Rabbi Alfred S. Cohen
Rabbi, Young Israel of Canarsie; Rebbe, Yeshiva University High School for Boy
Journal of Halacha and Contemporary Society - No. XXIII, Spring 1992, Pesach 5752
Since the founding of the State of Israel, the need for defense has been the highest priority of the community. Due to the overwhelming needs for security, virtually all able bodied men and many women - serve in the army for a period of a few years and then for additional service for decades thereafter.
However, when the state was created, the then Prime Minister, David Ben Gurion, came to an agreement with leaders of the religious parties, whereby 400 yeshiva students were to be exempted from military service so that they might continue the Torah studies without interruption. After the government lifted restrictions on the establishment of new yeshivot, the number began to mount steadily. According to current figures1 18,400 yeshiva students were exempted from military service in 1988. Between 1976 and 1986, the proportion of yeshiva students out of the total population of 18 year olds more than doubled from 2.5 to 5.3 percent, as the government steadily lifted the ceiling on how many students could acquire the exemption.
The exemption of boys and men involved in learning Torah from serving in the army has at times aroused much resentment. It is a practice which has been, and continues to be, challenged, not only by secular Jews but even by many observant and dedicated Jews, even by some who benefit from the exemption.
We are dealing here with a very emotional issue. The families of soldiers who daily risk their lives are far from tolerant when they see yeshiva students strolling casually through the streets. There is anger, too, at the rabbis who instruct their students in the yeshiva to stand at attention on Yom Hazikaron2 to honor the fallen war heroes - but at the same time teach their students not even to consider serving in the army. And there is frustration and bitterness in the yeshiva homes as well, where people live in privation all their lives in order to dedicate themselves to the ideal of learning Torah, and yet have to bear the contempt of their fellow citizens.
The present study will explore this issue, hopefully from a dispassionate and objective position. It is our intention to identify the sources from Jewish tradition which support the practice, as well as those which seem to question the validity of exempting one group from military service. Our aim is an halachic exposition, without recourse to emotional arguments; our intention is to clarify the halachic sources, as the basis for formulating an intelligent position.
Before we consider what role, if any, yeshiva students ought to take in the army, it would be appropriate to consider what Judaism has to say about war - whether it is ever right for any Jew, not only a yeshiva student, to serve in the army.
Jewish thought views war with great trepidation, not as a glorious adventure.3 War is a scourge: lives are lost, families disrupted. When the Jewish Commonwealth existed, the decision to go to war was never undertaken lightly, no matter how pressing the situation might appear to be. Even when war was necessary or defensive, it retained a negative connotation. Thus, when King David expressed his desire to build a House of G-d, Hashemrejected the plan: "Much blood have you spilled, and great wars have you waged, [therefore] you shall not build a House for My Name."4
The rejection of King David is most surprising, in view of the fact that he had dedicated his life to freeing his people form the perpetual onslaughts of their inimical neighbors. His wars had been wars of defense, of retaliation, of prevention, wars of Mitzvah if you will. Nevertheless, a certain opprobrium clung to them.
But Judaism does not condemn war entirely, for there are times when it is inescapable or necessary.5 And although taking someone's life is murder, Judaism does not consider war as murder; there are times when people are justified in going to war, such as when they are attacked or to take revenge for a previous injury.6 While it is true that the Torah commands "when you draw near to a city to battle with her, [first] you must call to her to make peace,"7 the Maharal is of the opinion that the rule applies only when they have not done anything to the people of Israel, but if they have done something, such as "they pressured them to do some abomination, then it is permissible to take revenge upon them."8
Hundreds of years later, the N'tziv echoes the view of Maharal, that at times war is permissible and warranted:9
When is the person punished? At a time when it is proper for him to act with brotherly love, but this is not true during wartime, and it is a time to change... and there is no punishment for this at all, because thus was the world established, as we see in Tractate Shevuot - and even a king of Israel is permitted to wage an optional war.
In Orach Chaim10, the Ramo even extends this permission to wage war to such time as the enemy has not yet attacked but only wants to attack the Jews. V'afilu lo bau adayin ela rotzim lavo. Such a preemptive strike is permitted even on the Sabbath.
Cognizant of the reality that sometimes war is the necessary option, despite its negative connotation, the halacha recognizes different types of war.11
- milchemet mitzvah - a war to conquer the land of Israel, such as those waged by Joshua when the Jews entered the Land. Another such war is the battle to eradicated Amalek. These wars may be initiated without the mandate of the Beth Din, simply at the instigation of the king, who has the license to draft the people into his army at his discretion.
- milchemet reshut - a war fought to expand the boundaries of Israel; this could be done only with the approval of the Beth Din of Seventy. An example is wars fought by King David.
- Wars to reduce the heathen influence12 so that they will not attack the Jews. Some scholars consider such wars as mandated (mitzvah) but others consider them optional. The Rambam13 rules that these wars are obligatory, "And which is a mandated war? .. to help Israel from an enemy who might come upon them."
