Should Yeshivah Students Serve in the Israeli Army?

This article appeared in Gray Matter vol 1. Available online here: https://www.sefaria.org.il/Gray_Matter_I%2C_The_State_of_Israel%2C_Should_Yeshivah_Students_Serve_in_the_Israeli_Army%3F.43?lang=he&with=all&lang2=he

by Rabbi Chaim (Howard) Jachter '81, Dayan (Rabbinic Judge), Beth Din of Elizabeth, and Rabbi, Congregation Shaarei Orah, the Sephardic Congregation of Teaneck

Throughout the State of Israel's short existence, it has granted military exemptions to full-time Yeshivah students. These exemptions and the decision by some Yeshivah students to serve in the army nonetheless have both generated much debate and discussion.

Should a Spiritual Person Serve in an Army?

People often ask, how can someone thoroughly engrossed in spiritual matters serve in the army, a rugged and physically intense experience? Our own male role models answer this question. Avraham, Moshe, Yehoshua, and David all scaled the heights of spirituality, yet they excelled at waging war. The Gemara (Mo'ed Katan 16b) describes this phenomenon, "David] would soften himself as a worm when he studied Torah, but he hardened himself like wood when he fought in war."

Rav Yehuda Amital (Hama'alot Mima'amakim, pp. 62-63) cites David's model as a paradigm for hesder students. They grapple with the subtlety of a great Talmudic commentary, such as "Ketzot," "Netivot," or "Reb Chaim," while on the other hand serving with great distinction in the Israeli army. Indeed, it is widely reported that religiously observant soldiers comprise a significant percentage of the junior officers in certain Israeli army units (although these officers do not necessarily participate in the hesder program).

Other sources similarly describe holy people as potent warriors. The Rambam (Hilchot Melachim, Chapter 11) presents a profile of the Messiah. He studies Torah and is devoted to the Written and Oral Torah. He will compel the entire Jewish people to follow the Torah, and he will lead the nation in battle. The Ramban (Bereishit 26:29) explains what motivated Philistine kings to make covenants with our forefathers, who led a small nomadic tribe, seemingly posing little threat to the Philistine emperor:

Avraham was very great and mighty, as he had in his house three hundred sword-bearing men and many allies. He himself was a lion-hearted soldier who pursued and vanquished four very powerful kings. When his success became evident as being divinely ordained, the Philistine king feared him, lest he conquer his kingdom... And the son emulated the father, as Yitzchak was great like [Avraham], and the king was afraid to fight him, lest [the king] be driven from his land.

Aside from these individuals, the Bible contains other examples of wars where the spiritual elite fought. Rashi (Bemidbar 31:3) asserts that the soldiers in the wars against Amaleik (Shemot 17:8-16) and Midyan (Bemidbar 31) were specifically chosen based on their religious piety. The Radak and Malbim (Shofetim 5:14) explain that, after defeating the army of Canaan, the prophetess Devorah gave special praise to the people of Machir and Zevulun precisely because their religious leaders fought in the battle. All of these sources clearly teach that no fundamental problem exists with spiritual leaders serving in an army. The advisability of their service in the Israeli army today, however, remains to be determined.

The Model of the Tribe of Levi

Some point to the tribe of Levi as a model for those who study and teach Torah full- time, while never serving in the army. Indeed, the Rambam's concluding remarks in Hilchot Shemitah Veyoveil (13:12-13) depict the tribe of Levi in this manner, "They do not wage war like the rest of Israel, nor do they inherit land in Israel." Moreover, the Rambam writes:

[Being a part of the spiritual elite] applies not to the tribe of Levi alone, but to each and every person throughout the world whose spirit has uplifted him and whose intelligence has given him the understanding to stand before God, to serve Him, to worship Him, to know God; and he walks upright, since he has cast off from his neck the many considerations which people seek. Such a person has been sanctified as the Holy of Holies, and the Lord shall be his portion... forever and ever, and shall grant him adequacy in this world, as he has granted to the Kohanim and the Levites. As David... says, "Oh Lord, the Portion of my inheritance and of my cup, You maintain my lot."

