War on Shabbat – "Until it Falls"

Introduction

In the previous shiur, our last on the topic of border towns, we saw a responsum of Rabbi Eliezer Yehuda Waldenberg, author of the Tzitz Eliezer, entitled "War of Defense and Offense on Shabbat" (Tzitz Eliezer, vol. III, 9). This is one of the first responsa written in our time, even before the establishment of the state, on matters of war and security. Chapter 1 of the responsum is dedicated to the issue of a border town, as we saw in the previous shiur. Rabbi Waldenberg then opens chapter 2 by citing another key Talmudic passage, on another topic with broad relevance today.

The Rabbis taught: One may not lay siege to gentile cities fewer than three days before Shabbat. And if they already began, they need not stop. And thus Shammai would say: “[And you build a siege around the city…] until it falls” (Devarim 20:20) – even on Shabbat. (Shabbat 19a)

Just as the Talmudic passage dealing with a border town is the fundamental source for everything related to the protection of national security, so too this passage in Shabbat 19a – which is based on the exposition of the verse in Devarim, "until it falls" – is the fundamental source regarding the very allowance to engage in war on Shabbat.

From a methodological point of view, two similarities link these two Talmudic discussions. First, both topics are largely rooted in Biblical wars: we saw that the allowance to desecrate Shabbat for matters of hay and straw explains David's war in Ke'ila; similarly, the allowance to continue fighting on Shabbat is based on the first war fought by the Israelite army in the Land of Israel (not counting the wars of Moshe, which were all fought on the east bank of the Jordan) – Yehoshua's war in Yericho. 

Second, this topic, like the previous one, also took on new significance in the framework of discussions and halakhic clarifications in our generation. Though it is addressed explicitly in the Talmud, the Tosefta, and the midrashim, discussed by the Rishonim, and codified as law by the Rambam, in our generation it has assumed a new layer of potency and importance – for it too is included in Rabbi Kook's definition regarding "remnants of the laws governing the community, which are not in accordance with the Torah's parameters regarding the laws pertaining to an individual" (Responsa Mishpat Kohen, 143; see shiur #21). Rabbi Shlomo Goren went to great lengths to clarify and analyze the issue of fighting on Shabbat from all sides, halakhic and historical. Other contemporary poskim as well sought to use it as an anchor for halakhic innovations, including far-reaching allowances, within the framework of war on Shabbat.

Even I humbly maintain that when a "new" halakhic question arises in the IDF, regarding which there are no earlier sources in the halakhic literature, its solution will often be based on the passage of "until it falls" – for, as we will learn in this and the coming shiurim, this passage expands the parameters of the halakhic allowances above and beyond anything we have learned thus far. In short: the principle that emerges from the passage of "until it falls" is that soldiers on the front and in the rear are permitted to do anything necessary – and that includes everything (!) – to decide the battle and win the war. This far-reaching statement requires study, clarification, and explication, and we will try to do this in the coming shiurim.

The Source of the Law

The primary source in our discussion is a Gemara in tractate Shabbat that cites two sections of the Tosefta, one after the other:

Our Rabbis taught: One may not set out in a ship less than three days before Shabbat. In what case is this said? [Where he sets out] for a voluntary purpose – but [if] for the purpose of a mitzva, it is well…

Our Rabbis taught: One may not lay siege to gentile cities less than three days before Shabbat, but if they began, they need not stop. And thus did Shammai say: "Until it falls" – even on Shabbat. (Shabbat 19a)                                                                 

We already discussed the first Tosefta at length, in the context of making advance arrangements to prevent Shabbat desecration (shiur #13). On the face of it, the second Tosefta, which deals with a siege laid on a gentile city, relates to the same issue. Indeed, according to many Rishonim, we are looking at two laws that share the same rationale. For example, the Rif writes:

Rather, this is the reason that one may not set out in a ship less than three days before Shabbat – because of the cancellation of the mitzva of delighting in Shabbat. For all three days, he will have to change his diet, because of the movement of the ship, as it is written: "They reeled to and fro, and staggered like a drunken man" (Tehillim 107:27), and he will not be able to delight in Shabbat. But after three days, he will have greater comfort, and he will want to eat and fulfill the mitzva of delighting in Shabbat… And similarly, one may not lay siege to gentile cities less than three days before Shabbat, because they will not enjoy eating and drinking during the three days because of worry and fear of the heart, but after three days, the fear departs and they will fulfill delighting in Shabbat. (Rif, Shabbat 7b in pages of the Rif)

According to the Rif, one must make sure that intensive activity that is started in the middle of the week will not impair his delighting in Shabbat; this applies both to setting out in a ship and going out to battle.

