and so says the Talmud.
Raavad makes a substantive distinction between מלחמת מצוה and מלחמת רשות. He says that the משוח מלחמה speaks before both types of war, but delivers the complete speech found in the Torah only before a מלחמת מצוה.
Some commentators think that this distinction is obviously Maimonides’ intent – see Migdal Oz, who as a result denounces Raavad for atttacking Maimonides unjustifiably – but to my mind Raavad legitimately, and probably correctly, assumes that this was not Maimonides’ intent. We noted above that there should be a transition point in Maimonides at which his words cease applying to all wars and apply only to מלחמת מצוה. However, Maimonides mentions the part of the speech that Raavad thinks could have been delivered before all wars, “Let your hearts not soften!”, only after mentioning parts that Raavad thinks could only have been delivered before מלחמת רשות, such as “any man who has planted a vineyard and not yet eaten its produce etc.”.
The Rav begins his analysis of the positions of Raavad and Maimonides by noting that Raavad writes that it is possible that that the משוח מלחמה says “Let your hearts not soften!” before a מלחמת מצוה, implying that it is at least equally possible that the משוח מלחמה says nothing at all before a מלחמת מצוה. Indeed, Maimonides himself in the Sefer HaMitzvot seems to take the latter position, saying
“The reproof of the משוח מלחמה and the proclamation to the battlelines is obligatory in an optional war, where the law regarding such reproof applies, but they said that in a מלחמת מצוה there is none of this, neither reproof nor proclamation, as is explained in chapter 8 of Tractate Sotah.”
The Rav initially finds this position problematic, as there seems no reason for the משוח מלחמה not to speak the verses that are merely inspirational and contain no references to returning from the lines. He finds especially problematic Maimonides’ claim in the Book of Commandments that this is explained in Sotah, as to his mind all Sotah establishes is that there are no returnees from the line in מלחמות מצוה: it says nothing one way or the other about the משוח מלחמה’s speech.
(Note: This is true of the Talmud, but the structure of the mishnah supports Maimonides’ claim. Mishnah Sotah Chapter 8, which discusses the speech and other laws of war, concludes with the statement that all the above applies only to מלחמת רשות. Unlike Maimonides’ Laws of Kings 7, it does not have an opening line referring to both מלחמת מצוה and מלחמת רשות, and so it seems to say that the speech is relevant only to מלחמת רשות. Note further, however, that Maimonides’ addition of that opening line in Laws of Kings 7 seems strong evidence that his position there is not the same as that in his Sefer Hamitzvot.)
The Rav initially suggests the following rationale for this position. Maimonides, following the Mishnah, declares that the משוח מלחמה must speak to the nation in Hebrew rather than in the vernacular. It seems reasonable to generalize from this requirement that the speech must in all particulars be given precisely as written in the Torah, or else not given at all. Accordingly, this commandment may well be subject to a principle that applies to many other commandments involving reading Torah, for example Shema, namely that one must say an entire parshah rather than excerpt portions one deems relevant. Since the sections of the speech relating to returning from the lines cannot be said at a מלחמת מצוה for fear that people would return under the mistaken impression that doing so was licit, no part of the speech may be given, as one cannot excerpt.
Raavad/Rambam’s alternate possibility, says the Rav, would be that since the verses of return are irrelevant to a מלחמת מצוה, the “parshah” is redefined to include only the relevant verses. This is plausible as no skipping is necessary – the excerpt is consecutive. The point at issue between the two positions would be the definition of the “parshah” in the context of a מלחמת מצוה.
However, says the Rav, a third option emerges from an analysis of several mitzvot as they appear in the Sefer HaChinukh. The Chinukh writes consistently that mitzvot associated with war, such as the location of latrines, the obligation to offer peace before battle, and the obligation “Do not fear or panic”, apply to men and not women. Minchat Chinukh challenges this on the ground that women are obligated to participate in מלחמות מצוה, as the Mishnah says “and a bride from her canopy”. As at least some of these commandments apply to מלחמות מצוה, women would occasionally be obligated in these commandments, and Sefer Hachinukh’s exclusion of them is unjustified.
The Rav resolves the Minchat Chinukh’s difficulty as follows. מלחמות מצוה relate to specific mitzvot, such as the extermination of the 7 nations and the erasure of Amalek, but those mitzvot do not necessarily have an essential relationship to war. The proof of this is that they apply even to individuals in a private nonwar setting. See, for example, Sefer HaChinukh’s reformulation of לא” תחיה כל נשמה”:
Anyone who had a member of these (7) nations in his power, and had the capacity to kill him without endangering himself, and did not, has violated לא” תחיה כל נשמה”.
