Halakhah sur Les Nombres 1:3

Rabbi Goren presents a general discussion of the classical distinction between obligatory wars, permissible wars and wars of defense. More noteworthy is his presentation of sources pertaining to the establishment of minimum and maximum ages with regard to the conscription of soldiers. The chief difficulty in establishing a minimum age is that although Rashi, in his commentary on the Pentateuch (Exod. 30:14 and Num. 1:3), states that warriors must be "twenty years old and upward," Rambam, in his Mishneh Torah, is silent with regard to any such provision. The question of a maximum age limit centers upon the proper textual reading of the Sifre, Numbers 197, which establishes an upper limit of either forty or sixty years of age, depending upon which of the variant readings is accepted as accurate. Another problem to be resolved is whether these limits pertain only to permissible wars (milḥemet reshut) or are applicable to obligatory wars (milḥemet ḥovah) as well.

This also might explain why Chazal do not criticize Yoav for not resisting David Hamelech’s order to count the nation (see Shmuel II ch.24). Rav Itamar Warhaftig (Techumin 15:153) suggests that Yoav assumed that David felt that it was permissible to do so, as there are certain situations where counting the nation is permitted (see, for example, Ramban to Shemot 30:12 and Bemidbar 1:3). Therefore, a military order that is unambiguously wrong, such as gratuitously harming a peaceful demonstrator who is not endangering anyone, should be disregarded. If, however, the Prime Minister orders Tzahal to do something that is halachically ambiguous, it seems that the order must be obeyed.

2. However, in a subsequent comment, Ramban contradicts his own earlier interpretation. In his commentary on Numbers 1:3 Ramban remarks, "To me it [appears] unlikely that David should not be careful with regard to that which Scripture states, 'that there be no plague among them when you number them.' If perhaps David did err why did Joab not do [the census by means of] shekels … so that he should not sin?" Ramban proceeds to explain that a census such as was undertaken by David is forbidden even when conducted by means of counting half-shekels since it was unnecessary and not designed to serve a valid need or "purpose" (zorekh). David's census, asserts Ramban, was not designed to serve a military purpose or any other national need. That census, he declares, was undertaken by David simply in order to "gladden his heart" by demonstrating that he reigned over a large populace. In support of this thesis Ramban cites Bemidbar Rabbah 2:17:

3. Advancing an alternative explanation in his comments on Numbers 1:3, Ramban declares that the entire populace may not be counted even by indirect means. Therefore, even when undertaken by means of counting half-shekels, a census may include only those twenty years of age and older.²⁰See also Maharit, Ẓafnat Pa’aneaḥ, Parshat Ki Tissa, derush 1, and Naḥal Eitan 6:10, sec. 7. David, however, commanded that all above the age of thirteen be counted. Such a census yields a population count of the entire people which is forbidden under all circumstances.²¹Surprisingly, Rabbi Goren fails to cite Ramban’s comments in this regard but does indicate that Rashi, in citing the various verses in Genesis rather than those adduced in Berakhot 62b and Yoma 22b, intended to establish the basis for a prohibition against counting the entire populace. According to this explanation, David erred in assuming that a census of the entire populace, including even those under twenty years of age, is permitted when undertaken in an indirect manner.

Ramban further cites a "midrash aggadah"—presumably a reference to the earlier cited aggadic statement recorded in Berakhot 62b—which explains that David sinned in taking the census directly rather than by means of half-shekels. Thus the diverse explanations advanced by Ramban in his commentary on Numbers 1:3 reflect different strands of midrashic interpretation.²²See, however, Meromei Sadeh, Berakhot 62b, and Ẓiẓ Eli’ezer, VII, no. 3, sec. 15, who resolve the apparent contradiction between the two aggadic sources by suggesting that Berakhot 62b ascribes a two-fold error to David: census-taking in the absence of a legitimate purpose which was compounded by failure to collect half-shekels. Cf., however, Tosafot Rid, Yoma 22b, who remarks that Joab did not require the collection of half-shekels because the census was not undertaken for a legitimate purpose and, accordingly, collection of half-shekels would not have mitigated the transgression.

