Halakhah su Deuteronomio 20:5
וְדִבְּר֣וּ הַשֹּֽׁטְרִים֮ אֶל־הָעָ֣ם לֵאמֹר֒ מִֽי־הָאִ֞ישׁ אֲשֶׁ֨ר בָּנָ֤ה בַֽיִת־חָדָשׁ֙ וְלֹ֣א חֲנָכ֔וֹ יֵלֵ֖ךְ וְיָשֹׁ֣ב לְבֵית֑וֹ פֶּן־יָמוּת֙ בַּמִּלְחָמָ֔ה וְאִ֥ישׁ אַחֵ֖ר יַחְנְכֶֽנּוּ׃
E gli ufficiali parleranno al popolo dicendo: 'Quale uomo c'è che ha costruito una nuova casa e non l'ha dedicata? lascialo andare e tornare a casa sua, per non morire nella battaglia, e un altro uomo lo dedichi.
Contemporary Halakhic Problems, Vol III
Jewish law recognizes two distinct types of war: milḥemet mizvah, i.e., war commanded by the Torah and milḥemet reshut, i.e., war that is not commanded but that is permitted and hence is "discretionary." The primary locus of the talmudic formulation of these two categories of war is the final Mishnah of the eighth chapter of Sotah and the accompanying discussion recorded in the Talmud, Sotah 44b. The Mishnah presents an elucidation of the scriptural verses that provide for a number of exemptions from military service. Deuteronomy 20:5-7 states:
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Contemporary Halakhic Problems, Vol III
The Gemara seeks to discover a concrete halakhic application, as distinct from a purely semantic difference, of the issue that divides the Sages and R. Judah. A practical difference arising from their controversy is found by the Gemara in the application of a general principle that provides that a person engaged in performance of a mizvah is exempt from the fulfillment of other commandments. R. Judah considers the waging of preemptive war to constitute fulfillment of a mizvah; hence, according to R. Judah, combatants are exempt from fulfilling other commandments while engaged in military duties associated with preemptive war. The Sages regard such incursions as discretionary in nature and hence regard soldiers engaged in such battles as being fully obligated with regard to the fulfillment of other commandments.3The text of the Gemara reads as follows:
The Gemara does not tell us explicitly whether it is R. Judah or the Sages who consider war “to diminish the heathens” to constitute a commanded war. Rashi and Rambam, in their respective commentaries, explain that R. Judah deems such war to be commanded while the Sages consider such war to be discretionary. (The interpretation of these authorities have been followed in the parenthetical interpretations within the translation above.) Indeed, Rashi’s interpretation is taken directly from the words of R. Yoḥanan: [A war which is designated] as permitted by the Sages is identical with [war which is designated as] commanded by R. Judah, i.e., there is a category of war which is deemed to be “commanded” by R. Judah while, according to the Sages, the identical war is merely “discretionary.” The war in question is then identified by Rava as war “to diminish the heathens so that they shall not march against them.” Thus there is no dispute between Rava and R. Yoḥanan; Rava merely amplifies the statement of R. Yoḥanan. According to both, the dispute between the Sages and R. Judah is with regard to whether participants in a war “to diminish the heathens” are exempt from fulfillment of other precepts. All are in agreement that the provisions of Deuteronomy 20:5-8 that apply to discretionary wars apply as well to war undertaken “to diminish the heathens.”
This interpretation is contradicted by Me’iri in his commentary on Sotah 43a. Me’iri declares that it is the Sages who deem such war to be commanded while R. Judah regards it as merely “permitted.” Of course, this understanding appears to be at variance with the statement recorded by the Gemara in the name of R. Yoḥanan.
