Halakhah su Deuteronomio 20:78

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:

And the officers shall speak unto the people, saying: who is the man who has built a new house and has not begun living in it? let him go and return to his house, lest he die in the battle and another man begin living in it. And who is the man who has planted a vineyard and has not redeemed [its fruit in the fourth year]? let him go and return to his house, lest he die in the battle and another man redeem it. And who is the man who has betrothed a wife and has not taken her? let him go and return to his house, lest he die in the battle and another man take her.¹The immediately following verse, Deuteronomy 20:8, provides yet another exemption: “And the officers shall speak further unto the people and they shall say, who is the man who is fearful and faint-hearted? let him go and return to his house, and let him not make the heart of his brethren faint as [is] his heart.” This exclusion, however, applies with regard to milḥamot miẓvah as well as to milḥamot reshut; see Radbaz, Hilkhot Melakhim 7:1, and commentaries ad loc.

Indeed, even if such an obligation were to exist in our day, that obligation would be severely limited in nature. Minḥat Hinnukh, no. 425, raises an obvious question. All commandments, with the exception of the prohibitions against homicide, idolatry and certain sexual offenses, are suspended for the purpose of saving a life. Actions which otherwise would be prohibited are permissible, and indeed mandatory, in the event that there exists even a remote chance that a life may be saved as a result of their performance. Obligations which are otherwise mandated are suspended in face of even possible danger to life. Failure to wage an obligatory war is not enumerated as one of the cardinal sins demanding martyrdom rather than trangression. How, then, can the Torah command us to wage war? Yet war for the conquest of Erez Yisra'el as well as for the eradication of Amalek is a mandatory duty. Warfare obviously presents the possibility of casualties and, even in the most favorable of circumstances, poses a threat to life. The scriptural phrase "va-ḥai ba-hem—and he shall live by them" (Leviticus 18:5) is understood by the Sages as suspending the yoke of the commandments when fulfillment might mean that the person so obligated might "die by them" rather than "live by them." Minḥat Hinnukh resolves the problem by explaining that the commandments concerning war are unique. Warfare, by virtue of its nature, demands that a participant's life be placed in danger. Hence, in this case, the nature of the mizvah requires that one place one's life in danger. Since that is the very essence of the obligation, the mizvah cannot be suspended in face of possible danger.⁷Cf., R. Naphtali Zevi Yehudah Berlin, Meromei Sadeh, Eruvin 45a and Kiddushin 43a; and R. Yitzchak Ze’ev Soloveitchik, Ḥiddushei Maran Riz ha-Levi al ha-Torah (Jerusalem, 5723), Parshat Beshallaḥ, p. 32. These scholars quite appropriately note that, even in the absence of a miẓvah, considerations of endangerment of self or of others are set aside in time of war simply by virtue of the “laws of war,” i.e., the Torah’s very recognition and sanction of warfare constitutes dispensation for endangerment of lives in the conduct of war.
R. Joshua Aaronberg, Dvar Yehoshu’a, II, no. 48, extends this position in stating that, since considerations of self-endangerment are set aside in the conduct of war, war may not be eschewed if avoidance of war would result in infraction of even a rabbinic prohibition. Thus, for example, the prohibition, lo titen lahem ḥaniyah be-karka may not be violated because of considerations of pikuaḥ nefesh since there exists the option of waging war in order to prevent non-Jewish occupation of land. This writer finds Rabbi Aaronberg’s thesis unconvincing. The Torah permits self-endangerment in a milḥemet miẓvah; nowhere is there the slightest hint that an otherwise non-obligatory war becomes obligatory when necessary to avoid suspension of any prohibition in the face of danger. On the contrary, the Gemara, Gittin 56a, indicates that a blemished animal might be accepted as a sacrificial offering because refusal would offend the authorities and result in danger to Jews. There is no suggestion that war, even if potentially successful, must be undertaken in order to avoid such transgression. Moreover, the Brisker Rav, in his above cited comment, explicitly writes that the commandment haḥarem taḥarimem (Deuteronomy 20:17), qua miẓvah, is suspended even in time of war.

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 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.

