What Does Halakhah Say about Civilian Casualties in Wartime? Part 2

by Rabbi Aryeh Klapper

(From Part 1):

Absent a guarantee of miracles, permission to wage war entails permission to risk killing people who have done no harm and intend no harm. Where halakhah permits war, it therefore permits taking such risks.

The morally relevant questions are: What risk of killing innocents may or must one accept, for what military ends? Under what circumstances, if any, does that permission or obligation extend to deliberately killing one or many innocents? How are people classified as guilty or innocent, and are those the only relevant categories?

The halakhic answers to these crucial questions may depend significantly on the sources used to derive the essential underlying permissions and obligations. We must therefore evaluate these sources not just on whether they convincingly establish those permissions and obligation, but on what guidance they give us, or allow us to incorporate, on how to apply them and/or limit them.

Divrei Hayamim 1:22:8 reads:

The word of Hashem came upon me, saying:

You have shed much blood

and you have made great wars

You may not build a house for My Name

because you have shed the blood of many to the ground before Me.

וַיְהִ֨י עָלַ֤י דְּבַר־יְקֹוָק֙ לֵאמֹ֔ר

דָּ֤ם לָרֹב֙ שָׁפַ֔כְתָּ

וּמִלְחָמ֥וֹת גְּדֹל֖וֹת עָשִׂ֑יתָ

לֹֽא־תִבְנֶ֥ה בַ֙יִת֙ לִשְׁמִ֔י

כִּ֚י דָּמִ֣ים רַבִּ֔ים שָׁפַ֥כְתָּ אַ֖רְצָה לְפָנָֽי.

Rav Asher Weiss cites RADAK’s commentary and concludes:

We see from his words also

that black-letter law,

one should not refrain from killing murderers even if the innocent are killed together with them.

That is why David was not punished regarding the much blood that he shed.

But Hashem nonetheless forbade him to build the Beit haMikdash,

because this nonetheless involves a definite flaw of bloodshedding.

From his words we can also understand as was explained above

that certainly one must try diligently to prevent the killing of those who did not offend or sin.

But when this is impossible

they are swept away together with those in their midst whom it is a mitzvah to kill . . .

Rav Weiss understands RADAK as explicitly permitting the killing of innocents (chafim mipesha) when necessary to kill murderers. He applies this principle to wars against murderers. The result is that innocents can be killed in war when there is no other way of bringing murderers to justice.

This raises a problem. On the assumption that King David killed innocents only in wars against murderers, and only when necessary, why was he prevented from building the Beit HaMikdash? To understand Rav Weiss, we must read his source RADAK.

Also among the bloods of the Gentiles that he had shed who were not bnei milchamto,

possibly there were good and pious people among them,

but nonetheless he was not punished regarding them,

because his intention was to terminate the wicked lest they make a breach in Israel;

and to save himself when he was in the Land of the Philistines – he did not leave a man or woman alive;

but since much bloodshedding came to his hand –

He prevented him from building the Beit Hamikdash,

which is intended for peace and atonement for sin and as the crown of prayer,

just as He prevented the use of iron in (the construction of) the Altar and the Beit Hamikdash,

because they generally make iron into killing tools and not peacetime tools.

RADAK can be read as saying that David’s actions were perfectly justified and nonetheless made him inappropriate for the Beit HaMikdash as a “keli milchamah”, a tool for killing. However, Rav Weiss is not satisfied with this reading, probably because it seems unjust.

Rav Weiss focuses instead on David’s killing of those who were not bnei milchamto. He understands RADAK as implying that David did not make every effort possible to minimize those casualties. This reflected a character flaw associated with bloodshedding even though David’s efforts were sufficient to avoid punishment. This flaw disqualified David from building the Beit HaMikdash.

Rav Weiss’ reading here is likely influenced by Rav Ovadiah Yosef z”l’s famous Responsum Yechaveh Da’at 2:14.

Question:

IDF soldiers who are Kohanim who participated in battles against the armies of Egypt, Jordan, and Syria, and met and killed enemy soldiers, are they categorized legally as “a kohen who has killed a person” who may not lift his hands to bless Israel

Answer . . .

At first glance one can challenge (my lenient conclusion above) based on Divrei HaYamim 1:22:8 . . . from which we see that even though (David) fought the wars of Hashem – The Holy Blessed One did not want the Beit Hamikdash built via his efforts

(see also Rambam’s Eight Chapters, Chapter 7).

However, in the commentary of RADAK there he wrote that when it says you have shed much blood . . .