- An additional category has been suggested - a war to instill fear and respect into the nations, so that they will not even consider attacking the Jews.14
The Jewish attitude towards war is singular. Unlike other cultures, we do not glorify the strength, vigor, and triumphs of war so much as we realize the tremendous moral dangers which lurk in the war zone. It is not our tradition, however, to be tolerant of the immorality and depravity which typically are rampant in an army camp, but rather to seize the opportunity to grow spiritually even from such a situation.
Despite the exigencies of war, the Torah teaches us to maintain our high moral code: when a soldier falls in battle, he must be buried individually, not in a mass grave.15 Even though the soldier has the responsibility of fighting, we urge him to study Torah whenever he has free time.16 And if battle is necessary on the Sabbath, all booty of that day is dedicated to G-d.17 Even when serving in a non-Jewish army, the Jewish soldier is expected to observe whatever mitzvot are possible.18 Even while out on the front, the Jewish soldier must light at least one light each night of Chanukah, if he can;19 although he is permitted if necessary to eat before his morning prayer, nevertheless he is expected to pray daily.20
The overriding concern of Judaism is not to sanction the immorality which is prevalent in an army situation, which has not abated appreciably with the passage of millennia. Even today, after thousands of years of civilization, rape, mayhem, looting are daily concomitants of war, and stealing and eating non-kosher foods might be considered only minor infractions.21 It is precisely in such a situation that the Torah admonishes the Jewish soldier. "When you go to war against your enemy, beware of all evil things..."22 That is the time when a person must be most careful in performing mitzvot. Rather than suspend the laws and observances, it is then that a person must be most careful in following the minutiae of the Torah. Thus, it is our philosophy that learning Torah and praying with true concentration are outstanding weapons for the Jewish people to employ in their quest for victory. More mitzvot, more dedication to Torah, will bring us more protection from above.23
This belief, that purity of thought and deed and dedication to the ideals of Torah are the true strength of the Jewish people and the source of any victory they might enjoy, is the core of the argument that the yeshiva scholar is doing his share for the protection of the nation through his dedicated learning in the Beit Midrash. As the N'tziv points out (Devarim 31:1), the troops used to give a share of the spoils to the Torah scholars, in recognition of the fact that their learning Torah had kept the soldiers and the people safe.
If observance of mitzvot is so crucial that a minimum standard is not abrogated even for the soldier, doesn't it stand to reason, argue many, that those who are intensely involved in observing all the mitzvot of Torah, who spend all their hours involved in Torah, are surely adding to the protection of the nation just as are the armaments and tanks?
What role are the citizens supposed to play during a war? Are all equally obligated to serve on the battlefield? Are there distinctions to be made, exemptions to excuse certain people? Some answer emphatically "no", but others contend that the answer might be "maybe" or "yes." Kelal Yisrael is made up of diverse people, with many contributions to be made. An orchestra achieves its fulfillment when each of the musicians contributes his unique talent; so, too, the Jewish people are not monolithic. Different people can and should contribute to the welfare and security of the nation in different ways.
One of the Sages of the Yavneh is quoted as reflecting, "I am a man, and my friend is a man; my work is in the city, and my friend's work is in the field. This goes to show that one complements the other, and no one person can or ought to do all the jobs."24
Is such a differentiation defensible in the case of military service? Can a class of people legitimately claim that, as a group, they are serving a different, equally vital, need for the salvation of the community? On these grounds should they be exempted from military duty in order to fulfill their unique role in national security?25
Rav Kook, the first Chief Rabbi of Israel, felt strongly that students in the yeshiva should not be called to the front, for in their batei midrash, through learning Torah, they were assuring the spiritual welfare of the nation, and ultimately, we rely on our spiritual superiority to save us, not on our military might. Others have also strongly maintained that the z'chut of learning Torah is a more effective and more important shield for the Jewish community than military service.26
Others, however, scoff at such an argument. "Will you send your brother to war, and yourselves sit at home?" rails Rav Zevin, in his call to yeshiva students to take up arms equally with their secular brothers. "Is your blood redder than theirs?" he wants to know. Yeshiva lives and families are being threatened the same as everyone else's, and he feels no person can excuse himself from the fray. He cites rabbinic dicta that in times of war, "all go out to fight, even the bridegroom from his chamber and the bride from her chuppah."27
Already in the Torah, there is indication that not all the Jews participated actively in the actual fighting:
Ach et shevet Levi lo tifkod v'et rosham lo tisa
But the tribe of Levi you shall not count [in the military census], nor number their heads.28
The entire tribe of Levi was excluded from active warfare, and therefore there was no need to include them in the military census.29 Rambam rules that the tribe of Levi did not inherit a portion of the land, "because they were separated for one task - to serve [in the Temple] and to teach His righteous ways... therefore they were separated from the ways of the world, and they do not wage war as do the other Israelites."30
But then Rambam adds,
V'lo shevet Levi bilvad, ela kol ish v'ish mikol baei haolam asher nadva rucho oto v'hevino midaato.
Not only the tribe of Levi, but any individual whose spirit moves him to... separate himself to stand before G-d and to serve him, to know Him.. and he removes from his neck the yoke of considerations which most people see, behold this person becomes most holy.