Rabbi Mordechai ha-Kohen demonstrates that it is mandatory that peace terms be set forth before engaging in hostilities. In this article the author endeavors to prove that normative Halakhah requires the initial proffering of peace terms even in the case of obligatory wars in accordance with the ruling of Rambam, Hilkhot Melakhim 6:1, and concurring authorities in contradiction to the ruling of the Sifre, Deuteronomy 199, and Rashi in his commentary on Deuteronomy 20:10. The latter sources regard this provision as being operative only in the case of permissible wars to the exclusion of obligatory wars.

The question of whether a preemptive war is included in the category of milḥemet mizvah or milḥemet reshut is crucial with regard to yet another aspect of Halakhah. The Mishnah, Sanhedrin 2a, stipulates that a discretionary war may be undertaken only upon the acquiescence of the Great Sanhedrin composed of seventy-one members. A subsequent Mishnah, Sanhedrin 20a, implies that a discretionary war may be undertaken only by a monarch. Thus, a discretionary war cannot be justified unless undertaken by the king⁴Ramban, addenda to Rambam’s Sefer ha-Miẓvot, miẓvot aseh, no. 4, states that the requirement that war be undertaken only by a king must be understood as including not only a monarch but any sovereign authority. Thus he states that war may be undertaken by “a king, a judge or whosoever exercises jurisdiction over the people.” For sources discussing Rambam’s possible disagreement regarding this point, see Contemporary Halakhic Problems, II, 207, note 27. with the permission of the Great Sanhedrin.⁵Rabbi Judah Gershuni, Torah she-be-‘al Peh, XIII (5731), 150f., advances the thesis that approval of the Sanhedrin is required only if the monarch finds it necessary to compel the populace to go to war and to conscript soldiers against their will, but that when the nation voluntarily agrees to go to battle approval of the Sanhedrin is not required. A similar view is advanced by Einayim la-Mishpat, Sanhedrin 16a. This view is supported by the comments of Me’iri, Sanhedrin 16a, who remarks that approval of the Sanhedrin is required in order to compel the populace to go out to battle. See also R. Abraham I. Kook, Mishpat Kohen, no. 145, and R. Saul Israeli, Amud ha-Yemini, no. 14 and no. 16, chap. 5, secs. 6-7. Cf., Amud ha-Yemini, no. 16, chap. 5, sec. 24. Moreover, in the context of a discussion of discretionary war, the Gemara, Berakhot 3b and Sanhedrin 16a, declares that the king may not undertake military action other than upon the approval of the urim ve-tumim.⁶Upon the twelve precious stones of the urim ve-tumim were engraved the names of the twelve tribes of Israel. In response to a specific query, various letters became illuminated. By means of the Divine Spirit the High Priest was enabled to combine the letters in order to discern the intended response.
Since no discretionary war could be undertaken other than upon approval of the urim ve-tumim, even discretionary war must be deemed to be undertaken with explicit divine approval and, conversely, no war could be undertaken other than with such divine sanction. Thus Abigail addresses King David and declares, “… for the Lord will certainly make a sure house for my lord because my lord fights the battles of the Lord” (I Samuel 25:28). Rambam, Hilkhot Melakhim 7:15, cites this verse and applies it to discretionary wars in stating:
Moreover, many ritual prohibitions are suspended even when discretionary wars are fought. Thus, once a discretionary war has been undertaken, it is permissible to wage such war on the Sabbath and combatants are permitted to partake of forbidden foods. The woman of “beautiful countenance” described in Deuteronomy 20:11 is permitted only to combatants engaged in discretionary wars but not to those engaged in commanded wars. It is thus clearly evident that even discretionary wars, when undertaken in accordance with the prescriptions of Halakhah, must be understood as undertaken by virtue of divine mandate. See Hilkhot Medinah, II, sha’ar 4, chapter 1, sec. 6. Indeed, Mekom Shmu’el, no. 8, suggests that the term “reshut” should be understood not as “permitted” or “discretionary” but as “licensed” or “sanctioned” in the sense that such war requires reshut Bet Din, i.e., sanction of the Sanhedrin, as distinct from wars that are obligatory by reason of explicit scriptural mandate. Although in Hilkhot Melakhim Rambam fails to mention consultation of the urim ve-tumim as a necessary precondition,⁷Cf., R. Yechiel Michael Epstein, Arukh ha-Shulḥan he-Atid, Hilkhot Mela-khim 74:7, who suggests that, even with regard to discretionary wars, consultation of the urim ve-tumim, although biblically mandated, is “perhaps” not a necessary condition of war. Although consultation of the urim ve-tumim constitutes a miẓvah and is required by virtue of biblical command, failure to engage in prior consultation, contends Arukh ha-Shulḥan he-Atid, does not affect the legitimacy of the war itself. See also, Le-Or ha-Halakhah, p. 12, and cf., Einayim la-Mishpat, Sanhedrin 16a. nevertheless, in the introduction to his Sefer ha-Mizvot, shoresh 14, Rambam does state that a High Priest is required for the undertaking of war; i.e., the king and the Sanhedrin may not undertake military action other than upon acquiescence of the urim ve-tumim which is attached to the breast-plate worn by the High Priest. Hence, absent a High Priest⁸See, however, Rambam’s reference to the function of the urim ve-tumim in Hilkhot Klei ha-Mikdash 10:11. who can consult the urim ve-tumim, offensive war in conformity with the stipulations of Jewish law is impossible. Ramban, in his addenda to Rambam's Sefer ha-Mizvot, mizvot lo ta'aseh, no. 17, declares that the requirement for consultation and approval of the urim ve-tumim is not limited to discretionary wars but applies with equal force to obligatory wars as well.⁹Rashi, in his commentary on the verse “and he shall stand before Eleazar the priest, who shall inquire for him by the decree of the Urim before the Lord” (Numbers 27:21), remarks that “even Joshua” was required to consult the urim ve-tumim “when he had need to go out to battle.” Since the wars of Joshua were all commanded wars, i.e., for the conquest of the territory inhabited by the Seven Nations, it must be inferred that Rashi agrees with Rambam in maintaining that consultation of the urim ve-tumim was necessary even in conjunction with commanded wars. See R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melak-him 5:2.
For a discussion of whether war against Amalek requires consultation of the urim ve-tumim, see R. Judah Gershuni, Torah she-be-‘al Peh, XIII (5731); cf., Contemporary Halakhic Problems, I, 16-18.

