Alex S. Ozar
Many believe, and take to be common sense, that war represents a sphere of moral exception in which attempts at constraint are at best fantastical and at worst precisely counterproductive, producing more, rather than less, suffering.[1] “War is cruelty,” General Sherman wrote to Mayor Calhoun in 1864, “and you cannot refine it.” In the realm of halakhah, the sphere-of-exception view of war is represented by numerous authorities in explanation of the basic license to kill and be killed in wars. Clearly, these authorities reason, the law against murder is simply inapplicable here, for “on such a basis was the world founded” (Netziv to Bereishit 9:5).[2] Taking this line of thinking to the limit, R. Michael Broyde concludes in a classic article “that all conduct in war that is needed to win is permitted in view of halakha,” and conceptualizes this comprehensive license as representing a “presumptive hora’at sha’ah,” or a “temporary ruling,” suspending the law under circumscribed conditions.[3]
R. Aryeh Klapper took issue with this formulation, arguing that it is both morally dangerous and simply incorrect to think of war as ungoverned by the very same halakhah governing all other areas of life.[4] He cites R. Aharon Lichtenstein’s formulation that “It is most important that a person going out to war not understand that he is not passing from a world possessed of one hierarchy of values to a world with a different hierarchy of values,”[5] and concludes that “wartime must be a fully integrated category of halakhah and Jewish ethics.”[6] We must do our best with the paucity of sources at our disposal to articulate a halakhah of war, and we must conceptualize our conduct of war as, in principle, comprehensively bound by it.[7] This point of view resonates with what has become the dominant view in much of contemporary political and journalistic discourse, where it is taken for granted that law and standardized codes of conduct are the basic reference-points for the evaluation of warfare.
This divergence can go along with disputes about the law itself – R. Broyde and R. Klapper disagree on the question of torture, for instance – but my focus here is on the respective rhetorical formulations and the underlying philosophical positions they express. For R. Broyde, as for many others, it is important to say that the domain of law ends at the battlefield’s border; for R. Klapper, as for many others, it is important to say that it does not. I believe that each position captures something vital, and I want to attempt a third articulation between and perhaps reconciling them, grounded on a reading of Rambam’s Mishneh Torah.
The Gemara records a ruling that all spoils from the initial conquest of Canaan, even “cuts of pig” [some texts say “necks of pig”], were permitted for consumption (Hulin 17a). Rambam codifies this ruling as follows:
When soldiers enter enemy territory, conquering them and taking them captive, they are permitted to eat improperly slaughtered, unfit animals, the flesh of pigs, and the like, if they become hungry and find only these forbidden foods. Similarly, they may drink wine used in the worship of idols. This is learned from tradition, as the verse “God… will give you… houses filled with all the good things” (Devarim 6:10-11) is interpreted as referring to pigs’ necks and the like. (Laws of Kings and Wars 8:1, translation my own)
Rambam’s formulation appears to deviate from the Gemara’s in two ways, both expanding and constraining the ruling. On the one hand, whereas the Gemara seems to limit this license to the initial conquest of Canaan, Rambam extrapolates its application to all battlefields through space and time. On the other hand, whereas the Gemara’s license seems to be categorical, Rambam constrains it to circumstances in which the soldiers are “hungry and find only these foods.” Why the deviations?
With regard to the expansion, we might say first that Rambam is resistant to the idea of a sui generis carve-out to the law exclusive to the initial conquest of Canaan. The nature of law is to be of general application, and so, despite citing the prooftext clearly pegged to the initial conquest, Rambam reasons that the initial conquest must be taken as a paradigm for all wars. Furthermore, it is possible Rambam is simply convinced by the cogency of applying this license to war generally. War is hell, and hungry soldiers should be allowed to eat whatever they can get their hands on. On this reading, Rambam clearly recognizes, over and against the apparent formulation of the Gemara, the imperative to render all war a sphere of exception.
At the same time, perhaps Rambam reasons that the law in fact cannot quite suffer fixed spheres of exception, and so, over and against the apparent formulation of the Gemara, the exception must be limited to cases where the soldiers are hungry and have no other provisions available. It is important, as Kesef Mishneh (ad loc) points out, that Rambam presumably does not mean to limit the license to cases where the soldiers are literally starving, as in such cases no special wartime license would be necessary. Rambam is offering, and seems compelled to offer, a significant compromise of the law under conditions of war. But he is also compelled to constrain that compromise within reasonable limits. Do what you feel is necessary, he says, but no more. And, clearly, it would be best to proactively reduce instances of such necessity to the extent possible at a given moment, and to further endeavor to extend that possibility in the course of time. War is a sphere of exception governed by an imperative to render that sphere effectively null.
In confronting the legal and moral challenges of contemporary warfare, Rambam’s dialectic offers several critical advantages. First, insisting on a comprehensive legalism obscures the reality that law is not yet, and will likely never be, fully adequate to the task of regulating warfare. It is not simply that the halakhah of war was dormant due to the millennia of Jewish powerlessness and so remains underdeveloped, as many have noted. Even if it had been in constant use, there is no reason to think Jewish jurists in the middle ages would have produced, say, the present international regime of restrictions on aerial bombardment in civilian areas, much of which was not crystallized until well after Vietnam. The victors of WWII certainly did not believe directly targeting civilian population centers to be categorically out of bounds. And as urban warfare has grown increasingly complex, the challenge of specifying adequate parameters has increased in kind. The United States published a substantial revision of its policies on civilian casualties on December 21, 2023, and this will surely not be the last word on the subject. This is also not merely a matter of inevitable hard cases and dilemmas requiring discretion on the part of individual soldiers; it is a question of the conduct of war overall. The point is that the laws of war are always at best a work in progress, and recognizing the imperative to continue that work requires recognizing that war will never be adequately governed by law.
