12
Judaism and the Obligation to Die for the State
GEOFFREY B. LEVEY
I
Dying in the state’s behalf, and at its request, is a matter that one might expect to be of obvious concern to the Jews throughout their history. Twice in bygone eras (roughly 1000–586 B.C.E. and 140–63 B.C.E.), they have been ensconced in their own sovereign land faced with preserving that sovereignty against hostile neighbors and ambitious empires. Elsewhere, in the diaspora, they have been forced to define their relations and responsibilities to the host powers under whose authority they have variously been classed as aliens, residents, and citizens. And now, again, they are reestablished in their own sovereign state of Israel, in whose short history the call to arms has been unfortunately all too frequent. Yet the obligation to die for the state is not a question that enjoys special treatment or ready resolution in Jewish sources. In part, this is because the Jewish tradition is not in nature a philosophical tradition, given to abstract systematic treatises in the manner of the ancient Greeks, to whom Western thought has ever since been indebted. It is, rather, a legal tradition, given over to the interpretation and application of legal minutiae in keeping with divine edict. Still, it would be wrong to conclude that Judaism and the Jewish tradition lack a coherent position on there being (or not being) an obligation to die for the state. Such, anyway, is what I wish to argue in this essay.
But I also want to argue that the Jewish approach to the question of dying for the state has wider importance for political theory. Classic Western treatments of the question of the obligation to die have typically been caught in an enduring dilemma. On the one hand, as has been said, any theory that, like Hobbes’s, Locke’s, and Kant’s, begins with the absolute independence of freely willing individuals and goes on to treat politics and the state as instrumental to the achievement of individual purposes would seem incapable of justifying an obligation upon individuals to lay down their lives for the state.1 So, too, would it seem incapable of providing a sense of active community. On the other hand, any theory that, like Rousseau’s and Hegel’s, begins with a notion of the state as an ethical institution representing shared values and common sacrifices over and above individual interests, and that goes on perhaps to regard the significance of war to be precisely that it enables the primacy of the state to be reasserted over private concerns, cannot hope, in turn, to preserve the individual’s liberty to safeguard his life and property.2 The Jewish approach to the question of dying for the state, I will contend, demonstrates one way this dilemma may be overcome.
At once, however, a possible confusion needs to be averted. It has often been noted that the concept of the state is problematical, if not alien, in relation to classical forms of Jewish government. Thus, Roland de Vaux, in his masterful study of ancient Israelite institutions, concludes:
Clearly we cannot speak of one Israelite idea of the State. The federation of the Twelve Tribes, the kingship of Saul, that of David and Solomon, the kingdoms of Israel and Judah, the postexilic community, all these are so many different regimes. We may even go further and say that there never was any Israelite idea of the State.3
It may appear, therefore, that the very question of whether there is an obligation to die for the state according to and within Jewish tradition is ill-conceived. One, of course, may still want to inquire as to how Jews faced this question as communities in the diaspora, under foreign rule. But as regards how they did so under their own sovereignty, so goes the argument, the answer ought to be plain: there is no question of an obligation to die for the state in classical Jewish thought because there is no idea of the state governing classical Jewish life.
Now, the confusion here consists in the semantic use of the term “state.” For in asking whether there can be an obligation to die for the state, the issue is not what constitutes a coherent conception or practice of statehood. The issue is whether one can be bound to sacrifice one’s life for the security and well-being of any broad and inclusive political association of which one is a part because the political authority decrees it. That is, at stake is the nature and extent of individual obligation to the broader social unit or body politic. It is in this sense, then, that the convenient phrase “dying for the state” may be applied to the various regimes (as de Vaux puts it) characteristic of ancient Israel and Jewish self-government.
The precise nature and extent of an individual’s obligation to the state may in turn, of course, depend upon the considered nature of the state itself. This is the approach characteristic of Western theorizing about the problem of political dying.4 By being (or not being) obligated to die for the state, it is meant that one is (or is not) bound by the state’s general and acclaimed end or purpose, the act of its foundation or the relationship to it among its members. Hobbes, for example, asserts the end of the state to be nothing else than the security and well-being of the individual, which, indeed, constitutes the individual’s sole reason for contracting to form the state, and enthrone Leviathan, in the first place. For Hobbes, therefore, political obligation vanishes at the point at which an individual’s security becomes compromised: there can be no obligation to die for the state.5
Rousseau, too, ultimately determines the case for the obligation to die for the state upon consideration of the state’s basic purpose—though for him, unlike Hobbes, there is an obligation to die, since the state represents a shared moral life from which each citizen gains, and therefore owes his own. But Rousseau also suggests political dying to be obligatory in terms of the act of the state’s foundation. The social contract includes, as it were, a “willingness to die” clause: “He who wishes to preserve his life at others’ expense,” states Rousseau, “should also, when it is necessary, be ready to give it up for their sake . . . and when the prince says to him: ‘it is expedient for the State that you should die,’ he ought to die, because it is only on that condition that he has been living in security up to the present.”6
Again, Plato, in the trial of Socrates, suggests an additional reason, beyond the end and foundation of the state, generating an obligation to die. What leads Socrates to believe in the rightfulness of his drinking of the hemlock, as sentenced, is his long-standing acceptance of the state and its laws as expressed by his public commitments and pro-longed participation.7
In classic Western treatments, then, the question of there being an obligation to die for the state typically turns upon a particular political theory. Now, this marks the point of departure for the Jewish approach to dying for the state. For in Judaism, one’s obligations to the social compact, like one’s obligations generally, are determined not according to political relations or some elaborated theory of the state but according to laws understood as divine commandments, or mitzvoth. It is true that these commandments became binding for the Jews after they entered into a bilateral covenant with God, a founding act of consent resembling at least one of the ways Western theorists attempt to ground political obligation.8 It may even be said that, because Jewish tradition understands the Sinaitic covenant as historical and literal (as it does the covenants of Abraham and David), the ancient Jewish commonwealths provide a more convincing case of political obligation than do the so-called liberal democratic states, for which liberal theorists have found it necessary to invoke the fiction of a social contract.9
Then, too, the similarities do not end with the founding act of con-sent. They also relate to the (problematical) fact that the Sinaitic commandments are undertaken by a particular community at a particular time and are yet considered obligatory for all who are born into the covenantal community. For there are commentaries in scripture and elsewhere that seek to explain how succeeding generations can be bound to the covenant that very much resemble the modern liberal theories of tacit and hypothetical consent.10 But for all the similarities, parallels, and historical connections, there is one difference unequivocally separating the Jewish and Western theoretical approaches to the issue of obligations to the body politic. The agents to whom consent is respectively rendered by the people in social contracts and in the biblical covenants are of completely different orders.
The “social contract” is generally formulated by political theorists to be an unwritten agreement among all contracting persons creating a sovereign. Consent, in this case, is rendered to political authority, and thus the institution of the state is central to the whole series of relation-ships binding citizen to sovereign and sovereign to citizen. The bilateral covenant at Sinai, on the other hand, is between a people, Israel, and the sovereign and creator of all things, God. In Judaism, if consent is meaningfully rendered at all, it is rendered to divine authority. The institution of the (Jewish) state, far from being the source of, and basis for, its members’ obligations, is according to Judaism, merely a necessary instrument in the fulfillment of obligations established else-where. 11 This fact, moreover, helps explain de Vaux’s observation, cited above, that there never was any Israelite concept of the state but only a series of regimes governing Jewish collective existence. It is conformity to God’s commandments that is the measure of a Jew’s obligations and not any given political institution, structure, or arrangement.