Jewish thinking recognizes and respect those individuals who reject the pursuit of material goods as their goal and dedicate themselves instead to a higher ideal. Such a person should not be called up even for defense of the country.31 The source for this practice long predates the Rambam: the Gemara (Nedarim 32a) criticizes Avraham Avinu for having roused the scholars in his entourage and pressed them into joining his troop which gave chase against the four kings who had raided the land. Similarly, the Gemara in Sotah 10a concludes that King Asa was punished by heaven for conscripting Torah scholars into his army.32
Most nations do not have universal conscription. People understand that not everyone is suited for the battlefield, or that some people should be doing something else. When America had the draft, clergy were excluded, students in the universities were deferred, and others in sensitive positions excused. Can no justification be found for excusing yeshiva students from serving in the Israeli army?33
However, all exemptions advocated by the rabbis seem to be predicated on the assumption that the Jewish army would be victorious without the missing troops; but, if there exists the possibility of their being overcome in battle, all agree that no one can be excused, all must rush out to battle. "And it is a mitzvah for all Israelites who can, to come and go out to aid their brothers who are under siege."34 35 This proviso, obviously, is not a minor issue in the current debate, and we will discuss it more fully further on.36
No one should imagine that those who were traditionally excused from active duty during war went on vacation instead. On the contrary, everyone was expected to do his or her share in saving the community, but it was recognized that there were a variety of necessary tasks to be performed. Those exempted from active duty were duly expected to serve in some other capacity.
Historically, there is evidence that Torah scholars who were excused from fighting used to accompany the troops to the front and learn and teach Torah there.37 It is hard to imagine a more uplifting practice than thousands of soldiers encamped and equipped for war, each with a man next to him learning the Torah or reciting the Shema. Yet the difficulties inherent in such a relationship are quite evident, and ultimately the practice had to be stopped.
When the State of Israel was first established, the number of men learning full time in yeshivot was small; the agreement that yeshiva students would be exempt from military service caused little concern. Today, thank G-d, the situation is quite different in the yeshivot, which are packed with students. As their numbers grow, so do the deferments - and the protests. An added factor is that in Israel many men remain yeshiva students for life, such that military deferment becomes de facto permanent exemption. Under these circumstances, should all yeshiva students be exempt from army duty?
In his monograph against exempting yeshiva men from the draft,38 Rav Zevin rejects the contention that it is more important for them to be learning than fighting. He asks, if everyone were learning in yeshivot, "would we allow our enemies to ravage our land and kill our people without taking up arms to defend ourselves?" And he points to the halacha which teaches that all must go out in case of attack - even a bridegroom from his chamber and bride from under her chuppah. Certainly it should apply to rabbinic students as well! How can one imagine it is right, he asks, to let others die for him rather than protect his own life and family?
Aside from the question of whether it is right to let others bear all the burden of physical defense, there are those who maintain that an exemption from military service based on the individual's involvement with Torah learning can apply only to the relatively few who truly disassociate themselves from all worldly concerns and do nothing but learn Torah. This definition, according to Rav Aharon Lichtenstein would disqualify very many yeshiva people from their present exempt status.39
Finally, even if we grant that the Rambam's statement does imply a categorical dispensation in purely halachic terms, it remains of little practical significance. We have yet to examine just to whom it applies. A levi [sic] is defined genealogically. Those who are equated with him, however, literally or symbolically, are defined by spiritual qualities; and for these the Rambam sets a very high standard indeed. He present an idealized portrait of a selfless, atemporal, almost ethereal person - one whose spirit and intelligence have led him to divest himself of all worldly concerns and who has devoted himself "to stand before God, to serve Him, to worship Him, to know God; and he walks aright as the Lord has made him and he has cast off from his neck the yoke of the many considerations which men have sought." To how large a segment of the Torah community - or, a fortiori, of any community - does this lofty typology apply? To two percent? Five Percent? Can anyone... confront a mirror and tell himself that he ought not to go to the army because he is kodesh kodashim, sanctum sanctorum, in the Rambam's terms? Can anyone with even a touch of vanity or a concern for kavod contend this? Lest I be misunderstood, let me state clearly that I have no quarrel with economic aspiration or with normal human foibles per se. again, least of all do I wish to single out b'nei yeshivot for undeserved moral censure. I do feel, however, that those who would single themselves out for saintliness should examine their credentials by the proper standard
Despite this harsh appraisal of the unworthiness of present day yeshiva scholars to claim exemption from community obligations, it appears that actually it was a widespread practice to excuse Torah scholars from many of the levies put upon all others. Nor were they generally expected to withdraw totally from the ordinary pursuits of most people. The common custom in Jewish communities was indeed to consider the Torah scholar as a person who, because of his holy dedication to Torah, should not be expected to shoulder the same burdens as ordinary citizens.
