by Aron White
Much has been written within the National Religious and Modern Orthodox communities about whether there is a halachic obligation to serve in the Israeli army. I wish to present a new halachic basis for serving in the Israeli army based on the Talmud’s rules of citizenship. There are two conclusions from my analysis of the sugya:
- There is a halachic obligation on all people living in Israel to serve in the Israeli army.
- The service for all people should be of equal length.
I am not a halachic authority, but I believe the arguments I will make are unambiguous and my conclusions are correct. Nevertheless, I feel responsible to profess my lack of credentials in the field of halachic rulings.
2. Halachic Arguments to Date
There have been two central halachic arguments advanced as a basis for the obligation to serve in the Israeli Army. The first and most obvious argument is that the current situation in Israel constitutes a Milchemes Mitzva, an obligatory war in which everybody is required to fight. For example, this argument can be found in Melumdei Milchama (page 3) by Rav Nachum Rabinowitz as well as in Rav Zevin’s letter condemning yeshivos who told their students not to serve in the army.
A second argument is advanced by Rav Hershel Schachter. 1)For example, he develops this argument in the first few minutes of this shiur. Based on Sanhedrin (20b), he says that a government has the right to draft soldiers to its army, and thus one is obligated to listen to a government order to serve in the army.
Naturally, there are also numerous hashkafic and philosophical considerations that come into play. A desire to impact upon and integrate within broader Israeli society, the ability to influence the religious nature of Israeli culture, and the Derech Eretz and Kiddush Hashem concerns of refraining from servicee are all hashkafic motivations to serve in the army. However, this essay will focus primarily on a halachic argument that I believe has not merited due attention.
3. The Rules of “Bnei Ha’Ir”
The Mishna states :“Members of a city can force each other to build a wall, gate and a lock for the city” (Bava Basra 1:5). This Mishna teaches that members of a city are obligated to contribute monetarily towards the security needs of the city.
The main area of discussion in the Gemara and later Rishonim is how to divide the costs of the security. For example, do the wealthy have to pay more than the poor?
Can we find certain sectors of society who are at greater risk, and does that impact upon the amount they must contribute? What becomes clear, both from the Gemara, and later sources, is that the basis for the amount one must contribute corresponds to the benefit one obtains from that service, as I will now show from a number of examples.
- The Shulchan Aruch (Choshen Mishpat 163:3), based on Bava Basra 7b, says that in a city at peace, those living closest to the city’s border must contribute more to the cost of building the city’s wall than those living in the centre of the city. Rashi (B.B. ad loc. sv. kiruv batim) and the Sma (S.A. ad loc. sv. kol hasamuch) explain that this is because they have a greater need for the wall. In a time of peace, they need a wall because of sporadic robbery by intruders. In such a case, those closest to the wall are most vulnerable.
- Tosfos (B.B. ad loc. sv. lefi kiruv), as well as many other Rishonim quoted in the Shulchan Aruch, take this idea of need-based payment a step further. They say that considering proximity in determining the required contributions, we also need to factor in the relative wealth of the different people. A wealthy person has more to lose to an intruder than a poor person. In fact, a really poor person, even living next to the edge of the city, has nothing to lose at all, so should not really have to pay anything. Tosfos say that we must assess the amount that one needs to contribute based on both the risk of theft due to proximity and the amount that the person has to lose.
- The Shulchan Aruch (ad loc.) goes on to discuss a case where there is a threat of invasion. In many cases, an invading king will only be interested in taking all the property of a town and gaining more subjects, not killing residents. In such a case people must contribute to the security needs based solely on wealth. In the scenario of an invasion, there is no difference between those who are near or far from the city edge, as the whole city is taken over. However, the rich people have more to lose, so they must contribute more to the security needs.
- In a case where there is a chance the invading king will also kill residents, there is a double threat. There is the threat that the king will take away property, and there is also the threat that he will kill people. Concerning the first threat, the rich stand to lose more than the poor. However, with regards to the second threat, everyone requires protection of their life equally. Thus we split the tax burden based on both wealth and the number of people in the household. The threat to wealth requires a wealth based split. The threat to life requires that every person contributes an equal amount.(Shulchan Aruch 163:3 s.v. aval bizman).
- The Gemara (Bava Basra 7b) states that a Talmid Chacham is exempt from paying for the walls of a city because he does not require protection. However, he does need to contribute to the upkeep of the city’s roads and streets (Bava Basra 8a; S.A. Choshen Mishpat 163:4). His contribution is based on need – he does not need protection but requires roads and streets, so he must contribute to the latter and not the former.