The question of dying for the state in Jewish tradition is not therefore the question of political obligation it is for so many classic Western thinkers. There is no attempt in Judaism to ask (or to answer) in the abstract whether there can be an obligation to die for the state at all, under any circumstances. In Judaism, dying for the state is instead a question of what the commandments betoken in terms of an individual’s relationship to the body politic when the supreme sacrifice may be involved.
In the remainder of this essay, I want to examine closely those commandments that are of direct relevance to the question of dying for the state. For the most part these are the commandments concerning the declaration and prosecution of wars. There are, in addition, some commandments dealing with self-sacrifice and self-defense that will re-quire some treatment in passing. All of these various precepts I will consider only in the context of the biblical Jewish commonwealths (a context that, anyway, most of them presuppose). This is not to say that the “working principles” by which Jews traditionally determined their obligations to the foreign states in which they were resident are not instructive too. Only that, because such principles necessarily depart from the experience, and hence the challenges, of an authentic Jewish polity, they are best left to separate inquiry.12
Furthermore, we recognize here that there is a difference between fighting for the state and dying for the state, especially inasmuch as the subject is war. But to note the difference is to note that nothing much is changed by it either. Being bound to fight for one’s country implies, in most cases, an unnaturally high risk of death (or, what is maybe worse, mutilation). And it is this implication and not the eventuality that is important in considering the question of ultimate obligation. Accordingly, “to fight” and “to die” will be used as synonymous expressions. It is important to recognize, too, that in Judaism, just what the commandments do indeed betoken is not always a straightforward matter. While scripture constitutes the source and foundation of Jewish ethical teaching, it is in fact the exegeses supplied in the classical rabbinic material of the Talmud and other commentaries that represent normative Judaism as such. For this reason, we will begin first with an analysis of the relevant biblical passages before trying to elucidate the Jewish approach to the question of dying for the state implicit in the classical rabbinic literature.
II
The Bible contains numerous references to the nature of the expectation associated with the call to risk one’s life in the service of communal goals.13 Especially in the premonarchic period, the common feature of biblical wars is their sacred character. God marches along with the Israelites and is considered by Israel to be not only sovereign, but guardian. Thus the sacred character of biblical war ought not to be con-fused with the modern designation of “holy war.” For, in de Vaux’s words, “it was Yahweh who fought for Israel, not Israel which fought for its God. The holy war, in Israel, was not a war of religion,” but of existence.14
Even so, it might be thought that the sacred quality of these biblical wars bore a distinct duty to participate in them. And in an important sense this is so. When the tribes of Gad and Reuben request of Moses that they be permitted to settle their cattle east of the Jordan rather than participate in the fight for Canaan, Moses rebukes them sharply: “Shall your brethren go to war, and shall ye sit here?” (Num. 32:6). He warns them that their proposed course of action would “augment the fierce anger of the Lord toward Israel” (Num. 32:14). Later, when the tribes of Gad and Reuben indicate their willingness to cross the Jordan in battle, Moses warns them that to refuse to participate in this war would be to sin against the Lord, and “be sure your sin will find you out” (Num.32:20–23).
But the effect of the sacred quality of biblical wars with respect to a duty to participate is very much a two-edged sword. The fact that God is both the legitimator of Israel’s wars and its guardian in battle meant that participation had to be infused with the requisite faith. “Fear not!” is the exhortation of God to Joshua and of Joshua to the people in the face of battle and danger (Josh. 8:1, 10:8, 25). Prior to battle against the Midianites, Gideon is commanded by God to go “Proclaim in the ears of the people, saying, Whosoever is fearful and afraid, let him return and depart early from mount Gilead” (Judg. 7:3). True, the reason God gives Gideon for this instruction is that the Israelite forces are too numerous, and hence there is a danger that in victory they shall pride themselves that “Mine own hand hath saved me” (Judg. 7:2). But it seems a mistake to see in this merely a device employed to reduce Israel’s battle strength: there is always the question why this means should be adopted, and adopted in the first instance.15
Perhaps more significant, though, is that this same emphasis on faith and consideration for the “fearful” is repeated and extended in Deuteronomy 20. Here, the sequence of events reveals dramatically the crucial regard in which a correct religious disposition is held as a condition for participating in Israel’s wars. The chapter opens with a series of restatements of the need for having faith in God.
When thou goest out to battle against thine enemies, and seest horses, and chariots, and a people more than thou, be not afraid of them: for the Lord thy God is with thee, which brought thee up out of the land of Egypt. And it shall be, when ye are come nigh unto the battle, that the priest shall approach and speak unto the people, And shall say unto them, Hear, O Israel, ye approach this day unto battle against your enemies: let not your hearts faint, fear not, and do not tremble, neither be ye terrified because of them; For the Lord your God is he that goeth with you, to fight for you against your enemies, to save you. (20:1–4)
Next is specified a number of conditions of exemption from battle. However, surprisingly, the first exemptions have nothing obviously to do with a lack of faith in God or a fear of battle. They apply to individuals who, it seems, could well be ardent believers and accomplished warriors.
And the officers shall speak unto the people, saying, What man is there that hath built a new house, and hath not dedicated it? let him go and return to his house, lest he die in the battle, and another man dedicate it. And what man is he that hath planted a vineyard, and hath not yet eaten of it? let him also go and return unto his house, lest he die in the battle, and another man eat of it. And what man is there that hath betrothed a wife, and hath not taken her? let him go and return unto his house, lest he die in the battle and another man take her. (20:5–7)
It may be that having these other unrealized concerns on one’s mind was taken to suggest that such an individual would naturally not be of the “right” religious temperament for battle. Or, more likely, it may be that against war such concerns simply represent conflicting duties and, as one commentator has put it, “a premature breach in a man’s involvement in life was explicitly prohibited.”16 Whatever the case, the final exemption, explicitly referring to the “fearful,” seems to take on extra force for having been preceded by other legitimate conditions of military exemption where any simple “crisis of faith” is not the issue. “And the officers shall speak further unto the people, and they shall say, What man is there that is fearful and fainthearted? let him go and return unto his house, lest his brethren’s heart faint as well as his heart” (20:8).
The Bible, then, displays a central tension over the question of there being a duty on the part of the Israelites to risk their own lives in bat-tle on behalf of their people. On the one hand, the sacred quality of Israel’s mission and military pursuits suggests a responsibility of “equality of sacrifice” devolving upon each individual.17 On the other, this very same sacred quality requires that the duty to fight be undertaken with “proper” faith or not be undertaken at all. Nowhere per-haps is this tension better played out in the Bible than in the Song of Deborah.
In this, one of the most poetic and dramatic of all biblical passages, there is the familiar call to arms, the familiar invocation of God as both witness and judge, the familiar and awesome pressure to plunge into battle. Yet Deborah exalts, not the fact of participation, but the fact that such participation was freely entered into. “Praise ye the Lord for the avenging of Israel, when the people willingly offered themselves” (Judg. 5:2). And again: “My heart is toward the governors of Israel, that offered themselves willingly among the people” (Judg. 5:9). But what, to bring the tension to the straining point, of those who exercise their will and opt not to fight? How shall they be judged? As independent souls due respect or as betrayers of duty? When the crunch comes, the tension is resolved by Deborah in favor of the independence of those who refrained. There is certainly the expression of reproach and regret (though nothing stronger), as de Vaux notes.18 “Why abodest thou among the sheepfolds, to hear the bleatings of the flocks?” chides Deb-orah (Judg. 5:16). But, more crucially, there is the ultimate deference to the integrity of conscience: “For the divisions of Reuben there were great searchings of heart” (Judg. 5:15–16).