In truth, the question of military exemptions is adumbrated in similar debates over the centuries. There, however, the issue was generally a different kind of community service, involving payment of taxes levied by the government on the entire Jewish settlement. Back in the 15th century, R. Isserlein, author of Terumat Hadeshen, had to address the problem of taxes which the government demanded from the Jewish community as a unit. There is a long halachic tradition exempting rabbis and Torah scholars from having to pay community taxes, and of course, every individual excused from paying a share meant that the share of the others was that much bigger. The author of Terumat Hadeshen appears reluctant to grant widespread exemption from community taxes.40
Omnam hehamon am einam sovrim klal liftor shum talmid chacham ela im ken yoshev b'rosh yeshiva v'af ze davka b'ostreich... v'haya kim'at minhag pashut sh'lo lechayev bemas harav hayoshev b'yeshiva b'rosh... aval b'gvul d'bnei Rinus kimdume li shelo hayu nohagin liftor talmid chacham... mishum detzarich dikduk yafe sheyachzor tamid letalmudo k'sheyifne me'asakav v'ein nizharin ha'idna.
However, ordinary people do not have any wish at all to exempt any Torah scholar unless he serves as the head of a yeshiva, and this is true only in Austria...and it is virtually a common practice not to require the Rabbi who serves as the head of the yeshiva to pay the tax. But it appears to me that in the provinces near the Rhine, it was not the practice to exempt Torah scholars... since it requires that he be very careful about returning always to his studies as soon as he is finished with his business...
But more than a century later, the Shach does not equivocate when he rules that anyone who makes the study of Torah his major concern, taking time out only to earn the requisites for supporting his family, is exempt from community tax.40
Similarly the Rambam rules:
V'ein cholkin bein shehu tofes yeshiva oh lo rak shehu muchzak ketalmid chacham b'doro...beinyan liftor mimas ein medakdekim baze rak sheyihyeh muchzak letalmid chacham
And it makes no difference whether he runs a yeshiva or not, only that he be known as a Torah scholar in his generation, ...as for exempting him from the tax, we are not overly particular about this, only that he should be accepted as a Torah scholar.42
Perusal of these halachic sources provides a basis for exempting certain individuals from obligations which all other members of the community have to shoulder. Some rabbinic authorities interpret this rule quite broadly, while others give it a narrow scope.
In pleading for a change in the present system of exempting all yeshiva students from the draft, Rav Zevin seeks to find a middle ground. He notes that "a practical fear has been expressed, that if the students go to war, all the yeshivot will become depleted" and who knows what will happen then to the study of Torah in Israel? Therefore, he urges that "a mutually agreeable accommodation" be arranged, whereby the principle of the importance of Torah study would be established without, however, applying it universally.43 The Hesder yeshivot seem to be a direct response to this plea, and we will discuss them shortly.
A talmudic statement seems to give tremendous support to the position that yeshiva students should not join the army. "Rabbi Yosef said, 'learning Torah is greater than saving lives.'" (Megillah 16b). This talmudic text is often cited as evidence that maintaining the spiritual welfare of the nation is more important than maintaining its physical security. However, assuming that the Gemara considers learning Torah to be preferable to saving lives might be a simplistic conclusion. A great wealth of Torah literature leads one to conclude that many major Torah authorities did not take this statement literally.
In the Shulchan Aruch44 we find the following rule:
"It is permissible to take money from the Torah fund in order to pay... the ruler, since it is for saving lives."
The ruling is based on a responsum of the Rosh to the effect that it is proper to divert even a large group from learning Torah in order to save lives. How could the Rosh render a ruling contrary to the Talmud? Numerous scholars have grappled with this difficulty,45 and we shall look at some of their answers.
There are those who contend that the text in Megillah is aggadic in nature; wherever the aggada disagrees with the rules of halacha, it is halacha which takes precedence. Thus, the overarching rule of pikuach nefesh, doing virtually anything in order to save a life, applies in this case as well. Furthermore, it is not possible to take a statement concerning the life of one individual and use it to justify a situation in which the entire Jewish community is threatened. On the contrary, we are confident that G-d will never allow the entire Jewish community to be annihilated, and succor will come to them somehow. In such a situation, it is more important to learn Torah. There is no such assurance of divine intervention, however, for an individual; thus, when one person is in danger, it is surely mandatory to save his life. But for the group, we can rely on G-d's providence.
In resolving the question of apparent contradiction, the Perisha rules that if there are others who can undertake to save lives, it is preferable for those who can, to study Torah.46 However, if there are no others, then the rule of pikuach nefesh takes precedence. Another solution suggested by the Perisha is that in a situation where it is not possible to do both - save lives and learn Torah as well - then learning Torah takes precedence. However, in the case discussed in the halachic text, even though some of the money would go to pay off the governor, some would still be left over to provide for leaning Torah, albeit not in great comfort.47
The persistent lack of clarity in resolving the issue makes it apparent that, the importance of learning Torah notwithstanding, it cannot be the only consideration in determining normative Jewish practice. Our rabbis have introduced many other factors which at times may mitigate the primacy of the mitzvah of learning Torah.
In Bava Bathra 7b, the Talmud discusses the need for building walls around a settlement. Since walls are for communal protection, all residents have to share in the cost of erecting them. However, the Gemara rules that Torah scholars are exempt from this expense, since they are protected by virtue of the Torah they learn. Can this talmudic exemption be compared to an exemption from the military draft?