Sefer HaChinnukh clearly believes that “לא תחיה כל נשמה” applies even when no war is being fought. Accordingly, the fact that women can be obligated to participate in מלחמות מצוה may stem from their obligations as individuals in particular מצות. They are never directly obligated to fight a war, only to do whatever is necessary, including war, to accomplish those מצות.
By contrast, the Rav argues, Maimonides formulates the obligation for men to serve as a corollary of the king’s right or obligation to engage in war, not as an adjunct of specific מצות. Men have an obligation to serve in the army whenever necessary. The necessity may arise either out of particular מצות or else simply out of a national policy decision, as in a מלחמת רשות.
The Rav further contends that the army, or מחנה, of Israel is composed only of those soldiers directly obligated to serve. Women, whose obligation is indirect, are not formally considered soldiers, even in a מלחמת מצוה. The laws of war, such as ויתד תהיה לך, apply only to the מחנה. Thus women ae not obligated in those laws even when participating in a מחלמת מצוה.
(Note: The Rav’s insight incidentally solves Minchat Chinnukh’s famous question as to how Sefer HaChinukh can claim that לא תחיה כל נשמה”” applies only when there is no danger to life, when every command to go to war must necessarily override danger to life. Following the Rav, we can respond that while danger to life is certainly overridden only in the case of a command to go to war, it is the obligation to participate in the war rather than the specific mitzvah generating the war that overrides that danger. Accordingly, there would be no obligation to endanger oneself in order to fulfill לא” תחיה כל נשמה” as an individual outside the communal context of a war, and the requirement to endanger oneself would not be a feature of the mitzvah.)
(Note also, however, that according to both Maimonides and Sefer HaChinukh the mitzvah of erasing Amalek seems not to obligate individuals outside the communal context of war. )
The distinction between the direct obligation to serve in the army and the indirect obligation to fight wars when necessary to accomplish מצות may explain more than women’s exemption from מחנה-based מצות. The Rav suggests that the list of exemptions in the משוח מלחמה’s speech may be relevant only to service in the מחנה. With regard to a מלחמת רשות, accordingly, those exempted would be free literally to return to their homes. With regard to a מלחמת מצוה, however, exemption from the מחנה would not necessarily mean exemption from fighting, as the מצוה itself might impose such an obligation. Thus the mishnah illustrates the requirement that all go out to battle, meaning even those formally ineligible, with the case of a woman, i.e the bride. Those exempted from the מחנה of a מחלמת רשות are similarly exempted from the מחנה of a מלחמת מצוה, but would still be compelled to fight in the same way that women must participate in a מלחמת מצוה without being part of the מחנה.
Accordingly, Maimonides in Laws of Kings may hold that the משוח מלחמה reads the entire speech before every war. The exemptions formally apply to מלחמת רשות and מלחמת מצוה equally, although they have greater practical significance in the former case. Note that even in a מלחמת רשות those exempted from the מחנה are still obligated to provide support services to the army, so that the line “let him return to his house” is never literally true.
It may furthermore be that the exemptions are not automatic, but rather are dependant on actually hearing the משוח מלחמה’s speech. In other words, all men are presumptively part of the מחנה, even in a מלחמת רשות. The משוח מלחמה’s speech is thus practically necessary in a מלחמת מצוה so as to exempt the relevant men from the laws applying to the מחנה.
To this point we have discussed only two cases of מלחמת מצוה, the wars against the 7 nations and against Amalek. Maimonides mentions a third case, wars of self-defense. One might assimilate them to the preceding analysis by saying that such wars fulfill various mitzvot associated with lifesaving, such as וחי בהם and רודף. The Rav, however, reaches the same conclusion by a different route.
The Rav’s analysis enables us to contend that war is never ipso facto obligatory. For non-exempt men, the obligation to fight stems from the king’s right to draft soldiers generally, and is identical in מלחמת רשות and מלחמת מצוה. For women and exempt men, the obligation to fight stems from the מצוה, but is not itself the מצוה. If the מצוה could be accomplished by other means, fighting would certainly not be obligatory and perhaps would not even be permitted.
We said above that with regard to the War of the 7 nations it is easily arguable that we would have preferred not having to fight. With regard to wars of self-defense it is similarly probable that war is not the first option, that peace is preferable to victory. However, we also noted above that the category בדיעבד seems less applicable to the campaign against Amalek.
I would like to suggest a line of analysis that might enable such an application. The Torah and Maimonides are careful to formulate the mitzvah as “erasure” rather than as war or killing. Here may be more than one way to “erase”Amalek; we can encourage their assimilation, for example. In this regard, and in conclusion, note that Maimonides (in apparent opposition to at least one midrashic tradition) believes that we accept converts from Amalek.