“Also among the bloods of the Gentiles that he had shed who were not bnei milchamto,

possibly there were good and pious people among them,

but nonetheless he was not punished regarding them,

because his intention was to terminate the wicked lest they make a breach in Israel . . .

but since much bloodshedding came to his hand –

He prevented him from building the Beit Hamikdash,

which is intended for peace and atonement for sin and as the crown of prayer”,

which implies that (fighting) the war itself was not an appropriate reason to prevent him (from building the Beit HaMikdash) . . .

Rav Ovadiah’s initial understanding, following Rambam, is that David did nothing wrong, and nonetheless was disqualified as a Beit HaMikdash builder. He does not explain why, but in parentheses cites Rambam’s explanation that David’s wars expressed his sublimated but nonetheless disqualifying trait of cruelty.

However, Rav Ovadiah rejects this approach because it would allow the stigma of David’s disqualification to attach to kohanim who killed enemy soldiers while in the IDF, specifically with regard to Birkat Kohanim, which builds toward the climactic “Shalom”. Instead, he reads RADAK as saying that killing enemy soldiers in the course of war would not have disqualified David from building the Beit HaMikdash, and therefore certainly does not disqualify IDF soldiers from duchening. Rather, David was disqualified only for killing those who were not bnei milchamto, and may have been good and pious. Like Rav Weiss, Rav Ovadiah derives from Radak the necessity of minimizing deaths among those not bnei milchamto.

Who were these people found in David’s war but not of it? In Gray Matters 3, Rav Chaim Jachter summarizes:

Furthermore, Rav Asher Weiss points out that the Radak (Divrei Hayamim 1:22:8) also seems to subscribe to the Maharal’s principle. In his explanation of why David was disqualified from building the Beit Hamikdash due to the “blood that he had shed,” he writes that David had killed non-combatants in the course of battle but was not held accountable for their deaths “since his intention was to prevent evildoers from harming our nation.”

 As we have seen, Rav Weiss does not quite say that David “was not held accountable” for these deaths, rather that he was not held legally accountable. I suggest as well that “non-combatants” may not properly identify people ‘not bnei milchamot’.

RADAK uses this phrase in two other contexts.

Regarding Bereishis 14:20, RADAK writes:

Migein your enemies – meaning “gave them over into your hands” . .

It says your enemies even though they were not bnei milchamto and [he] had no complaint against them,

but since they had captured his brother’s son with his property – they are his enemies,

because Avram was a man of reputation, and Lot was known to be (Avraham’s) brother’s son,

and yet they had not let him be for love of Avram.

Regarding Yeshayah 52:4, RADAK writes:

The verse mentions Mitzrayim, where My nation first descended to sojourn there,

and Ashur likewise –

each of them tormented them for no cause.

Mitzrayim had no case for enslaving them harshly, because they initially came (just) to sojourn there;

and so too Ashur had no case against them, and they were not bnei milchamto;

why then did Sancheriv come and exile the 10 tribes, and Nebuchadnezzar exile Yehudah and Binyamin?! This was for nothing, with no justice! . . .

The clear meaning of ‘not bnei milchamto’ in both these contexts is “warriors who have no cause to be at war with him”. It follows that RADAK to Divrei HaYamim held David accountable for killing COMBATANTS with whom he had no sufficient quarrel.

Incidentally, this is also the plain meaning of Shaul’s prewar charge )I Samuel 15:6) to the Kenites to leave the ranks of the Amalekites. The Kenites were military allies of the Amalekites, but Israel had no quarrel with them, and therefore Shaul encouraged them to break their prior alliance. That verse accordingly says nothing about the legitimacy of killing noncombatants in wartimes.

We can debate whether killing enemy noncombatants is a greater or lesser moral offense than killing non-enemy combatants. We can also debate whether Rav Weiss’ use of chafim mipesha in his explanation of RADAK indicates that he translates bnei milchamto as I do (non-enemy combatants), as Rav Jachter did (noncombatants), or in a third way.

But all the above makes clear that halakhic Judaism does not see war as beyond the reach of ethics, and specifically that great poskim stress the obligation to minimize ‘collateral death’ in the context of war.

I can imagine, however, the following challenge to the reading of RADAK that Rav Ovadiah and Rav Weiss adopt: If David shed innocent blood, shouldn’t his punishment have been greater? Shouldn’t G-d have turned away from him and not merely disqualified him from building the Temple? Clearly any wrongs he committed were minor.

But of course, this is not the only unjustified bloodshedding in David’s career. His betrayal of Uriah seems worse. What saves him there, what makes him great nonetheless, is his ability to acknowledge his sin (when reproved by Natan the Prophet) and accept the consequences. So let’s turn to the very beginning of RADAK’s comment:

You have shed much blood –

We have not found G-d saying this to him,

Rather David said this in his own heart,

that it was because of this that G-d had prevented him from building the Beit Hamikdash,

or that Natan the prophet said this to him  . . .