On the face of it, the advent of the monarchy seems to confound this picture of “ultimate voluntarism” before any duty to risk one’s life for the commonwealth. De Vaux has, characteristically, put the problem best:
This strictly sacred character of war disappeared with the advent of the monarchy and the establishment of a professional army. It is no longer Yahweh who marches ahead of his people to fight the Wars of Yahweh, but the king who leads his people out and fights its wars (I Sam. 8:20). The combat-ants are no longer warriors who volunteer to fight, but professionals in the pay of the king, or conscripts recruited by his officials.19
The basis for the monarch being accorded these powers is found in a controversial passage in the first book of Samuel
And Samuel told all the words of the Lord unto the people that asked of him a king. And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. . . . And he will take your menservants and your maidservants, and your goodliest young men, and your asses, and put them to his work. . . . And ye shall cry out in that day because of your king which ye shall have chosen you; and the Lord will not hear you in that day. (8:10–18)
What ethical significance one attaches to these proffered royal prerogatives has tended to depend upon whether they are understood as divine dispensations, precipitated and agreed to by the people them-selves, or rather, and only, as dire prophetic warnings of the sort of despotism a monarchy invites. Each interpretation has its notable protagonists. 20 It is perhaps reasonable, therefore, to see the merit in a third (although not necessarily exclusive) alternative: the Bible reveals a basic ambivalence toward the institution of the monarchy. After all, additional to the ambiguous passage cited above, there are others both evidently favorable to it (1 Sam. 9 and 11) and suspicious of it (Hos. 7:3–7, 8:4, 13:9–11).21 And yet, to highlight the ambivalence with which the kingship is regarded in the Bible can hardly be to sustain the view that its establishment preserved the on-balance, premonarchic value on individual willingness before one’s life is put at risk doing battle. One side of the ambivalence is always that the king has the right to conscript for battle almost anyone he pleases.
The crucial consideration is not therefore the kind or degree of legitimacy that the Bible accords to the kingship. It is that the king, though he may obtain certain prerogatives (like initiating wars not necessarily part of the “Wars of Yahweh”), is nevertheless bound to abide by God’s laws. Once he sitteth upon his throne, states Deuteronomy (17:18–20), the king
. . . shall write him a copy of this law [which] he shall read therein all the days of his life: that he may learn to fear the Lord his God. . . . That his heart be not lifted up above his brethren, and that he turn not aside from the commandment, to the right hand, or to the left.
The king of Israel remains God’s agent, as do indeed all the people of Israel. It follows that even in the monarchic period respect must be ac-corded the Deuteronomic provisions exempting certain “classes” of individuals elaborated earlier. Of course, it may be argued that with the lack of sacredness associated with some of the king’s military ventures goes too the relevance of the Deuteronomic stress on having faith in God as a precondition for participation in war. Nevertheless, the further Deuteronomic concern for those who are “afraid” and “fainthearted” effectively preserves into the monarchic period the principle that individual willingness precedes being duty bound to fight.
The idea that the will to fight precedes the duty to do so is a radical one. Just how radical can be seen by reference to a contemporary political theorist. Michael Walzer has argued that “there is a crucially important sense in which the obligation to die can only be stated in the first person singular.” Moreover, Walzer insists that this is so even though it “comes dangerously near to suggesting that a man is obligated to die only if he feels or thinks himself obligated.”22 Now, there is a crucially important sense in which this is precisely what the biblical concern for the fearful and the fainthearted does represent. For the fourth ex-emption effectively makes any obligation to die for the state self-constituting. Perhaps, then, the term “exemption” is not the best way of referring to or understanding the fourth Deuteronomic provision. With it, one is not so much excused from an obligation as there is no obligation until it is personally recognized. Yet, however one conceives of the fourth Deuteronomic provision, whether as dissolving a standing obligation or as helping create one, the conclusion remains the same. As the text stands, if the Bible advances any obligations to die for the state, they are “loose” obligations indeed.23
III
The significance of the Deuteronomic exemptions was not lost on the rabbis of the classical period. Nor, in particular, was the radical volun-tarism implied by exempting from battle the “fearful” and “faint-hearted.” The Mishnah records that Rabbi Jose the Galilean understood the fourth exemption to refer to those fearful of having sinned and of having not yet repented.24 This, he explains, is why it is juxtaposed with the exemptions of the newly wed man, the man who has built a house without dedicating it, and the man who has planted a vineyard but not redeemed it: they provide dignified pretenses under which a transgressor may discreetly return home. Rabbi Akiba, however, insists upon a literal interpretation of the fourth exemption: it refers to the coward, those “unable to stand in the battleranks and see a drawn sword.”25 But genuine cowardice is a condition not easily foretold: any-one may seemingly lay claim to it. Why then should the “coward” be so readily exempted? The Bible offers a psychological reason: “Lest his brethren’s heart faint as his heart.” This, however, assumes that genuine cowardice is involved, and does not treat the problem of decided noncowards abusing the provision.
An alternative, and more cogent, explanation is suggested by Rabbi Akiba himself. In another formulation, he maintains that the mention in the fourth exemption of yareth, or “fearful,” refers to the coward, while the additional reference, rakh halevav, or “fainthearted” is to the compassionate. He who is “hero among heroes, powerful among the most powerful, but who at the same time is merciful—let him return.”26 There is some dispute among contemporary commentators as to whether this last entails something of the modern notion of conscien-tious objection.27 Whatever the case, the inclusiveness of this formulation of the exemption effectively dismisses the need for determining genuine cowardice. Indeed, it seems to recognize the great difficulty in determining the real motivations of those not wanting to fight as against their stated reasons for not wanting to do so. Both the cow-ardly (or those fearful for their own lives) and the compassionate (or those fearful for the lives of others) are thus exempted. Such an argument, it may be noted, is even more radical than that of Hobbes. In his theory, only the genuinely cowardly—men of “feminine courage”—are esteemed to flee from fighting “without injustice.”28 As Rabbi Akiba appreciated, the fourth exemption is far more accommodating. It provides wide, almost open, opportunity to exempt oneself from duty on the battlefield.
But if the rabbinic interpreters recognized this, they were also moved to constrain its effects. This was done chiefly in the classification of biblical wars. The rabbis asked to which wars the exemptions applied. Except for one response where the terms are differently employed (en-tailing a peripheral dispute), the sages replied: “To discretionary wars [milhamot reshut], but in wars commanded by the Torah [milhamot mitz-vah] all go forth, even a bridegroom from his chamber and a bride from her canopy.”29 This interpretation has stood as the more authoritative. But there are commentators who held differently. Maimonides and Rabbi Ishmael both ruled that the exemptions applied to all the wars engaged in by Israel. And the sixteenth-century talmudic scholar Rabbi David ben Abi Zimra maintained that while the first three Deuteronomic exemptions applied only to discretionary wars, the fourth, exempting the “fearful” and “fainthearted,” applied to both discretionary and commanded wars.30 Clearly, if the radical fourth exemption can be invoked in both commanded and discretionary wars, it is reasonable to conclude that there can never be an absolute obligation to fight for the state in Jewish law. If, on the other hand, the fourth exemption (along with the other three) were restricted solely to discretionary wars, it is possible that commanded wars constitute a class of war in which an ab-solute obligation to fight might exist. In either case, further questions must be faced before the full measure of any obligation to die for the state in Jewish law can be established. I propose therefore to broach the problem of the extensiveness of the exemptions according to the relative strength of case that can be made for any such obligation.