Thus it is clear that one’s obligation to contribute to the security needs of a city is based on how much one needs that service. When there is fear of property damage, then proximity and wealth define one’s obligation. When there is risk to life from an invading army, everyone is at equal risk, so all must contribute equally.
4. Extending the Obligation of Bnei Ha’Ir from Monetary to Service Obligations
One can adduce from the Gemara that the obligation to contribute to the needs of the city goes beyond monetary obligation, that one is obligated to provide physical service as well, if that is necessary. The Gemara states that a Talmid Chacham must contribute funds to build and maintain the roads, but he does not need to personally labour on the roads, as it is derogatory to him. However, it is clear that those who are not Talmidei Chachamim may be forced to provide physical service to build the roads.
Furthermore, the Rashba (Tshuvos HaRashba 3:382) was asked about how to divide guard duty in a city. In his responsum, he says that it should be split up based on needs, utilising the same principles as we mentioned above about monetary payments.
5. Implication for the Israeli Army
In Israel we face a situation in which there is a threat not only to property, but primarily to human life. This threat is equal – acts of terror have been committed all over the country, against all sectors of the population. In a situation where there is an equal threat to life, there is a halachic obligation for everyone to contribute service equally to defend against that threat. In fact, our situation very closely resembles the Rashba’s case of guard duty; we need to do guard duty to protect from a threat against life, and therefore everyone needs to contribute equally.
6. The Torah Scholar Exemption
I mentioned earlier the exemption of a Talmid Chacham based on the fact he has no security needs. This could potentially be a basis for saying that yeshiva students are not obligated to contribute to the security needs of their place. The important distinction that must be made is the difference between a Talmid Chacham and one who is studying Torah. The Gemara does not say that one can fulfil his security obligation by learning Torah. Rather, a Talmid Chacham has no security needs, and has no security obligation to fulfil. However, Talmud Torah is not a way of fulfilling one’s security obligation. Thus the issue is not whether a person is “in learning” or not, but whether he is a Talmid Chacham or not. Here is how the Rema defines who is a Talmid Chacham who has no security needs –
….[He] is known in his generation as a Talmid Chacham, who knows to discuss and understand (topics from) most places in Shas, its commentaries and the commentaries of the Geonim, and Torah is his permanent occupation. (Yoreh Deah 243:2)
There is almost no-one who qualifies for this bracket at age 18, or even 25. How many people are “known in their generation” asTalmidei Chachamim at that age? How many people can discuss sugyos in most places in Shas, and be “holding” in Rashi, Tosfos and major Rishonim in their twenties (and frankly, at any age)? Thus, most Yeshiva students do not qualify as a Talmid Chacham, and thus require protection. One who is not a Talmid Chacham has an equal security need as everyone else, and must serve the same amount as everyone else.
Some claim that even though many Yeshiva students are not Talmidei Chachamim, and therefore must contribute to the security needs, they are fulfilling this requirement by studying Torah; the merit of their study protects the Jewish people (see for example, Makkos 10b). There are two responses to this argument. First, let us analyse the case of a Talmid Chacham. The Gemara states he is exempt from providing security because he does not need protection. However, he must physically contribute towards the building of roads. By the logic of the challenge presented above, surely the learning of the Talmid Chacham should be his communal contribution to the success of the community’s efforts? There is nowhere a statement that the learning of Torah fulfils his obligations to the community. A Talmid Chacham does not need to contribute to security. However, when he needs to contribute, such as in the case of building roads, he must contribute physically. The same is true of someone who is not a Talmid Chacham – the obligations he has to the community, including security obligations, must be fulfilled physically.
Additionally, the claim seems to blur the lines between Halacha and Hashkafa. Does one fulfil the mitzva of Hachnasas Orchim, hosting guests, by learning in the merit that homeless people should find a place to eat? Does one fulfil the mitzva of Simchas Chassan VeKalla, making a bride and groom happy on their wedding day, by learning in the merit they should have a wonderful day? Does one fulfil his obligation to marry off his children by learning in their merit? When one has a chovas hagavra, a personal halachic obligation, upon him, he is obligated to perform specific acts. The spiritual reasons for the success or failure of those actions cannot be neglected, but halachically those are not a replacement for those actions. Talmud Torah certainly contributes towards the community and its success, but it is never a halachic basis for absolving individuals of their other halachic obligations.
