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Judaism and the Obligation to Die for the State

  • Geoffrey B. Levey (a1)

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Dying in the state′s behalf, and at its request, is a matter that one might expect to be of obvious concern to the Jews throughout their history. Twice in bygone eras (roughly, 1000–586 B.C.E. and 140–63 B.C.E.) they have been ensconced in their own sovereign land faced with preserving that sovereignty against hostile neighbors and ambitious empires. Elsewhere, in the diaspora, they have been forced to define their relations and responsibilities to the host powers under whose authority they have variously been classed as aliens, residents, and citizens. And now, again, they are reestablished in their own sovereign state of Israel, in whose short history the call to arms has been unfortunately all too frequent. Yet the obligation to die for the state is not a question which enjoys especial treatment or ready resolution in Jewish sources.In part, this is because the Jewish tradition is not in nature a philosophical tradition, given to abstract systematic treatises in the manner of the ancient Greeks, to whom Western thought has ever since been indebted. It is, rather, a legal tradition, given over to the interpretation and application of legal minutiae in keeping with divine edict. Still, it would be wrong to conclude that Judaism and the Jewish tradition lack a coherent position on there being (or not being) an obligation to die for the state. Such, anyway, is what I wish to argue in this essay.

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1. Walzer, Michael, “The Obligation to Die for the State,” in Obligations: Essays on Disobedience. War and Citizenship(Cambridge, Mass., 1970), p. 89.

2. The argument that it was Hegel′s view that war “serves as a sort of civic education” by its ability to reassert state interests over private ones has recently been advanced by Smith, Steven B., “Hegel′s Views on War, the State, and International Relations,” American Political Science Review 11(1983): 624632.

3. de Vaux, Roland, Ancient Israel: Its Life and Institutions(London, 1973), p. 98.

4. Walzer, , “Obligation to Die,” p. 77.

5. Hobbes, Thomas, Leviathan(London, 1979), chap. 21. Hobbes does attempt to make certain exceptions to his principle that there cannot be an obligation to die, but with questionable success. See Walzer′s discussion, “Obligation to Die,” pp. 84–88.

6. Rousseau, Jean-Jacques, The Social Contract,trans. G. D. H. Cole (London, 1975), bk. II, chap. V, p. 189 (emphasis added).

7. Plato, , Crito,trans. Hugh Tredennick (Middlesex, 1969), pp. 9094.

8. On the consensual aspects of the biblical covenant, see Daniel J. Elazar′s essay, “Coven ant as the Basis of the Jewish Political Tradition,” in his edited volume Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses(Ramat Gan, 1981).

9. “The Biblical suggestion, for example, that covenant is the only moral, and, therefore, the most durable root for a political community has in the form of the social contract, become a dominant, if not thedominant, metaphor for Western theory since the medieval period. While important social contract theorists do not always emphasize the Sinai Covenant some (i.e. Spinoza) make it their central focus and others (i.e. Hobbes) refer to it often.” Rapoport, David C., “Moses, Charisma, and Covenant,” Western Political Quarterly 32 (1979): 124. This article provides a good list of sources dealing with the relation between biblical covenants and modern notions of social contract.

10. These are cited and discussed in Michael Walzer′s recent book, Exodus and Revolution(New York, 1985), esp. pp. 83–88. See also Gordon Freeman, “The Rabbinic Understanding of Covenant as a Political Idea,” in Elazar, Kinship and Consent,pp. 68–73.

11. Rosenbluth, Pinhas, “Political Authority and State in Jewish Thought,” Immanuel 7 (1977): 101113. For a more general discussion, see Isadore Epstein, The Jewish Way of Life(London, 1947).

12. The basic principle in this regard is dina d′malkhuta dina(literally, “the law of the kingdom is the law”), attributed in the Talmud to the third-century amora, Samuel. There is now a growing corpus of work investigating the application of this principle, although the specific question of the obligation to die for the state is mostly only implicitly rather than directly addressed. See Gerald Bildstein, “A Note on the Function of′The Law of the Kingdom Is Law” in the Medieval Jewish Community,“ Jewish Journal of Sociology15 (1973): 213–219; Leo Landman, Jewish Law in the Diaspora: Confrontation and Accommodation(Philadelphia, 1968); idem, “Civil Disobedience: The Jewish View,” Tradition10 (1969): 5–14; idem, “Dina D”Malkhuta Dina: Solely a Diaspora Concept,“ Tradition15 (1975): 89–96; idem, ”A Further Note on the Function of′The Law of the Kingdom Is the Law,′” Jewish Journal ofSociology17 (1975): 37–41; Aaron Rakefet-Rothkoff, “Dina D′Malkhuta Dina–The Law of the Land in Halakhic Perspective,” Tradition13 (1972): 5–23; and Shmuel Shilo, “Maimonides on ′Dina D′Malkhuta Dina (The Law of the State is the Law),′” Jewish Law Annual1 (1978): 146–167.