IV
It seems clear that the obligation to die for the state is most compelling in the context of milhamot mitzvah. Such wars are explicitly ordained by God, and, as we have seen, at least one authoritative rabbinic version claims that no exemptions are permissible here. The sages agreed that the wars expressly mandated by God are those waged against the Amalekites and the idolatrous Seven Nations in the pursuit and conquest of the land of Canaan. Some differences arise over whether the obligation involved here attaches specifically to vanquishing the paganism of the Seven Nations and not instead to the conquest of the land of Canaan, the promised land, itself.31 These issues, however, do not affect the commanding or obligatory nature of the wars in question.
There is one ruling by Maimonides, though, that does importantly qualify the nature of the obligation to fight with respect to war against the Seven Nations. Maimonides posited that both a communal obligation to wage war against these nations and a personal obligation to eliminate their members applied.32 But, of course, a personal obligation to fight is certainly not the same thing as being bound to fight for the community (or state). One would be simply fighting, as it were, for one’s own sake. This difference is made no less significant by the claim of later commentators that Maimonides meant the personal obligation to be dependent upon the communal one: that an individual can be ob-ligated to endanger himself in the discharge of his personal obligation only if the community has itself first fulfilled its obligation to wage war against the Seven Nations.33 For it remains that once war has been declared by the community as a whole, the standing obligation to fight comes from a commandment addressed directly and specifically to the individual.
Important discriminations must then be made among milhamot mitz-vah, or “commanded wars,” before an obligation to die for the state is asserted. In war against Amalek, where the individual’s obligation to fight derives from the general obligation of the community to wage war, it is entirely fitting to speak of an obligation to die “for the state.” But in war against the Seven Nations, where individuals are bound to fight, not through the community, but on account of a personal commandment, the notion of dying for the state is inappropriate.
Still another discrimination must be made. It arises, again, from an important codification made by Maimonides and this time raises a more general problem. In his Mishneh Torah, Maimonides posits an-other variety of “commanded” war in addition to war against the Amalekites and the Seven Nations. This is the defensive war, a war “to deliver Israel from an enemy who has attacked them.”34 The difficulty is that, unlike the wars against Amalek and the Seven Nations, no biblical injunction or apparent talmudic reference exists for this kind of war. The question is thus raised on what basis a defensive war can be deemed obligatory when no divine commandment warrants it.
One answer that seems possible from rabbinic sources is the so-called law of pursuit, or rodef. Under this law, a bystander is obliged to help save the life of an intended victim, although the life of the aggressor may only be taken if that is necessary for this purpose. Defensive wars might therefore be obligatory on the grounds that one must render assistance to victims of military aggression. The halakic scholar J.David Bleich has recently posited this explanation, but only to dismiss it.35 Bleich offers a number of convincing objections to this use of the law of rodef, but certainly the most “damaging” is that “there is no obligation to eliminate a rodef [pursuer] if it is necessary to risk one’s own life in order to do so.” Since this risk is precisely what war entails for the individual combatant, the law of rodef can hardly serve as the basis for there being an obligation to participate in defensive wars.36
Of far more interest, therefore, is Bleich’s own argument for the obligatory character of defensive wars. They are obligatory, he claims, because they are undertaken by the monarch. Indeed, such wars explain, in part, the very need for a monarch. While “Jewish law recognizes that society has inherent power, albeit limited in nature, with regard to the expropriation of the resources of its members,” says Bleich, “only the sovereign enjoys the power to compel his subjects to endanger their lives.”37 Clearly, the issue of dying “for the state” is involved here. In the absence of a divine commandment sanctioning defensive war, the obligation to die, or to endanger oneself, is now linked to the power of the state, as represented in the sovereign.
Still, the state’s having the legitimate power to conscript individuals does not necessarily mean that there is an obligation for them to “en-list.” Aright to induct is not necessarily correlative with a duty to fight. One commentator has pointed out, for example, that on the basis of the prophet Samuel’s proclamation of the prerogatives of the king (as quoted earlier), “a citizen does not have to voluntarily pay his taxes or surrender to the military . . . [but rather] the king or government would be obligated to bear the burden for enforcing their taxation and draft regulations.”38 What is missing with Bleich’s reliance upon the power of the sovereign is, then, an adequate explanation of why the individual should be obliged to fight in defensive wars.
In fact, the missing step is easily enough to be found in rabbinic sources. A number of commentaries assert not only that the king may compel his subjects to do his bidding but that his directions must be obeyed. Anyone not obeying a royal decree, or who rebels against it, was considered mored bemalkhut, or treasonous (strictly, “rebellious against the kingdom”), and could thereby incur the death penalty.39 Of course, this in turn only raises the question of why one is obliged to obey the king’s command. One rabbinic response, it may be recalled, is that the prophet Samuel’s description of the king’s rights represents divine commandments consented to by the people. And there are others. 40 But rather than rehearse them here, it is perhaps more apposite to reflect, for the moment, on a somewhat different literature.
It is often enough recognized among political theorists that the very nature of defensive war harbors its own imperatives. When a society’s survival is threatened through no fault of its own, even the most liberal theorists, those championing the near-absolute freedom of the individual, seem to want to reserve for the state supremacy over the interests of its individual members. “When the Defence of the Commonwealth, requireth at once the help of all that are able to bear Arms, every one is obliged,” writes Hobbes uncharacteristically, “because otherwise the Institution of the Commonwealth, which they have not the purpose, or the courage to preserve, was in vain.”41 One might easily suppose, then, that the same sort of concern is what led Maimonides to include defensive war within the obligatory category of milhamot mitzvah. Or, as Maurice Lamm has put it, “If the conquest of the land is an obligation, then it stands to reason that the protection of that land is also an obligation.”42 But then again, perhaps it need not stand to reason alone. Commenting upon the Deuteronomic verse (26:17–18), “Harass the Midianites and smite them; for they harass you,” an oft-quoted Midrash states: “On the basis of this verse our sages said, if [someone] comes to slay you, arise and slay him.”43
V
While the foregoing may explain why defensive wars are obligatory in the absence of a direct commandment by God, it remains the case that they fall within the category of milhamot mitzvah for no other reason than that Maimonides legislated them so. This is important to emphasize, since discretionary wars, too, may be waged only upon the initiative of the monarch and yet constitute a completely separate classification to that of commanded wars. Rabbinic sources agree that “discretionary” wars are in general those waged by the House of David for the purpose of territorial expansion.44 Beyond this, they are variously characterized as wars to “eradicate pagan wickedness,” wars to “enhance the monarch’s greatness and prestige,” and wars conducted for economic reasons.45 But, as outlined earlier, the distinctive feature of discretionary wars is that all four of the Deuteronomic military exemptions are acknowledged to apply. Some rabbis contended that the exempt were nevertheless obliged to assist with non combat duties in the service of the war effort, though here, as well, it is not entirely clear whether this also includes those exempted under the fourth provision. 46 But whatever the range of these other duties, it is clear that ultimate obligation, the obligation to sacrifice one’s life, is, by virtue of the exemptions, severely and significantly circumscribed in discretionary wars.
A number of rabbinic authorities ruled that a war initially waged as a “discretionary” could become a “commanded” war under the threat of defeat. Accordingly, those who were previously exempted from fighting are no longer so and must take up arms with the rest.47 Certainly the circumstance in which one’s forces appear to be on the verge of being overwhelmed, and one’s country vanquished, has the semblance of a defensive war, and it is easy to appreciate the logic of the rabbis’ ruling. But it is also true that dire consequence, or its anticipation, is a feature common enough to any war, at least at some stage, in one or another battle. This ruling by the rabbis thus seems to seriously detract from the significance of the exemptions. It seems to suggest that even in discretionary war the presumption in Jewish law is in favor of the body politic over the life of the individual, insisting, so to speak, on an obligation to die for the state.
