War and the Military in Rabbi Shlomo Zalman Auerbach's Halakhic

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The Review of Rabbinic Judaism 21 (2018) 134–149

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War and the Military in Rabbi Shlomo Zalman Auerbach’s Halakhic Decisions

Amir Mashiach Ariel University of Samaria and Orot Israel College, 19 Weizmann Street, Petach Tikva, Israel, 4955619 [email protected]

Abstract

Rabbi Shlomo Zalman Auerbach (1910–1995) was one of the most influential Halakhic authorities of the twentieth century. Although he was an ultra-Orthodox rabbi, Rabbi Auerbach dealt with the complexity of army and military life. This article shows that he possessed of a clear “operational way of thinking,” reflecting deeply on the unique needs of the military of the Jewish State. Additionally, the article examines various ap- proaches of filling the normative gap in issues of war and the military. Rabbi Auerbach based his specification of the Halakhah on his personal understanding and his own S’vara, that is, Halakhic logic.

Keywords

Shlomo Zalman Auerbach – Halakhah – laws of war – operational thinking – Shaul Yisraeli – Shlomo Goren

Rabbi Shlomo Zalman Auerbach (RA, 1910–1995), one of the most influential Halakhic authorities of the twentieth century, for more than forty years headed the Kol Torah yeshiva in Jerusalem.1 He lived in Jerusalem’s Shaarei Chesed, a neighborhood associated with the Yishuv ha-Yashan, the Haredi [ultra-Orthodox] segment of the Jerusalem public. Taken together, these

1 On RA and his philosophy of Halakhah, see Amir Mashiach, Rabbi Shlomo Zalman Auerbach’s Halakhic Philosophy in a Dynamic Era of Socio-Technological Transformation (Ramat-Gan: Bar-Ilan University Press, 2013).

© koninklijke brill nv, leiden, 2018 | doi 10.1163/15700704-12341340Downloaded from Brill.com09/26/2021 08:14:30PM via free access War and the Military in Rabbi Shlomo Zalman Auerbach’s 135 things make RA’s Halakhic involvement in military issues and laws pertaining to warfare particularly remarkable.2 Rabbi Isaac Kofman, author of Ha- Tzava ka-Halakhah [The Army according to Halakhah], chose RA as the leading Halakhic authority in his work.3 RA read Kofman’s work, making extensive comments that have been preserved dispersed throughout the text. Readers of his Halakhic decisions regarding military issues and laws of warfare will see that, although he was an ultra-Orthodox rabbi with no personal experience of service in a military of any kind, RA nonetheless was possessed of a clear “operational way of thinking.” That is, his Halakhic discourse focusing on the individual Jewish-Israeli IDF soldier, whether in battle or going about his daily routine, is constructed with a sound, objective understanding of lived military reality and its conditions. RA recognized the complexity of army issues and based his specification of the Halakhah on this understanding. An indication of his multifaceted appreciation of the questions arising in connection with the military is that RA not only addressed issues of a soldier’s daily religious life (Orach Chaim) but also dealt with operational military activity. The present article analyzes RA’s Halakhic rulings both from the point of view of content pertaining to military issues and from the point of view of the rulings as such. This is especially called for considering that, as a halakhist, RA seems most closely associated with the Haredi [ultra-Orthodox] segment in Israel, thus oscillating between resistance against and absolute refusal to acknowledge the State of Israel and its institutions, including the Israel Defense Forces. Moreover, the ultra-Orthodox in Israel maintain a stance typically

2 Many works have been written on military service, laws of warfare, and Halakhah. The most notable and influential have been: Rabbi Israel Meir Ha-Cohen of Radin (Ha-Chafetz Chaim), Machaneh Yisrael [The Camp of Israel] (Jerusalem, 1941). The work was written for Jewish soldiers forced to serve in non-Jewish armies in Europe. The book does not deal with Jewish soldiers in a Jewish state; Shlomo Min Hahar, Dinei tzava u-milchamah [Laws of the Military and Warfare] (Jerusalem, 1973); Shlomo Goren, Meshiv milchamah [He Who Responds on War] (Jerusalem, 1983); Zecharya Ben Shlomo, Hilkhot tzava [Laws of the Military] (Shaalabim, 1986); Avraham Moshe Avidan, Shabbat u-moed be-tzahal [Sabbath and the Festivals in the IDF] (Jerusalem, 1990); Eliezer Nachum Rabinovitz, Melumadei milchamah [Those Experienced in War] (Maaleh Adumim, 1993); Shlomo Aviner, Hilkhot tzava [Laws of the Military] (Jerusalem, 1994); Zecharya Ben Shlomo, Nohal achid [Unified Regulation] (Shaalabim, 1997); Michael Rubin, ed., Ha-morim ba-keshet [Those Shooting with a Bow] (Kiryat Arba, 1999); Avi Rontski, Ke-chitzim be-yad gibbor [Like Arrows in the Hand of the Strong Man] (Jerusalem, 1996–2006). 3 Isaac Kofman, Ha-tzava ka-Halakhah [The Army according to Halakhah] (Jerusalem, 1992). For the author’s relationship with RA, see pp. 14–15.