דם לרוב שפכת –

זה לא מצאנו שאמר לו השם,

אבל דוד אמר כן בלבו כי מפני זה מנעהו השם לבנות הבית,

או נתן הנביא אמר לו כן  . . .

Here too, King David’s greatness emerges precisely from his ability and willingness to remain morally reflective and accountable about his use of power.

A Note on the Rhetoric of Genocide

Accusations of genocide serve to legitimate unrestrained violent resistance. No one thinks that a community facing genocide needs to abide by the rules of war if that means they lose. To accuse X of attempting genocide against Y means that Y can do whatever it takes to defeat X, up to and perhaps including counter-genocide.

Therefore, accusations of genocide are extremely dangerous. They are almost by definition incitements to the worst forms of violence. Sometimes that is necessary and salutary. But handle with extreme care.

THOSE WHO ACCUSE ISRAEL OF GENOCIDE AGAINST PALESTINIANS, REAL OR INTENDED, HAVE BLOOD ON THEIR HANDS. The accusation is absurd, trivializing, insulting, and murderous, all at the same time.

I need to put out a word of caution the other way as well. Rhetoric encouraging genocide is just as dangerous, even or especially if framed as counter-genocide. JEWS MUST NOT APPLY THE CATEGORY OF AMALEK TO REAL PEOPLE. Full stop. Every violation of this principle harms our cause.

This is true even with regard to real people who have genocidal intentions toward us (see links below). This is true even if the category Amalek is hedged about with qualifiers to obscure its genocidal implications. This is true even if one claims to be engaged purely in textual interpretation.

https://moderntoraleadership.wordpress.com/…/amalek…/

https://blogs.timesofisrael.com/how-not-to-talk-about…/

What Does Halakhah Say about Civilian Casualties in Wartime?

by Rabbi Aryeh Klapper

Absent a guarantee of miracles, permission to wage war entails permission to risk killing people who have done no harm and intend no harm. Where halakhah permits war, it therefore permits taking such risks.

The morally relevant questions are: What risk of killing innocents may or must one accept, for what military ends? Under what circumstances, if any, does that permission or obligation extend to deliberately killing one or many innocents? How are people classified as guilty or innocent, and are those the only relevant categories?

The halakhic answers to these crucial questions may depend significantly on the sources used to derive the essential underlying permissions and obligations. We must therefore evaluate these sources not just on whether they convincingly establish those permissions and obligation, but on what guidance they give us, or allow us to incorporate, on how to apply them and/or limit them.

Some rabbis have suggested using Maharal’s supercommentary Gur Aryeh to Rashi on Bereishit 34:13 as a source to permit killing noncombatants in wartime. Maharal there justifies the massacre of the inhabitants of Shekhem by Shimon and Levi after their eponymous prince kidnapped and raped Dinah. Let’s read Maharal carefully.

But this is difficult. Granted that Shekhem sinned, what sin did the whole city commit to deserve being killed?

Rambam answered that Noachides are commanded to establish a legal system, and any transgression should lead to execution, but here they saw this evil deed and did not prosecute it. Therefore they deserved death, for not judging evil deeds.

But in truth these words are astonishing, because how was it possible for them to judge the son of the nasi of the land? They were afraid of him, and even though they were commanded to establish a legal system – that’s only when they are able to judge, but “the Torah exempts those who act (or fail to act) as the result of forces beyond their control”, so how could Shimon and Levi prosecute them?

It sems that there is no difficulty, because the case of two ummot is not the same, such as the Children of Israel and (the) Canaanites, who are two ummot . . . and therefore they were permitted to go to war, as is the law regarding one ummah that comes to war on another ummah, which the Torah permits.

Even though the Torah says “when you approach a city to war upon it, you must call out peace to it –

that is only when they have done nothing to Israel,

but when they have done something to Israel, such as here, when they violated (Israel) to do an outrage,

even though it was done by only one of them –

since that one is part of the am, and since they violated them first – they are permitted to take their vengeance out of them.

The same is true of all war in which they find themselves, such as “Afflict the Midyanites…”

Even though there were many who did not do (the evil deed) – this makes no difference, since they were part of that ummah that did evil to them, they are permitted to make war upon them,

and that is how all wars are.

אך קשה, אם שכם חטא כל העיר מה חטאו להרוג?!

ותירץ הרמב”ם (הלכות מלכים פ”ט הי”ד) דבני נח מצווים על הדינין, ועבירה אחת שעובר – נהרג על ידו, וכאן ראו המעשה הרע הזה ולא דנוהו, לכך היו חייבין מיתה שלא היו דנין אותם.