Thus it is important to see that such a presumption is actually less encompassing than it might appear. For the explicit elaboration of exemptions in connection with “discretionary” war carries with it an obligation on the part of the monarch to refrain from engaging in (discretionary) wars when he is not confident of victory and thus may re-quire the conscription of persons who would ordinarily be exempt. It is, in part, for this reason that discretionary wars can only be embarked upon with the consent of the Sanhedrin, or Court of Seventy-one, and the confirmation of the urim ve-tumim, or “priestly oracles.”48 The task of the Sanhedrin was to assess the need and likelihood of success of a proposed war, while the role of the urim vetumim was to confirm or deny divine legitimization for the intended military activity. The net effect of these procedures is to safeguard that only “winnable” wars are attempted, thus ensuring that those exempt remain exempt. Only where a war has gone “badly wrong,” confounding, as it were, all the intelligence reports, do the exemptions become legitimately waived.
The question remains whether apart from those exempted there is an obligation to die for the state in discretionary wars. After all, like defensive wars, discretionary wars require the initiative of the sovereign, and this suggests that the monarch’s declaration of war might similarly generate an obligation on the part of most to fight. Now, if it were only for the first three Deuteronomic exemptions—exempting, as they do, certain objective and definite types of individual status—such a case might be made. But, of course, there is the fourth exemption; as we have seen, a radical and open-ended exemption to the extent that anyone may seemingly invoke it. It may well be asked, then, just how meaningful it is to speak of there being an obligation to die when virtually anyone can exempt himself from it. This is, of course, another way of putting our earlier point that application of the fourth exemption effectively means that the obligation to die for the state is self-constituting.
In any case, the way in which the socalled exemptions take force clarifies that there is no obligation to die as a result merely of the sovereign’s declaration of (discretionary) war.49 It needs to be remembered that prior to announcing the various military exemptions to the assembled people, the “priest anointed for war” spends some emphatic moments counseling them on the need for faith and against the need to be afraid (Deut. 20:1–4). Commenting on this address, Maimonides says that it is designed so that “their hearts be aroused to war and he bring them to endanger themselves.”50 Bleich, curiously, claims this passage as evidence for the contention that the king has the power to compel his subjects to risk their lives.51 But, in fact, the function of the priest’s address suggests not compulsion but persuasion: the people are brought to endanger themselves. What we find, then, is not the existence of an already standing obligation, the binding force of which the peo-ple are being told to remember, but rather the process whereby the commitment or obligation to fight is being made.
The proclamation of the exemptions, and the opportunity for the people to invoke one or another of them, is what constitutes this process. According to Maimonides, two stages are involved.52 The first is “on the frontier, when they are about to set out, just before the battle is started,” where those who have planted a vineyard and not yet en-joyed its fruit are asked to return home. The second opportunity to affirm a commitment to fight is presented to the people when “the battle lines are drawn up, and they are drawing near the attack.” At this point, the “priest anointed for war” counsels further against being afraid but proclaims that the newlywed man, the man who has built a house without dedicating it, and anyone who is afraid may also return home. The consequential nature of these pronouncements is dramatized, moreover, by their successive repetition by officers assisting the priest. All told, in Maimonides’ account, the people have impressed upon them the impending battle together with the opportunities for individual retreat no less than seven times.
Once the last condition of retreat has been issued, however, and “when all those entitled to return home have gone back from among the troops,” those remaining on the field are presumed to have committed themselves to fight. An obligation to fight, if not to die, has been created. Accordingly, any soldier now seeking to withdraw from the military effort is considered to be reneging on an obligation that he himself willingly undertook. And, as the Mishnah and other commentaries agree,53 at the moment of battle such an attempt poses an unpardonable threat to the success of the entire military operation.
And it shall be, when the officers have made an end of speaking unto the people, that they shall appoint captains of hosts at the head of the people. And at the rear of the people they station guards in front of them and others behind them, with iron axes in their hands, and should anyone wish to flee, they have permission to smite his thighs, because the beginning of flight is falling.
An obligation to risk one’s life fighting for the state is thus neither automatic nor necessary in discretionary wars; it is contingent upon the individual’s willingness to do so. But the process whereby the individual may indicate whether he will fight or not is not indefinite; it has limits. Beyond a certain point, the individual is deemed to have cast his lot, to fight or not to fight. After that, he who has elected to remain and fight is no longer free to indulge a change of heart or mind with impunity. In this, of course, the rabbinic formulation con-tracts sharply with Hobbes’s general theory, in which an individual may legitimately renounce a commitment to fight whenever he is so moved by fear.54 Yet it is worth noting that in practice the rabbinic formulation is perhaps no more restrictive than Hobbes’s. The people, after all, are not forewarned of battle and of the conditions for participation in the secure and removed environment of their homes or city. They are informed of such things on the edge of battle itself, where the clamor of shields and the ground-beating of horses’ hoofs ought to impress upon all the deadly seriousness of what is in store.55 The likelihood is increased, therefore, that those assuming a commitment to fight are those most prepared to carry it through to the end. The Hobbesian need of permissible individual retreat, midbattle, is minimized.
VI
To complete our picture of the classical rabbinic varieties of war, consideration must finally be given to the case of preemptive war. First introduced in the Gemara as wars “to diminish the heathens so that they shall not march against them,” preemptive wars were designated a form of “discretionary” war by the sages.56 As such, most of what has been said about the nature and extent of the obligation to fight in discretionary war in general is true of preemptive war in particular. The applicability of all four of the military exemptions limits any obligation to fight by the process of its very creation. There are, however, a number of aspects peculiar to preemptive war that bear on the issue of the obligation to fight.57
One has to do with what actually constitutes a preemptive war in the rabbinic understanding. In Jewish law, a preemptive war is one that is waged solely as a preventive military operation. Whether this be to forestall an imminent or only future danger is of no consequence to its status of preemption. Yet a war that is solely conducted to prevent anticipated danger is not regarded as preemptive if it should be in response to a prior attack. This is so even if there has been an intermittent cessation of hostilities. Jewish law, rather, designates such a war to be of the order, “to deliver Israel from an enemy,” that is, a defensive war in the category of milhamot mitzvah. There thus exists the possibility that a war begun preemptively can become, through a conflation of enemy response and counterresponse, a strictly defensive war. The relative extent of the obligation to fight will then vary respective to the status of the war at any given time.
Certain preemptive military operations have warrant in Jewish law quite apart from the regulations and categories pertaining to war. In the face of imminent danger, and where innocent life is not put at risk, preemptive operations may be initiated on the basis of the principle, “If [someone] comes to slay you, arise and slay him.”58 The principle differs in this context from that of defensive war in that a preemptive war presupposes that no overt aggression has yet been visited by the enemy. Thus, however imminent such aggression may be or seem, preemptive action is deemed to be permissible only, and not obligatory. That there is a difference between danger being imminent and danger seeming imminent helps to explain this halakic ruling. The nonobligatory classification accorded preemptive war allows for the opportunity that alternative courses of action be tried, possibly avert-ing the need for war or the exhibition of hostilities at all. Insofar, though, as preemptive action is deemed necessary, there is no obligation upon an individual to participate in it, just as the operation itself is not permitted should innocent lives be jeopardized.