The Review of Rabbinic Judaism 21 (2018) 134–149 Downloaded from Brill.com09/26/2021 08:14:30PM via free access 136 Mashiach referred to as the Talmudic-defensive ethos.4 That is, the ultra-Orthodox or Haredi sector is opposed to resorting to organized use of force as a means of solving any problems whatsoever; this implies that the ultra-Orthodox do not support armed undertakings of any kind. This is why there is no Haredi Halakhic authority taking part in the Halakhic discourse devoted to issues of warfare or the army. These questions are entirely the domain ruled by rabbis from the Religious Zionist fold, who maintain a very different ethos—the biblical-offensive.5 This is precisely why RA’s involvement in these issues is of particular interest. Not only did he work together with Rabbi Kofman; he also propounded views that, as I will show, are even more far-reaching Halakhically than the ones put forth by the rabbis of the Israeli military. RA did not assume any clear-cut stance vis-à-vis the State of Israel; even so, his Halakhic rulings suggest that he acknowledged the sovereignty of the state and municipal authorities in Israel.6 He goes so far as to ascribe Halakhic status to these sovereign institutions, even calling the government of Israel “Malkhut Yisrael,” or Kingdom of Israel.7 This is not a mere emotional gesture or burst of enthusiasm; it formally endows the regime in power with Halakhic authority. For instance, as the Kingdom of Israel, the secular government of the State of Israel is authorized to determine the borders of the Land of Israel, Eretz Yisrael, with the several Halakhic implications that this has.8 Yet even recognizing the State does not necessarily entail embracing ag- gressive military policy, considering especially that this approach is rejected in traditional rabbinic texts. Nevertheless RA, the ultra-Orthodox Haredi rabbi from Shaarei Chesed in Jerusalem, dealt, among other things, with issues related to the military and laws of warfare. As has already been noted, Rabbi Isaac Kofman, in his Ha-Tzava ka-Halakhah, chose RA as his Halakhic authority,9 relying on RA’s rulings based on an operational way of thinking. This refers

4 See Amir Mashiach, “From Past to Present—An analysis of the Various Sectors in Modern Israel Based on Jewish Identities from Ancient Times,” in Social Issues in Israel 17 (2014), pp. 38–68. 5 Ibid. 6 Amir Mashiach, “Rabbi Shlomo Zalman Auerbach’s Halakhic Rulings regarding the Sovereignty of the State of Israel,” in Avinoam Rosnack, ed., Halakha: Explicit and Implied Theoretical and Ideological Aspects (Jerusalem, 2012), pp. 115–132. 7 This answer was censored in the various editions of Minchat Shlomo. It appears full length in Mashiach, Rabbi Shlomo Zalman Auerbach’s Halakhic Philosophy, pp. 241–244. 8 This finds its expression in the case in which RA was asked whether the city of Eilat should observe the “Exiles’ Second Day of the Biblical Holidays” (Yom tov sheni shel galuyot). See RA, Minchat Shlomo, part 2, 44. 9 Kofman, Ha-tzava ka-Halakhah.

The Review of RabbinicDownloaded Judaism from 21 Brill.com09/26/2021 (2018) 134–149 08:14:30PM via free access War and the Military in Rabbi Shlomo Zalman Auerbach’s 137 to the awareness and understanding of the complexity of military reality, whether in combat or as part of the daily routine. The same conception is gen- erally to be found among rabbis who have themselves served in the army and are familiar with military routine, operational requirements, and the Halakhic problems facing the observant soldier, especially one serving in a combat unit.10 It is therefore a rare enough case where we find a Halakhic authority with an operational way of thinking like that of RA, a Haredi rabbi with no experience of service in any army or of contact with acquaintances who may have had any such experience. But this does not seem to have posed an obstacle to RA’s remarkable ability to achieve a balance between the needs of the military and the requirements of Halakhah. RA’s Halakhic rulings address not only the observant soldier’s Orach Chaim, or Halakhic day-to-day life, but also military procedures and operational combat activities that the religious soldier has to deal with in the course of military service. The paragraphs below provide instances of RA’s operational way of thinking, showing his way of balancing the needs of the military with the requirements of the Halakhah.

I Minimizing Military Operations on the Sabbath in a Manner Visible to the Enemy

A Halakhic issue presented to RA was whether the army should minimize military operational activities on the Sabbath—a measure that would be visible to the enemy. His answer was a definitive and unambiguous, No. Reduction in operations of this kind is prohibited. The army should carry on its operational activities on the Sabbath just as on any other day. Otherwise, should the enemy be able to appreciate the difference, they would be likely to conclude that on the Sabbath IDF activity levels are down and IDF awareness lower than usual. The result may well be an enemy attack.11 Notable here is that RA makes no appeal to the laws of the Sabbath. Furthermore, he makes no mention of the need to cut down on the number of violations of Sabbatical prohibitions,

10 An excellent example is former Chief Rabbi Rontski of the military, who first served as a combat soldier and then as a senior officer in elite units. This provided his Halakhic rulings with a foundational operational conception. He also wrote a series of books, Ke-chitzim be-yad gibbor [Like Arrows in the Hand of the Strong Man] (Jerusalem, 1996– 2006), vol. 1–4. 11 Leizerson, Shulchan Shlomo—Medical Issues, Part 1, p. 263 and n. 24; Kofman, Ha-tzava Ka-Halakhah, p. 174, paragraph 7 and n. 14.