ובאמת דבר תימה הם אלו הדברים, כי איך אפשר להם לדון את בן נשיא הארץ (פסוק ב), כי היו יראים מהם, ואף על גב שנצטוו על הדינין – היינו כשיוכלו לדון, אבל אונס רחמנא פטריה, ואיך אפשר להם לדון אותם?!

ונראה דלא קשיא מידי, משום דלא דמי שני אומות, כגון בני ישראל וכנעניים, שהם שני אומות  . . .

ולפיכך הותר להם ללחום, כדין אומה שבא ללחום על אומה אחרת, שהתירה התורה.

ואף על גב דאמרה התורה (דברים כ:י) “כי תקרב אל עיר להלחם עליה וקראת אליה לשלום” –

היינו היכי דלא עשו לישראל דבר,

אבל היכי דעשו לישראל דבר, כגון זה שפרצו בהם לעשות להם נבלה,

אף על גב דלא עשה רק אחד מהם –

כיון דמכלל העם הוא, כיון שפרצו להם תחלה – מותרים ליקח נקמתם מהם.

והכי נמי כל המלחמות שהם נמצאים, כגון “צרור את המדיינים וגו'” (במדבר כה:יז).

אף על גב דהיו הרבה שלא עשו – אין זה חילוק, כיון שהיו באותה אומה שעשה רע להם – מותרין לבא עליהם למלחמה,

וכן הם כל המלחמות:

Maharal is not deriving laws of war from the actions of Shimon and Levi. Rather, he is using a priori assumptions about the law of war to explain their actions. He takes it as given that war permits any member of one fighting nation to kill any member of their enemy nation. The story puzzles him only because it doesn’t seem to be about nations, and therefore he believes by definition is not about war. He resolves this by demonstrating textually from the Shekhemites offer “We will become one nation” that the Jews and the Shekhemites were separate nations.

If we take Maharal as legal precedent, what might we derive?

1. Avenging a single wrong done by a single member of one nation to a member of another nation is a legitimate ground for war, even if the perpetrator’s fellow citizens did not support the wrong but were too afraid of the perpetrator to prevent or adequately punish it.

2. All members of the enemy nation may be killed, without warning, regardless of their guilt in the wrong or of whether they pose any present or future threat.

3. Nations are defined by ethnicity, not by political unity. Thus the Shekhemites are defined as Canaanites. Shimon and Levi apparently could have killed Canaanites beyond the boundaries of Shekhem had they chosen to do so.

Since the rules of war must apply equally to both sides, it follows that a nonJew who was injured by a Jew may thereafter kill any other Jew, without restriction. So may any other member of that nonJew’s nation, however defined. (At some point they may need to acknowledge being at war in order to maintain their belligerent status.)

I find these outcomes morally unacceptable. Rabbi Alex Ozar pointed out in a Facebook comment that Rav Herschel Schachter agrees. He states repeatedly in B’ikvei Hatzon Chapter 21 that Maharal applies only when the deaths of the innocent are a military necessity, or necessary for victory. Rav Chaim Jachter inserts the same restrictions in his chapter on civilian casualties in Gray Matters 3.

Rav Asher Weiss (Minchat Asher Devarim #32, p.229-233), notes that Gur Aryeh to Bereishis 32:8 describes Yaakov as bothered by the prospect of killing members of Esav’s posse under the false impression that they intend to kill him. He calls such killing an accidental (shogeg) sin. Rav Weiss contends that this contradicts the Gur Aryeh we’ve been studying; since Yaakov and Esav were clearly at war, Yaakov would be justified in killing any member of Esav’s ummah regardless!

Rav Weiss offers three possible resolutions. The first is that Yaakov was bothered on a level of piety beyond the law.  The second is that Esav and Yaakov were not yet considered nations. The third is that Yaakov was worried about killing them under the mistaken impression that they posed a threat to his life. (A possibility not mentioned by Rav Weiss is that Esav hired mercenaries from outside his ummah.)

Rav Weiss concedes that the second approach is a much better fit in Maharal’s language than the first or third. However, he recognizes that this approach leaves Maharal imposing no restrictions on the killing of civilians in wartime. As a result, he states in traditionally polite terminology – “were it not for the words of Maharal, it would seem more correct” – that we need to take a different approach. In his alternate approach, each individual life matters profoundly, but there is a special halakhah in wartime that permits killing innocents when there is no other way to attack enemy warriors.

Rav Weiss also notes a second important difficulty with using Maharal as a source. Maharal is explaining the self-justification of Shimon and Levi, but Yaakov rejects their justification and condemns them. The question of whether the halakhah is more in line with Yaakov or rather his sons has been debated for millennia.