All this changes should a preemptive action develop into a defensive war. As before, a preemptive action that is met by an aggressive enemy response has the effect of rendering any counterresponse a defensive, and no longer a preemptive, war. In these circumstances, the limiting conditions that attach to preemptive war sanctioned by the principle “If someone comes to slay you” will no longer apply. Instead, the war regulations as determined by the respective categories of “commanded” and “discretionary” war will, once again, come into play.
VII
In Jewish law, the type of war and the willingness of the individual are not all that is required for an obligation to fight for the state to be established. Such an obligation becomes truly binding only if certain conditions and institutions are fulfilled. Some of these have been mentioned already; for instance, the requirement that a discretionary war may be waged by the monarch only after the Sanhedrin and the urim ve-tumim, the priestly oracles, have, in their respective ways, determined that it is legitimate. Of course, in our day the Sanhedrin and the urim ve-tumim have no institutional existence. It thus follows that any obligation to fight requiring these institutions should be conceived in formal terms only.59 Further such special provisions might now be noted.
While there is no need for the Sanhedrin in “commanded” wars (since such wars are divinely ordained and hence require no “independent” decision), there is need for the urim ve-tumim to pronounce upon their putative divine character.60 Without the consultation of the urim ve-tumim or, what is perhaps less likely given their express sanction, without their confirmation, no obligation to fight in behalf of the state could exist. At least, no obligation could exist to fight the Amalekites and the idolatrous Seven Nations. For in defensive war, the third variety of milhamot mitzvah, the requirement of the urim ve-tumim does not apply. Just why defensive war should be exceptional in this regard is not all that clear, though Bleich, after elaborate consideration, suggests that it has to do with the role of the urim ve-tumim being to establish a state of war in which innocent lives are put at risk.61 Because in defensive war innocent lives have already been endangered, and the harmony shattered by the aggressor, the legitimating function of the urim ve-tumim is no longer necessary.
One way of understanding these various provisions at a more gen-eral level is as a kind of “covering law” that sanctions war “only when there is sound military reason to assume that Israel will be victorious.” 62 In the case of the explicitly commanded wars against Amalek and the Seven Nations, “sound military reason” for expecting victory would presumably entail little more than popular expression of faith in God as the legitimator of, and guardian in, these wars. Hence the special requirement in these wars that the urim ve-tumim be consulted, an institution whereby divine sanction for the proposed war may be established and the individual’s faith reassured. In the case of defensive war, where, of course, the aggression has been perpetrated by the enemy, the precaution for Israel’s likelihood of victory becomes superfluous. Neither the urim ve-tumim nor the Sanhedrin, accordingly, need be consulted in defensive wars. Finally, in discretionary wars, because they are discretionary, “sound military reason” had to be “publicly” assessed. Along with the need for divine sanction mediated through the urim ve-tumim, therefore, an intended discretionary war had to be appraised and ultimately determined by decision of the Sanhedrin, a body independent of the monarchy and concerned with the life and welfare of the community.
Though the satisfaction of these special provisions is necessary for an obligation to fight to be established, it should not be thought that it is, in this respect, sufficient. What the respective provisions really determine is, in Jewish terms, the justice of an intended war venture. If the provisions are satisfied, Jewish law bestows legitimacy upon the intended war. But the justness of a given war is not, in Jewish law, what determines whether or not an individual is obligated to fight for the state. This reposes in a separate process. As elucidated earlier, it is that process whereby in relation to the proclamation of the so-called exemptions an obligation on the part of each individual to fight is either created or rejected. The sole possible exception to this separation of the justness of war and the obligation to fight occurs with “com-manded” wars precisely because, according to the sages, the exemptions do not apply here. Still, it bears reemphasizing that some notable rabbinic authorities disagreed on this. And this disagreement is significant enough to conclude that Jewish law understands the justness of war and the obligation to fight to be essentially separate, albeit related, issues.
VIII
Compared with that of the classic Western thinkers, the Jewish approach to the question of the obligation to die for the state undoubtedly appears complicated and involved. Most of the complexities, however, reduce to a few simple principles, and these are what lend the Jewish approach its coherence and importance. Of course, to isolate such principles from the amalgam of Jewish laws, conventions, and institutions for the purposes of theoretical elaboration is, in some sense, to part from one of the most fundamental of all principles animating the mode of traditional Jewish thought. There is certainly irony in this, perhaps even a paradox, but I do not see that any further implication follows from it. This being understood, it is perhaps not too bold to claim that the Jewish approach to the issue of the obligation to fight suggests a certain “theory,” what might be called a theory of “graded ultimate obligation.” At the general level are the gradations in obligation that Judaism posits between categories of war. These vary from “commanded” wars, in which the legal and conventional pressures upon the individual to fight are extremely compelling, to “discretionary” wars, where, because of the process by which the so-called military exemptions take effect, each individual determines for himself whether he will assume an obligation to fight.
At another, more specific, level Judaism asserts there to be gradations in the obligations to fight within each of the war categories. Within “commanded” wars, the most obligatory kind of war seems to be defensive war. Though lacking the express divine sanction in the manner of the wars against Amalek and the Seven Nations, the fact that they are yet included in the same category attests to their overriding power in their claim upon the military support of all members of society. That neither of the traditional Jewish checks upon the justice of a proposed war encounter, the Sanhedrin and the urim ve-tumim, are required in defensive wars, is further testimony to their compelling nature.
The wars against Amalek and the Seven Nations represent in Jewish history, if not the founding, then the “grounding” of a nation. Ordained as they were by God Himself, their obligatory character is commanding. Only in the case of wars against Amalek, however, is the obligation to fight actually in behalf of the state, the wars against the Seven Nations being properly the concern of a personal obligation, the duty, that is, of each individual qua individual in his direct relation to God. It may be that Maimonides’ formulation of a personal obligation to fight against the Seven Nations is significant precisely in that the stakes in establishing the nation territorially are so high, and the historical and moral implications for the people so momentous, that it was held that an individual could not be bound to risk his life for any other reason than God’s, and his own, sake. But it does not follow from this that the obligation to fight against the Seven Nations is any more or less “compelling” than the obligation to fight against Amalek. Both are, after all, divinely commanded, as both are, in our day, purely formal commitments. All that can be said is that while the latter represents an obligation to die for the state, the former does not.
As to “discretionary” wars, the undisputed applicability of all four types of military exemption makes differentiating the extent of the ob-ligation to fight in such cases on the whole superfluous. The inclusiveness of the fourth exemption levels out any obligation to fight until, in the end, it is self-imposed. Yet Jewish law nevertheless insists upon one gradation when it comes to optional military ventures: certain preemptive actions, sanctioned insofar as they are in the face of danger and do not jeopardize innocent lives, cannot be obligatory at all. Outside of the formal regulations pertaining to war, such campaigns do not even witness the process whereby the exemptions are heralded and the obligation to fight can become self-assumed. They are completely voluntary throughout every stage of their execution.
Judaism, then, effectively grades the obligation to fight from its strongest to its weakest conditions. So whether or not there is an obligation to die for the state is a question not susceptible of decisive resolution in the sense of being either (and always) one way or the other: it is a question whose answer must depend on the context in which the problem presents itself. And the lines of division here do not, or do not only, fall between just and unjust wars. They also, and chiefly, fall be-tween different kinds of just wars. The overall effect is to preserve the individual’s freedom to protect his life and property in all but the most critical war situations. The first three Deuteronomic exemptions—treating of the man who has built a house, planted a vineyard, and is newly married—represent, in this regard, quite explicit safeguards of the individual’s property and life affairs. Beyond this, the radical fourth exemption acts as the final guarantee of an individual’s liberty to choose whether to commit himself to battle duty. Only where the very survival of the community is threatened can such individual liberties be overridden.
