Halakhah sobre Deuteronómio 7:2

The Mishnah (Avodah Zarah 19b) prohibits the sale of Israeli real estate to non-Jews, providing another possible reason to prohibit ceding land. This is based on the Torah's words, "Lo techaneim" (Devarim 7:2). The Gemara (Avodah Zarah 20a) interprets these words as "lo titein lahem chanayah bakarka" ("Do not give them permanent dwelling in the Land"). Some prohibit giving land to non-Jews even to save lives (see Teshuvot Dvar Yehoshua 2:48), while others argue that this prohibition may be ignored if lives would thereby be saved (see Rav Ovadia Yosef, Techumin 10:34-47). Rav Ovadia also points to the minority of authorities, such as the Bach (Choshen Mishpat 249:2), who claim that lo techaneim does not apply to non-Jews who do not worship idols, such as Muslims.

It may, of course, be objected that these considerations apply only to the initiation of armed conflict for the purpose of capturing or liberating sanctified territory. The stipulations requiring a king, Sanhedrin and urim ve-tumim certainly do not pertain to defensive war undertaken for the purpose of preserving Jewish lives.¹⁰This point is amplified in Chapter XI of this book. See pp. above, 274f. Neither, it may be argued, do they apply to military activity undertaken for the purpose of retaining territory already reconquered, particularly if the territory in question has been liberated by means that are consistent with the provisions of Jewish law. It should also be noted that it can—and has—been argued that surrender of territories is an infraction of the prohibition "lo teḥanem" (Deuteronomy 7:2), which, in talmudic exegesis, is rendered as "lo titen lahem ḥaniyahn be-karka—you shall not grant them permanent encampment."¹¹See Avodah Zarah 19b. This talmudic dictum is formulated in association with a prohibition against conveying real property within the boundaries of the Land of Israel to a non-Jew. Yet a literal application of the terminology in which that prohibition is formulated would render it applicable to any action that would tend permanently to confirm non-Jewish residence in the Land of Israel. Sale of real estate would thus be but one example of activity having that effect; obviously, transfer of political sovereignty would be even more instrumental in engendering permanence of non-Jewish residence.¹²See Contemporary Halakhic Problems, I, 27-32, and II, 212-220.