So too, the Ba'al ha-Ma'or (Rabbeinu Zerakhya ha-Levi), who saw in this passage a prohibition against actions that appear to involve "a stipulation to desecrate Shabbat," maintains that we are dealing here with two parallel laws:

I see a different reason both for this and for what they said that one may not lay siege to gentile cites [less than three days before Shabbat], for they are all a place of danger, and the three days before Shabbat are called "before Shabbat," and it appears as if he is stipulating to set aside Shabbat, because nothing stands in the way of pikuach nefesh. The same applies to setting out in the desert and or any place of danger where a person is liable to desecrate Shabbat. (Ha-Ma'or ha-Katan, Shabbat 7a in the pages of the Rif, s.v. ve-ha de-tanu)

As stated, what is common to the Rif and the Ba'al ha-Me'or is that they both understand the two statements as two parallel laws, founded on the same principle, and this is why the Talmud teaches them together.

However, the truth of the matter is that these are two different passages from two different tractates in the Tosefta, which were originally taught in two completely different contexts: The prohibition to set sail three days before Shabbat is mentioned in the Tosefta in tractate Shabbat (13:13), along with other laws connected to routine preparation for Shabbat. On the other hand, the prohibition to go to war three days before Shabbat is mentioned in the Tosefta in tractate Eiruvin (3:7) along with other laws related to war on Shabbat. The Tosefta there teaches the halakha regarding a border town, as well as other laws mentioned in that same passage in tractate Eiruvin (44b, 45a). As stated, it is in this framework that the fundamental principle of "'until it falls' – even on Shabbat" is introduced, and from there it serves as a foundation for everything related to war on Shabbat.

"Until it Falls" as "A Special Allowance"

According to the way the Babylonian Talmud quotes the Tosefta, its main point is to prohibit – to teach that one must not go out to war three days before Shabbat. Nevertheless, the baraita also mentions an important allowance: "If they began, they need not stop." That is to say, as long as the campaign started in the middle of the week, it is permissible to continue it even on Shabbat, based on the law of "until if falls."

The obvious question is what the novelty is in the allowance to continue fighting even on Shabbat: If we are dealing with actions involving pikuach nefesh, it seems obvious that it would be permissible to continue doing them even on Shabbat, even without the specific teaching of "until it falls." On the other hand, if we are talking about actions that do not involve pikuach nefesh, it is not clear why they should be permitted on Shabbat, and not pushed off until after Shabbat!

To the best of my knowledge, the Rishonim on do not relate to this difficulty in their commentaries on the Talmud there. The Rivash, however, addresses it explicitly in one of his responsa:

As for not laying siege [to a gentile city three days before Shabbat]… it is a special allowance that if they began, they need not stop, and they may desecrate Shabbat for all the needs of the siege, even if there is no danger, as we have received by tradition: "‘Until it falls’ – even on Shabbat.” (Responsa ha-Rivash, 101)

The Rivash explicitly states that the allowance of "until it falls" goes above and beyond the parameters of pikuach nefesh. According to him, it is permissible to do anything necessary for the sake of the war, even if refraining from the action would not involve any danger whatsoever.

The Sefat Emet expresses a similar opinion:

It seems that it is certainly not dealing with a case of danger, for if so, why do I need a verse?

We are forced to say that we are dealing with a case where we are on the attack, and if there is an interruption on Shabbat, the conquest will be cancelled, and the verse comes to say that the conquest sets aside the prohibitions of Shabbat. (Sefat Emet, Shabbat 19a, s.v. ein tzarin)

In the shiur dealing with applications of the law of a border town across the generations (shiur #31), we noted the difference between an allowance based exclusively on pikuach nefesh and an allowance based on other issues, such as the law of "conquest." According to the Sefat Emet, this is the reasoning in the present case as well. Indeed, certain actions do not directly save lives, and do not involve pikuach nefesh, but since they are essential to deciding the battle and achieving victory, they enable the "conquest," and are therefore permitted on Shabbat.