Rav Jachter also cites Rav Yitzchak Blau and Rav Neriyah Gutel as questioning the significance of Gur Aryeh as a halakhic course, although he disagrees. I would add that it’s not perfectly clear that Gur Aryeh sides with Shimon and Levi against Yaakov – this could be a fifth resolution to the contradiction in Gur Aryeh raised by Rav Weiss. Also, even if Gur Aryeh is a viable source, it is certainly not dispositive, and certainly not if understood as taking a position that violates many great scholars’ fundamental sense of Torah ethics.

The upshot is that Rav Weiss, Rav Jachter, and Rav Schachter all reject the surface reading of Maharal that war licenses the killing of enemy innocents. Rav Schachter assumes that Maharal did not mean that position; Rav Weiss is less certain, but would not follow it either way. The problem is that they provide no compelling Torah source for the restrictions they assume, and no ground other than moral intuition for working them out in practice.

On the Halakhic Status of Wars of Self-Defense

by Rabbi Aryeh Klapper

Rav Yosef Dov Soloveitchik held that there is never a mitzvah to fight a war, only to achieve desired ends using means up to and including war as necessary. Rav Herschel Schachter argues for the near-corollary that there is never a mitzvah to fight a losing war. In this essay, I develop Chazon Ish’s somewhat related position that standard halakhic exemptions from military service are suspended when there is risk of losing a war. This position may have surprising implications.

Devarim 20:5-7 exempts bridegrooms and several others from military duty for a year. Mishnah Sotah 4:8 clarifies that these exemptions are not absolute. The tanna kamma (anonymous first opinion) states that they apply only in a milchemet reshut (authorized but optional war), while in a milchemet mitzvah, “even the bridegroom must depart his bedchamber and the bride her canopy”. Rabbi Yehudah says that the exemptions apply only in a milchemet-mitzvah, but that in a milchemet chovah (obligatory war), “even the bridegroom etc.”

Rabbi Yehudah’s position is introduced as Amar Rabbi Yehudah, a structure that generally indicates a comment rather than a disagreement. The Yerushalmi accordingly opens by quoting Rabbi Yochanan as saying that Rabbi Yehudah agrees with the tanna kamma and changes only the language.

However, Rav Chisda understands Rabbi Yehudah as disagreeing with the tanna kamma. According to Rav Chisda, the tanna kamma applies the exemptions only in milchamot mitzvah, defined as “the war of David”, and not to milchamot chovah, defined as the “the war of Yehoshua”. By contrast, Rabbi Yehudah defines milchamot mitzvah as wars where they attack us, and milchamot reshut as wars where we attack them.  

(A fundamental problem with our text of the Yerushalmi’s presentation of Rav Chisda is that his terms for war are not used consistently with the Mishnah.)

The Bavli also records two Amoraic interpretations of the Mishnah. Each is subtly different from those in the Yerushalmi, or at least understood in a subtly different way.

The first position in the Bavli, also attributed to Rav Yochanan, contends that the tanna kamma and Rabbi Yehudah have only two categories of wars, and that the tanna kamma and Rabbi Yehuda draw the line between those categories in the same place. However, they use different names for the categories; what the tanna kamma calls reshut, Rabbi Yehudah calls mitzvah, and what the tanna kamma calls mitzvah, Rabbi Yehudah calls chovah. The Bavli does not say whether this semantic dispute has any practical implication. Rabbi Yochanan also provides no explanation the categories beyond their names.

The Bavli’s second position is attributed to Rava. He suggests that the tanna kamma and Rabbi Yehuda agree that the exemptions apply to cases parallel to “the war of David for expansion”, and that they don’t apply to the “war of Yehoshua for conquest”. Their disagreement is only in the case of a war “to diminish the idolaters so that they won’t attack us”. The tanna kamma calls this reshut, and Rabbi Yehuda calls this mitzvah. These semantics make a practical halakhic difference (nafka mina), because wars termed mitzvah or chovah exempt participants from other mitzvah duties on the principle that “one who is engaged in a mitzvah is exempt from other mitzvot”, whereas wars termed reshut do not.

Rashi contends that Rava is (re)interpreting rather than disagreeing with Rav Yochanan. Whether one accepts that position or not, Rashi makes clear that the nafka mina regarding “one who is engaged in a mitzvah etc.” applies within Rabbi Yochanan’s explanation as well.

My question is: What compels the Bavli to provide a nafka mina other than the one in the mishnah, namely whether the exemptions apply?  

Another question: If we grant that everyone agrees which wars the exemptions apply to, and which they don’t apply to, which side does the case of “diminish the idolaters so that they won’t attack us” fall on? Rashi holds that everyone agrees that the exemptions apply in such a case, even according to Rabbi Yehudah who calls that a milchemet mitzvah and applies osek bemitzvah to it.