Although the above statement, unlike the one in Megillah, is not aggadic - it is actually codified in the Shulchan Aruch48 - nevertheless, it is not cited by the proponents of exemption as proof for their position. On the contrary, the rabbis opposed to exempting yeshiva students seize on this statement to argue that yeshiva students themselves don't believe that the Torah shields them enough!49
When actual lives are at stake, may we rely on miracles? In 1929 at Hebron... didn't young students of the yeshiva, whose holiness shone like stars in the sky, fall before the malicious enemy? Please, did these martyrs need protection or not?... If you understand that the scholars need protection in relatively peaceful times and are exempt from building the protective walls, what consequence has this when compared to a life-and-death struggle, a war which is a mitzvah and in which all are obligated? The defense authorities ordered everyone to cover all windows as protection against shattering glass in case of an air raid. Would anyone think that some rabbis will not do so, claiming, "Rabbis do not need protection?" ...Why did rabbis leave areas under enemy fire along with the rest of the general population? Why did they not rely on this maxim?
Rav Lichtenstein, too, does not accept the dictum:
It may be stated... that such a claim (that since rabbis "don't need protection" they should be exempt form military service) raises a very serious moral issue. Can anyone whose life is not otherwise patterned after this degree of trust and bitahon argues for exemption on this ground? Is it possible to worry about one's economic future - in evident disregard of Rabbi Eliezer's statement that "whoever has bread in his basket and says 'What shall I eat tomorrow?' is but of little faith" - and yet not enter the army because one is presumably safe without it?50
No one lives in a vacuum. A person not only has to do that which is right for himself, he has to factor into his decision how his actions may affect the group. This is brought out by the N'tziv in his study of Scripture: The tribes of Gad and Reuven addressed Joshua as he prepared to commence the conquest of Canaan, urging him to be strong, and they would fight along with him. Although they had already taken as their inheritance the provinces conquered by Moshe in his lifetime, they had promised that they would fight along with the other Jews until all the land had been conquered, only then returning to settle in their own fields. Now that he was preparing for his campaign of conquest, they renewed their pledge: "Whoever rebels against your word and does not heed what you say, whatever you command, will be put to death. Only, be strong and persevere."
Isn't that somewhat excessive? Should a person really be put to death for failure to obey Joshua? But the N'tziv explains that the tribes of Reuven and Gad realized that if they failed to join the impending battles, it would have a devastating effect on the rest of the Jews. Perhaps these others would be overcome by fear or panic when they saw part of the army dropping out. Thus, had the two tribes failed to live up to their commitment, they might have fatally weakened the people's resolve. Therefore "be strong and persevere," kill anyone who stands in your way, if that is necessary to strengthen the nation.
Also concerned with the effect exemption of a large group may have on others. Rav Waldenberg cites the Abarbanel51 that Deborah joined in the battle against Sisera, even though she didn't want to, only to placate Barak, the general of the troops. She did it only "because the Jews then were scared and frightened of the army of Sisera and his chariots and his hordes... [and she went along] in order to strengthen the hearts of the Jewish people when they would see the Prophetess with them." (Note that Deborah may even have been transgressing a biblical command - it is forbidden for women to wear armor - in order to raise the spirits of the soldiers.)
Perhaps this factor, too, has to be taken into account - the effect it has on the soldiers and on their families when certain people, for whatever reason, do not share in the common burden and are exempt from the danger and the sacrifice it entails.
Possibly the greatest sin in Judaism is Chilul Hashem - desecration of the Name, which includes anything which lessens the respect and devotion of people for G-d and His Torah. Every sin can be forgiven, other than this one.52 On the other hand, the very greatest act a person can ever hope to achieve is Kiddush Hashem, the exact opposite of Chilul Hashem. Most mitzvot of the Torah can be violated in order to effect a Kiddush Hashem, the Book of Samuel (II 21:3-10) records a dreadful vengeance that the Gibeonites exacted from the Jewish people: God had sent a plague upon the Jews to punish them for King Saul's having put some Gibeonites to death. The only strategem which would placate the Gibeonites and halt the plague was to kill a number of King Saul's descendants, which King David reluctantly agreed to do, at the instruction of the Prophet. But then, instead of burying them immediately as Jewish law requires, the bodies were left hanging on trees for months. How could he allow this to happen? The Gamara answers:
It is better that a letter should be eradicated from the Torah so that the name of Heaven will be sanctified in public. For passersby would ask, "What is the nature of those men [hanging]? [and they would be told] "they are sons of the king," "and what did they do [to warrant such a horrible punishment]?" "They violated the rights of aliens" [and then the passersby would exclaim] "Certainly there can be no nation more worthy for us to become attached to than this one, for if this is how they treat princes [who did wrong to foreigners - i.e., the Gibeonites] how much more so will they be strict with ordinary people!"53
This is the greatest Kiddush Hashem - when people seeing our deeds are overcome with awe and respect for the justice and goodness of our behavior, which is predicated on the Torah's teachings. Kiddush Hashemremains the highest priority of the Jew. Even today, Rabbi Shear Yashuv Cohen warns, before engaging in a war or military foray, we should stop to consider whether the nations of the world might judge our deeds negatively, thus causing a Chilul Hashem.
So, too, Rabbi David Tzvi Hoffman relies heavily on the prohibition of Chilul Hashem when considering whether a Jew living in a gentile country may evade the draft. His ruling is that even if the Jew knows that service in the army will inevitably entail desecration of Shabbat and other laws, he is still not permitted to avoid his civic duty.
