And what is the logic of things? Where the objects of the law see it, as the well-known saying of H.L.A. Hart, from the internal point of view - that is, out of a certain identification and a basic willingness to act in accordance with its rules - we suffice, in most cases, with rules that deal with directing behavior [...]. However, in certain contexts, in which the matter is of particular importance, and in which the state, in its view, cannot afford to have the norms it has established not be observed, there is no choice but to impose those norms, by means of effective sanctions, even on those who perceive those norms from an external perspective only, and do not accept them as valid in order to direct their behavior. Thus, for example, the state does not leave its citizens discretion as to whether to comply with the norms of conduct established by the criminal law, and enforces compliance with them by punitive means. This is done, first and foremost, not for the purpose of punishment as an end in itself, but for the purpose of ensuring that people comply with the norms of conduct outlined by the criminal law in the first place. Thus, the main purpose - and at least the initial - of criminal law, and of the enforcement carried out by virtue of it, is not to 'fill the prisons with prisoners, ' nor to 'fill the pockets of the state with fines, ' but rather to cause the citizens of the state to refrain from certain behaviors for which they may be punished [...]. Similarly, in this case, the purpose of the enforcement measures in general, and of the punishment under the Military Justice Law in particular, is not 'punishment for the sake of punishment, ' or 'filling the military prisons with dodgers'; rather, it is the need to force conscription in the first place, even on those who do not wish to do so" (ibid., paragraphs 45-46).
"כִּי לֹא בָאוּ לְעֶזְרַת ה', לְעֶזְרַת ה' בַּגִּבּוֹרִים" (שופטים ה, כג): על ערכי התורה
- With the conclusion of another sub-chapter - as dismal as its predecessors - on the plots of the issue of the conscription of members of the ultra-Orthodox community, and specifically "out of recognition of the value of Torah study" and the values of Torah (see: Yerushalmi, Berachot 2:1) - I cannot avoid what has already become almost a permanent part of the ritual: an attempt to make it sound, to the ears of anyone who is willing to hear, that this is not the way of Torah; far from it (see, for example: The words of Justices Rubinstein and N. Hendel in High Court of Justice case 6298/07, as well as my words in High Court of Justice case 5819/24, paragraphs 70-73). Indeed, the Sages have already instructed us that "just as a person is commanded to say something that is heard, so it is a mitzvah for a person not to say something that is not heard" (Bavli, Yevamot 65b), when it seems that these words do not fall on deaf ears, no matter how difficult the situation of those who have left the army. But it is precisely from the perception that the laws and laws of the Torah "are themselves righteous, upright, and good in the settlement of the people and the states" (Ramban's commentary on the Torah, Deuteronomy 4:8), and in view of their insult due to their use, I cannot do otherwise (see: Mishna, Avot 4:5; Bavli, Berachot 19:2; Bavli, Yoma 88:1). These words are particularly important, against the background of the erroneous picture that those who sought to present to us, as if the position of the Torah and its sages on the subject is clear, and rejects enlistment in the army and in war (on this issue, see: Bavli, Eruvin 13:2). As will be detailed below, the matter is completely different; "I will give a book and foresee" ("We will bring a book and we will see").
- As noted, but not long ago I dealt with the obligation to enlist in the army and in war, according to halachic sources, and they did so before me as well. In other words, the foundations have already been laid down and reviewed; therefore, I will repeat them only briefly (and anyone who wishes to expand will be able to find what he wants, inter alia, in the discussions mentioned above). The first is echoed by the clear cry of the greatest leader of the Jewish people, Moshe Rabbeinu, in his reply to the tribes who wished to make do with the inheritance beyond the Jordan: "Your brothers will come to war, and you will dwell here" (Bamidbar 32:6). Subsequently, Chazal taught us that "for a mitzvah war, everyone goes out, even a bridegroom from his room to a bride from her canopy" (Mishna, Sotah 8:7), while "a mitzvah war" is "Israel's help from the hand of trouble that comes upon them" (Mishneh Torah, Kings and Wars, chapter 5, halacha 1; see also: High Court of Justice 2280/24 Gisha Center for the Protection of the Right to Move v. Government of Israel, paragraph 13 of the opinion of my colleague, Justice Mintz [Nevo] (March 27,2025)). The Aruch has already written that if a bride and groom leave their room, "all the more so Torah scholars" (entry "Angria"; cited in the Babylonian issue, Sotah 10:1). On top of these initial foundations, as is the way of the Torah, there is still more to be studied - and that, too, of course, without pretending to be a mitzvah. I will approach this (many of the following are based on a shiur given by Rabbi Uri Hacohen, commander of a combat battalion in the reserves, at Yeshivat Otniel; as well as on a draft of a book that will be published by Rabbi Eliezer Melamed, where a chapter will be devoted to the place and roles of the tribe of Levi).