This passage is often cited to excuse contemporary Yeshivah students from serving in the Israeli army. This application, however, contains several possible problems. The Rambam often ends sections of the Mishneh Torah with aggadic (non-legal) statements. Thus, perhaps he does not intend his comments at the end of Hilchot Shemitah Veyoveil, which conclude Sefer Zera'im, as a technical legal assertion. Furthermore, the Rambam points to King David, one of our greatest military leaders, as an example of such a spiritual person, so the Rambam might not intend to apply the parallel with Levi to military exemptions. Even if one does accept such an application, it remains unclear to what percentage of the population such a grand description applies.[1]

Did Levites Actually Serve in the Army?

The Talmud never states explicitly that the Levites did not serve in the army. The Sifrei (commenting on Bemidbar 31:4) addresses this issue regarding the war between the Jews and Midyan, but textual variants lead to opposing conclusions. Rashi's text of the Sifrei (in his commentary on that verse), understands that the Torah includes ("lerabot") Levi in the army that fought against Midyan. However, the Gra's text of the Sifrei reads "to exclude (lehotzi) the tribe of Levi" from that war. This passage in the Sifrei thus proves nothing about Levi's role in the army.

While the Rambam does mention Levi's military exemption at the end of Hilchot Shemitah Veyoveil, it is uncertain how much weight this carries, because he does not present this rule in Hilchot Melachim, where he discusses military exemptions at length. In fact, the Radak (II Shmuel 23:20) claims that in wars against the enemies of Israel, even the Kohanim (the most sanctified part of the tribe of Levi), who ordinarily avoid contact with dead bodies, must take an active part in killing the enemy.[2] David's great warrior, Benayahu ben Yehoyada, exemplified this practice. Despite being a Kohein, he served as a high-ranking officer in King David's army and eventually became the head of King Shlomo's army. Moreover, the Gemara (Kiddushin 21b) and the Rambam (Hilchot Melachim 8:4) discuss the laws of a Kohein who fights in wars, indicating that this was done in practice.[3]

On the other hand, whenever the Torah takes a census of those who are fit to wage war ("kol yotzei tzava"), it excludes the tribe of Levi, implying that this tribe does not fight in the army. The Rashbam (Bemidbar 1:47) even refers explicitly to their exclusion for the army. Hence, using the Levites as a paradigm for excusing Torah scholars from serving in the army remains debatable, for the status of Levi is itself uncertain.[4]

Milchamot Mitzvah

In Halachah, there are two types of wars (see Sotah 44b). One type, milchamot reshut ("discretionary wars"), consists of wars fought to enlarge the borders of Israel and wars fought to bring glory to its king.[5] The other type, milchamot mitzvah, includes wars against Amaleik and the seven Canaanite tribes. The Rambam (Hilchot Melachim 5:1) also categorizes "saving the Jewish people from enemies who have attacked them" as a milchemet mitzvah. It follows from the Rambam that all the wars that the State of Israel has fought should be classified as milchamot mitzvah, for almost everyone regards them as saving Jewish people from enemies who have attacked them.[6]

While the Mishnah (Sotah 43a) lists those people who need not fight in battle,[7] it later (44b) limits these exemptions. The Mishnah rules that they only apply to a milchemet reshut, "but in a milchemet mitzvah everyone must go fight, even a groom from his chamber and a bride from her canopy." In fact, the Keren Orah (Sotah 44b) writes explicitly, "Everyone must participate in a milchemet mitzvah. Even Torah scholars must interrupt their studies."[8]

Preemptive Strikes

As we have already noted, the Rambam considers defensive wars to be milchamot mitzvah. It is unclear from his language if this includes preemptive strikes to deter a threatening enemy.[9] Determining the status of such wars is critical for establishing whether those who are exempt from milchamot reshut must take part in such attacks.