Is it valid to apply this line of reasoning to the question of yeshiva students serving in the Israeli army? Some say yes, while others disagree. After all, one can only cause a Chilul Hashem if he is doing something wrong. But if a person acts in accordance with what is right and yet others react negatively, it can be argued that that is not his responsibility.54 However, this disagrees with what the Gemara expressly says - that a person has to be careful about the impression he is making, even when he is doing the right thing.55 others maintain that such a delicate evaluation can be made only by a person of great stature and importance in the community, not by ordinary people, who need be concerned primarily that their behavior is in itself unimpeachable.
It is difficult to pin down an answer to the question whether the Orthodox Yeshiva community has to be concerned that the policy which exempts their sons form army duty is well-received by the secular Israeli public. For those who see the policy as arousing much animosity, resentment, and contempt for those who study Torah, it is indeed a terrible Chilul Hashem. For those with a different vantage point, the fact that their policy is subject to misinterpretation should not deter people dedicated to learning Torah from following this pursuit. Just because people do not appreciate their dedication, should that stop the inspired individuals from dedicating their lives to a high ideal?
It is easy to see that both intellectual and emotional arguments can be raised for either point of view, as well as halachic ones. But one truth is indisputable - when the nations of the world see Jews fighting among themselves, that is surely a Chilul Hashem.56
The controversy about drafting yeshiva men for the army has roiled Israeli society for decades. Partly in response to the strong emotions engendered by the situation, there arose the institution of the Hesder yeshiva, where young men alternate months of learning Torah with months of active duty in the army. Many sincerely dedicated Torah students feel very strongly that, living in Israel, they want to participate in the defense of their country and their lives. At the same time, they realize that if they leave their yeshiva for two years while they serve in the army, the chances are slim that many of them will return. The Hesder yeshiva seeks to bridge the gap and indeed fills a very important role. The proponents of the Hesder yeshiva, however, do not see themselves as a compromise but rather as the right way to go.
We advocate it because we are convinced that, given our circumstances - would that they were better - military service is a mitzvah, and a most important one at that. Without impugning the patriotism or ethical posture of those who think otherwise, we feel that for the overwhelming majority of b'nei Torah, defense is a moral imperative.57
There are any number of good reasons for the creation of the Hesder system. First of all, it is considered important that during the formative post-high school years, the ben torah should be firmly rooted in a Torah climate. Furthermore, many sincerely religious people consider it their ethical and halachic imperative to defend the State of Israel, even if only for the reason that they themselves live there. Lastly, in view of the military needs of this small nation, every able-bodied person should be trained for defense, even if only as part of the reserves.58
The Hesder yeshiva is grounded in necessity, not in choice. It does not glorify militarism, but views army training as the necessary response to the critical political and military situation of the Jewish state.
Although this might seem like the perfect solution to the dilemma many in the yeshiva world do not agree. They argue, and many scholars in other fields would agree, that there is nothing equivalent to a person's being able to devote himself entirely only to study, without interruption or distraction. Our rabbis observed in their pithy style: "The Torah cannot be acquired except by someone who is ready to sacrifice his entire existence for it".59
Since the Torah specifically did not want certain people to go to war, does that mean that a person in the exempt category is not permitted to volunteer? Could an individual kohen or levi choose to serve in the army? Is exemption a privilege or a disqualification?
Rav Waldenberg cites numerous sources which, in his view, adequately prove that any individual Levite who was so moved was able to serve in the armed forces. His opinion is in agreement with that of the author of Birkei Yosef60 who contends that although exempt, one may indeed volunteer. He cites a text in Kiddushin which questions whether a kohen who encountered a captive woman in battle would be permitted to marry her (under the conditions laid out in the Torah, in perashat ki teitzeh). How could a kohen even be in a position to take an enemy woman captive, if he could not have volunteered to fight? Obviously, counters Birkei Yosef, he could enlist.61
The question of volunteering is quite a serious one - may a person put himself in a life-threatening situation if he doesn't have to?62 Rav Waldenberg cites a novel proof63 that if a person feels his death may bring salvation to the entire group, it is permitted: The Gemara in Ta'anit 10b praises Lulianus and Pappus, who gave their lives rather than permit a wholesale slaughter of the Jewish community. We know, says Rav Waldenberg, that a person who dies unnecessarily is considered equivalent to a suicide, culpable for his own murder.64 Yet the Gemara praises the two who sacrificed themselves. We must conclude that dying to save many others is a heroic and highly commendable act.
What we have said so far applies almost entirely to the situation of a Jew serving in a Jewish army. In a final note, let us turn to the question of a Jew's serving in a non-Jewish army. This is a relatively modern question, for until they were given civil equality, usually some time in the 19th century, Jews were generally not allowed to serve in the army. The Chafetz Chaim wrote a small monograph, Machane Yisrael, addressed to those who were called upon to serve, in which he seeks above all else to strengthen the Jewish commitment of those who are about to undertake this difficult assignment.