In a particularly long article entitled "Lechima be-Shabbat be-Aspaklariya shel ha-Halakha,"[1] Rabbi Shlomo Goren conducted a comprehensive historical study of Israel's wars on Shabbat, and as mentioned in previous shiurim, he analyzed in depth both the Jewish sources as well as other historical sources.

Over the course of the article, Rabbi Goren also deals with the halakhic principle derived from "until it falls." He does not cite the Rivash or the Sefat Emet, but explains the Talmudic passage in a similar manner:

An important principle becomes clear from all this, namely, that the allowance to fight on Shabbat is not based on the allowance of pikuach nefesh which sets aside the prohibitions of Shabbat, as we are used to thinking, but on a special allowance that is intended exclusively for fighting, and is based on the exposition of Shammai the Elder in the Babylonian Talmud, the Jerusalem Talmud, the Tosefta, and the Sifrei on the verse "until it falls" – “even on Shabbat.” For the allowance of pikuach nefesh which sets aside Shabbat is learned according to the Gemara's conclusion from the verse "He shall live by them," and Chazal expounded: And not die by them…

If fighting always involves the problem of pikuach nefesh, why do we need a different exposition to permit fighting on Shabbat, from "until it falls." We should derive this as well from "he shall live by them"! Rather, certainly Shammai the Elder comes to teach us a special allowance, that the fighting itself sets Shabbat aside as a mitzva in its own right…

If a war started and Shabbat fell out in the middle, the war is not stopped; this allowance is based on the exposition: “‘Until it falls’ – even on Shabbat,” which is a pure war category, and it comes to prove that the mitzva of fighting is what sets Shabbat aside, not the pikuach nefesh in it. (Responsa Meishiv Milchama, vol. II, 1)

According to this, Rabbi Goren maintains that what we have here is a new halakhic definition, one that obligates us to persevere in war and strive for victory: "‘Until it falls’ – even on Shabbat.” The novelty here is that we do not make calculations of pikuach nefesh and saving lives, but instead strive for victory in the campaign at any cost. In his words there, Rabbi Goren emphasizes several times that we are dealing with a case where "there is no immediate danger," and "no matter of pikuach nefesh will arise for us," but even in these situations, we permit various actions based on the law of "until it falls." Rabbi Goren further adds that in this respect it can be argued that war is a case of "permitted" and not merely "set aside." (We discussed the significance of these terms at length in shiurim 5, 6, 7, and 8.) Rabbi Goren maintains that as far as war is concerned, the approach that Shabbat was permitted should be unequivocally adopted.

"Until it Falls" as Pikuach Nefesh

As has been mentioned, historical research played an important role in Rabbi Goren's article. Rabbi Goren analyzes at particular length the Hasmonean battles, as described in the books of the Maccabees and in the books of Josephus, and he comes to the conclusion that the court of the Hasmoneans played an important part in the innovation of the above-mentioned laws and concepts regarding the allowance to fight on Shabbat:

And because at that time a special court of the Hasmoneans was established, which issued decrees and ordained ordinances to build a fence around the Torah… This implies that they were halakhists, and we must clarify their important historical ruling in light of the halakha in our hands based on the Talmud and the midrashim. (Responsa Meishiv Milchama, vol. 1, 2)

In a different article, written a few years earlier, Rabbi Goren had gone even further:

It was not Shammai who innovated this law – "‘until it falls,’ even on Shabbat” – but rather a military court innovated this law. And not an ordinary court that follows full legal procedure, but rather a field court that did this without full procedure – that Matityahu and his companions formed a field court that issued this important historical ruling that it is permissible to fight on Shabbat.[2]

In Rabbi Goren's opinion, the novel halakha that we mentioned was innovated in the storm of battle, and later became a solid halakhic principle.