In order to understand the status of preemptive attacks, we must first solve a more basic problem. The Rambam's categorization of a war to defend the Jewish people as a milchemet mitzvah appears to contradict the Gemara (Sotah 44b). The Gemara considers attacking a nation to prevent it from eventually attacking Israel a milchemet reshut. Explaining the Rambam's ruling in light of this passage in the Gemara determines the status of preemptive attacks.

The Lechem Mishneh (HilchotMelachim 5:1) claims that a battle fought purely to intimidate an enemy (so that it will not dare to attack Israel) is in fact a milchemet reshut (as indicated by the Gemara). When the Rambam describes a milchemet mitzvah, the Lechem Mishneh implies, he only includes military activities that respond to an actual enemy attack. It seems that according to the Lechem Mishneh, preemptive strikes might not be milchamot mitzvah, although it is not entirely clear where he draws the line between offensive and defensive battles.

The Aruch Hashulchan He'atid (Hilchot Melachim 74:3-4) strongly disagrees with the Lechem Mishneh and writes that "it's obvious beyond any doubt" that a king must preemptively attack anyone who poses a threat to the Jewish people. The Aruch Hashulchan asserts that the Rambam describes even offensive strikes to save Jews as milchamot mitzvah. However, the Aruch Hashulchan suggests, all defensive wars differ from wars against Amaleik and the tribes of Canaan. A nation can usually launch strikes to enhance its security without the entire nation's participation, so the standard exemptions from the army apply to such a war. In this sense, defending Jews is like a milchemet reshut, as the Gemara indicated.[10]

Ha'osek Bemitzvah Patur Min Hamitzvah

The Talmud (Berachot 11a and Sukkah 25a) posits the rule of ha'osek bemitzvah patur min hamitzvah - while one is involved in the performance of one mitzvah, he is excused from performing another one. The Ra'ah and Ritva (Sukkah 25a) assert that not only is the one involved in performing a mitzvah excused from other mitzvot, but he is forbidden to perform them. Accordingly, some argue that Yeshivah students engage in constant Torah study, so they may not abandon their learning to serve in the Israeli army. This suggestion is somewhat problematic, because we generally assumed that ha'osek bemitzvah patur min hamitzvah does not apply to Torah study.[11] The Gemara (Mo'eid Katan 9a-9b) explains that if others are not able to perform a specific mitzvah, the student must interrupt his studies to perform that mitzvah. This being the case, Torah scholars should be obligated to serve in the Israeli army as long as the army needs them.

Rav Zalman Melamed (Techumin 7:330-334) argues, however, that the Israeli army (in 1986) can function without the service of every man in the country. If he is correct, Torah study could exempt Torah scholars based on haoseik bemitzvah patur min hamitzvah, as others perform the mitzvah to defend Israel. Furthermore, the democratically elected government of Israel releases those who study in Yeshivah from the army (albeit due to political considerations). Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh De'ah 4:33) writes that this governmental exemption constitutes recognition that those who sincerely study Torah deserve a draft exemption. He consequently rules that one who has a strong desire to learn Torah and strives to become great in Torah scholarship should study in Yeshivah and avoid the draft. This idea may be especially true if the army itself does not desire to draft Yeshivah student. Writing in 1986, Rav Avraham Sherman (Techumin 7:343) notes that many in the army's top brass do not believe that it will benefit the army to draft those Yeshivah students who want exemptions.

Rabanan Lo Tzrichei Netiruta

Rav Yechiel Michel Tukachinsky (Hatorah Vehamedinah, reprinted in Betzomet Hatorah Veham'dinah 3:212-213) exempts Yeshivah students from the Israeli army based on the Gemara's statement that rabbis need not contribute towards the construction of a protective wall around their town (Bava Batra 8a). The Gemara explains that this exemption exists since "rabbis do not require protection" ("rabanan lo tzrichei netiruta"). Similarly, argues Rav Tukachinsky, rabbis need not serve in the army, as they do not require protection.