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Le-hafchit issurim, or of how to perform the actions that are normally forbidden on the Sabbath in a way different from the usual (Be-shinui), such that performing the forbidden act would be a violation of only a rabbinic prohibition, Mi-derabbanan, and not a biblical one, Mi-deorayta. In a footnote, RA mentions that his prescription refers only to military activities that may be discovered by the enemy, such as patrolling or communication observable with the use of listening devices; with respect to other activities, there is no need to perform the military mission on the Sabbath in the same manner as during the week. RA, a Halakhic authority basing his decision making on a practical notion of operations, thus saw only one consideration as being of paramount importance: military need. It needs to be pointed out that this routine military activity involves no considerations of Pikuach nefesh (risk to life or life-threatening circumstances), which would always allow one to “disregard the Torah in its entirety.” The military activity to which RA refers here does not involve a concern for immediacy. The risk involved does not entail threat of loss of life at the very moment of the action being contemplated. I elaborate on this principle in the next example, which also involves no immediacy, and in which RA similarly permitted performing the activity in question on the Sabbath. These are instances in which RA extended the notion of Pikuach nefesh, making it apply to regular or routine military activity.

II Evacuating a Soldier’s Body from the Battlefield on the Sabbath

RA was asked, What should be done about a soldier’s body lying on the field of battle on the Sabbath? This question posed a problem for a number of Halakhic authorities. On the one hand, a dead body is Muktzeh, an object it is forbidden to move on the Sabbath. Insofar as no considerations of saving a life, that is, Pikuach nefesh,12 pertain in this case, violating the Sabbath for the purpose of retrieving the body poses a new kind of problem. If a soldier had been injured, there is no doubt whatsoever that it is permissible to do every- thing it takes to save him. The Halakhah in this case is very clear: saving lives takes precedence over the Sabbath, Pikuach nefesh docheh shabbat. But if the fighter is dead, there is nothing to be done that can help save a life; under

12 See B. Shab. 43b; B. Yom. 85a; Rambam, Laws of the Sabbath, chap. 26, paragraph 21; Tur and Shulchan Arukh, Orach Chaim 311.

The Review of RabbinicDownloaded Judaism from 21 Brill.com09/26/2021 (2018) 134–149 08:14:30PM via free access War and the Military in Rabbi Shlomo Zalman Auerbach’s 139 the restrictions of muktzeh, it appears the Halakhic decision should be to leave the body to lie on the ground until after the Sabbath. Rabbi Shlomo Goren, Israel’s Chief Rabbi as well as the first Chief Rabbi of the IDF, ruled to allow evacuating a soldier’s body from the battlefield on the Sabbath.13 He gave two reasons: first, to leave a dead body lying on the ground can severely damage living soldiers’ fighting spirit, thus creating an extremely dangerous situation. Second, the enemy is likely to take the dead body captive in order later to use it to blackmail the State of Israel. Having never been on a battlefield nor seen a soldier’s dead body lying on the ground, RA nonetheless formulated his decision in clear and simple terms: to permit evacuating the body on the Sabbath.14 From RA’s point of view, it is obvious that carrying on combat is permissible on the Sabbath, and it is a military and Halakhic duty to perform whatever is necessary to achieve vic- tory. Therefore, evacuating the dead, no matter on what day combat is waged, is a must; not doing this may have a destructive impact on the morale of the soldiers still alive. This argument alone, unsupported by any further discussion, such as, for example, concerning the issue of Muktseh with respect to a dead body, is what RA provides as the basis for his definitive ruling in favor of evacuating the body on the Sabbath. It would be reasonable to expect RA to suggest how to perform the actions required to evacuate the body in a way that mitigates violation of the Sabbath. Yet even in this case RA makes no suggestions for how to perform the actions on the Sabbath in a way that would be different, Be-shinui, from the daily routine, so that the forbidden act would be only a violation Mi- derabbanan and not Mi-deorayta, thus minimizing desecration of the Sabbath. Faithful to himself and guided by his unique operational way of thinking, RA addresses the Halakhic issues bound up with dead bodies on the Sabbath in an unexpected way. Particular issues of this kind all seem to become subsidiary in RA’s view, with the key question centering on the State of Israel involved in war. This on its own overrides all other considerations; therefore, evacuating fighters’ dead bodies from the battlefield is permitted on the Sabbath, insofar as failing to remove the dead is likely to produce an adverse effect on the morale of the troops still engaged in battle.

13 See Goren, Meshiv Milchamah, part 1, pp. 60–61; part 2, pp. 217–220. 14 Leizerson, Shulchan Shlomo—Medical Issues, part 1, p. 263 and n. 25; Kofman, Ha-tzava Ka-Halakhah, p. 165, n. 53. On this issue see also Avraham Moshe Avidan, Darkhei chesed (Jerusalem, 1978), pp. 125–131.