13. All biblical references are to the King James Version.

14. Vaux, De, Ancient Israel,p. 262.

15. When it transpires that the people remaining are still too numerous, God instructs Gideon to further “sift them” according to how they drink at a stream (Judg. 7:4–8).

16. Gendler, Everett E., “War and the Jewish Tradition,” in Contemporary Jewish Ethics,ed. Marc Kellner, Menachem (New York, 1978), p. 208. See also Pedersen, Johannes, Israel: Its Life and Culture,vols. 3–4 (London, 1963), pp. 910.

17. The phrase is from Priest, James E., Governmental and Judicial Ethics in the Bible and Rabbinic Literature(New York and Malibu, Calif., 1980), p. 179, who, though employing it in the same context, fails to note that it represents but one side of “principles in tension.”

18. Vaux, De, Ancient Israel,p. 215.

19. Ibid., p. 263.

20. Tosefta, Sanhedrin4:3; and Sanhedrin20b. References to later rabbinic views on this issue are cited in Landman, Leo, “Law and Conscience: The Jewish View,” Judaism 18 (1969): 24, n. 46. Two recent views claiming Samuel′s speech to be an indictment of monarchy are Jacobs, Louis, “The Concept of Power in the Jewish Tradition,” Conservative Judaism 33(1980): 2425,and Vawter, Bruce, “A Tale of Two Cities: The Old Testament and the Issue of Personal Freedom,” Journal of Ecumenical Studies 15 (1978): 266267.

21. Gendler, , “War and the Jewish Tradition,” pp. 191192. Cf. R. F. Clements, “The Deuteronomic Interpretation of the Founding of the Monarchy in I Sam. VIII,” Vetus Testamentum24 (1974): 398–410.

22. Walzer, , “Obligation to Die,” pp. 97, 98.

23. The expression is borrowed from Barrington Moore, Jr., in his summary (but apt) description of military obligations in the Old Testament. See his Privacy: Studies in Social and Cultural History(Armonk, N.Y., 1984), p. 188.

24. Sotah44a.

25. Ibid.

26. Tosefta, Sotah7:14.

27. For a statement of the affirmative and critical views, see, respectively, Landman, “Law and Conscience,” pp. 25–26, and Maurice Lamm, “After the War–Another Look at Pacificism and Selective Conscientious Objection (SCO),” in Kellner, Contemporary Jewish Ethics,pp. 237–238.

28. Hobbes, Leviathan,chap. 21, p. 115.

29. Soiah44b. The exceptional use of terms is Rabbi Judah′s. The exemptions apply, he says, “to the wars commanded by the Torah [milhamot mitsvah];but in obligatory wars [milhamot hovah]all go forth.” The Gemara explains that there is no real dispute between the sages and R. Judah about the kinds of wars meant by these terms, the latter′s novel use of terms representing rather a dispute about whether involvement in a given type of war exempts a soldier from the performance of other commandments. The suggestion here that in commanded wars women can be conscripted to fight (“even brides go forth”) is actually a far more complicated issue. So, too, there are complicating rabbinic rulings about the valid age-limits within which males can be conscripted (the most commonly cited being ages twenty to sixty). In speaking throughout this article of “individuals” being obligated to fight, such conditions attaching to age and sex should thus be borne in mind.

30. See respectively Maimonides′ Mishneh Torah, Book XIV: Judges,ed. and trans. Birnbaum, Philip (New York, 1967), Kings 7:1; Rabbi Ishmael, quoted by Midrash Tannaim20:1 and 20:19; and Rabbi Zimra (Radbaz), Hilkhot Melakhim7:1.

31. Cf. Sotah44b and Maimonides, Kings 5:1; idem, Sefer ha-Mitsvot, mitsvot aseh.addenda, no. 4.

32. The communal obligation is formulated by Maimonides in Kings 5:1 and in Sefer ha-Hinnukh,no. 425, and the personal obligation in Kings 5:4 as well as in Sefer ha-Hinnukh.no. 425.

33. See, for example, Goren, Shlomoh, Torat ha-Mo′dim(Tel Aviv, 5714 [1954]), pp. 180 ff.

34. Maimonides, Kings 5:1.1 have quoted the translation given in Bleich, n. 35 below, p. 7.

35. Bleich, J. David, “Preemptive War in Jewish Law,” Tradition 21(1981): 23. The various talmudic references associated with the law of rodefare cited by Bleich, p. 39, nn. 32–37

36. Ibid., p. 18.

37. Ibid., p. 23.

38. Rakefet-Rothkoff, , “Dina D′Malkhuta Dina,” p. 13.

39. Sanhedrin49a; Maimonides, Kings 3:8–9.

40. These include the view that the king “owns” the land and has the right to expel noncompliant citizens (R. Asher ben Yechiel, R. Nissim Gerundi, and R. Shlomoh ben Aderes to Nederim28a); the view that a pact exists between subjects and their king, whereby they agree to follow his ordinances (Rashbam′s commentary to Baba Bathra);and the view that the Noachide precept of “Laws” ordains the “rule of law” and the king′s right to execute it (Even haEzerto Maimonides, Nizkei Mammon8:5, based upon Rashi′s commentary to Gittin9b). It must be noted, however, that these arguments are mainly addressed to the matter of obedience to non-Jewish kings.