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.

Rav Schachter summarizes the many opinions regarding the Rambam’s celebrated omission of the mitzvah of living in Israel from his list of the 613 mitzvot. He presents opinions (cited by Sdei Chemed Ma’arechet Eretz Yisrael 2) that the Rambam believes that the mitzvah to live in Israel is rabbinic and therefore does not list it as one of the 613 mitzvot. Rav Schachter then cites the Avnei Neizer (in his aforementioned responsum), who asserts that once the Rambam counted the mitzvah of conquering the seven nations who lived in Israel prior to the conquest of Yehoshua (Devarim 20:17), he did not find it necessary to count the actual conquest and settlement as a separate mitzvah.

Similarly,⁹⁷ Now Ibn Ezra brings other examples from Scripture where a phrase does not refer to what is adjacent to it in the verse but rather to a part of the verse that is some distance away. “from the first day until the seventh day” (Exodus 12:15)⁹⁸ The verse reads: “Seven days you shall eat unleavened bread, but on the first day you shall remove leaven from your homes, for whoever eats leavened bread will be cut off from Israel, from the first day until the seventh day.” Reading this verse literally, it gives the impression that one who eats leavened bread will be cut off from Israel for only seven days, from the first day of Passover until the seventh day. This is not a correct reading. is not connected to the adjacent phrase, rather to “whoever eats leavened bread etc.” (ibid.) which is some distance away.⁹⁹ The verse is to be understood as: “whoever eats leavened bread from the first day to the seventh day will be cut off from Israel.” Similarly, “and Israel saw Egypt dead upon the bank of the sea” (ibid. 14:30) is to be understood as “and Israel saw, while standing upon the bank of the sea, Egypt dead.” For “they went down like a stone into the depths” (ibid. 15:5), and “the earth swallowed them” (ibid. 15:12).¹⁰⁰ Therefore, verse 14:30 cannot mean that Israel saw Egypt’s dead upon the bank of the sea, since the Egyptian bodies sank and were not thrown upon the bank. Similarly, “to fall before you in siege” (Deuteronomy 20:19) is connected with “you may not cut it down” (ibid.).¹⁰¹ The verse is to be understood as: “you may not cut down the tree so that the city should fall before you in siege, for man is dependant on the tree of the field.” There are many similar verses.