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III Time to Usher in the Sabbath, Kabbalat Shabbat, and Soldiers on a Military Mission

Another example illustrating RA’s operational conception in Halakhah can be seen in his answer to a question about soldiers on a military mission on Friday: when should they welcome the Sabbath? In Israel today, the custom is to mark the beginning of the Sabbath approximately twenty minutes before sunset.15 The additional time is called Tosefet Shabbat, and it varies by tradition in different locations.16 Rabbi Israel Meir Ha-Cohen of Radin, known as the Chafetz Chaim, rules in a work he wrote for Jewish soldiers17 that they can welcome the Sabbath beginning from Plag Ha-minchah, or approximately 75 minutes before sunset, but not less than 30 minutes prior to sunset. He notes that his specification of a minimum of 30 minutes, which is closer to sunset than he would otherwise rule that the Sabbath must be welcomed, is due to the fact that soldiers on active duty are in Sh’at Ha-dechak, a time of stress, for which reason he is lenient in his prescription. True enough, the Chafetz Chaim’s ruling was not first arrived at with refer- ence to Jewish soldiers serving in the IDF; nevertheless, his decision has become the commonly accepted Halakhic norm. RA could have followed this rule, relying on it as a part of the accepted Halakhic tradition. But he chose not to do this. Asked about the time for welcoming the Sabbath, Kabbalat Shabbat, for soldiers on a military mission and unable to usher in the Sabbath in ad- vance by adding the customary extra minutes because of patrol duty, the need to communicate by radio, or the like, RA replied that soldiers on active duty may welcome the Sabbath as late as only one minute before sunset. This holds even if, as a result, the soldiers will be unable to recite Arvit [evening prayer] with a Minyan [quorum of ten adult men] or recite the Kiddush [sanctification of the Sabbath or festival with a blessing over wine at the beginning of the evening and noon meals].18 RA provides no Halakhic sources to support this ruling. He ruled this way according to his common sense and operational way

15 In Jerusalem this is done forty minutes before sunset. 16 According to most Halakhic authorities, adding the extra time is an obligation of rabbinic status [Mi-derabbanan]. On the question of Tosefet Shabbat, See B. R.H. 9a; Shulchan Arukh, Orach Chaim, 261, paragraphs a–b. 17 Machaneh Yisrael, pp. 132–133. 18 Leizerson, Shulchan Shlomo—Medical Issues, part 1, p. 265; Kofman, Ha-tzava ka- Halakhah, p. 249, paragraph 12.

The Review of RabbinicDownloaded Judaism from 21 Brill.com09/26/2021 (2018) 134–149 08:14:30PM via free access War and the Military in Rabbi Shlomo Zalman Auerbach’s 141 of thinking. RA was willing to permit minimal time before sunset for Kabbalat Shabbat for a soldier in order to enable soldiers to perform their military mission without hindrance.19

Discussion

RA’s decisions on issues of warfare and the military reveal his approach to Halakhic arbitration and his guiding principles in general. It should be re- membered that the Oral Torah preserved in the sources available to us grew and developed throughout the time the Jewish people spent in exile. The main objective of the Oral Law was to make religious life possible for the Jews— typically, a minority group in countries in which they lived without being involved in the central government’s concerns. This is why the Halakhic literature preserves no record of any normative arrangements or detailed consideration of issues such as the army, warfare, or the state. And yet, in the twentieth century, a Jewish state came into being and persisted; the need now arose to fill a two-thousand-year-old normative gap.20 A gap of this kind can be made up

19 Another example is very relevant to this article and emphasizes RA’s military and operational way of thinking. I will be brief, since I dealt with it at length in my article “The Individual vs. Society in Rabbi Shlomo Zalman Auerbach’s Halakhic Decisions,” in The Review of Rabbinic Judaism 20 (2017), pp. 251–271. “RA was asked whether a soldier could write down intelligence information on the Sabbath, even if it was possible to retain even the minutest details in memory until after the end of the Sabbath. Writing the information does not itself constitute Pikuach nefesh [an activity essential for saving lives]; thus, it does not fulfill a condition crucial in permitting Sabbath violation. Here, too, RA’s stance is that any military activity connected to saving lives, such as observing the enemy, is permitted on the Sabbath. This includes writing. (See Leizerson, Shulchan Shlomo—Medical Issues, part 1, p. 266; Kofman, Ha-tzava ka-Halakhah, p. 183). By contrast, military rabbis who permitted performing the same actions prescribed ways to limit the extent of the Sabbath violations. For example, Rabbi Zecharya Ben Shlomo and Rabbi Shlomo Min Hahar suggested preparing notes before the Sabbath and then clipping them onto paper as needed on the Sabbath itself. In this they disagreed with RA, even though he was a very appreciated Halakhic authority (See Ben Shlomo, Nohal achid, p. 27; Min Hahar, Dinei tzava u-milchamah, pp. 146–147).” 20 For the normative gap, see Yedidyah Shtern, “Negishutah shel ha-Halakhah le-ve’ayot mediniyot” [“The Availability of Halakhah for Political Problems”], in Mishpat u-mimshal [Law and Sovereign Order] 4 (5757), pp. 215–242.