Rav Yehudah Shaviv (Techumin 1:37) cites the Chatam Sofer's opinion that the Gemara only excuses rabbis from paying communal taxes, but they still must fight in defensive wars. Rav Aharon Lichtenstein (Techumin 7:314-329 and Tradition 19:199-217) also asserts that one would have to reach a very high spiritual level to fall into the category of those who do not require protection.

The aforementioned Gemara also exempts rabbis from actively participating in communal construction projects. Rav Tukachinsky bases the exemption of Yeshivah students on this Halachah as well. Rav Shaviv, however, claims that the Rambam cites this Halachah (Hilchot Talmud Torah 6:10), yet he never compares communal construction projects to military service. Hence, Rav Shaviv argues, Torah scholars are not exempt from military service.

Regarding the Israeli army today, one might suggest that Rav Tukachinsky and Rav Shaviv's debate depends upon the type of unit in which one would serve. Combat units involve directly defending the people of Israel, so their soldiers do more than just routine community service. However, those soldiers who have profiles[12] numbering lower than 72 generally may not serve in combat units. These soldiers (colloquially known as "jobnikim") perform all kinds of activities, ranging from gathering intelligence information (which may directly save lives) to mowing the lawn at army bases. Those "jobnikim" who would do the latter type of jobs might have a stronger claim that their work is a communal contribution which has little to do with fighting milchamot mitzvah. As such, studying Torah should exempt them from service.[13]

Aggadic Statements

A number of aggadic (non-legal) statements appear in the Talmud that are commonly cited to support exempting Torah scholars from army service.[14]

Rav Eliezer Waldenberg (HilchotMedinah 3:3:4) cites an aggadic statement from the Gemara (Makkot 10a) to prove that Yeshivah students do not have to serve in the army. The Gemara states:

What is the meaning of the [Psalmist's] words "Our feet stood within thy gates, oh Jerusalem"? [It is this:] What enabled us to "stand" in war? The gates of Jerusalem - the place where students engaged in the study of Torah.

Rav Waldenberg and many others explain this text to mean that Yeshivah students do not have to serve in the army, because their study enables the soldiers to succeed. One could argue, however, that if this were truly the case, there would be an unambiguous halachic source exempting Yeshivah students from military service. Rather, perhaps the Talmud is referring to the studies of those people who cannot serve in the army due to illness or age.

Another frequently cited source supporting military exemption appears in Masechet Nedarim (32a):

Rabi Avahu said in the name of Rabi Elazar, "Why was our father Avraham punished by having his descendants pressed into Egyptian servitude for two hundred and ten years? Because he coerced Torah scholars into serving in his army."

A similar idea appears in Sotah (10a), explaining why King Asa was stricken with illness at the end of his life. The Gemara suggests that he was punished for using Torah scholars in his army. It is important to note that Rabi Elazar's opinion is only one of several possible causes that the Gemara cites for the enslavement in Egypt, and the other opinions might disagree with his idea. Furthermore, Rav Lichtenstein asserts that, at most, these texts contend that the Israeli Government should not coerce Yeshivah students into army service. They do not necessarily serve as a basis for the Yeshivah students' lack of initiative to serve.

Other Considerations

Rav Lichtenstein writes that serving in the Israeli army constitutes an act of great kindness. It also fulfills the Torah's command, "Do not to stand idly by your brother's blood" ("Lo ta'amod al dam rei'echa" - Vayikra 19:16). In addition, these students are performing the great mitzvah of yishuv Eretz Yisrael - settling and developing the Land of Israel. On the other hand, those who opt to learn in Yeshivah and avoid military service believe that they contribute toward the spiritual development of the Land of Israel. They also feel that their Torah study helps ensure that God protects the people of Israel physically. Furthermore, Rav Avraham Sherman (Techumin 7:336-350) reports that, during his tenure as an army chaplain, he witnessed many observant Jews who abandoned Torah and mitzvot after their experiences in the IDF influenced them negatively.[15]

Conclusion

There does seem to be a strong halachic basis for claiming that there is a mitzvah to serve in the IDF, as it defends the Jewish people. Nonetheless, many rabbis argue that service in the Israel Defense Forces is a mitzvah that others, who do not study full-time, are able to perform. However, there are prominent rabbis, such as Rav Aharon Lichtenstein, who view army service for Yeshivah students as a moral imperative. 