Rambam in his Commentary on the Mishnah follows Rava’s explanation and then states that the Halakhah is “not like Rabbi Yehudah”. In other words, a preventive war is considered a reshut, meaning that the exemptions apply and osek bamitzvah does not.

In Mishneh Torah Laws of Kings 7:4, Rambam writes that the exemptions apply to cases of reshut and not to cases of mitzvah. In Laws of Kings, 5:1, he offers a taxonomy of wars more detailed than those in the Mishnah and Talmuds:

What is a milchemet mitzvah?

This is the war against the Seven Nations,

and the War against Amalek,

and aiding Israel out of the hand of an enemy who attacked them;

afterward (the king) may wage a milchemet reshut,

which is a war that he wages with other nations

so as to widen the boundary of Israel

and to increase his greatness and reputation.

ואי זו היא מלחמת מצוה?

זו מלחמת שבעה עממים,

ומלחמת עמלק,

ועזרת ישראל מיד צר שבא עליהם,

ואחר כך נלחם במלחמת הרשות,

והיא המלחמה שנלחם עם שאר העמים

כדי להרחיב גבול ישראל

ולהרבות בגדולתו ושמעו.

Rambam adopts Rav Chisda’s category of ‘reactive defensive war’. According to the Yerushalmi, all sides agree that such a war is a milchemet chovah. Rambam does not mention Rav Chisda’s category of preemptive war. The simple meaning, parallel to his Commentary, is that it is reshut, meaning that theexemptions apply to such a war, and osek bamitzvah does not.

(After the First Lebanon War, much ink was spilled around the question of whether this meant that a preemptive war cannot be launched in the absence of a Sanhedrin. I assume that issue can be finessed in one of the many ways developed in that literature; it matters which, but that is an issue for another day.)

Chazon Ish understands the case of preemptive war to be one in which

The language of Rambam in the Commentary (ADK: in the old translation but not in Kafah) implies

that (the idolaters) are intermittently killing Jews, but not forming up for war,

just that they have no dread of Jews,

so that when they encounter an individual Jew or Jews – they kill him,

and we go to war to weaken them and to place the dread of Israel upon them.

ובלשון הר”מ בפי’ המשנה משמע

שהורגים ישראל לפרקים, אלא שאינם עורכים מלחמה,

אלא שאין אימת ישראל עליהם,

וכשפוגשים ישראל יחידי או יחידים – הורגים אותו,

ולוחמים להחלישם ולהטיל אימת ישראל עליהם,           

Chazon Ish is puzzled as to how anyone can see this as reshut – Jews are dying, how can it not be a mitzvah to fight to save them?!  His answer (in Laws of Eruvin 114(3)) is that such wars are obligatory for ordinary citizens – the dispute was about whether they are obligatory for those to whom the Torah gives draft exemptions.

It seems that that which we learn in Mishnah Sotah 4:8

that for a mitzvah-war ‘even a groom leaves his bedchamber’ –

is not dealing with a time where one needs their help to achieve military victory,

as this is obvious, that because of lifesaving and nationsaving – all are obligated;

rather, even in a time when there is need only for a set number  –

and that was the case in most of their wars,

that there was no place for the entire army or warriors but only for a set number –

there was permission to take the groom from his bedchamber,

because “those who go back” have no privileges in a mitzvah-war;

and so also in a reshut-war –

they are exempt only in times when the victory of Israel does not depend on them,

because the necessary number of soldiers exists apart from them,

but if they are necessary –

they are obligated to come to the aid of their brothers,

and in fact that returns the situation to one of mitzvah-war;

but this is only if Israel has already entered the war,

but at the outset – one may not enter a reshut-war if it is impossible to win without “those who go back”.

But after one enters a reshut-war with a set army, if they see the need to add soldiers –

they do not take those whom we have been commanded to send back

so long as the necessary number exists apart from them;

even though they are now attacking us,

and had they attacked us initially – this would be considered a mitzvah-war,

nonetheless, since they initially entered the war as a reshut-war –

those who go back have their privilege so long as it is possible to war using others.

But if there is need for them for military victory – even the groom exits his bedchamber,

even if they initiated the war as a reshut-war.

Exemptions apply to preemptive defensive wars so long as an adequate army can be raised without drafting the bridegrooms etc. With regard to a mitzvah war, there is no need to consider such exemptions, even if an adequate army can be raised regardless.

Moreover, Chazon Ish, contends, even If the war goes badly and more soldiers are needed, the exemptions remain in force under the same conditions, meaning that one must not draft the bridegrooms etc. so long as an adequate army can be raised without them. The war does not become a technical mitzvah-war, and it seems clear that osek bamitzvah doesn’t apply, even though participating in the war certainly fulfills a mitzvah. IN ALL WARS, bridegrooms etc. can be drafted when they are necessary for victory.