When R. Phinehas ben Yair arrived at the home of R. Judah he happened to enter by a gate near which were some mules. He [R. Phinehas] exclaimed, "The angel of death is in this house! Shall I dine with him?" Rabbi [Judah] heard and went out to meet him. He said to him [R. Phinehas], "I will sell them." He [R. Phinehas] said to him [R. Judah], "Thou shalt not put a stumbling block before the blind" (Leviticus 19:14). "I shall abandon them." "You would be spreading danger." "I shall hamstring them." "That would cause suffering to animals." "I shall kill them." "There is a prohibition against wanton destruction" (Deuteronomy 20:19).

This ruling, cited in the name of Issur ve-Heter 59:36, is supported by the comments of Tosafot, Baba Mezi'a 32b.³⁴Cf., however, R. Elijah of Vilna, Bi‘ur ha-Gra, Even ha-Ezer 5:40, and the comments of R. Jacob Breisch, Teshuvot Ḥelkat Ya‘akov, I, no. 30, secs. 2-3, as well as Shmuel, Moshe Mordecai and Eleazar Shulsinger, Mishmar ha-Leviyim (Zikhron Me’ir, 5740), no. 20. See also R. Yechiel Ya‘akov Weinberg, Seridei Esh, III, no. 7, and Ḥelkat Ya‘akov, I, no. 31, secs. 1-3.
R. Judah Leib Zirelson, Ma‘arkhei Lev, no. 110, finds a biblical source for this ruling: “And Samson went and caught three hundred foxes and took torches and turned tail to tail and put a torch in the midst between every two tails. And when he had set the torches on fire, he let them go into the standing corn of the Philistines and burn up both the shucks and the standing corn and also the olive-yards” (Judges 15:4-5). Ma‘arkhei Lev argues that inflicting severe pain on the foxes was sanctionable only because it served a human need and hence the general principle can be traced to these verses. R. Jacob Breisch, Teshuvot Ḥelkat Ya‘akov, I, no. 30, sec. 5, cogently rebuts this argument on the grounds that Samson was involved in a defensive war against the Philistines and, in fact, his own life was endangered. Hence Judges 15:4-5 serves only to establish that ẓa‘ar ba‘alei ḥayyim is permitted when human life is endangered but not necessarily for the sake of a lesser purpose. Tosafot poses the following question: The Gemara, Avodah Zarah 11a, declares that, in conjunction with the funeral rites of a monarch, it is permitted to sever the tendons of the horse upon which the king rode. This practice is permitted despite its source in pagan rituals because it is intended as an act of homage to the deceased king. If za'ar ba'alei ḥayyim involves a biblical infraction, queries Tosafot, why may the animal be mutilated in this manner? Tosafot answers that such a practice is permitted "in honor of king[s] and prince[s] just as 'thou shalt not wantonly destroy' (Deuteronomy 20:19) is abrogated for the sake of their honor." Insofar as the prohibition concerning "wanton destruction" is concerned, Tosafot's comment is clear. The prohibition against "wanton destruction" is not suspended or abrogated for the sake of royal honor; rather, Scripture forbids only wanton destruction of fruit trees and, by extension, of other objects of value as well. Scripture does not forbid enjoyment of consumables since such use does not constitute "destruction." Similarly, "destruction" which serves a legitimate purpose is not proscribed since it is not wanton or "destructive" in nature. "Destruction" for purposes of rendering homage to a deceased monarch is a legitimate use of property and hence is not forbidden. Tosafot apparently regards za'ar ba'alei ḥayyim in a similar light, i.e., as forbidden only when wanton in nature,³⁵Cf. Teshuvot Mareh Yeḥezkel, no. 59, who expresses amazement at Rema’s ruling querying, “Whence is it derived that violation of the biblical prohibition of ẓa‘ar ba‘alei ḥayyim may be sanctioned to effect a cure or for human benefit?” In light of Tosafot’s comments to the effect that the prohibition does not encompass such contingencies, Mareh Yeḥezkel’s incredulity is misplaced. but permissible when designed to achieve a legitimate goal.³⁶See below, note 50. Hence, declares Tosafot, mutilation of the royal steed in conjunction with the funeral of a monarch is permitted even though the animal experiences pain because mutilation of the animal serves to fulfill a legitimate purpose. In accordance with this position, Rema rules that za'ar ba'alei ḥayyim is permissible for purposes of healing or for any other legitimate purpose.³⁷See R. Abraham Hafuta, No‘am, IV (5721), 223f. Piskei Tosafot, Avodah Zarah 1:11, in what is apparently a precis of Tosafot, Baba Meẓi‘a 32b, (or the precis of a different manuscript of Tosafot on Avodah Zarah) states that ẓa‘ar ba‘alei ḥayyim is forbidden only when the pain caused to the animal yields “no profit” (beli revaḥ).