The Review of Rabbinic Judaism 21 (2018) 134–149 Downloaded from Brill.com09/26/2021 08:14:30PM via free access 142 Mashiach for either by “filling in the blank” or “developing the law.”21 In order to appreciate the approach relied on by RA, let us compare him to two leading Halakhic arbitrators who had also dealt with laws pertaining to warfare: Rabbi Shlomo Goren (1918–1994) and Rabbi Shaul Yisraeli (1909–1995); each of these authorities filled in the normative gap in his own way.22 Rabbi Goren put forth the laws of warfare and the military for a Jewish army serving in the independent Jewish state.23 He did this in both ways: he “filled in the blank”, by using biblical sources, the Apocrypha and the Pseudepigrapha, the Books of the Maccabees, and the writings of Joseph Flavius part of his discourse, that is, books dating from the pre-rabbinic era, when a Jewish state ex- isted in the Land of Israel; but he also proceeded by developing the law based on his own approach to the Halakhah.24 Rabbi Goren himself pronounced that

since the days of the Bar-Kokhba Rebellion … there have been no prac- ticable laws of warfare, the military, or national security in the life of the people. For nearly two thousand years, these issues were treated as the “Halakhic provenance of the Messiah.”25 Maimonides’ Laws of Kings similarly does not offer a sufficient foundation for instructing and determining a mode of life for the military of Israel in the modern age.26

21 See Arye Edrei, “Law Interpretation, and Ideology: The Renewal of the Jewish Laws of War in the State of Israel,” in Cardozo Law Review 28 (October, 2006), pp. 187–227. 22 True enough, they were preceded by earlier authors who had written on Halakhic issues for the Jewish soldier, such as the Chafetz Chaim in his Machaneh Yisrael [The Camp of Israel]; however, a substantial difference obtains between these types of writing. The Chafez Chaim addresses the Jewish soldier serving in alien armies, while the rabbis under consideration here address the Jewish army of an independent Jewish state; their concern is thus with the individual soldier as well as with the army as a whole. 23 For research on Rabbi Goren, see Aviad Yechiel Hollander, Deyokano ha-hilkhati shel ha-rav shlomo goren [A Halakhic Portrait of Rabbi Shlomo Goren], PhD thesis (Bar-Ilan University: Ramat-Gan, 2011). See especially pp. 33–139 in connection with the present study. 24 See Aryeh Edrei, “Divine Spirit and Physical Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces,” in Theoretical Inquiries in Law 7:1 (January, 2006), pp. 255–297; idem, “Milchamah, Halakhah u-geulah—tzava u-milchamah be-machshevat ha-Halakhah shel ha-rav shlomo goren” [“War, Halakhah, and Redemption: The Army and Warfare in the Halakhic Thought of Rabbi Shlomo Goren”], in Katedrah 125 (5768), pp. 119–148; Amir Mashiach, “The Ethos of Masada in Halakhic Literature,” in The Review of Rabbinic Judaism 19 (2016), pp. 54–77. 25 An expression referring to Halakhic regulations impossible to put into practice at a given historical juncture. 26 Goren, Meshiv milchamah, p. 10.

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Rabbi Goren published many books and articles on laws pertaining to warfare and the army; he is largely the shaping influence behind the religious life and the Jewish image of the IDF. He makes a proclamation on the nature of the sources borrowed from days of old, which he relies on in molding Halakhic army law:

The juxtaposition of elements in sections of Scripture and the verses in the Pentateuch, the Prophets, and the Writings, along with chapters of annals written and handed down in the external sources [the Apocrypha and the Pseudepigrapha], which deal with Israel’s wars and the military during the Second Temple period, such as Books of the Maccabees and the writings of Joseph the son of Matthias the Priest, known as Josephus Flavius, all have it in them to bestow upon us the glory of days of yore in terms of ways of fighting and in terms of the prowess, the organization, the undertakings, the issues and the practices of the army of Israel in ancient times, giving us a complete picture of the laws of warfare and the military according to Israel’s Torah, which were acted upon in daily life in the fighters’ ranks.27

As per his view, the pre-Talmudic sources shed light on the life of the people and the Jewish State in the past. The literature of the rabbis of the Talmud did not deal with issues related to the army, the State, or war; it was also a natural outcome of life in exile for the Jews that issues of this sort were not a practical concern. However, today, when an independent Jewish state is in existence once again and commands an army that engages in war, all that is to be done, according to Rabbi Goren, is to introduce the practices current in the days of old to the present time. Rabbi Goren sees these sources as legitimate indica- tors of the authentic Jewish way of life that preceded the destruction of the Temple and exile, even though these texts remained outside the limits of the Jewish traditional canon and were even rejected wholesale. Not for naught is there no mention of these works or their content in Talmudic Rabbinic texts. The Talmudic Rabbinic codex maintained a silence, banishing these “external books” along with the works of Flavius; as noted, this silence is in fact a pro- nouncement in disguise.28 The rabbis of the Talmud were opposed—on both

27 Shlomo Goren, “Tzava u-milchamah le-or ha-Halakhah” [“The Military and War in Light of the Halakhah”], in Machanayim 97 (5725); the article has been uploaded online on the Da’at site at: http://www.daat.ac.il/daat/tsava/maamar/goren2-2.htm. 28 See Ehud Luz, Maavak be-ma’avar yabbok [The Struggle at Yabbok Crossing] (Jerusalem 1998); L. Schiffman and J. Wolowelsky, eds., War and Peace in the Jewish Tradition (New York, 2007).