Forced to follow the directives of his non-Jewish superiors, the Jew, who will be unable to observe many mitzvot, is nevertheless encouraged to do as much as he can and always to continue to struggle to observe the Torah. The Chafetz Chaim encourages and prods the soldier, no matter how difficult his situation, to trust in G-d. In a homily, he shows that when a person gives another person a gift, to hold for him, if the recipient misuses the gift, the donor will want to take it back. Not so with the Ribono shel Olam; even if a person misuses the precious gift of life, G-d does not want to take it back.65 At all times, concludes the Chafetz Chaim, remember that you are still the child of G-d.66 The Chafetz Chaim advises the soldier not to look for chumrot (stringent interpretations of the Jewish law);67 on the other hand, he urges the soldier not to worry if gentiles make fun of his Jewish practices,68 and to continue to study Torah whenever possible. He further reminds the soldiers that every mitzvah is important,70 and that his yetzer hora will continually try to impede his performance of mitzvot.71. He urges the soldier to be willing to expend considerable sums in order to return home as often as possible.72 And if he finds that his uniform contains shatnes, he must make every effort to correct it as soon as possible.73
If all these precautions are necessary in a gentile army, how much more so do they apply in a Jewish one!
1. Jerusalem Post, 9/12/88
2. Techumin 4 p. 125.
3. For a complete discussion of the question whether there is any obligation for a person to place himself in danger in order to save another person from certain death, see Choshen Mishpat 426 and Aruch Hashulchan Pitchei Teshuva, ibid.
For a discussion if there is an obligation to put oneself in danger to save the Jewish community, see Mishnah Makkot 11a, Or Sameach Hilchot Rotzeach 7-8, Meshech Chochma Perashat Shemot, Mishpat Kohen of Rav Kook, 142-144. See also Rav Shlomo Zevin in Talmud Torah Vesherut Latzava.
4. Divrei Hayammim I, 22. See also Rav Shlomo Zevin in Talmud Torah Vesherut Latzava.
5. For the Jewish position on non-Jews engaging in war, see Teshuvot Chatam Sofer 14-19, Devar Avraham 1-11, and Zera Avraham 24.
6. Gur Aryeh, Bereishit 34:13. See Hilchot Medina II, Shaar I (written by Rav Eliezer Waldenberg, author of Tzitz Eliezer) 1; see Hilchot Medinah III, Shaar 4, for an analysis of the role of the minority and majority.
7. Devarim 20:10-11.
8. Bereishit 32:9. See Torah Umedinah 8-7, Mishpat Kohen 143, and Tzitz Eliezer 12-57 for other differences that apply during a war.
9. Ha'amek Davar Bereishit 9-5, Devarim 20-8; for a discussion to whom property captured in war belongs, see Or Hahalacha p. 18.
10. Or Hachayim 329:6. See Or Sameach, Deut. 5-5, who uses the same argument in favor of giving Shimshon to the Philistines even though he was not liable to be put to death.
11. Rambam, Melachim 5-1. See also Rambam and Ramban end of Hosafot to Taaseh, that the Urim Vetumim are also necessary for all wars.
12. Mishnah Sotah 44b.
13. Melachim 5-1.
14. We do not mean that the attack has started and the war is on, for then all agree this is a milchemet mitzvah; see Meiri, Sotah 43b; also Aruch Hashulchan, He'atid, Hilchot Melachim 74-4. See however, Chazon Ish Or Hachaim 114-2, who does in fact say "who has already come against them."
15. Jerusalem Talmud Eruvim 1-10.
16. Megillah 3a. See Machane Yisrael, Chapters 12 and 14.
17. Tzitz Eliezer 3-9, p. 42.
18. Machane Yisrael, chapters 2 and 3.
19. Ibid. p. 165.
20. Ibid. p. 30.
21. Ramban, Perashat Ki Teizei. However, see Sefer Hachinuch 566 and also Jerusalem Talmud, Shabbat 2-6.
22. Devarim 23:10; also Shabbat 64.
23. Hachayil Vehachosen p. 99, who interprets the verse (Devarim 6-17) "shamor tishmerun" (you shall surely observe the mitzvot of Hashem) as a directive that in times of war extra care must be taken in the performance of mitzvot. The same is found on p. 160 (Devarim 23-15) "Because the Lord your God walks in the midst of your camp to save you, and your camp must be holy, no unholy thing should be seen amongst you." On p. 115, the author maintains that even what one thinks is the purpose of the war is important. One should think that he is fighting for the sake of the group or because G-d so commanded, but not because he is desirous of booty. And surely it is wrong for him to think that "my strength and the might of my hand" win the victory. See p. 89.
24. Techumin 7, p. 332.
25. Sanhedrin 42a. If not for his ancestor David's having studied Torah, Asa would not have been successful in the wars he waged.
26. Rav Waldenberg and Rav Kook.
27. Tradition, Fall 1985, p. 52. It is interesting that in the book he wrote about war, Rav Zevin does not raise this topic at all. One can only wonder why it was omitted, and then published as a separate article.