R. Eliezer Waldenberg, Hilkhot Medinah, II, sha’ar 4, chapter 1, secs. 2-3, explains that Me’iri must have posited a dispute between R. Yoḥanan and Rava: R. Yoḥanan declares the sole controversy between the Sages and R. Judah to be entirely a matter of nomenclature having no practical application; Rava contradicts this analysis and, referring directly to the Mishnah, declares that the Sages posit a “commanded” war that is governed by the selfsame regulation that applies to obligatory wars, viz., the nonexclusion from military service of the individuals described in Deuteronomy 20. R. Judah, on the other hand, equates such war with “discretionary” wars and maintains that those persons described in Deuteronomy 20 are conscripted only in obligatory wars but not for service in wars “to diminish the heathens.” The phraseology employed by Rava, “The difference is with regard to [application of the principle that] one who is engaged in performance of a commandment is exempt from the performance of [another] commandment” is understood by Me’iri as referring to exemption from an obligation associated with warfare itself, i.e., the obligation devolving upon those described in Deuteronomy 20 to recuse themselves from battle. That obligation is variously regarded as based upon the words expressed repeatedly in Deuteronomy 20 “let him go and return to his house” or the verse “he shall be free for his house one year” (Deuteronomy 24:5). See Rashi, Deuteronomy 20:7, Sotah 43a, and Rambam, Hilkhot Melakhim 7:10. The Sages regard participation in war “to diminish the heathens” as a miẓvah and hence incumbent upon even those enumerated in Deuteronomy 20. Since participation in a war “to diminish the heathens” constitutes a miẓvah, such participation serves to exempt those enumerated in Deuteronomy 20 from the commandment to remove themselves from the battle arena.
[The Tosefta, Sotah 7:15, as apparently understood by Rashi, Deuteronomy 20:7, and Rambam, Hilkhot Melakhim 7:11, maintains that those exempt from conscription in milḥamot reshut may not serve even on a voluntary basis. See also the discussion in Sotah 44a concerning a prohibition against a bridegroom’s participation in battle. Rabbi Waldenberg’s analysis of Me’iri is apparently predicated upon this premise. One difficulty with this explanation lies in the fact that Rambam, on the basis of Sotah 44a, maintains that military service by such individuals involves, not a simple violation of a positive commandment, but transgression of two negative commandments, viz., “When a man takes a wife he shall not go out in the army, nor shall he be charged with any matter” (Deuteronomy 24:5). The principle that one engaged in fulfillment of a miẓvah is exempt from fulfillment of other precepts applies only to positive commandments but does not permit violation of negative precepts. (The usual explanation of why the exclusions from military service found in Deuteronomy 20 do not apply to commanded or obligatory wars is based upon rabbinic exegesis of the prefatory phrase in that section. “Ki teẓei la-milḥamah” is understood as meaning “If you go forth to war” rather than “When you go forth to war.” The reference must then be to discretionary war since commanded war cannot be described in hypothetical terms.)
See also Sefer ha-Ḥinnukh, no. 581, who apparently maintains that the exclusion of those enumerated in Deuteronomy 20 means simply that they cannot be compelled to perform military service but does not forbid voluntary enlistment. If so, the phrase “let him go and return to his house” cannot be understood as a miẓvah. However, Rava’s comment may be understood in an alternative manner. It may be understood to mean that the dispute between the Sages and R. Judah is also with regard to application of the principle that one who is engaged in fulfillment of a commandment is exempt from the fulfillment of another commandment. It would be regarded as self-understood that exemption or non-exemption from participation in a war “to diminish the heathens” flows from its categorization as miẓvah or reshut. See Knesset ha-Gedolah, Hilkhot Melakhim, chapter 5, appended to Knesset ha-Gedolah, vol. IV.]
Rabbi Waldenberg finds support for Me’iri’s interpretation in the parallel discussion found in the Palestinian Talmud that reports that R. Yoḥanan declared that the dispute between the Sages and R. Judah is entirely one of nomenclature, while R. Ḥisda declared that there is a substantive dispute between them. The identical controversy, according to this analysis, is posited by the Babylonian Talmud as a dispute between R. Yoḥanan and Rava.