A more obvious source of Rambam's characterization of a defensive war as a milḥemet mizvah may perhaps lie in a statement found in the Babylonian Talmud.²⁹R. Aaron Soloveichik, Or ha-Mizraḥ, Tevet 5730, posits Midrash Tanḥuma, Parshat Pinḥas, sec. 3, as Rambam’s source. Deuteronomy 26:17-18 states, “Harass the Midianites and smite them; for they harass you.” Tanḥuma comments: “On the basis of this verse our Sages said, ‘If [a person] comes to slay you, arise and slay him.’ ” In context, the mandated response is not merely individual self-defense but a defensive war. As noted earlier, the Gemara, Eruvin 45a, declares that it is permissible to resist aggression likely to result in loss of life by going to battle even on the Sabbath.³⁰See also Arukh ha-Shulḥan he-Atid, Hilkhot Melakhim 74:3. Cf., however, R. Shlomoh Goren, Maḥanayim, no. 69, p. 9, and Torat ha-Shabbat ve-ha-Mo‘ed, p. 345; cf., also, below, note 31. The Gemara must be understood as sanctioning such military activity in the guise of a milḥemet mizvah rather than as a milḥemet reshut for two reasons: (1) A milḥemet reshut requires a monarch, Sanhedrin, and the urim ve-tumim, none of which were available during the period of the Amora'im. (2) A milḥemet reshut may not be initiated on the Sabbath. Indeed, the Gemara, Shabbat 19a, followed by Rambam, Hilkhot Shabbat 2:25, declares that a siege may not be commenced within a three-day period prior to the Sabbath. Rashi, Deuteronomy 20:19, and Leḥem Mishneh, Hilkhot Shabbat 2:25, declare that this restriction applies only to discretionary wars but not to milḥamot mizvah.³¹Since the Gemara, Eruvin 45a, permits military action in defense of border settlements even when no certain threat to life exists, the response that is sanctioned cannot be understood to be in the nature of collective self-defense but must be in the nature of a halakhic category of war. This distinction will be elucidated below. See also, above, note 25.

In my humble opinion, the Halakhic authorities do not differ at all, for behold, it is true that the word “ḥupah” is not written in the Torah, only the word (for) marriage, as it is written: “(In the case of) one who betrothes a woman but has not (yet) taken her…”
[illegible] marriage, since, according to Torah law proper, when he has intercourse with her for the sake of marriage, she is (considered) his wife completely and she is (considered) married. So wrote the Rambam.
However, it is not the way for Israelites to have this intercourse in public, and therefore, we would require witnesses to the “yiḥud” for intercourse. And even if it was possible that there was no need for witnesses to this (“yiḥud”), as it is written in paragraph 5, in every instance the matter would be in public (in reality) - for behold, (we) must bless them with the seven benedictions immediately before the marriage (ceremony). Therefore, our rabbis, may their memories be for a blessing, established that the “ḥupah” will be (can be) in place of the “nisuin” (i.e. the two terms can be used synonymously). It has always been this way; even in the time of the prophets, as it is written: “like a groom going out from his ‘ḥupah’ ” (Psalm 19:6), and, it says: “and a bride from her ‘ḥupah’ ” (Joel 2:16). (Cf. VIII) Obviously (then), thus did Moses our Rabbi instruct (lead) Israel.

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.

In order properly to understand the consideration underlying the requirement of the urim ve-tumim as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of milḥemet mizvah and milḥemet reshut pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 11, and R. Menachem Ziemba, Zera Avraham, no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.⁵³See Contemporary Halakhic Problems, II, 165. Nevertheless, an opposing view is found in the writings of one noted authority.⁵⁴A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot. In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, Ha'amek Davar, Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.⁵⁵This view is also expressed in Ha’amek Davar, Deuteronomy 20:8. See also Amud ha-Yemini, no. 16, chap. 5, secs. 8-24. The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. Ha'amek Davar understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains Ha'amek Davar, there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, Ha'amek Davar concludes that gentiles are not culpable for the taking of human life within the context of warfare.