In this fashion does Judaism overcome the dilemma plaguing Western theories of the obligation to die. Against those liberal theorists who assert that the state exists for the sake of individual purposes, Judaism asserts that individuals can, at critical times, be rightly asked to subordinate their personal lives to the shared life and values of the community. And against those theorists who argue that, because the state represents a shared life and set of values, the individual owes his life to it, Judaism asserts that, in all but the most critical war situations, the individual has his own life to lead and his own choices to make. By not assuming the superiority of the individual or of the collective in terms of the state’s foundation or purpose, Judaism is, consistently, able to safeguard the “lives” of both. The state gives way to the freedom of the individual, as the freedom of the individual gives way to the survival of the state. The individual, that is, may legitimately be called upon (as against volunteer) to risk his life for the state, not because the state so commands, but when it is genuinely imperiled. That leaves open the question of who is to decide such a matter, a function seemingly only performed by the state. But the distinction remains a crucial one nevertheless. For in a way that an obligation to die riding upon simple state decree does not, the condition of genuine state impediment at least allows for the possibility of contention. And when individ-uals’ lives are at stake, that possibility assumes the utmost importance.
Notes
Work began on this study while I was a Visiting Graduate Fellow at the International Center for University Teaching of Jewish Civilization, Jerusalem, in 1983–84. I am grateful to two of my teachers at the Hebrew University, Professors Michael Walzer and Emil Fackenheim, as well as Dr. Michael Jackson of the University of Sydney, for comments on an earlier version of this article. An abbreviated version of this paper was read at the inaugural conference of the Australian Association for Jewish Studies, Melbourne, August 1987.
1. Michael Walzer, “The Obligation to Die for the State,” in Obligations: Es-says on Disobedience, War and Citizenship (Cambridge, Mass., 1970), p. 89.
2. The argument that it was Hegel’s view that war “serves as a sort of civic education” by its ability to reassert state interests over private ones has recently been advanced by Steven B. Smith, “Hegel’s Views on War, the State, and Inter-national Relations,” American Political Science Review 77 (1983): 624–32.
3. Roland de Vaux, Ancient Israel Its Life and Institutions (London, 1973), p. 98.
4. Walzer, “Obligation to Die,” p. 77.
5. Thomas Hobbes, Leviathan (London, 1979), chap. 21. Hobbes does attempt to make certain exceptions to his principle that there cannot be an obligation to die, but with questionable success. See Walzer’s discussion, “Obligation to Die,” pp. 84–88.
6. Jean-Jacques Rousseau, The Social Contract, trans. G.D.H. Cole (London, 1975), bk. II, chap. V, p. 189 (emphasis added).
7. Plato, Crito, trans. Hugh Tredennick (Middlesex, 1969), pp. 90–94.
8. On the consensual aspects of the biblical convenant, see Daniel J. Elazar’s essay, “Convenant as the Basis of the Jewish Political Tradition,” in his edited volume Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses (Ramat Gan, 1981).
9. “The Biblical suggestion, for example, that covenant is the only moral, and therefore, the most durable root for a political community has in the form of the social contract, become a dominant, if not the dominant, metaphor for Western theory since the medieval period. While important social contract theorists do not always emphasize the Sinai Covenant some (i.e. Spinoza) make it their central focus and others (i.e. Hobbes) refer to it often.” David C. Rapoport, “Moses, Charisma, and Covenant,” Western Political Quarterly 32 (1979): 124. This article provides a good list of sources dealing with the relation between biblical covenants and modern notions of social contract.
10. These are cited and discussed in Michael Walzer’s book, Exodus and Revolution (New York, 1985), esp. pp. 83–88. See also Gordon Freeman, “The Rabbinic Understanding of Covenant as a Political Idea,” in Elazar, Kinship and Consent, pp. 68–73.
11. Pinhas Rosenbluth, “Political Authority and State in Jewish Thought,” Immanuel 7 (1977): 101–13. For a more general discussion, see Isadore Epstein, The Jewish Way of Life (London, 1947).
12. The basic principle in this regard is dina d’malkhuta dina (literally, “the law of the kingdom is the law”), attributed in the Talmud to the third-century amora, Samuel. There is now a growing corpus or work investigating the ap-plication of this principle, although the specific question of the obligation to die for the state is mostly only implicitly rather than directly addressed. See Gerald Bildstein, “A Note on the Function of ‘The Law of the Kingdom Is Law’ in the Medieval Jewish Community,” Jewish Journal of Sociology 15 (1973): 213–19; Leo Landman, Jewish Law in the Diaspora: Confrontation and Accommodation (Philadelphia, 1968); idem, “Civil Disobedience: The Jewish View,” Tradition 10 (1969): 5–14; idem, “Dina D’Malkhuta Dina: Solely a Diaspora Con-cept,” Tradition 15 (1975): 89–96; idem, “A Further Note on the Function of ‘The Law of the Kingdom Is the Law,’ ” Jewish Journal of Sociology 17 (1975): 37–41; Aaron Rakefet-Rothkoff, “Dina D’Malkhuta Dina—The Law of the Land in Halakhic Perspective,” Tradition 13 (1972): 5–23; and Shmuel Shilo, “Maimonides on ‘Dina D’Malkhuta Dina (The Law of the State Is the Law),’ ” Jewish Law Annual 1 (1978): 146–67.
13. All biblical references are to the King James Version.
14. De Vaux, Ancient Israel, p. 262.
15. When it transpires that the people remaining are still too numerous, God instructs Gideon to further “sift them” according to how they drink at a stream (Judg. 7:4–8).
16. Everett F. Gendler, “War and the Jewish Tradition,” in Contemporary Jew-ish Ethics. ed. Menachem Marc Kellner (New York, 1978), p. 208. See also Jo-hannes Pedersen, Israel Its Life and Culture, vols. 3–4 (London, 1963), pp. 9–10.
17. The phrase is from James E. Priest, Governmental and Judicial Ethics in the Bible and Rabbinic Literature (New York and Malibu, Calif., 1980), p. 179, who, though employing it in the same context, fails to note that it represents but one side of “principles in tension.”
18. De Vaux. Ancient Israel, p. 215.
19. Ibid., p. 263.
20. Tosefta, Sanhedrin 4:3; and Sanhedrin 20b. References to later rabbinic views on this issue are cited in Leo Landman, “Law and Conscience: The Jewish View,” Judaism 18 (1969): 24 n. 46. Two recent views claiming Samuel’s speech to be an indictment of monarchy are Louis Jacobs, “The Concept of Power in the Jewish Tradition,” Conservative Judaism 33 (1980): 24–25, and Bruce Vawter, “A Tale of Two Cities: The Old Testament and the Issue of Personal Freedom,” Journal of Ecumenical Studies 15 (1978): 266–67.
21. Gendler, “War and the Jewish Tradition,” pp. 191–92. Cf. R. F. Clements, “The Deuteronomic Interpretation of the Founding of the Monarchy in I Sam. VIII,” Vetus Testamentum 24 (1974): 398–410.
22. Walzer, “Obligation to Die,” pp. 97, 98.
23. The expression is borrowed from Barrington Moore, Jr., in his summary (but apt) description of military obligations in the Old Testament. See his Privacy: Studies in Social and Cultural History (Armonk, N.Y., 1984), p. 188.