This analysis of Me’iri’s comments yields a conclusion of crucial halakhic import. In this controversy the normative halakhah is decided in accordance with the majority position, i.e., that of the Sages. According to the interpretation of Me’iri, the Sages maintain that war to diminish the heathens is a milḥemet miẓvah rather than a milḥemet reshut.
It should, however, be noted that there is a distinct possibility that the text of the Me’iri’s commentary contains a scribal error and that Me’iri actually wrote that war “to diminish the heathens” is a milḥemet miẓvah according to R. Judah but a milḥemet reshut for the Sages. In citing the text of Me’iri’s remarks, R. Shlomoh Yosef Zevin, Le-Or ha-Halakhah (Tel Aviv, 5717), p. 13, makes precisely this correction without further comment.
Knesset ha-Gedolah, IV, Hilkhot Melakhim, chapter 5, similarly explains that there is a dispute between R. Yoḥanan and Rava. According to Knesset ha-Gedolah, Rava declares that both the Sages and R. Judah maintain that war “to diminish the heathens” is a milḥemet miẓvah in the sense that the exemptions recorded in Deuteronomy 20 do not apply in the conduct of such warfare. The sole dispute is whether combatants engaged in such warfare are exempt from fulfilling other precepts. According to the Sages they are exempt while according to R. Judah they are not exempt. For that reason R. Judah terms such war milḥemet reshut, i.e., participants are not viewed as engaged in an activity exempting them from fulfillment of other precepts. It is the view of Knesset ha-Gedolah that Rambam rules in accordance with the opinion of the Sages and includes preemptive war in the category of war “to deliver Israel from an enemy” which is classified by Rambam as a milḥemet miẓvah. This interpretation of Rambam is, however, contradicted by Rambam’s own comments in his Commentary on the Mishnah, Sotah, 8:7; see below, note 14.
The Gemara does not tell us explicitly whether it is R. Judah or the Sages who consider war “to diminish the heathens” to constitute a commanded war. Rashi and Rambam, in their respective commentaries, explain that R. Judah deems such war to be commanded while the Sages consider such war to be discretionary. (The interpretation of these authorities have been followed in the parenthetical interpretations within the translation above.) Indeed, Rashi’s interpretation is taken directly from the words of R. Yoḥanan: [A war which is designated] as permitted by the Sages is identical with [war which is designated as] commanded by R. Judah, i.e., there is a category of war which is deemed to be “commanded” by R. Judah while, according to the Sages, the identical war is merely “discretionary.” The war in question is then identified by Rava as war “to diminish the heathens so that they shall not march against them.” Thus there is no dispute between Rava and R. Yoḥanan; Rava merely amplifies the statement of R. Yoḥanan. According to both, the dispute between the Sages and R. Judah is with regard to whether participants in a war “to diminish the heathens” are exempt from fulfillment of other precepts. All are in agreement that the provisions of Deuteronomy 20:5-8 that apply to discretionary wars apply as well to war undertaken “to diminish the heathens.”
This interpretation is contradicted by Me’iri in his commentary on Sotah 43a. Me’iri declares that it is the Sages who deem such war to be commanded while R. Judah regards it as merely “permitted.” Of course, this understanding appears to be at variance with the statement recorded by the Gemara in the name of R. Yoḥanan.