Chazon Ish thus creates a category of war that fulfills a mitzvah (rescuing Jews) but is not technically a milchemet mitzvah because it began as a war of choice, even though the goal was preemptive defense. The existence of this category is what’s at stake in the dispute between the tanna kamma and Rabbi Yehudah in Mishnah Sotah.

We follow the tanna kamma and rule that this category exists. It is worth pondering what halakhah seeks to convey by acknowledging such a category. I suggest that there may be practical differences beyond the inapplicability of osek bamitzvah and the applicability of exemptions, and welcome your suggestions as to what those might be.

Skhakh Supports – Part 2

by Rabbi Aryeh Klapper

Two introductory notes:

SBM alum Rabbi David Fried wrote to ask why I did not explain the issue with putting the skakh on a metal frame as “straightforwardly maamid”. I’m grateful for the question, to which much of this week’s essay is a response.

WBM alum Rabbi Dan Margulies referred to his excellent article on the topic. I had culpably forgotten it, so any influence on Part 1 was unconscious. Please read it and compare! Part 3 will again be directly on point; please compare and contrast when it comes out, whether or not I have space to do so explicitly.

Please keep questions, comments, and objections coming! And now for Part 2: 

We can validate an objection to putting skhakh directly on a plastic sukkah frame if we

1. Rule like Rabbi Yehudah in Mishnah Sukkah 2:2, where he states that a sukkah “leaned against the ‘knees’ of a bed” is valid only if it could stand on its own
2. Understand Rabbi Yehudah as objecting to “standing the sukkah up on something receptive to tum’ah”, such as a bed
3. Understand Rabbi Yehudah as objecting to standing the sukkah up on materials that are invalid for skhakh even if they are also not receptive to tum’ah
4. Understand that position to apply only to roof supports and not to walls. This limit is necessary because animals can serve as walls, and yet animals are not valid skhakh because they are not “grown from the ground”. There is also much evidence that sukkah walls can be made of any material
5. Provide positive evidence that roof supports are a recognized halakhic category at least potentially subject to regulation, whether Biblical or Rabbinic.

Let’s address these conditions in order.

1. Can we rule like Rabbi Yehudah?

We’d have to overrule or sidestep a general halakhic presumption in favor of anonymous Mishnah-opening statements, whether that presumption is grounded in the assumption that they reflect Rabbi Meir’s position, or rather that they reflect a majority of Rabbi Yehudah HaNasi’s Mishnah Editorial Board.

2. Can we rule like Rabbi Yehudah while understanding him as objecting to “standing the sukkah up on something receptive to tum’ah”?

The Yerushalmi cites as authoritative a tradition in which the people of Yerushalayim roofed their beds as Sukkot, and on that basis rejects an explanation of Rabbi Yehudah as related to tum’ah. The Bavli does not cite this tradition. We can assume it disagrees with the Yerushalmi, and follow the Bavli over the Yerushalmi.

3. Can we understand Rabbi Yehudah as banning “standing the sukkah up” on materials that are not “grown from the ground”, even though plastic is not receptive to tum’ah?

This seems to require understanding Rabbi Yehudah as requiring skakh-supports to be made of materials that are valid for skhakh. Neither Talmud expands Rabbi Yehudah’s objection in the Mishnah to issues other than receptivity to tum’ah, for example requiring skakh supports to be “grown from the ground”. However, neither explicitly rejects such expansion, and neither offers any source or explanation for Rabbi Yehudah’s objection to materials that are receptive to tum’ah.

4. Can we understand Rabbi Yehudah’s position as applying apply only to roof supports and not to walls, since it is clear that walls can be made of materials invalid for skhakh, such as animals?

Bavli Sukkah 21b states that if Rabbi Yehudah’s objection is tum’ah-based, then he would invalidate skhakh mounted on metal poles even if those poles were disconnected from the walls of the sukkah. This applies his position to skhakh supports that are not walls. We can then claim that his position applies to skhakh supports whether or not they are walls, and that the Bavli validates walls made of invalid skhakh only when those walls are not also skhakh-supports, as for example when the skhakh is separately supported by wooden poles.

5. Can we provide positive evidence that roof supports are a recognized halakhic category at least potentially subject to regulation?

Rashi Sukkah 21b explains the position that explains Rabbi Yehudah as based on tum’ah as follows:

ואף על פי שלא למדנו פסול אלא לסכך,

הואיל ועיקרו של סכך אלו מעמידין –

הוי כאילו סיכך בדבר המקבל טומאה.