In an article responding to Rabbi Goren’s "Lechima be-Shabbat le-Or ha-Mekorot” (this is the article discussed above, which in Responsa Meishiv Milchama is entitled "Lechima be-Shabbat be-Aspaklariya shel ha-Halakha”),[3] Rabbi Moshe Tzvi Neriya strongly disagreed with this argument, and even labeled his position as "ridiculous." Rabbi Neriya also discusses various historical sources at length, proposing different interpretations from those of Rabbi Goren. But beyond the historical controversy, Rabbi Neriya also formulates the innovation in the law of "until it falls" in a different way. Elsewhere, he raises the question that already troubled the Rivash:

What we have before us is a special exposition that war sets aside Shabbat, and we must understand the root of the matter: Whatever you think, if the setting aside is because of pikuach nefesh, why do you need a verse? Surely there is an explicit verse, "He shall live by them," that pikuach nefesh sets aside Shabbat. And if this applies in a situation that does not involve pikuach nefesh, what is the reason that war sets aside Shabbat? (Milchamot Shabbat, p. 11)

As mentioned, his answer is slightly different:

This itself was the exposition of Shammai the Elder: that in a time of war, and even where it is not a situation of immediate and evident pikuach nefesh, and you might think they should stop the war and not desecrate Shabbat, the verse comes to teach us that if they started, they do not stop, and they continue the war “until it falls,” even on Shabbat. This applies even when there is no direct danger, for such an emergency situation carries with it multiple dangers for the public, and it is impossible to predict its development in advance, since it is possible that the enemy will take advantage of the break to reorganize or to send in reinforcements, and the like. (Ibid., p. 13)

Rabbi Neriya agrees that the law of "until it falls" seeks to establish broad allowances in a time of war. However, he emphasizes that we are not dealing with a new halakhic category, but an expansion of the laws of pikuach nefesh, and especially uncertain pikuach nefesh. During war, there are many dangers, and even an action that does not appear to save lives directly may turn out to save lives.

Rabbi Neriya proves his argument with sources that we already dealt with at length in our discussion of communal pikuach nefesh, and he even claims that this law – "until it falls" – is the source of the position of the Halakhot Gedolot and Rabbeinu Chananel regarding a fiery ember of metal (see shiur #22), that "communal damage" is considered like danger to life.

Rabbi Neriya also seeks to explain the responsum of the Rivash against this background, and to argue that the "special allowance" of which the Rivash speaks is based on an expansion of the parameters of pikuach nefesh, and not on a new halakhic category. Admittedly, after also citing the words of the Sefat Emet that we saw above, Rabbi Neriya concedes that the simplest way to understand the Rivash is that he believes we are dealing with an independent halakhic principle.

Later in his discussion, Rabbi Neriya suggests that this question in fact depends on a dispute between the Babylonian Talmud and the Jerusalem Talmud:

Because in the Babylonian Talmud it was explained to us that the allowance of war on Shabbat is based on pikuach nefesh, and therefore continuing the war is permitted, but starting it is not…

Not so according to the Jerusalem Talmud… The closest and most evident rationale is that the position of the Jerusalem Talmud is that the mitzva of conquest, the conquest of the land that is part of an obligatory war, is what sets aside Shabbat. (Ibid., p. 25)

Thus it turns out that even according to Rabbi Neriya, there is significant basis for the argument that the exposition of "until it falls" innovates broad allowances during a time of war, above and beyond the parameters of pikuach nefesh.

Optional War and Obligatory War

Thus far, we have dealt with the version found in the Babylonian Talmud, which states that one may not lay siege to gentile cities less than three days before Shabbat, and the allowance is only to continue a war that started earlier.

In the source in the Tosefta, a significant proviso was imposed on the prohibition of going out to war close to Shabbat:

Regarding a camp that goes out to an optional war, one may not lay siege to gentile cities less than three days before Shabbat, but if they began, even on Shabbat they need not stop. And thus did Shammai the Elder say: "Until it falls" – even on Shabbat. (Tosefta, Eiruvin 3:7)

The Tosefta indicates that the entire limitation imposed on fighting on Shabbat pertains only to an optional war. When it comes to an obligatory war, there is no limitation, and one may go out to battle even on Shabbat itself. This is stated more explicitly in the Jerusalem Talmud:

One may not lay siege to a gentile city less than three days before Shabbat. This applies to an optional war, but in an obligatory war [this is permitted] even on Shabbat, for we find that Jericho was captured on Shabbat, as it is written: "Thus you shall do six days" (Yehoshua 6:3), and it is written: "And on the seventh day you shall circle the city seven times" (ibid. 4).[4] And it is written: "Until it falls" – even on Shabbat. (Jerusalem Talmud, Shabbat 1:8)

The Jerusalem Talmud explicitly states that in an obligatory war, it is permitted to go out to battle even on Shabbat itself, and it hangs the allowance on Yehoshua's war in Jericho, which took place on the very day of Shabbat.

The Rambam codifies the law as follows:

We may lay siege to gentile cities [at least] three days before Shabbat. We may wage war with them on any day, even on Shabbat, until we conquer [the city], even if the war is optional in nature. The oral tradition interprets "until it falls" as teaching that [one should wage war] even on Shabbat. Surely, the above applies with regard to an obligatory war. Indeed, it was on Shabbat that Yehoshua conquered Jericho. (Mishneh Torah, Hilkhot Shabbat 2:25)[5]

The Rambam mentions this law again later in Hilkhot Shabbat (30:13), and there he agrees with the reason suggested by the Rif – that the prohibition to start a war less than three days before Shabbat stems from concern about impairing the pleasure of Shabbat. But, as mentioned, if the war began three days before Shabbat, it is permissible to continue fighting even on Shabbat, even in the case of an optional war.

The Rambam adds that all the more so does the above apply to an obligatory war, but he does not explicitly state that in the case of an obligatory war it is permissible to go out to battle on Shabbat itself. The Lechem Mishneh (Hilkhot Shabbat 2:25) maintains that this is indeed what the Rambam means, and the Hagahot Maimoniyot (ad loc.) notes that this is stated explicitly in the Tur:

But one may begin an obligatory war even on Shabbat. (Tur Orach Chaim 249)[6]

We will not be able to discuss in this framework the broad issue of the distinction between an obligatory war and an optional war,[7] but will content ourselves with the Rambam’s definition:

What is considered an obligatory war? The war against the seven nations, the war against Amalek, and a war fought to assist Israel from an enemy which attacks them…

Afterwards, he may wage an optional war, i.e., a war fought with other nations in order to expand the borders of Israel or magnify its greatness and reputation. (Mishneh Torah, Hilkhot Melakhim u-Milchamoteihem 5:1)

In my humble opinion, it is clear that Israel's wars in their land in recent generations fall into the category of an obligatory war. Therefore, there is indeed room to apply to all of these wars the expansive parameters regarding "until it falls": first, it is permissible to start a war on Shabbat itself; and second, during the war it is permissible to do everything necessary to decide the campaign, even when there is no immediate danger to life.

To conclude, let us return to the words of the Tur, who permits beginning an obligatory war even on Shabbat. The Beit Yosef there comments:

Today, when Israel does not go out to fight or besiege towns, our teacher did not have to write this law. But since it is written in the Gemara together with the laws that one may not send letters or set out in a ship less than three days before Shabbat, he wrote it. (Beit Yosef Orach Chayyim 249) 

Even though Rabbi Yosef Karo lived and was active in the Holy Land, for him, the issues of an optional or obligatory war fell into the category of "halakha for Messianic times," to the point that he felt compelled to explain why the Tur bothered to mention these laws at all, seeing the ruling as incidental to his involvement with other matters.

As mentioned, however, in recent generations this halakha has become a firm foundation relevant to actual practice.[8] We opened this shiur with the responsum of the Tzitz Eliezer, and we will end with it as well. After citing the responsum of the Rivash that we dealt with above, regarding the special allowance of war on Shabbat, Rabbi Waldenberg writes:

What never occurred to the Rivash, that this would involve a mitzva, arrived in our time and in our day, when this mitzva of conquest emerged and arose here in our Holy Land… In our time, in our Holy Land, it is here in our world…

The eyes of all are lifted up to God, that He may guide us in the abundance of His mercy on the paved and straight path, so that we do not miss the target and we will be worthy of God's great remembrance of us. (Responsa Tzitz Eliezer, vol. III, 9, chap. 2)

(Translated by David Strauss)

[1] The article was first published in 5718 in Sinai: Sefer Ha-Yovel, published by Mossad HaRav Kook, and afterwards also in Responsa Meishiv Milchama (vol. I, 2).