R. Eliezer Waldenberg, Hilkhot Medinah, II, sha’ar 4, chapter 1, secs. 2-3, explains that Me’iri must have posited a dispute between R. Yoḥanan and Rava: R. Yoḥanan declares the sole controversy between the Sages and R. Judah to be entirely a matter of nomenclature having no practical application; Rava contradicts this analysis and, referring directly to the Mishnah, declares that the Sages posit a “commanded” war that is governed by the selfsame regulation that applies to obligatory wars, viz., the nonexclusion from military service of the individuals described in Deuteronomy 20. R. Judah, on the other hand, equates such war with “discretionary” wars and maintains that those persons described in Deuteronomy 20 are conscripted only in obligatory wars but not for service in wars “to diminish the heathens.” The phraseology employed by Rava, “The difference is with regard to [application of the principle that] one who is engaged in performance of a commandment is exempt from the performance of [another] commandment” is understood by Me’iri as referring to exemption from an obligation associated with warfare itself, i.e., the obligation devolving upon those described in Deuteronomy 20 to recuse themselves from battle. That obligation is variously regarded as based upon the words expressed repeatedly in Deuteronomy 20 “let him go and return to his house” or the verse “he shall be free for his house one year” (Deuteronomy 24:5). See Rashi, Deuteronomy 20:7, Sotah 43a, and Rambam, Hilkhot Melakhim 7:10. The Sages regard participation in war “to diminish the heathens” as a miẓvah and hence incumbent upon even those enumerated in Deuteronomy 20. Since participation in a war “to diminish the heathens” constitutes a miẓvah, such participation serves to exempt those enumerated in Deuteronomy 20 from the commandment to remove themselves from the battle arena.
[The Tosefta, Sotah 7:15, as apparently understood by Rashi, Deuteronomy 20:7, and Rambam, Hilkhot Melakhim 7:11, maintains that those exempt from conscription in milḥamot reshut may not serve even on a voluntary basis. See also the discussion in Sotah 44a concerning a prohibition against a bridegroom’s participation in battle. Rabbi Waldenberg’s analysis of Me’iri is apparently predicated upon this premise. One difficulty with this explanation lies in the fact that Rambam, on the basis of Sotah 44a, maintains that military service by such individuals involves, not a simple violation of a positive commandment, but transgression of two negative commandments, viz., “When a man takes a wife he shall not go out in the army, nor shall he be charged with any matter” (Deuteronomy 24:5). The principle that one engaged in fulfillment of a miẓvah is exempt from fulfillment of other precepts applies only to positive commandments but does not permit violation of negative precepts. (The usual explanation of why the exclusions from military service found in Deuteronomy 20 do not apply to commanded or obligatory wars is based upon rabbinic exegesis of the prefatory phrase in that section. “Ki teẓei la-milḥamah” is understood as meaning “If you go forth to war” rather than “When you go forth to war.” The reference must then be to discretionary war since commanded war cannot be described in hypothetical terms.)
See also Sefer ha-Ḥinnukh, no. 581, who apparently maintains that the exclusion of those enumerated in Deuteronomy 20 means simply that they cannot be compelled to perform military service but does not forbid voluntary enlistment. If so, the phrase “let him go and return to his house” cannot be understood as a miẓvah. However, Rava’s comment may be understood in an alternative manner. It may be understood to mean that the dispute between the Sages and R. Judah is also with regard to application of the principle that one who is engaged in fulfillment of a commandment is exempt from the fulfillment of another commandment. It would be regarded as self-understood that exemption or non-exemption from participation in a war “to diminish the heathens” flows from its categorization as miẓvah or reshut. See Knesset ha-Gedolah, Hilkhot Melakhim, chapter 5, appended to Knesset ha-Gedolah, vol. IV.]
Rabbi Waldenberg finds support for Me’iri’s interpretation in the parallel discussion found in the Palestinian Talmud that reports that R. Yoḥanan declared that the dispute between the Sages and R. Judah is entirely one of nomenclature, while R. Ḥisda declared that there is a substantive dispute between them. The identical controversy, according to this analysis, is posited by the Babylonian Talmud as a dispute between R. Yoḥanan and Rava.
This analysis of Me’iri’s comments yields a conclusion of crucial halakhic import. In this controversy the normative halakhah is decided in accordance with the majority position, i.e., that of the Sages. According to the interpretation of Me’iri, the Sages maintain that war to diminish the heathens is a milḥemet miẓvah rather than a milḥemet reshut.