The Review of Rabbinic Judaism 21 (2018) 134–149 Downloaded from Brill.com09/26/2021 08:14:30PM via free access 144 Mashiach religious-theological as well as on ideological grounds—to this literature; and lo and behold, Rabbi Goren leads it in through the main entrance, as it were, seeing these sources as the right tools for shaping the Halakhah for the newly created State. He specifically addresses Halakhic regulations pertaining to the army, for

There is no uninterrupted tradition stretching from one generation to the next of Halakhic decision making in connection with them. No section of the Shulchan Arukh corresponds to them nor any part of the books of Halakhic arbitration…. Looking for authoritative Halakhic and historical sources capable of providing answers to the myriad Halakhic problems which arose for the IDF spelled out the need for collecting, gathering and bringing together tiny fragments from here and there of halakhot, cus- toms, and practices that had been current in Israel’s armies in ancient times … to gather them from Scripture, the Bavli and the Yerushalmi, the Tannaitic and the Amoraic midrashim, and all the rest of Halakhic literature from olden times and years long past. Similarly, we used the Books of the Maccabees and other external books [Apocrypha and Pseudepigrapha], and the history books that we acknowledge, such as the books of Joseph the son of Matthias the Priest and the like, and from everywhere we could reach. We built up the practices layer by layer like brickwork, making of them a strong foundation for an authoritative sys- tem of Halakhic decision making based on the Torah of Israel.29

These lines speak for themselves. They show how important it was for Rabbi Goren to fill in the normative lacunae by creating his own Halakhic discourse, even if this involved disconnecting from the inner discursive circle of traditional rabbinic Halakhah. According to him, this was his way of proceeding in coming up with an “army Shulchan Arukh.”30 A different approach is taken by Rabbi Shaul Yisraeli.31 In his view, if Talmudic sources provide no answer to the pressing need for laws of warfare and the military, the lacuna should be filled in by delving into the laws followed

29 Goren, Meshiv milchamah, vol. 1. 30 Ibid., pp. 10–12. 31 For research on Rabbi Yisraeli, see Yitzhak Avi Rones, Mishnato ha-hilkhatit shel ha- rav shaul yisraeli [The Halakhic Teaching of Rabbi Shaul Yisraeli], PhD thesis (Bar-Ilan University, Ramat-Gan, 2012). In the present connection see especially pp. 18–25, 86–125.

The Review of RabbinicDownloaded Judaism from 21 Brill.com09/26/2021 (2018) 134–149 08:14:30PM via free access War and the Military in Rabbi Shlomo Zalman Auerbach’s 145 by the nations of the world, that is, international law.32 This is because the very permissibility of fighting wars is an outgrowth of common practices among the nations and their mutual consent; this endows international practice in matters of war with binding force even on the level of Halakhah.

For what the kings and various kingdoms have customarily done is con- sidered general consensus for the whole world … for war is one of the ways to resolve conflict among nations … it should therefore be seen that, as the consensus of nations, war is a legal means, as long as the warring nations observe the practice accepted among nations with regard to war… Henceforth is it said that the law of the land as estab- lished between one state and another is also the result of agreement among the peoples of the states, and even though this concerns laws involving the taking of life, their agreement makes a positive difference. This is the basis for the legitimacy of war … for this reason voluntarily undertaken war is permissible for Israel, as well.33

It follows that according to Rabbi Yisraeli, the Halakhic dispensation to wage war depends on the practice of the nations at any given time. Hence, a change in the way the nations wage war affects Halakhic norms. This is so far-reaching that, according to Rabbi Yisraeli, a voluntarily undertaken war [Milchemet reshut], which, before it can be approved according to the letter of the Halakhah, requires functioning institutions such as a king and Sanhedrin, does not require these today, insofar as given a genuinely functioning democratic regime, all the powers revert to the people.34 Just as the consent of the people suffices in accepting the laws of the state that pertain to its own internal affairs, so the same principle is in effect when it comes to the state itself— and to waging war. In a word: the “law of the land” [Dina de-malkhuta], according to Rabbi Yisraeli, is international law: “From this we learn that any war whatsoever conducted in accord with the practices accepted among the nations is permitted according to the Torah and is included in the category of

32 See Shaul Yisraeli, “Takrit kibiya le-or ha-Halakhah” [“The Qibya Incident in Light of the Halakhah”], in Ha-torah ve-ha-medinah [The Torah and the State] 5–6 (5713–14), pp. 71–113. The article was reprinted in Rabbi Yisraeli’s book ‘Amud ha-yemini [The Pillar of Yamin] (Jerusalem, 5726), par. 16, pp. 168–205 (references in what follows are to this edition). 33 Yisraeli, ‘Amud ha-yemini, pp. 194–202. 34 Ibid. The same idea had been put forth earlier by Rabbi Kook. See Mishpat kohen [The Law of the Priest], par. 144, 14.