41. Hobbes, Leviathan,chap. 21, p. 115.

42. Lamm, Maurice, “‘Red or Dead?’ An Attempt at Formulating a Jewish Attitude,” Tradition 4 (1962): 185.

43. Midrash Tanhuma, Parshat Pinhas,sec. 3. See also Sanhedrin72a and Berakhot58a, 62b.

44. Sotah44b.

45. See respectively Lamm, “Red or Dead?”, p. 182; Maimonides, Kings 5:1; Berakhol3b and Sanhedrein16a.

46. Writes Maimonides: “All those who went back home from among the troops, after hearing the priest′s proclamation, return now and provide water and food for their fellow soldiers and fix the roads” (Kings 7:9). See also Sotah43a (in which there is also the statement that those returning home do notsupply the army with noncombat assistance), and Tosefta, Soiah7:15. Despite Maimonides′ inclusive description, all mishnaic references are to variations only of the first three Deuteronomic exemptions; the fourth appearsto be excluded.

47. R. Avraham Yeshaya Karelitz, and R. Haim ben Atar, Moed114:2.

48. Sanhedrin2a; Berakhot3b and Sanhedrin16a.

49. Cf. Maurice Lamm, “After the War,” p. 237: “But there is a sleeper in this affirmation of Jewish selective conscientious objection. It is true only on a nationallevel, not on a, personalone. Determination of the justice of a war was never left to individual decision. That burden devolved upon the state...xs” (emphasis in original). Lamm is, of course, talking of conscientious objection and not directly of the obligation to fight. But he tends to assume that an individual is obligated to fight inasmuch as a war is pronounced (at the national level) just. Conscientious objection–and hence a judgment about the justice or morality of war (or selective conscientious objection–a judgment about the justice or morality of certain wars)–is not, however, the only ground upon which an individual may dispute the call by his country to enter battle. He may simply reject the state′s command for him to risk his life, irrespective of his or the state′s views about the justice of the proposed war. I discuss the distinction in Jewish law between the question of the justice of war and of the obligation to fight in Section VII below.

50. Maimonides, Sefer ha-Mitsvot, mitsvot aseh,no. 191.

51. Bleich, “Preemptive War,” p. 23, and n. 47 (p. 40).

52. Maimonides, Kings 7:2–4, from which the following quotations are drawn. A similar account is given in the Gemara, Sotah42a–b.

53. Sotah44a–b. See also Maimonides, Kings 7:4; and Pentateuch with Rashi′s Commentary,trans. M. Rosenbaum and A. M. Silbermann (London, 1934), at Deut. 20:9.

54. Hobbes, Leviathan,chap. 21.

55. Rashi comments that the four scriptural admonitions in the face of battle correspond “to four things which the kings of the nations do in battle:...LET NOT YOUR HEARTS FAINT–through the neighing of the horses...FEAR NOT from the noise madeby the clashng of the shields,...AND HURRY NOT PRECIPITATELY at the sounds of the trumpets.. NEITHER BE TERRIFIED by the noise of the shouting (Siphre: Sota 42a, b)” (Rashi′s “ummemary,trans. M. Rosenbaum and A. M. Silbermann, at Deut. 20:3).

56. Sotah44b.

57. My discussion here is based on Bleich, “Preemptive War,” esp. pp. 18–30.

58. Ibid., pp. 24–25, 29–30.

59. The respective obligations to fight against Amaiek and the idolatrous Seven Nations would, in any case, appear nowadays to be purely formal ones, given the impossibility of identifying the descendants of these ancient peoples. See Maimonides, Kings 5:4–5, and the discussion of this issue in J. David Bleich, Contemporary Halakhic Problems(New York, 1977), pp. 17–18.

60. Ramban (Nahmanides) in his addenda to Maimonides′ Sefer ha-Mitsvot,no. 17, and Maimonides, Sefer ha-Mitsvot, shoresh14, cited in Bleich, Contemporary Halakhic Problems,p. 16. There is some question among commentators whether the war against Amaiek requires the intervention of the urim ve-tumim,but this appears to relate to Amaiek as a symbol of evil rather than to the Amalekites as a specific nation. See Bleich′s discussion, ibid., pp. 16–18.

61. Bleich, “Preemptive War,” pp. 28–29.

62. Ibid., p. 25.

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