[1] Rav Aharon Lichtenstein (Tradition, 19:199-217) writes the following pragmatic point regarding the application of the Rambam's words:
[The Rambam] presents and idealizes the portrait of a selfless, temporal, almost ethereal person - one whose spirit and intelligence have led him to divest himself of all worldly concerns and who has devoted himself "to stand before God, to serve Him, to worship, to know [Him]"... To how large a segment of the Torah community - or a fortiori, of any community - does this lofty typology apply? To two percent? Five percent? Can anyone... confront a mirror and tell himself that he ought not to go to the army because he is "Kodesh Kodashim," sanctum sanctorum, in the Rambam's terms?

[2] From the Radak's comment in I Melachim (2:25), it sounds as if he only believes that Kohanim are permitted(but not obligated) to take part in fighting enemies. However, he writes there that he is merely restating what he wrote in II Shmuel 23:20.

[3] The Talmud discusses whether a Kohein is permitted to take an eishet yefat to'ar (see Devarim 21:10-14).

[4] For a complete discussion of the status of Levi in the army, see Rav Yehoshua Hagar-Lau's Ha'oz Veha'anavah (pp.127-141).

[5] For further discussion of milchamot reshut, see Rav Yehuda Amital's article in Techumin (8:454-461).

[6] See Contemporary Halakhic Problems (1:13-18) and Rav Shlomo Yosef Zevin's Le'or Hahalachah (p. 65).

[7] These people include one who has bought, inherited, or built a new house or storehouse, but did not yet use it; one who is in his first year of using a house or storehouse; one who plants, buys, inherits, or grafts (within one species) either a new vineyard or five fruit trees, but has not yet reaped their fruits; one who is in his first year of reaping fruits from either a vineyard or five trees; one who is halachically engaged (me'oras) or has to perform a levirate marriage (yibum); one who is in his first year of marriage; and one who is afraid to go to battle. Interestingly, this list includes neither Levites nor Torah scholars.

[8] See Maharsha (Sotah 10a s.v. Mipnei). He asserts that a chatan (bridegroom) must fight in a milchemet mitzvah, and it is unclear from his language if he also applies this obligation to a Torah scholar. Also see Chatam Sofer (Bava Batra 7b).

[9] See Rav Avraham Sherman's essay in Techumin (7:336-350).

[10] For further discussion of this issue, see Contemporary Halakhic Problems (3:251-292). Rav Avraham Sherman dedicates a significant portion of his aforementioned essay to determining the halachic status of the Lebanon War of the early 1980s.

[11] See, however, Rav Aharon Lichtenstein's article in Sefer Kavod Harav, pp. 187-201, where he suggests that oseik bemitzvah patur min hamitzvah fundamentally applies to Torah study.

[12] "Profiles" are numbers, no higher than ninety nine, that the army assigns to each soldier based on his physical and mental fitness.

[13] The status of one's obligation to participate in communal projects from wh.ich he does not benefit is complex. See Rav Lichtenstein's aforementioned article inTechumin for further discussion.

[14] In general, aggadic segments of the Talmud are not legally binding. For example, Rav Yechezkel Landau (Teshuvot Noda Biy'hudah, Yoreh De'ah  2:61) writes, "Midrashic and aggadic statements are intended solely to teach theology and ethics; they are not written with the intention of deciding halachot. Therefore, one may not base a halachic ruling on them." Nonetheless, the precise legal status of aggadic statements is somewhat complicated; see Encyclopedia Talmudit 1:132.

[15] Rav Sherman's printed his article in 1986. It should be noted that much progress has been made since that time to improve the situation of religious soldiers. Nonetheless, units still exist where it is difficult to remain religious.