- Thus, regarding the verses, "A thousand down a thousand to all the tribes of Israel, you shall send them to the army" and "And Moshe sent them a thousand down to the army, you and Pinchas the son of Elazar the priest to the army, and the holy vessels and the trumpets of the trumpets in his hand" (Bamidbar 31:4 and 6), which deal with the war against Midian, the Gemara says: "'Them' - these are the Sanhedrin" (Bavli, Sotah 34:1); and the midrash of the halacha (which is also cited in Rashi's commentary) says: "'You shall send to all the tribes of Israel to the army' - to bring the tribe of Levi" (Sifrei Bamidbar 31:4). In other words, both of them participated in the war. This, in contrast to the attempt to learn from the words of an aggada brought by the Rambam at the end of Sefer Zera'im (Hilkhot Shmita and Yovel, chapter 13, halacha 12), that members of the tribe of Levi are exempt from going to war - a view about which it is important to say that the alleged "exemption" was not expressed in the words of the Rambam, which dealt directly with the issue of exemptions from going to war (see: Mishneh Torah, Laws of Kings and Wars, chapter 7; as well as his words there, chapter 8, halacha 4; Hilkhot Shabbat, chapter 2, laws 3 and 23; see also 1 Chronicles 12, verses 24,27 and 39; ibid. 27:5; Responsa Mishpat Uziel 8:21).
- Another issue that is brought more than once in this context is the words of the Gemara, according to which "rabbis do not need to be guarded" (Talmud Torah scholars do not need guarding; Bavli, Bava Batra 7:2-8:1). At the outset, it should be noted that an examination of the passage in which these words were brought clearly teaches us that all that is being discussed is the division of municipal tax burdens; not the identity of those who went out to battle, or anything similar. The Rambam, who ruled these words according to halakha, also uses a clear monetary language: "They [from Torah scholars - 60] are not charged for the building of the wall, the repair of the gates, the wages of the guards, and the like" (Hilkhot Talmud Torah, chapter 6, halacha 10; emphases added - v. 60). The Chatam Sofer goes even further, who teaches us that even the tax exemption does not apply to security needs, which relate to war with an external enemy: "Until now, the rabbis have not exempted [us], but only from taxes and walls, which are from the exile of Israel [...] But observing the same way that monarchies are preserved in other kingdoms, even a Torah scholar is obligated [...] Rather, [against our will] the walls of the city from a war of kingships, Torah scholars are also obligated" (Chiddushei Chatam Sofer to Tractate Bava Batra 8:1 (emphasis added - 50); See also: Rashi, Bava Metzia 108:1, s.v. "Lagli Gafa"; Responsa Radbaz, vol. 2,5522, where he suffices, inter alia, if in his day there were Torah scholars at all on such a "level" of the absence of the need for guarding. This is to say: Even if there are a select few who merit this, we are certainly not dealing with a "path that is conquered for the many, " as is claimed in our day). We learn that even in the realm of money, which is the essence of the issue, the exemption does not extend to the needs of war with a foreign enemy. All the more so, we should not learn from here an exemption from the very act of going out to battle - quite the opposite.
- And if what has been said so far is not enough, then one who refrains from saving lives - even one - because of his spiritual considerations and for reasons of modesty, the Gemara says the following harsh words: "[Who] is a foolish pious person?" - about whom it is said that he is one of the "without the world, " e., the one who corrupted the world - "for example, when a woman drowns in a river, and that person does not save her, because he thinks it is not appropriate to look at her; Bavli, Sotah 20:1 and 21:2; and see also: Yerushalmi, Sotah 3:4).
- I will conclude this passage with poignant and present words that were published already during the War of Independence, in a letter signed in the name of "One of the Rabbis" (the identity of the author of the letter is unknown, and there is a dispute about it, with some believing - and it seems that there are legs to their position - that this is Rabbi Shlomo Yosef Zevin, who was the first editor of the Talmudic Encyclopedia); Unfortunately, this is still relevant, even for many years - and many wars afterwards:
"Well done and all the admiration to Maranan and Rabbanan, the geniuses of the Holy City, but permission can be asked: Let our rabbis teach us, where do you come from?