One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, Ha'amek Davar, Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." Ha'amek Davar understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. Again, in Ha'amek Davar, Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, Gur Aryeh, Parshat Va-Yishlaḥ, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, Hatam Sofer cites the discussion found in Sanhedrin 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (lav benei kibush ninahu). Hatam Sofer demonstrates that the Gemara, Gittin 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase "lav benei kibush" must then be understood, argues Hatam Sofer, as meaning that non-Jews have no right to engage in war for purposes of conquest even though post factum they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, Dvar Avraham, I, no. 11 and by R. Menachem Ziemba, Zera Avraham, no. 24. These authorities are in agreement with Hatam Sofer's view that non-Jews may not engage in a war of aggression under any circumstances.

(3) It must also be noted that in some circumstances a milḥemet reshut, once undertaken, may be governed by the regulations applying to a milḥemet mizvah. As noted earlier, Deuteronomy 20:5-7 provides for the deferment of military service for certain categories of men. These exclusions apply only to a milḥemet reshut. Hence, a king may not legitimately undertake a milḥemet reshut unless he is confident of victory without finding it necessary to conscript such persons. However, once a war is declared and the tide of battle threatens to overwhelm the Jewish forces committed to battle, the situation is entirely different, Hazon Ish, Oraḥ Hayyim-Mo'ed 114:2, quite logically asserts that once a battle has been undertaken and there is danger of losing the encounter, response to such danger constitutes a milḥemet mizvah and, accordingly, even those persons otherwise exempt from military service are obligated to participate if their services are necessary to achieve victory. The selfsame consideration would logically apply even in the case of a war whose inception was entirely illicit. The danger of defeat creates a situation requiring the "deliverance of Israel from an enemy" which constitutes a milḥemet mizvah.

And that is that He commanded us to kill the seven nations that dwelled in the Land of Canaan and to destroy them, since they are the root of idolatry and its first base. And that is His, may He be exalted, saying, "you must surely annihilate them" (Deuteronomy 20:17). And He explained to us in many verses that the reason for this is so that we do not learn from their heresy. And many verses come to hint about this - meaning their killing - to strengthen it; and the war against them is a commanded war. And perhaps one might think that this commandment is not practiced for [all] the generations, since the seven nations have already ceased to exist. However it is [only] one who does not understand the topic of a practice that is practiced for the generations or that is not practiced for the generations who will think this. For it is not said about a command that is finished by the arrival of its purpose - without it being dependent upon a specific time - that it is not practiced for the generations. Rather it is practiced in each and every generation that the thing is found to be possible. Would you think that when God, may He be exalted, destroys the seed of Amalek and cuts it off with finality - as it will soon be, as He promised us by His saying, "I will surely blot out the memory of Amalek" - it is not for the generations? This would never be said! Rather it is practiced in each and every generation: Any time that the seed of Amalek is found, it is commandment to cut it off. And so too is killing the seven nations and destroying them a statement that was commanded; and it is a commanded war. And we are commanded to search for them in each and every generation until they are finished and not a single man of them remains. And so did we do in the days of David. [Then their] remnants scattered and mixed in with the [other] nations, until no root of them remained. But it is not because they have been cut off that this commandment that we have been commanded [should be considered] a commandment that is not practiced for the generations - and even after they have been finished and they have been destroyed. For these commandments are not connected to a specific time or place, like the commandments that were specific to the desert. Rather they are connected to to all times that it is found that this command is possible. And more generally, it is surely appropriate for you to understand and know the difference between commandments and that thing about which we were commanded. For, many times, the commandment will be practiced for the generations, but the thing about which we were commanded has already disappeared from certain times and places. But it does not turn into a commandment that is not practiced for the generations with the disappearance of the thing about which we were commanded. Rather it is [considered] not practiced for the generations when the matter is the opposite. And that is when certain content is in existence, but one is [only] obligated to do an action or a law at a certain time. But today it is not practiced, even though the thing is found with that matter. For example, a Levite who was disqualified in the desert is suitable today with us, as is explained in its place (Chullin 24a). And understand this principle and place it upon your heart. (See Parashat Shoftim; Mishneh Torah, Kings and Wars 5.)