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‘the law of the land [Dina de-malkhuta].’”35 The Halakhah, according to this, embraces international law, adopting it as its own standard.36 RA followed neither of these two predecessors. Before addressing the question of how he went about filling in the normative lacuna in laws pertaining to warfare and the military, we must appreciate the significance of the fact that, judging by all appearances, RA belongs—and should be identified with—the Haredi sector in Israel. This is a sector of the public that refuses to acknowledge the notion of an independent political Jewish state, certainly one that does not observe the Torah and that proclaims itself a secular regime. This part of the Israeli public can be observed drifting between an anti-Zionist orienta- tion and a non-Zionist one. Its position is what made the rabbis and leaders associated with the Haredim stay away from considering laws of warfare and the military, making the concern with these issues the prerogative of rabbis affiliated with religious Zionism. The silence of the Haredi Halakhic authorities is their response. As per their position, which lines up with maintaining a Talmudic-defensive ethos, there is no way to see being concerned with warfare and the military in a positive light. On the contrary, the ultra-Orthodox rabbis are in vehement opposition to any ethos that might incorporate concerns of this kind. From the point of view of the ultra-Orthodox, the silence of the rabbis of the Talmud on these issues is a clear statement tantamount to their negation. As noted in the introduction, RA pointedly recognized the State of Israel and its institutions, albeit in an obviously guarded manner befitting some- one associated with Haredi opposition to the State. He made no decisive pronouncements in favor of the State; yet studying the Halakhic decisions in which he attributes Halakhic validity to the State and its authority provides a clear indication of his support. RA clearly veers away from the defensive ethos maintained by the Haredi public, of which he is a part, to adopt an ethos of the offensive kind, typical of the Zionist and the religious Zionist sectors.37

35 Yisraeli, ‘Amud ha-yemini, p. 193. 36 This claim aroused the wrath of Professor Aviezer Ravitzky, for the upshot is that Rabbi Yisraeli is permitting warfare according to the moral norms of the enemy. See Aviezer Ravitzky, “Ha-im pitchah ha-machshavah ha-hilkhatit mussag shel ‘milchamah asurah’?” [“Has Halakhic Thought Developed a Concept of ‘Forbidden War’?”] in Menachem Mautner, et al., eds., Rav tarbutiyut be-medinah demokratit ve-yehudit [Multi-Culturalness in a Jewish Democratic State] (Tel Aviv, 5758), pp. 536–537. 37 See Amir Mashiach, “From Past to Present—An Analysis of the Various Sectors in Modern Israel based on Jewish Identities from Ancient times,” in Social Issues in Israel 17 (2014), pp. 38–68; idem, “The Influence of an Offensive Ethos of Orthodox Jewish Law since the Founding of the State of Israel: Preliminary Thoughts,” in Da’at 76 (2014), pp. 231–258.

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We are here witness to another leading principle in RA’s Halakhic thought. Identifying the need to address issues that arise in the course of time, he faces them independently of any ulterior motives or agendas. The same was the case when he delved into the Halakhic details of using electricity on the Sabbath, in the 1920s; the same was true when he took up the question of Shemitah [the Sabbatical year in agriculture] at the time when this became significant for the Jewish settlement growing anew in Palestine. A controversy that had un- folded between Rabbi Kook and the Chazon Ish surrounding the special dispensation for selling the land was then at its height. The same way of proceeding can be observed in RA’s approach to the laws of warfare and the military when he saw that an independent state needs to maintain an army and defend itself, including the cost of going to war. In all these instances, RA refrained—self- consciously so—from declaring any additional aims deriving from an agenda of any kind; he addressed exclusively the issues themselves, so as to establish the Halakhah in an unambiguous way and so fill in the missing normative element.38 Let us note that RA also shied away from making any pronouncements that might tag him as belonging to any sector of the Israeli public other than the one he was originally part of. He dealt only with the Halakhah as such; this is what ensured his retaining his status in the Haredi society in which he lived and worked. But how did RA go about filling in the missing normative elements? It was clear to all the rabbis cited above that the primary source for any Halakhic decision must be the Talmud and the earlier Halakhic authorities, from rabbinic sources of Talmudic times and reaching up to the present. But when these predecessors of RA ran into Halakhic blanks in connection with all issues of warfare and the military, they resorted to sources beyond the Halakhic tradition. As noted, Rabbi Goren appealed to pre-Talmudic texts, and Rabbi Yisraeli cited international law. Unlike them, RA stayed with the classic Halakhic sources, filling in the missing parts based on his own Halakhic logic. To clarify: the notion of S’vara [Halakhic logic] is a principal source of Halakhic creativity and creation. It refers to rational thought engaged in independently by the Halakhic decision maker, without relying on any prescriptive source.39 This involves intellectual penetration into the essence of Halakhic- legal principles, as well as taking stock of the actual state of affairs and their

38 See Amir Mashiach and Arye Edrei, “Nomos without Narrative: The Halakhic Narrative of Rabbi Shlomo Zalman Auerbach,” in Benjamin Brown and Nisim Leon, eds, Hagdolim, Jerusalem, 2017, pp. 708–734. 39 See A.V. David, “The Meaning of S’vara,” in S’vara 1:1 (1990), pp. 3–5; Avi Sagi, “A Philosophical Analysis of S’vara,” in S’vara 2:1 (1991), pp. 3–7; idem, “S’vara and the Concept of Torah,” in S’vara 2:2 (1991), pp. 5–7.

