Halachic Musings

By Rabbi Yair Hoffman

The full length and breadth of Israel is subject to the rockets being launched by Hamas in Gaza, and it is understood by almost everyone that right now, there is a huge mitzvah to defend the people of Israel. But what is the mitzvah, or mitzvos, exactly? In this short essay, we will try to explore a few of them.

One basic mitzvah is that of saving lives. What is the source of this mitzvah? The verse in parashas Ki Teitzei (Devarim 22:2) discusses the mitzvah of hashavas aveidah, returning an object, with the words, “Vahasheivoso lo–and you shall return it to him.” The Gemara in Sanhedrin (73a), however, includes within its understanding of these words the obligation of returning “his own life to him as well.” For example, if thieves are threatening to pounce upon him, there is an obligation of “Vahasheivoso lo.” This verse is the source for the mitzvah of saving someone’s life–which is what our soldiers are doing in preventing the further shooting of rockets. It is highly probable that it is this general mitzvah referred to in Shulchan Aruch Orech Chaim 325.

Lo Sa’amod

Al Dam Rayacha

There is a negative mitzvah of not standing idly by your brother’s blood as well. This is mentioned in Shulchan Aruch (CM 426:1) and in the Rambam.

Lo Suchal L’hisalaym

There is yet another negative commandment associated with the positive commandment of hashavas aveidah, and that is the verse in Devarim (22:3), “You cannot shut your eyes to it.” This verse comes directly after the mitzvah of hashavas aveidah. The Netziv (HeEmek Sheailah) refers to this mitzvah as well.

V’Chai Achicha Imach

The She’iltos (She’ilta #37), based upon the Gemara in Bava Metzia (62a), understands these words to indicate an obligation to save others with you. The Netziv in his He’Emek She’ailah understands it as a full-fledged obligation according to all opinions. He writes that one must exert every effort to save his friend’s life–until it becomes pikuach nefesh for himself.

V’Ahavta L’Rei’acha Kamocha

The Ramban, Toras haAdam Sha’ar HaSakana (pp. 42—43), understands the verse of “And love your neighbor as yourself” as a directive to save him from danger as well. Although he discusses the issue of medical danger, it is clear that this is an example, and it would apply to danger from physical enemies as well. Even without the Ramban, however, it is clear that defending and protecting someone from danger is a fulfillment of this mitzvah.

Kiddush Hashem

The Rambam writes (Hilchos Melachim 7:15) that he should know that he is going to war for the unification of Hashem’s Name. It is indicative from these words that whenever a Jewish soldier is going to war for the Jewish people (at least for a milchemes mitzvah) he is contributing to the unification of Hashem’s Name. This is considered a kiddush Hashem, a sanctification of the Divine Name.

Kivush Eretz Yisrael

There is yet another mitzvah involved in ensuring that the land of Eretz Yisrael remain in Jewish hands. This is called the mitzvah of capturing Eretz Yisrael. This mitzvah applies in modern times as well (See Tashbatz 3:288, Ramban in hosafos to mitzvah #4, and Maharit, Responsa Vol. II YD #28). Rashi, in Sanhedrin 2b, however, seems to indicate that it was only applicable in the time of Yehoshua. The majority of poskim seem to be in agreement with the Tashbatz (See responsa Dvar Yehoshua Vol. II OC #48).

At Least Seven Mitzvos

We see that there seem to be at least seven mitzvos involved in the mitzvah of defending against the vicious onslaught of the Hamas rockets. However, this does not necessarily mean that there is an obligation to actually send in the ground forces, although it seems that the government of Israel is poised to do just that.

There is a question as to whether or not the Talmudic dictum found in the Gemara in Sanhedrin (74a): “One who comes to kill you, rise earlier, and kill him” is obligatory or optional.

Rav Yitzchok Halperin in his Ma’aseh Chosheiv (Vol. III p.141) writes that it is not obligatory but optional. He does not mention Tzror es HaMidyanim as a source, however.

The former chief rabbi of Tel Aviv in his Assei Lecha Rav (Vol. IV p. 35) follows the view that it is obligatory, but qualifies the idea of it being obligatory as only when there is certainty that the enemy will attack. He distinguishes between the obligation of seeing a rodeif in pursuit of his victim and the law of “One who comes to kill you.” His distinction is that the latter only applies when it is definite that he will try to kill you. In such an instance, there would be an obligation to kill him. It would seem that this is indeed the case regarding Israel’s enemies in Gaza; therefore Israel would, at first glance, be halachically unable to accommodate any future Hamas request for a ceasefire and might be obligated to continue. President Obama might have to do the same thing as well.

Why Did Dovid

Spare Shaul?

We find that in Shmuel I (Chapter 24), King Shaul was in pursuit of the future King David, and would have killed him. David, though, spared Shaul–only cutting his clothing. Certainly, Shaul would have killed him. Why, then, did David spare him? asks the Tel Aviv chief rabbi. He should have been obligated to kill him!

Rav Povarsky’s View. HaRav Povarsky, zt’l, in his shiurim on Sanhedrin cites the Gemara in Sanhedrin (74a) that the law in regard to a rodeif is only if it is impossible to stop him in another manner. There is therefore an essential difference between the law of rodeif and the law of haba l’hargecha. If someone is coming to kill you, then you may kill him without worry about stopping him in some other manner, and you are completely exempt. The law of rodeif, however, limits an observer in killing the pursuer in a number of ways. If he could have stopped him in some other way then he might, in fact, be liable.

Rav Asher Weiss’s View. The Minchas Asher (Sh’mos #39) in trying to resolve the question on King David suggests another caveat to the laws of haba l’hargecha, even according to the opinion that it is obligatory. He writes that it is only obligatory to kill him if it is during the actual time when he is trying to kill you. If it is not during this time, then this is optional. The suggestion is somewhat perplexing because all cases of “waking up early to kill him” perforce deal with a case where it is not during the actual time. The “obligatory” nature of it would thus never be practically relevant according to the Minchas Asher.

A Third Suggestion. This author would like to propose an altogether different caveat. The laws of “waking up early to kill him” might be limited by another factor. That factor is the following question: What are the ultimate repercussions of killing this person? If David HaMelech killed Shaul HaMelech, the repercussions would reverberate in Jewish history for thousands of years. That being the case, it would not be obligatory but rather optional. Israel might be limited by this factor too. What are the ultimate repercussions of sending in ground forces? What will be the repercussions in the immediate future? If it may be too devastating, then the normally obligatory nature of “arise early and kill him” changes and becomes optional.

If the government chooses to send in the ground forces, the mitzvos enumerated above certainly apply. In the meantime, we should all continue in our tefillos, learning, and advocacy to make sure that our brethren remain safe. Amen. v

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