Second, as my doctoral adviser Sam Moyn has argued, with reference to the recent American context, the effort to render warfare increasingly “humane” through legal constraint has had the perverse effect of sustaining warfare, and the hegemony it entails, indefinitely.[8] When war was manifestly brutal and indiscriminate, it was a natural target for opposition, and politicians felt compelled to limit its scope even when it otherwise seemed justified. But with concurrent advances of technology allowing increasingly precise, remote targeting, and of the law underwriting strikes anytime and anywhere, the public has come to largely accept this all as part of the regular world order. Similarly, the development of clear principles of proportionality, applied by elaborate systems of in-house military lawyering, produces a complacency toward civilian casualties. So long as we trust that proper procedures are followed, we can rest assured that all is morally well. But we should surely not rest morally assured, and so we must be clear that our conduct of war remains as yet significantly outside the domain of law. Even where we judge war necessary, we therefore have a responsibility to proactively render that necessity effectively null.
Third, people tend to think of law as received from on high, as it were, and so tend to think that if there is a point of law we have yet to ascertain, our work is to discover what the law already is. But there is no reason to think there is even in principle a single right answer to the question of, for instance, precisely how many civilian casualties are tolerable when a state is seeking to debilitate a fervently genocidal and recently successful terrorist group deliberately embedded in an elaborate tunnel system in a dense population center directly over its border. And to the extent that this question is meaningfully answerable, it will be answered not through textual research but through good-faith, open-ended, communal deliberation on the part of humanity, asking not what is right or wrong in the abstract, but what we as the human community are prepared to actually expect of each other.
This will entail, first of all, that no state can be reasonably held to standards that no other state does, or would, observe.[9] It will also entail that it is in principle reasonable for a part of humanity, witnessing a horrible and in certain respects unprecedented, war, to call for raising our collective standards. Such agitation is vital, because we should never assume our present standards are adequate. But the human community can make this demand of a state in the above predicament if, and only if, it is prepared to assume its share of the responsibilities and burdens of that state’s safety. Otherwise the demand on that state would be unreasonable, and hence good-faith conversation would break down. Conversely, however utopian this may sound, that state should in fact feel empowered, and compelled, to demand from the human community that it share its security burdens, and so lessen its need for full-scale war. We realize the need for this kind of open-ended deliberation, and the mutual commitments such deliberation requires, when we see that the laws of war are not, and never will be, simply there for us to read and follow.
But if comprehensive legalism has dangerous ramifications, a pure sphere-of-exception view is directly dangerous. And so I want to stress that I passionately endorse the effort to articulate, as R. Klapper puts it, a halakhah and Jewish ethic of war, and I also endorse the ongoing efforts of the international community to humanize war through regulation. What is needed, however, is the Rambam’s dialectic. We must be honest about the reality that war requires that we eat cuts of pig, as it were, stepping outside the law to do what must be done. War is never simply lawful or moral. And we must hold ourselves to the imperative to continue the painfully unfinished, collective work of making it as lawful, moral, and infrequent, as possible.
[1] My thanks to the “Yeshivat Yale” crew for their help in working this material through and their intellectual and spiritual community generally; to R. Aryeh Klapper for a helpful exchange on his and my views; and to the Lehrhaus editorial team for helping me achieve whatever degree of clarity and cogency I’ve managed.
[2] For helpful digests of this line of thought, see Tzitz Eliezer 12:30; Be-Ikvei Ha-Tzon.
[3] Michael Broyde, The Bounds of Wartime Military Conduct in Jewish Law: An Expansive Conception, (Center for Jewish Studies: Queens College, 2006).
[4] Aryeh Klapper, “Warfare, Ethics, and Jewish Law,” in Meorot 6:1 (2006), 1. Some related themes are discussed by R. Klapper in his recent article, “Civilian Casualties in the Light of Halakhah and Ethics: Revisiting Rav Shaul Yisraeli’s Analysis,” thelerhaus.com, (Dec. 20, 2023). An editor notes that in that article R. Klapper acknowledges (in the name of R. Shaul Yisraeli) that the legal canons of wartime will perforce not be identical to the legal canons of peacetime, a point that may not have been obvious from his 2006 article. But my question is what it means for war to be governed by law at all. Acknowledging that we require war-specific canons of law only highlights the need to address this question.
[5] Translation R. Klapper; reference is to an interview with R. Lichtenstein in Tehumin 4:185.
[6] Klapper, “Warfare, Ethics, and Jewish Law,” 2.
[7] R. Klapper does acknowledge that there will inevitably be hard cases where soldiers will need to exercise individual discretion, but these decisions, too, should be made in light of fixed ethical principles, and will ideally reflect the conditioning of the halakhic system overall. See ibid., 3.
[8] I am informed by multiple parties that this proposition is the theme of the Star Trek episode “A Taste of Armageddon (Season 1, episode 23, 1967). Moyn, for his part, traces the genealogy of this line of thought to Tolstoy. The animating pulse of his book is in his critical evaluation along these lines of the American war on terror, especially in the Obama years.
[9] This precisely does not mean, in my view, that we are not bound by norms our enemies violate. Where our enemies violate a given norm, rather, we are bound by the norms accepted by the human community overall with respect to parties in violation of these norms. The use of human shields by one side in a conflict, for example, is generally taken to allow an adjustment to the standard proportionality calculation, allowing higher numbers of civilian casualties, but is not taken as grounding a comprehensive license for inhumane warfare.
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