[2] The quote is from Rabbi Moshe Tzvi Neriya's article, which will be mentioned below, where he refers to an article written by Rabbi Goren entitled "Techuka Tzeva'it al pi ha-Torah" (in Netiv: Bita'on la-Meguyas ha-Dati, 6, Adar 5710). I was unable to examine the original article. 

[3] Rabbi Moshe Tzvi Neriya, "Al Heter Milchama be-Shabbat" (originally: Tel Aviv 5722; also published in Torah She-be’al Peh IX, pp. 36-43, and in other places); available here on the Da'at website.

It should be noted that these matters were discussed briefly even earlier, at the end of his book, Milchamot Shabbat: Le-Bei'ur Sugyat Milchama be-Shabbat bi-Mekorot ha-Halakha u-le’Virur ha-Uvedot be-Toledot Yisrael (Heikhal Shlomo, Jerusalem 5719, p. 70; available here on the Hebrewbooks Beta website).

[4] In his comprehensive responsum discussed above (Responsa Meishiv Milchama, vol. 1, 2, letter 1), Rabbi Goren cites and summarizes in great detail other sources for the statement that the conquest of Jericho took place on Shabbat. These include Rashi and Radak in their commentaries (Yehoshua 6:13; 6:11, respectively), and it is also the prevailing opinion in the midrashim of Chazal that he brings there. According to Yalkut Shimoni (cited there), the prohibition against benefitting from the plunder of Jericho relates to the fact that the city was conquered on Shabbat. Rabbi Goren notes a sole dissenting opinion, that Jericho was not conquered on Shabbat – Rabbi Saadya Gaon in his Emunot ve-De'ot (sec. III).

[5] The Rambam repeats his position in Hilkhot Melakhim (6:11). See also Kesef Mishneh, ad loc., who proposed a slight emendation of the reading of the Rambam, but this is not the forum in which to expand upon the matter.

[6] See Kenneset ha-Gedola on the Tur (ad loc.), who discusses the Rambam's position at length and suggests that the Rambam and the Tur in fact disagree about embarking on an obligatory war on Shabbat. A comprehensive summary of the issue is found in the responsum in the Tzitz Eliezer mentioned at the beginning of this shiur (vol. III, 9, chap. 2).

See also the comments of my revered teacher, Rabbi Yehuda Amital, in his book Resisei Tal, vol. I, 3. Rabbi Amital discusses the position of the Rambam and relates to the question of whether the allowance of "until it falls" is based on pikuach nefesh or on conquest, and also suggests examining whether this allowance falls into the category of "permitted" or "set aside."

[7] Both Rabbi Goren and Rabbi Neriya devote extensive discussion to this matter in their respective articles, and clarify at length the positions of the Rambam and other Rishonim regarding the conclusions of the Babylonian Talmud and of the Jerusalem Talmud concerning the difference between an obligatory war and an optional war.

As explained above, in my humble opinion this interpretive dispute has no relevance in practice, since it is clear that the wars in our generation are obligatory wars for all intents and purposes.

It is true that certain contemporary poskim were of the opinion that only the king of Israel and the Sanhedrin can declare an obligatory war, but Rabbi Goren devoted a comprehensive article to reject this position (Responsa Meishiv Milchama, vol. I, 3). See also Teshuvot ha-Grish Elyashiv (vol. II, 29).

[8] It should be noted that the allowances based on the law of a border town were certainly found throughout the generations also in the Diaspora, as we learned in the previous shiurim. Additional evidence of this is found in the commentary Shabbat shel Mi on our passage (Shabbat 19a, s.v. ein tzarin), where the author – one of the great sages of Italy – speaks of Jewish military organization in one of the cities in the year 5559 (1799) to prevent a pogrom against the city's Jews. Even though the context there is the passage dealing with "until it falls," it is clear that the allowance is based on the passage of a border town (he himself refers to it explicitly [Eiruvin 45a]).