28. Bamidbar 1:49.
29. Rashbam, Bamidbar 1-39. However, see Hilchot Medinah, II, Perek 3, #2, and Sifre to Matot 31:4. We have not included as a source for this position the statement found in Sifre to perashat Matot: "le-hotzi shevet levi," since the correctness of the text is questionable. Some would read "le-havi shevet levi" which, of course, renders the exact opposite meaning. Moreover, even if the first version, excluding the tribe of Levi, is correct, it can be argued that this directive applies only to the war against Midian referred to in the biblical text and cannot be expanded to apply to all war situations.
30. Rambam, Hilchot Shemittah 6:2 and 13:12
31. See Hilchot Medinah II, Shaar 3, Perek 4, for a source for the Rambam and whether this applies to milchemet mitzvah or only to a milchemet reshut.
32. See Hilchot Medinah II, page 60, #7. See the exchange between Rav Waldenberg and Rav Schlesinger in Hilchot Medinah III, perek 6.
33. Tzitz Eliezer II, 24, rules that a person who is exempt from taxes because of his status, nevertheless retains all the rights of a paying member of society.
34. Rambam Shabbat 2-23. Tzitz Eliezer 8, 3, par. 9, #3 and 4.
35. This ruling is not universally accepted; see Kol Mevaser 1-47, and Chazon Ish Or Hachaim, Eruvim Lekutin 6,3, who disagrees on this point.
36. Chazon Ish, Avoda Zara 23:3.
37. Hachayil Vehachosen p. 74-5.
38. Tradition, Fall 1981, p. 53.
39. Aharon Lichtenstein, Tradition, Fall 1985, p. 212. See his footnote 30.
40. She'elot Uteshuvot #342.
41. Yoreh Deah 243 #7, Hagahot Maimuni; Tefilla 12 #7
42. Ibid. 243-2. See Keter Ephraim, Tel Aviv 5727, pp. 172-4. Tzitz Eliezer II 25.
43. Tradition, Fall 1981.
44. Shulchan Aruch YD 251-14.
45. Miluim Y.D. Ibid.
47. Techumin 7, p. 339. Also Techumin I, p. 371.
48. Yoreh Deah 243-2. The Chatam Sofer Bava Bathra would apply the exemption only to situations where the protection is from theft, however, when lives are in danger, this principle would not be relevant.
49. Tradition Fall 1985, p. 54. See footnote 25, Techumin I, p. 371.
50. Tradition, Fall 1981, p. 209.
51. Hilchot Medinah II, p. 70.
52. Yoma 87a.
53. Yevamot 79a.
54. Techumin 7, p. 333.
55. Yoma 87a.
56. Machane Yisrael p. 197.
57. Tradition, 1981 p. 202. See letter of Rav Shach, Part IV, #320, where he writes that the Hesder yeshivas have diminished the stature and scope of the yeshiva.
59. Berachot 43.
60. Even Haezer #6, quoted by Rav Zevin, Or Hahalacha p. 28.
61. A disagreement exists between the view of Pirkei Avot, chapter 5, (Machzor Vitry) and Siftei Chachamim to Bamidbar 4.
62. Sotah 44b. In Kol Mevaser, Rabbi Roth writes "I was very much surprised about this, for where do we find that we force someone to endanger his life for the sake of a mitzvah?
63. Sheiltot, Perashat Ve'etchanan 142. The N'tziv quotes other instances where this approach is applicable.
64. Hilchot Medinah, II, perek 5. Rav Waldenberg offers many proofs that the concept is already found in the writings of the Rishonim. The same conclusion is found in Mishpat Kohen Responsum 142-4, Note 31; inTechumin p. 162; Shevut Yaakov II 117; Nodah Biyehudah Tanina Yoreh Deah 161.
65. Even if volunteering is permitted for the Jewish army, there is some debate whether one may opt to join a non-Jewish militia. In this century, R. David Hoffman (Or Hachaim 42-43) considered it the obligation of every citizen, including Jews, to participate in the army. Even if one can get deferment for 2 or 3 years, R. Hoffman opposes it and says one should enlist right away.
In a handbook for army chaplains Responsa to Chaplains, published by the Jewish Welfare Board, p. 19, the Chafetz Chaim is quoted as writing in Machane Yisrael that "it is a great sin to evade army service." However, this writer was not able to find that statement anywhere in the book of the Chafetz Chaim. Not only that, but at the end of the "Introduction," the Chafetz Chaim writes that only if one's life is in danger may he transgress the Sabbath.
On the other hand, Imrei Eish (Responsum 52) was quite comfortable with the prevalent custom in Eastern Europe (and in America) during the nineteenth century, of hiring someone to serve in the army in one's stead. Mostposkim (See Nodah Biyehudah Tanina, YD, 74) hold that once a person has been drafted, no substitute should be sent, and surely no Jewish committee should ever be set up to decide which Jewish boys are t be conscripted. The only method they approve is a lottery.
Pitchei Teshuva Y.D. 157-13. This, too, is contrary to the JWB, who maintain that since military service is a mitzvah, recruitment to the chaplaincy is perfectly acceptable.
66. Machane Yisrael, "Introduction."
67. Ibid p. 10.
68. Ibid, and also in "introduction."
69. Ibid, p. 57.
70. Ibid, Chapter 12.
71. Ibid, chapter 18.
73. Ibid, p. 167.