Working Warfare and its Restrictions in the Jewish Tradition

WORKING WARFARE AND ITS RESTRICTIONS IN THE JEWiSH TRADITION Reuven Kimelman Brandeis University The test case for any political theory of checks and balances is war. It also tests the outer limits of the ethical deployment of power. I. Types of Wars The Jewish ethics of war focuses on two issues: its legitimation and its conduct. The Talmud classifies wars according to their source oflegitimation. Biblically mandated wars are termed mandatory (milhemet mitzvah or milhemet hovah). Wars undertaken at the discretion of the Sanhédrin are termed discretionary (milhemet reshut). There are three types of mandatory wars: Joshua's war of conquest againstthe seven Canaanite nations, the war againstAmaleq, anddefensive wars against an already launched attack. Discretionary wars are usually expansionary efforts undertaken to enhance the political prestige of the government or to secure economic gain. The first type of mandatory war is only of historical interest as the Canaanite nations lost their national identity already in ancient times. This ruling, which appears repeatedly in rabbinic literature, is part ofa tendency to blunt the impact of the seven-nations policy. The Bible points out that these policies were not implemented even during the zenith of ancient Israel's power (Kings 9:20; 2 Chr 8:7-9; see also Judges 1:21-33, Ps 106:34). Indeed, an ancient Midrash explicitly excludes the possibility of transferring the seven-nations ruling to other non-Jewish residents of the Land ofIsrael. Maimonides is just as explicit in emphasizing that all trace 44Reuven Kimmelman of them has vanished. By limiting the jurisdiction of the seven-nations ruling to the conditions ofancient Canaan it was effectively removed from the postbiblical ethical agendaand vitiated as aprecedent forcontemporary practice. The second category ofmandatory war, against Amaleq, has also been rendered operationally defunct by comparing them with the Canaanites, or by postponing the battle to the immediate premessianic struggle, or by viewing them as a metaphor for genocidal evil. The two remaining categories, reactive defensive wars (which are classified as mandatory) and expansionary wars (which are classified as discretionary) remain intact. So, for example, King David's response to the Philistine attackaredesignated mandatory, whereashis wars "to expandthe border of Israel" are designated discretionary. Intermediate wars such as preventive, anticipatory, or preemptive defy so neat a classification. Not only are the classifications debated in the Talmud, but commentators disagree on the categorization of the differing positions in the Talmud. The major clash occurs between the eleventh century Franco-German scholar Rashi and the thirteenth century Franco-Provencal scholar Meiri. According to Rashi, the majority position considers preemptive action to be discretionary whereas the minority position expounded by Rabbi Judah considers it to be mandatory. According to Meiri, a preemptive strike, against an enemy who it is feared might attack or who is already known to be preparing for war is deemed mandatory by the majority ofthe rabbis, but discretionaryby Rabbi Judah. Accordingly, Rabbi Judah defines a counterattack as mandatory only in response to an already launched attack. A similar reading of Maimonides also limits the mandatory classification to a defensive war launched in response to an attack. With these distinctions between mandatory and discretionary wars in mind, we should be able to investigate the Jewish concerns with the problematics ofwarby focusing on preemptive strikes, declarations ofwar, ethics of warfare, and draftability. II. Preemptive Strikes as Self-Defense Not only Machiavellians view the security and survival ofthe state as nonnegotiable. National self-defense is as much amoral right as is personal self-preservation. Whereas it is clear that offensive war cannot be subsumed under the inalienable right of self-defense, the moral status of pre-emptive attacks is not as clear. Is the moral category of self-defense Working Warfare and Its Restrictions in the Jewish Tradition 45 limited to an already launched attack? The majority talmudic position, according to Rashi, and that of Rabbi Judah, according to Meiri, would answer in the affirmative. Their position is seconded by Article 51 of the United Nations Charter, which states: "Nothing in the present Charter shall impair the inherentright ofindividual ofcollective self-defense ifan armed attack occurs against a member." The minority position of Rabbi Judah, according to Rashi, and the...