It should, however, be noted that there is a distinct possibility that the text of the Me’iri’s commentary contains a scribal error and that Me’iri actually wrote that war “to diminish the heathens” is a milḥemet miẓvah according to R. Judah but a milḥemet reshut for the Sages. In citing the text of Me’iri’s remarks, R. Shlomoh Yosef Zevin, Le-Or ha-Halakhah (Tel Aviv, 5717), p. 13, makes precisely this correction without further comment.
Knesset ha-Gedolah, IV, Hilkhot Melakhim, chapter 5, similarly explains that there is a dispute between R. Yoḥanan and Rava. According to Knesset ha-Gedolah, Rava declares that both the Sages and R. Judah maintain that war “to diminish the heathens” is a milḥemet miẓvah in the sense that the exemptions recorded in Deuteronomy 20 do not apply in the conduct of such warfare. The sole dispute is whether combatants engaged in such warfare are exempt from fulfilling other precepts. According to the Sages they are exempt while according to R. Judah they are not exempt. For that reason R. Judah terms such war milḥemet reshut, i.e., participants are not viewed as engaged in an activity exempting them from fulfillment of other precepts. It is the view of Knesset ha-Gedolah that Rambam rules in accordance with the opinion of the Sages and includes preemptive war in the category of war “to deliver Israel from an enemy” which is classified by Rambam as a milḥemet miẓvah. This interpretation of Rambam is, however, contradicted by Rambam’s own comments in his Commentary on the Mishnah, Sotah, 8:7; see below, note 14.
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Contemporary Halakhic Problems, Vol III
It is precisely for this reason that a monarch is required for the purposes of waging war. Jewish law recognizes that society has inherent power, albeit limited in nature, with regard to expropriation of the resources of its members. Thus society may levy taxes for the common welfare and compel payment. However, society lacks power to force individuals to place themselves in jeopardy even when endangerment of some is necessary to avert greater danger to the greater number. Jewish law endows the monarch with powers beyond those vested in society. The essence of monarchical power is the power of coercion. A monarch is empowered to force the populace to do his bidding. The king may expropriate property and may conscript soldiers to fight in his wars. Only the sovereign enjoys the power to compel his subjects to endanger their lives.47See also, Mishpat Kohen, no. 143 and R. Alexander Epstein, Niv ha-Midrashiyah, Winter-Spring 5728, pp. 72-80. The verse “Lest he die in the war” (Deuteronomy 20:5) as understood by Sifrei, ad loc., and the earlier cited Mishnah, Sotah 44b, speaks of possible loss of life in the context of milḥemet reshut. Similarly, Rambam, Sefer ha-Miẓvot, Miẓvot aseh, no. 191, in speaking of the function of the address delivered prior to battle by the mashuaḥ milḥamah, (i.e., the “priest annointed for war” for the purpose of addressing the troops), describes the address as designed so that “their hearts be aroused to war and he bring them to endanger themselves.” Rambam, Hilkhot Melakhim 5:2, defines the role of the king with regard to milḥemet mizvah: "He forces the people to go forth." Thus, Halakhah requires not only that milḥemet reshut be initiated by the king but also that milḥemet mizvah be undertaken only upon the initiative of the monarch. Since war requires conscription of soldiers whose lives are placed in jeopardy, war may be declared only by the king. Absent a monarch, there exists no power of conscription and each citizen may decline to participate in battle. Accordingly, despite the general obligation to preserve life and to render assistance to one whose life is in jeopardy, a king is necessary for the proper conduct even of a war "to deliver Israel from an enemy" because, in the absence of a decree of the king committing the populace to war, no person is obligated to jeopardize his own life in order to save the life of his fellow.48Cf., R. Raphael Katzenellenbogen, No‘am, XVI, 45ff., who fails to recognize this salient point. Cf., also, the somewhat different analysis of R. Saul Israeli, Torah she-be-‘al Peh, X (5728), 49f.
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