Even though we have not learned/derived invalidity for anything other than skhakh,

since the root/essence of the skakh is these supports –

it is as if he roofed with something that is susceptible to tum’ah.

Rashi might be connecting this understanding of Rabbi Yehudah’s position to the position of the Sages in a beraita on Shabbat 59b-60a.

היא של מתכת וחותמה של אלמוג – טמאה;

היא של אלמוג וחותמה של מתכת – טהורה;

ורבי נחמיה מטמא,

שהיה רבי נחמיה אומר:

בטבעת – הלך אחר חותמה . . .

וחכמים אומרים: הכל הולך אחר המעמיד.

If (the ring) is made of metal and its seal of almog – it is tamei

If (the ring) is made of almog and its seal of metal – it is tahor

but Rabbi Nechemyah declares it tamei

because Rabbi Nechemyah would say:

with regard to a ring; follow its seal . . .

but the Sages say: Everything follows the maamid.

Following Rabbi Yehudah therefore requires ruling like the Sages.

At first glance, this seems to pose no difficulty, as the general halakhic rule is yachid verabbim halakhah kerabbim = (halakhah follows a position presented as that of a group against one presented as that of an individual). Furthermore, Mishnah Keilim 13:6 cites only the opinion of the Sages and not that of Rabbi Nechemyah in the cases of the metal and almog rings, although it also does not cite the generalization about following the maamid. However, Shabbat 15b states:

. . .  ורבי מאיר היא, דאמר: הכל הולך אחר המעמיד, דתניא:

 כלי זכוכית שנקבו והטיף לתוכן אבר  –

אמר רבן שמעון בן גמליאל:

רבי מאיר מטמא וחכמים מטהרין.

. . . this is the position of Rabbi Meir, who said: Everything follows the maamid, as we learned in a beraita:

Glass vessels that had holes, and he injected lead into them –

Said Rabban Shimon ben Gamliel:

Rabbi Meir considers them tamei, and the Sages consider them tahor.

Here the position that “everything follows the maamid” is presented in the name of an individual, in contrast to that of the Sages. Nonetheless. we would not be out of bounds to suggest that the law follows the Sages against Rabbi Nechemyah, and thus Rabbi Meir against his Sages.

However, it is not necessarily so that Rashi is connecting Rabbi Yehudah’s position to this dispute. He does not reference it explicitly, nor does he use the phrase “everything follows the maamid”.  Here is his formulation again:

Even though we have not learned/derived invalidity for anything other than skhakh,

since the ikkar/root/essence of the skakh is these supports –

it is as if he skakhed with something that is susceptible to tum’ah.

Recall that the Talmud applied this understanding of Rabbi Yehudah to a case where the skhakh rested on metal poles unconnected to the sukkah walls. The core question is whether it is plausible to say that “the root/essence” of a roof is the material holding it up, in the same way that a ring holds a signet, or a permanent seal enables a container to hold water. In the other cases, we say that the combination forms a single unit – this container is metal if the metal seals a hole in the glass; this is a metal signet ring. Can we describe the Talmud’s case as one of a metal roof?

I think – so far without adequate evidence – that it would be very difficult to claim with regard to an ordinary building during the year that its roof assumes the halakhic character of its walls. But I suggest – also without adequate evidence – that perhaps skhakh on sukkot is different, because it is the roof of the sukkah that halakhically characterizes the entire building. We might therefore say that for Rabbi Nechemyah, clearly the roof therefore is like the signet, and the supports should take on its character; but for the Sages, the supports are like the ring, which is necessary for the signet to do its work even though it is generic by itself.

However, Rashi’s language is difficult to square with this suggestion. The Sages’ position is that we don’t care about which component is the ikkar/root/essence, which in their case is clearly the signet, but rather about the maamid.  So Rashi’s explanation of Rabbi Yehudah here seems to line up with Rabbi Nechemyah rather than that of the Sages. Similarly, it is difficult to contend that when lead is poured to seal a glass crack, that the lead becomes the “essence”. After all, the lead without the glass would not be able to hold water either!

If we decide that Rashi is connecting the sugyot, I’m also not sure that his position could extend to skakh conditions other than not being receptive to tum’ah. The term maamid has significance in halakhic areas other than tum’ah – for example, a nonkosher maamid can make an entire dish nonkosher – but not in all areas, and I don’t at this point have anything resembling a coherent and predictive account of when it does and when it doesn’t.

The bottom line is that the Talmudic passages we’ve seen make it very difficult to justify an objection to skhakh being placed directly on a plastic or even metal sukkah frame. However, such objections certainly have a long and distinguished post-Talmudic history. We’ll turn to the medieval evidence in Part 3.