That is that He commanded us the law that He gave to us in a war with the other nations; and that is called an optional war. And we are commanded about this when we fight with them: That we promise them, only their lives, if they make peace with us and give us the land; and we obligate them to give us taxes. And we do not listen to them until they accept all of it upon themselves. And that is that they give us a set [amount] each year - according to that which the king decrees it should be at that time - that they be under his control, that they lower themselves and they humble themselves. And this is the content of subjugation. But if they don't make peace with us, we have been commanded to kill every male adult in that province and to take everything they have and the women. And that is His saying, "And if they do not make peace with you, etc." (Deuteronomy 20:12). And all of this comes under the definition of an optional war. And the regulations of this commandment have already been explained in the eighth [chapter] of Sotah and the second [chapter] of Sanhedrin. (See Parashat Shoftim; Mishneh Torah, Kings and Wars 6).

There are differences between tearing garments upon the death of a father or mother, and the tearing of garments upon the death of other relatives. For all deceased relatives, tearing a tefach³See glossary. of the outer garment is sufficient, and tearing it more than that is a transgression of, "You shall not destroy."⁴Deuteronomy 20:19. For a father or a mother, all the garments must be torn that are over against his heart, (see above Chapter 10:3 that the area of the heart is that which is opposite the bicep of the arm) except the undershirt which is not torn. Similarly, a garment that is worn only on occassions, over other garments, and at times one goes out without it, such as an overcoat, such a garment also does not need to be torn. If the mourner did not tear all the garments that he was required to tear, he has not fulfilled his obligation. Because of modesty, a woman should first tear her inner-garment in private, and turn the tear to the side, and then tear her outer garment, so as not to expose herself. (Even though she is covered by her undershirt, nevertheless, it would be immodest to do otherwise.)

The commandment of killing the seven nations: To kill the seven nations that held our land before we conquered it from them - and they are the Canaanites, the Amorites, etc. - and to destroy them in any place we find them, as it is stated (Deuteronomy 7:2), "you shall totally destroy them." And this commandment is repeated in the Order of Shoftim, as it is stated (Deuteronomy 20:17), "But you shall totally destroy them, the Hittite, the Amorite, etc."

And this commandment is practiced by males and females in every place, and at all times that we have the power to kill them. And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot LaRambam, Mitzvot Ase 187), "And maybe someone will think that this is a commandment that is not practiced throughout the generations, since the seven nations have already been destroyed. However this will [only] be thought by someone who does not understand the matter of what is [considered] practiced throughout the generations and not practiced throughout the generations." And the major principle from his words, may his memory be blessed, is that you need to know that any commandment the performance of which has disappeared because its time has passed - such as the commandments that they had in the wilderness, but not afterwards in the Land; and so [too,] the commandment of apportioning the inheritance which was only for the generation that was [present] for the division of the land upon their entrance into the Land - those like these are the ones that are called, 'not practiced throughout the generations.' But all of the commandments that have disappeared from us because it is not found among us that we can do it - but not because the verse makes its dependent on a specific time, such as the this one of the destruction of the seven nations and Amalek in each and every generation that we find them, and even though we have already done to them that which we are obligated through our King David, who destroyed them to the point that there only remain a small number of them that have scattered and been diluted among the nations until their memory is not known, and it is not even in our [power] now to pursue them and to kill them - nonetheless, this commandment is not called because of this a 'commandment that is not practiced [throughout the generations].' And understand this principle and hold on to it. And one who transgresses this, and one of them comes to his hand - and he is able to kill him without endangering himself through the matter - and he does not kill him, has violated this positive commandment, besides that he violated a negative commandment which is stated about them (Deuteronomy 20:16), "You shall not keep any soul alive," as we will write at the end of the Order of Shoftim with God's help about the commandment not to keep alive one from all of the seven nations (Sefer HaChinukh 528).

The laws of the commandment - for example, that which they, may their memory be blessed, said (Mishneh Torah, Laws of Kings and Wars 7:15) that a man not think at the time of war about his wife, nor his children nor his money, but rather he clear his [mind] from everything, to [focus on] the war. And he should further think that all the blood of Israel is dependent upon him, and [so] if he is afraid and 'he pulls back his right [hand],' it is as if he spilled the blood of all of them - and like the matter that is written (Deuteronomy 20:8), "and that the heart of his brothers not melt like his heart." And it is explicit in the words of the tradition, "Cursed be he who makes the Lord’s work a fraud; cursed be he who withholds his sword from blood" (Jeremiah 48:10). And [also] that which they, may their memory be blessed, said (Mishneh Torah, Laws of Kings and Wars 7:15) that anyone who fights with all of his heart and intention to sanctify God is assured that he will not find injury; and it will be a merit for him and his children, that his house will be established in Israel, and he will merit life in the world to come. And [it is] like the matter that is written (I Samuel 25:28), "for the Lord will surely make a faithful house for my master, since my master fights the wars of the Lord, etc." And the rest of the details of the commandment are in the eighth chapter of Sotah (see Mishneh Torah, Laws of Kings and Wars 6).