Rabbi Weinberg, Seridei Esh, II, no. 48, finds that a census undertaken in Israel under contemporary conditions is permitted because such a census is conducted by means of questionnaires which are filled out by individual householders. The names inserted in the blank spaces provided on the forms are then tabulated in order to reach a final count. The tallying of names, rules Rabbi Weinberg, is an indirect means of counting. He further contends that the considerations of economic planning and national security which require an accurate census suffice to constitute a "purpose." Accordingly, Rabbi Weinberg concludes that the taking of a census is permitted even according to the first analysis presented by Ramban in his commentary on Numbers 1:3. Rabbi Uziel, Mishpetei Uzi'el, Hoshen Mishpat, kelalim, no. 2, also permits the taking of a census on the grounds that it is conducted indirectly by means of written documents and is undertaken for a legitimate purpose. This is also the opinion of both Rabbi Friedman and Rabbi Kasher.²⁶See also Einayim la-Mishpat, millu’im, Berakhot 62b. Rabbi Kasher adds further support to this conclusion by citing the comments of Ralbag, Numbers 1:2 and Numbers 26:53, who declares categorically that the counting of written names is not encompassed within the prohibition. Contradicting the view of other biblical commentators, Ralbag states that the later censuses undertaken by Moses were not conducted by means of collection of half-shekels but "according to the number of names" as indicated in Numbers 1:2 and Numbers 26:53.²⁷Rabbi Kasher, Torah Sheleimah, XXI, 168, further contends that tabulation by mechanical means is not prohibited since the actual counting is not accomplished by a human act. This view is disputed by Rabbi Schwartz, Mispar Bnei Yisra’el, p. 29. It should be noted that R. Naphtali Zevi Yehudah Berlin, in his biblical commentary Ha'amek Davar, also interprets both verses in an identical manner.²⁸In his commentary on Numbers 1:42, Ha’amek Davar cites an intriguing oral tradition attributed to the Ari ha-Kadosh. Ari advances a resolution to a textual difficulty in which he clearly assumes that those censuses were undertaken by counting slips of paper or the like upon which the names and tribal identification were recorded. Ari ha-Kadosh explains that these slips were collected from the entire community of Israel and deposited in a single place. Thereupon the nasi of each tribe came and selected those bearing the names of the members of his tribe and placed them in a separate receptacle. The slips in each of those receptacles were then counted in order to arrive at a census for each tribe. With the removal of the slips bearing the names of the members of the first eleven tribes, all remaining names were perforce known to be names of persons belonging to the twelfth tribe without need for any further selection. Accordingly, explains Ari ha-Kadosh, with regard to each of the first eleven tribes, Scripture states “Of the sons of … according to the number of names,” whereas with regard to Naphtali, the last tribe to be counted, Scripture states simply, “The sons of Naphtali….” With regard to each of the first eleven tribes, explains Ari, the names counted were of the sons of that tribe only, to the exclusion of slips bearing names of members of other tribes. Hence the phrase “of the sons …” which excludes all others. However, when it came time to count the tribe of Naphtali, all names remaining in the hands of Moses were counted since no other names remained.

It is noteworthy that a thesis similar to that advanced by Rabbi Goren is propounded by one biblical commentator in order to resolve the contradictory midrashic explanations of the nature of King David's transgression. Or ha-Hayyim, Exodus 30—12, explains that David erred in conducting a census which was not undertaken for a valid purpose. In advancing this explanation Or ha-Hayyim follows Ramban, Numbers 1:3, and the midrashic sources cited by the latter. As noted earlier, the Gemara, Berakhot 62b, indicates that, had David followed the procedure stipulated in Exodus 30:12 and taken the census by means of a collection of half-shekels, he would have incurred no transgression even though the census was undertaken in the absence of a legitimate purpose. Ramban regards this contradiction as reflecting diverse midrashic traditions. Or ha-Hayyim, however, resolves the contradiction by postulating that, when undertaken by means of half-shekels which are contributed to the sanctuary as a "ransom," a census may be undertaken even in the absence of a valid "purpose."³²See Ẓiẓ Eli’ezer, VII, no. 3, sec. 22, cited above, note 16. Or ha-Hayyim, however, does not restrictively define the concept of "purpose" as limited to a matter involving danger to life.

4. Rabbi Goren further contends that a census of the population of the State of Israel may constitute a counting of "all of Israel" which he argues (without citing the second analysis presented by Ramban, Numbers 1:3) is forbidden under all circumstances, With regard to an entirely different matter, Rambam, Hilkhot Shegagot 13:2, basing himself upon Horiyot 3a, declares that the halakhic concept of a "community" is limited to Jews who reside in Israel. This point is made by Rabbi A. I. Kook, Mishpat Kohen, no. 143, p. 308, and by other authorities with regard to other facets of Halakhah, but is the subject of considerable dispute.³³See R. Ovadiah Yosef, Yabi‘a Omer, VI, Oraḥ Ḥayyim, no. 41, and Contemporary Halakhic Problems, II, 180. Parenthetically, it should be noted that counting the majority of the Jewish people is tantamount to a census of the entire community of Israel. See Ẓiẓ Eli’ezer, VII, no. 3, sec. 24. This is evident from the categorization of the census conducted by Joab as a violation of the prohibition despite the fact that Joab excluded the tribes of Levi and Benjamin and hence his census involved only ten tribes. See Rashi and Redak, II Samuel 24:9 and Marharit, Ẓafnat Pa’aneaḥ, Ki Tissa, derush 1. Ẓiẓ Eli’ezer, VII, no. 3, secs. 20 and 37, maintains that, for purposes of this prohibition, the counting of inhabitants of an entire city and, a fortiori, of an entire country, constitutes the counting of an entire “community.” Naḥal Eitan 6:10, sec. 7, opines that the counting of any specific class of individuals, e.g., potential conscripts for military service, is similarly encompassed within the ambit of this prohibition.
The counting of the population of local areas and subsequent tabulation of the population of the entire community on the basis of those figures is forbidden according to all authorities. Indeed, as recorded by Yalkut Shim’oni, II Samuel 24, Joab conducted his census by means of compiling the aggregate tabulation of family groups.
Ẓiẓ Eli’ezer, VII, no. 3, sec. 2, declares that, even in the event that figures for specific groups or areas have already been obtained, it is forbidden to tabulate the total population by combining the previously ascertained figures.