24. Sotah 44a.
25. Ibid.
26. Tosefta, Sotah 7:14.
27. For a statement of the affirmative and critical views, see, respectively, Landman, “Law and Conscience,” pp. 25–26, and Maurice Lamm, “After the War—Another Look at Pacificism and Selective Conscientious Objection (SCO),” in Kellner, Contemporary Jewish Ethics, pp. 237–38.
28. Hobbes. Leviathan, chap. 21, p. 115.
29. Sotah 44b. The exceptional use of terms is Rabbi Judah’s. The exemptions apply, he says, “to the wars commanded by the Torah [milhamot mitsvah]; but in obligatory wars [milhamot hovah] all go forth.” The Gemara explains that there is no real dispute between the sages and R. Judah about the kinds of wars meant by these terms, the latter’s novel use of terms representing rather a dispute about whether involvement in a given type of war exempts a soldier from the performance of other commandments. The suggestion here that in commanded wars women can be conscripted to fight (“even brides go forth”) is actually a far more complicated issue. So, too, there are complicating rabbinic rulings about the valid age limits within which males can be conscripted (the most commonly cited being ages twenty to sixty). In speaking throughout this article of “individuals” being obligated to fight, such conditions attaching to age and sex should thus be borne in mind.
30. See respectively Maimonides’ Mishneh Torah. Book XIV: Judges, ed. and trans. Philip Birnbaum (New York, 1967), Kings 7:1; Rabbi Ishmael, quoted by Midrash Tannaim 20:1 and 20:19; and Rabbi Zimra (Radbaz), Hilkhot Melakhim 7:1.
31. Cf. Sotah 44b and Maimonides, Kings 5:1; idem, Sefer ha-Mitsvot, mitsvot aseh, addenda, no. 4.
32. The communal obligation is formulated by Maimonides in Kings 5:1 and in Sefer ha-Hinnukh, no. 425, and the personal obligation in Kings 5:4 as well as in Sefer ha-Hinnukh, no. 425.
33. See, for example, Shlomoh Goren, Torat ha-Mo’dim (Tel Aviv, 5714 [1954]), pp. 180ff.
34. Maimonides, Kings 5:1. I have quoted the translation given in Bleich, n. 35 below, p. 7.
35. J. David Bleich. “Preemptive War in Jewish Law,” Tradition 21 (1981): 23. The various talmudic references associated with the law of rodef are cited by Bleich, p. 39, nn. 32–37.
36. Ibid., p. 18.
37. Ibid., p. 23.
38. Rakeefet-Rothkoff, “Dina D’Malkhuta Dina,” p. 13.
39. Sanhedrin 49a; Maimonides, Kings 3:8–9.
40. These include the view that the king “owns” the land and has the right to expel noncompliant citizens (R. Asher ben Yechiel, R. Nissim Gerundi, and R. Shlomoh ben Aderes to Nederim 28a); the view that a pact exists between subjects and their king, whereby they agree to follow his ordinances (Rashbam’s commentary to Baba Bathra); and the view that the Noahide precept of “Laws” ordains the “rule of law” and the king’s right to execute it (Even haEzer to Maimonides, Nizkei Mammon 8:5, based upon Rashi’s commentary to Gittin 9b). It must be noted, however, that these arguments are mainly addressed to the matter of obedience to non-Jewish kings.
41. Hobbes, Leviathan, chap. 21, p. 115.
42. Maurice Lamm, “ ‘Red or Dead?’ An Attempt at Formulating a Jewish Attitude,” Tradition 4 (1962): 185.
43. Midrash Tanhuma, Parshat Pinhas, sec. 3. See also Sanhedrin 72a and Be-rakhot 58a, 62b.
44. Sotah 44b.
45. See respectively Lamm, “Red or Dead?” p. 182; Maimonides, Kings 5:1; Berakhot 3b and Sanhedrein 16a.
46. Writes Maimonides: “All those who went back home from among the troops, after hearing the priest’s proclamation, return now and provide water and food for their fellow soldiers and fix the roads” (Kings 7:9). See also Sotah 43a (in which there is also the statement that those returning home do not sup-ply the army with noncombat assistance), and Tosefta, Sotah 7:15. Despite Maimonides’ inclusive description, all mishnaic references are to variations only of the first three Deuteronomic exemptions; the fourth appears to be excluded.
47. R. Avraham Yeshaya Karelitz, and R. Haim ben Atar, Moed 114:2.
48. Sanhedrin 2a; Berakhot 3b, and Sanhedrin 16a.
49. Cf. Maurice Lamm, “After the War,” p. 237: “But there is a sleeper in this affirmation of Jewish selective conscientious objection. It is true only on a national level, not on a personal one. Determination of the justice of a war was never left to individual decision. That burden devolved upon the state” (emphasis in original). Lamm is, or course, talking of conscientious objection and not directly of the obligation to fight. But he tends to assume that an individual is obligated to fight inasmuch as a war is pronounced (at the national level) just. Conscientious objection—and hence a judgment about the justice or morality of war (or selective conscientious objection, a judgment about the justice or morality of certain wars)—is not, however, the only ground upon which an individual may dispute the call by his country to enter battle. He may simply reject the state’s command for him to risk his life, irrespective of his or the state’s views about the justice of the proposed war. I discuss the distinction in Jewish law between the question of the justice of war and/or the obligation to fight in section VII below.
50. Maimonides, Sefer ha-Misvot, mitsvot aseh, no. 191.
51. Bleich, “Preemptive War,” p. 23, and n. 47 (p. 40).
52. Maimonides, Kings 7:2–4, from which the following quotations are drawn. A similar account is given in the Gemara, Sotah 42a–b.
53. Sotah 44a–b. See also Maimonides, Kings 7:4; and Pentateuch with Rashi’s Commentary, trans. M. Rosenbaum and A. M. Silbermann (London, 1934), at Deut. 20:9.
54. Hobbes, Leviathan, chap. 21.
55. Rashi comments that the four scriptural admonitions in the face of battle correspond “to four things which the kings of the nations do in battle: . . . LET NOT YOUR HEARTS FAINT—through the neighing of the horses . . . FEAR NOT from the noise made by the clashing of the shields. . . . AND HURRY NOT PRECIPITATELY at the sounds of the trumpets. . . . NEITHER BE TERRIFIED by the noise of the shouting (Siphre: Sota 42a, b)” (Rashi’s Commentary, trans. M. Rosenbaum and A. M. Silbermann, at Deut. 20:3).
56. Sotah 44b.
57. My discussion here is based on Bleich, “Preemptive War,” esp. pp. 18–30.
58. Ibid., pp. 24–25, 29–30.
59. The respective obligations to fight against Amalek and the idolatrous Seven Nations would, in any case, appear nowadays to be purely formal ones, given the impossibility of identifying the descendants of these ancient peoples. See Maimonides, Kings 5:4–5, and the discussion of this issue in J. David Bleich, Contemporary Halakhic Problems (New York, 1977), pp.17–18.
60. Ramban (Nahmanides) in his addenda to Maimonides’ Sefer ha-Mitsvot, no. 17, and Maimonides, Sefer ha-Mitsvot, shoresh 14, cited in Bleich, Contemporary Halakhic Problems, p.16. There is some question among commentators whether the war against Amalek requires the intervention of the urim ve-tumim, but this appears to relate to Amalek as a symbol of evil rather than to the Amalekites as a specific nation. See Bleich’s discussion, ibid., pp. 16–18.
61. Bleich, “Preemptive War,” pp. 28–29.
62. Ibid., p. 25.