The king may first wage only a milḥemet mizvah. What is a milḥemet mizvah? It is the war against the Seven Nations,¹⁰The obligation to annihilate the Seven Nations assumes two distinct forms. A communal obligation to engage in war against those nations is here posited by Rambam, Hilkhot Melakhim 5:1, and by Sefer ha-Ḥinnukh, no. 425. A personal obligation to eliminate the members of those nations is formulated by Rambam, Hilkhot Melakhim 5:4, and by Sefer ha-Ḥinnukh, no. 425.
Various aspects of the commandment may be explained on the basis of this two-fold formulation. Sefer ha-Ḥinnukh declares that the obligation to annihilate the Seven Nations is incumbent upon both males and females equally and also expresses the view that the obligation is suspended when fulfillment would entail self-endangerment. Minḥat Ḥinnukh notes two apparent contradictions: (1) Sefer ha-Ḥinnukh, no. 525 and no. 603, in contradistinction to Rambam, Sefer ha-Miẓvot, introduction, shoresh 14, rules that women are exempt from participation in all wars including milḥamot miẓvah. (2) The waging of war, almost by definition, entails self-endangerment. Hence a commandment to wage war must be understood as explicitly requiring the placing of one’s life at risk in fulfilling that obligation.
These problems are resolved if it is understood that the obligation is two-fold in nature: a communal obligation to wage war against the Seven Nations and a personal obligation to eliminate the members of those nations. Although women are exempt from conscription for purposes of engaging in communal warfare, they are required to eliminate members of the Seven Nations by virtue of their personal obligation. Conversely, in the absence of a state of war declared by the sovereign, no individual is obligated to endanger his life in an attempt to discharge his personal obligations with regard to eradication of the Seven Nations. See R. Moshe Sternbuch, Mo’adim u-Zemanim, II, no. 164; R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melakhim 5:2; and R. Shlomoh Goren, Torat ha-Mo‘adim, (Tel Aviv, 5714), pp. 180f.
One significant difficulty remains. The biblical source of the commandment to annihilate the Seven Nations is the injunction “you shall utterly destroy them” (Deuteronomy 7:2 and Deuteronomy 20:7). This biblical passage might well be interpreted as establishing either a communal or a personal obligation; it is difficult to deduce a two-fold obligation from a single phrase.
In order to resolve this difficulty, it should first be noted that in delineating a milḥemet miẓvah the Gemara, Sotah 44b, speaks of the “wars of Joshua to conquer,” i.e., war for the conquest of the land of Canaan. Rambam, Hilkhot Melakhim 5:1, speaks, not of conquest of the land of Canaan, but of war against the Seven Nations. Of course, conquest of the land of Canaan involved war against the indigenous inhabitants, viz., the Seven Nations. However, Rambam’s substitution of his own terminology for that of the Gemara is significant in that it places negative emphasis upon such war as serving to destroy the Seven Nations rather than upon its positive aspect as a war for the conquest of the Land of Israel.
Conquest of the land of Canaan as an end in itself, as well as settlement in the Land of Israel, is deemed by Ramban to be mandated by the verse “And you shall drive out the inhabitants of the land and dwell therein” (Numbers 33:53). See Ramban, Commentary on the Bible, ad loc., and idem, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4. Rambam, as is well known, fails to record any positive commandment predicated upon that verse. Hence it may be assumed that, for Rambam, neither settlement in the land of Israel nor conquest of the territory so designated constitutes a miẓvah. (See, however, Megillat Esther, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4, who asserts that Rambam understands this passage as establishing a commandment to conquer the land, but that this commandment was binding only upon the generation of the original conquest rather than for posterity.) Indeed, Rashi understands the verse as constituting only prudent counsel, viz., in order to assure permanence of settlement it is necessary first to drive out the inhabitants. See Contemporary Halakhic Problems, II, 193-99. It may be suggested that Rambam views the first clause of this passage as a commandment or, more precisely, as an amplification of the commandment recorded elsewhere, viz., “you shall utterly destroy them.” The latter passage establishes a personal obligation with regard to annihilation of the Seven Nations. That obligation is quite independent of considerations of settlement. Sefer ha-Ḥinnukh explains that eradication of paganism is the rationale underlying the commandment “you shall utterly destroy them.” Indeed, the commandment is presented in precisely that context both in Deuteronomy 7 and in Deuteronomy 20. “You shall drive out the inhabitants of the land and dwell therein” may well have been understood by Rambam as a reiteration of the commandment recorded in Deuteronomy 7:2 and Deuteronomy 20:7 and hence this injuction is not enumerated by Rambam as a new commandment. However, in Numbers 33:53 an entirely different telos is presented, viz., “and dwell therein:” Annihilation of the Seven Nations makes permanence of settlement a greater likelihood. Since, according to Rambam, residence in the Land of Israel is not a personal obligation, establishment of a permanent settlement must be a matter of communal concern. Hence “You shall drive out the inhabitants of the land” (in contradistinction to “you shall utterly destroy them”) must also be addressed to the community in general rather than to individuals qua individuals. Thus the communal obligation to wage war against the Seven Nations is derived from Numbers 33:53 but is not deemed by Rambam to be a distinct miẓvah. Rather, he regards it as merely supplementary to the general commandment formulated in Deuteronomy 7:2 and Deuteronomy 20:7 that serves to establish a personal obligation. the war against Amalek and [a war] to deliver Israel from an enemy who has attacked them (she-ba aleihem). Thereafter he may wage a milḥemet reshut, which is a war against other people in order to enlarge the borders of Israel and to enhance his greatness and prestige.¹¹Rashi, Sotah 44b, describes the “wars of the House of David” as wars “which he fought in Aram Zoba in order to annex it to the Land of Israel and against others of his neighbors in order that they bring him tribute and servants to do taskwork.” A literal reading of a narrative reported in Berakhot 3b and Sanhedrin 16a would yield the inference that a milḥemet reshut may be undertaken for economic reasons; see, however, below, notes 42 and 51.