The commandment to anoint a priest for war: That we were commanded to anoint one priest with anointing oil and to appoint him to speak with the people at the time of war, and this priest is called, "the anointed for war." And from this commandment is that the anointed priest should say three verses that are mentioned in the Torah to the people at the time of the war: "Whoever is a man that planted a vineyard, etc. And whoever is a man that built a house, etc., And whoever is a man that has taken (married) a woman, etc." (Deuteronomy 20:5-7). And he adds further words of his own [that] arouse people to war and uplifts them to endanger themselves to assist the religion of God and protect it, and to take vengeance upon the fools that destroy the arrangements of the states. And so did they, may their memory be blessed, say in Tractate Sotah 43a, "'And the officers shall speak' - the priest speaks and the officer makes it heard."

The root of this commandment is well-known - since the men of the war need strengthening at the time of war and since a man is heeded more when he is honored, the Torah commanded that the one appointed to strengthen [the troops] be from the priests, who are the select of the people. And the matter that we send back from the war whoever planted a vineyard and did not eat from it, or betrothed a woman but did not [marry] her or built a house but did not dwell in it - and so [too,] the one who is afraid from the sins in his hand - this thing too is appropriate and fit, since all of these people are very weak from [what is needed] to go into war; as their thoughts are very occupied with the things mentioned in Scripture, and they would disincline the hearts of their fellows - and like the matter that is written explicitly (Deuteronomy 20:8), "and that the heart of his brothers not melt like his heart." And so [too,] is it fit to send back the one who is afraid from the sins in his hand, lest others be killed from his iniquity. And all of the paths of the Torah are uprightness and faithfulness.

And also from this matter is that which they also said, that whether it is an optional war or a commanded, it is permitted for the front line of the army when they enter into the borders of the gentiles, and they are hungry and and they do not have provisions, to eat [their] foods - and even forbidden foods, such as carcasses, and 'torn' [animals] and pigs - and to drink idolatrous wine. And so did they, may their memory be blessed, expound (Chullin 17a), "'And houses filed with everything good' (Deuteronomy 6:11) - even [fatty] pigs' necks were permitted to us." And about this is it stated (Deuteronomy 20:10), "When you approach a city, etc." until the end of the section. [These] and the rest of the details of the commandment are in the second chapter of Sanhedrin and the eighth of Sotah.

To not keep alive a soul of the seven nations: That we were warned with a negative commandment not to keep anyone of the seven nations alive in every place that we find them and are able to kill them without danger to our souls. And the seven nations are the Canaanite, the Perizite, the Hivite, the Jebusite, the Hittite, the Girgashite and the Amorite. An about them is it stated (Deuteronomy 20:16), "you shall not keep a soul alive." And even though the truth is that King David killed many of them to the point that he almost finished them [off] and destroyed their memory, nonetheless a few of them remained that assimilated among the [other] nations. And anyone who finds some of them is obligated to destroy them in every place that they are. And I have written all of the content of this commandment at length above in the Order of Ve'etchanan on the commandment of killing the seven nations (Sefer HaChinukh 525). And [so] take it from there.

Not to seek their peace in a war: That we have been prevented from making peace with Ammon and Moav forever. And this matter is that God commanded us that when we besiege countries that we should request [terms of] peace with them before the war, and as I have written in the Order of Shoftim about the commandment to call out for [terms of] peace in an optional war (Sefer HaChinukh 527). And with Ammon and Moav, we have been prevented from this practice. And about this is it stated (Deuteronomy 23:7), "You shall not seek their peace or their welfare, etc." And so did they did they say in Sifrei, "It is implied from that which is stated (Deuteronomy 20:10), 'When you approach a city to fight against it, etc.' Is it possible also here? Therefore [the verse] teaches us to say, 'do not seek their peace.'"