The Review of Rabbinic Judaism 21 (2018) 134–149 Downloaded from Brill.com09/26/2021 08:14:30PM via free access 148 Mashiach apparent implications. Clearly enough, any delving into authoritative sources in the course of a legal-Halakhic investigation requires profound intellectual insight; however, in the case of S’vara there is no interference by the intellect with other sources; rather, the intellect itself is the direct Halakhic source for the creational emergence of the Halakhah and the details of its law. In other words, the Halakhic decision maker thinks a certain way and assumes a cor- responding point of view; to his mind, this is the Halakhah. Today, a tendency is evident toward ever greater stringency in conceptualization and mental frameworks,40 which causes a rigidifying of Halakhic stances. One of the up- shots of this is the limiting of the Halakhic decision maker’s autonomy and the consequent cleaving to precedent taken from Halakhah as determined in earlier times. S’vara is the central normative source relied on by RA in his Halakhic arbitration, used constantly and daringly.41 True enough, in situations in which any tradition or Halakhic stance on an issue had taken shape, RA would not veer away from it, continuing insistently to adhere to it, if only for the reason that it had become a tradition and so a binding principle. But where no binding tradition had emerged, RA had no equal in innovativeness and daring. In situations of this kind, he made extensive use of his own S’vara to ground many decisions. So, too, here, in the absence of any Halakhic treatment of issues of warfare and the military. There was, naturally, no tradition of Halakhic arbitration in these matters, and so RA did not believe himself bound by anything except his own intellect and the S’vara or his own Halakhic logic this dictated. And so, indeed, did he arbitrate. A glance at the few examples cited above makes it clear that RA arbitrates in accord with his own understanding of what is right, giving no consideration to the traditional Halakhic sources and often even going against what had previously been accepted. For no Jewish state had been in existence earlier, so that even decisions issued by his predecessors about well-known questions did not seem to him binding. That is why he permitted writing on the Sabbath—albeit in a manner different from the usual—at an observation post, even though the issue involves no immediate risk to life. This was an approach previously unheard of, even among army rabbis!

40 Benjamin Brown, “Hachmarah: Chamishah tippusim min ha-’et ha-chadashah” [“Growing Stringency: Five Types from Modern Times”], in Dinei yisrael [Laws of Israel] 20–21 (5760– 5761), pp. 123–237. 41 For a discussion of S’vara in RA’s Halakhic rulings, see Mashiach, Rabbi Shlomo Zalman Auerbach’s Halakhic Philosophy, pp. 56–74.

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RA saw, by his own S’vara’s light, the orders of the army as taking precedence over the idea of immediacy, or as an element defining the notion of Pikuach nefesh anew, so that given the reality of the military, there is no requirement of immediacy as a binding precondition. He similarly permitted removing the bodies of dead soldiers from the battlefield on the Sabbath, even though this, too, is not necessitated by an immediate risk to life. He opined that not removing them may pose a risk to the morale of the soldiers fighting, and he ac- cordingly permitted removing them without any precondition or change in the manner of performing the required actions. The soldiers’ morale at later mo- ments seemed to him significant enough to make it possible to define this as Pikuach nefesh and so as taking precedence over the Sabbath. He in the same way forbade limiting the army’s operational activity on the Sabbath and festivals in situations in which the enemy might become aware of this. In this situation there is also no immediate danger to life, and yet this was his view and this was the way RA issued his Halakhic ruling, no matter the deviation from the traditional Halakhic position. In his view, in days and issues of old, there was no state and no need to wage war; today, when there is such a reality and such a need, there is a need to think anew to come up with Halakhic solutions, and no Halakhic tool is better than S’vara in order to arrive at these. RA similarly permitted soldiers to usher in the Sabbath as late as a minute before sunset. This position has no Halakhic foundation whatsoever; just the opposite is true: some sources call for ushering in the Sabbath much earlier. But the decision was based on RA’s wanting to ensure that soldiers can complete their assigned military missions to the greatest extent possible within the limits prescribed by the Halakhah. These and others were all Halakhic rulings issued by RA based on his S’vara. He understood the new reality in the State of Israel and the need to maintain an army whether in routine or combat conditions; he made Halakhic and practical decisions based on this understanding, at times audaciously. Seeing his S’vara as determinative of the Halakhah, RA did not believe himself bound by the traditional Halakhic writings, for they were all devoted to dealing with a different reality, one in which the Jewish people lived in exile. From his point of view, he grasped the reality and ruled in accordance with it. As I have shown, he applied an operational way of Halakhic decision making, as befits an arbi- trator who understands the needs of the hour and the needs of the army. In a word: when encountering a gap in the normative heritage or a lacuna, RA deemed it fitting to produce Halakhic rulings ex nihilo, the abilities of his S’vara providing him with the wherewithal to fill in the blank.42

42 For RA’s Halakhic rulings ex nihilo, see ibid., pp. 175–178.

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