7. Some Hashkafic Points Regarding this Paradigm
The following remarks are secondary to my central argument, but put this discussion in its broader context.
I think there are a number of advantages of using this halachic paradigm. It seems odd to talk about advantages of a halachic position. Halacha is a fact and an obligation –“Mitzvos Lav Lihanos Nitnu”. Nevertheless, whilst we adopt a halachic position due to its correctness and truth, I think it is possible to talk about three advantages of this paradigm.
First, this paradigm has a far more social bent than other approaches. Saying that one is obligated to serve in a milchemes mitzva says nothing about the length of service. Indeed, many who will passionately talk about the great mitzva of serving in the army as a milchemes mitzva will serve for only a few months. This halachic paradigm is more socially orientated – frankly, it is Shivyon BaNetel, equality of the burden, in a halachic form. It thus allows us to give halachic expression to what may previously have seemed as “mere” Derech Eretz, the need to share the burden equally.
Additionally, there is another advantage of having a different model instead of milchemes mitzva as our basis for service. The language of milchemes mitzva allows for potential extremist tendencies. I am certainly not downplaying the very real threat that Israel faces from Gaza, Judea and Samaria, Syria, Lebanon and Iran, as well as the instability due to political changes in Egypt. However, using the term war, encouraging people to partake in the war of a mitzva, has more potential to lead to extremism than the more innocuous “guard duty” or “security needs of the town”. War, to many people, implies a clear two sides, involving an “us” versus “them”. Security needs implies there is a threat we must defend against. War implies killing the other person. Security needs implies defending through arrest, deterrence and only if need be, killing. The language of a societal need rather than war leaves less room for extremism.
Finally, this approach has a benefit in terms of framing the Religious Zionist outlook. The question regarding the place of Israel in Jewish thought and practice since the late 19th century has been the following – Can we overcome the tension between the ancient tradition of Judaism and the radically new environment in which Judaism finds itself? Secular Zionism said it couldn’t. Orthodox Non-Zionism said it wouldn’t. However, even the community that has said, as its banner, that we can and must overcome this tension continues to face numerous challenges in balancing the new with the old. A combination of many factors have served to make it difficult for many in Religious Zionist circles to see themselves as a continuation of the Jewish tradition, particularly the exilic Jewish tradition of the past two millennia.
The centrality of land, army and politics to the Religious Zionist worldview has no parallel in the last 1800 years of Jewish experience. Additionally, the focus on Eretz Yisrael and redemption has led many to see the experiences of the Jews in the Diaspora, both past and present, as part of a no longer relevant “Galut”. Finally, the unique blend of poetry and mysticism that is unique to the writing of Rav Kook has served to create a new language in which the national religious community frames its worldview. One would be hard pressed to find the words such as “Leumit”, phrases such as “Kismei HaKultura HaElilit” and books with names such as “Orot HaTechiya” in Jewish discourse up until Rav Kook. The terms, style and language are different than earlier sefarim, which enhances the break with the past.
On the one hand, it is natural and necessary to recognise that Israel is different than Galus. Yet it is also important to see ourselves, historically, socially and halachically, as directly continuing the Jewish experience of the last 2000 years. Typically, discussion of the Israeli army will end up linking us and our destinies with those of Yehoshua, the Maccabees and maybe Bar Kochba. Clearly, defending the state of Israel is not the same as defending a city in Provence or Spain. However, discussing the army as a continuation of how Jews lived in the interim eighteen hundred years since Bar Kochba is a welcome and important addition to our conceptual framework. It helps us apply the rules of Judaism in light of our new context, whilst ensuring a continuing connection to our past.
Based on the obligation found in Bava Basra and in later Rishonim and Poskim, there is an equal obligation on all people living in Israel to serve in the Israeli army. Whilst there may be a Hora’as Sha’a, an emergency measure, requiring some to have shorter services based on the need to cultivate Rabbinic leadership and the potential spiritual hazards in the army, it is important to know the basic halachic starting point. Based on Chazal‘s rules of citizenship, it seems clear that everyone in Israel must serve equal time in the Israeli army.
I will stress again a point I made at the beginning – I am not a halachic authority. However, the halachic arguments seem to be clear. I do not feel I have forced the meaning, misrepresented or been selective about the halachic material. However, with all that taken into account, I encourage constructive criticism of my arguments. I hope that this article will add a new a facet to our understanding of the obligation to serve in the Israeli army.
Endnotes [ + ]
|1.||↑||For example, he develops this argument in the first few minutes of this shiur.|