Footnotes

1. Assistant Professor, Department of Religion, Emory University, Atlanta, GA 30322; Adjunct Assistant Professor, Emory School of Law. B.A., Yeshiva College; J.D., New York University; Ordination, Yeshiva University; Law Clerk, Judge Leonard I. Garth, United States Court of Appeals, Third Circuit.

2. For a brief review of the methodology, structure and history of Jewish law, see David Feldman, "The Structure of Jewish Law" in Contemporary Jewish Ethics, M. Kellner ed. (N.Y. 1978) p 21-38.

3. For an example of this type of discussion, see M. Broyde and M. Hecht, The Return of Lost Property in the Jewish and Common law: A Comparison (forthcoming).

4. Should the host country's military activities be deemed a violation of Jewish law, Jewish law would prohibit one from assisting the host country in its military activity and certainly would prohibit serving in its armed forces and killing soldiers who are members of the opposing army. For precisely such a determination in the context of the Vietnam war, see David Novak, "A Jewish View of War" in Law and Theology in Judaism 1:125-135 (NY 1974).

This author is not intending to directly relate any of the arguments advanced in this article to any particular military activity of any particular government.

5. Sanhedrin 74a-b.

6. Jewish law compels a Jew to take the life of a pursuer (Jewish or otherwise) who is trying to take the life of a Jew; Shulchan Aruch 425. Minchat Hinuch says that this is permissible but not mandatory for a Gentile; see Rabbi Joseph Babad, Minchat Hinuch, positive commandment 296. The source quoted for this statement is the Talmud in Sanhedrin (72b) which derives from the verse in Genesis 9:6 ("One who sheds man's blood by man shall his blood be shed") one of the dispensations to kill the pursuer. All commandments derived from this verse are binding equally on Jews and Gentiles since it was stated twice in the Bible, once before and once after the giving of the Bible to the Jews. Tosafot (Sanhedrin 72b) notes that this verse only makes the killing of the pursuer permissible but not obligatory. Tosafot claims that it is Deuteronomy 22:27 ("the betrothed Damsel cried and there was none to save her") which makes this action obligatory rather than optional, and this verse only has legal effect on Jews.

Rabbi Shlomo Zevin argues with this position; See Rabbi Shlomo Yosef Zevin, Leor Hahalacha, (2d ed.; Jerusalem, 1956) pages 150-57. Rabbi Zevin notes that the verses in Obadiah 1:11-13 chastise the kingdom of Edom for standing by silently while Israel was destroyed. Hence, he claims, it appears that all have an obligation to help. He also argues that the Talmud in Sanhedrin 72b was only referring to a house robber (literally, Bah BaMachteret; according to Jewish law, one who robs houses presumably will kill the owner of the house if interrupted. Thus the owner of the house may kill the robber during the burglary) and not a pursuer. Other modern commentaries also disagree with the Minchat Hinuch; For a summary of the discourse on this point, see R. Yehuda Shaviv, Betzer Eviezer, (Ztomet, 1990) pages 96-99 who appears to conclude that most authorities are in agreement with Rabbi Zevin's ruling; see also R. Yitzchak Schmelks, Bet Yitzchak, Yoreh De`ah II, 162 and Novella of R. Chaim Soloveitchik on Maimonides, Rotzach 1:9.

For an excellent article on this topic, and on the general status of preemptive war in Jewish law, see Rabbi J. David Bleich, Preemptive War in Jewish Law, Contemporary Halakhic Problems 3:251

7. What precisely these restrictions are, will be explained infra section III:A.

8. Ha'amek Da'var, Genesis 9:5.

9. literally "M'yad Ish Echiv".

10. Tosaphot Shavuot 35b "Going to an authorized war". Maharal M`Prague, in his commentary on Genesis 32 also states that war is permitted under Noachide Law. He claims that this is the justification for the actions of Shimon and Levi in the massacre of the people of Shechem. Furthermore, under this analysis even preemptive action, like the kind taken by Shimon and Levi, would be permitted. He at least implies that the killing of civilians who are not liable under the pursuer rationale is permissible; see also R. Shlomo Goren, Combat Morality and the Halacha Crossroads 1:211.

11. Yoreh De'ah 1:19.

12. See e.g., Rabbi Abraham Kahana-Shapiro, Dvar Avraham, 1:11; Rabbi Menachem Zemba, Zera Avraham #24. The issue of selling weapons to Gentile nations is addressed in an essay of Rabbi J. David Bleich, Contemporary Halakhic Problems III "Arm Sales" 10-13. In this essay it is demonstrated that the concensus opinion within Jewish law premits the sale of arms to governments that typically use these weapons to protect themselves from bandits.

13. For reasons beyond the scope of this article, Jewish law did not historically develop a complete system of regulation relating to Jewish law's understanding of how Jewish law governs Gentiles. For many years this was perceived to be mainly a theoretical discussion, as Jewish law and ethics was not truly part of the Judeo-Christian ethic of Western culture; see e.g. Rabbi Yecheil Michael Epstein, Aruch Hashulchan (HeAtid) who wrote two different works; Aruch Hashulchan, a standard code of Jewish law and Aruch Hashulchan HeAtid, a code of Jewish law for the Future, which contained those areas of law not practical in his opinion; the laws of war are in the second work.

14. Sotah 44b.

15. The word R`shut is sometimes translated as "permitted;" this is not correct, for reasons to be explained infra. Rabbi J. Caro, in Kesef Mishna (Kings 6:1) further divides the category of "Obligatory" into two categories, "Compulsory" and "Commanded." Thus some modern commentaries divide the types of war into three. While this division is not incorrect, the legal differences between "commanded" and "compulsory" wars are not very significant and it is for this reason the Mishnah, Maimonides and this article will continue to use that bifurcation rather than any other type of division.

Betzer Aveizer, supra note 5, at 84, notes that the Talmud implicitly creates one other category of war, an illegal war; see supra note 3 and infra note 30 for a discussion of the ramifications of concluding that a war is an illegal war.

16. Or perhaps on "Compulsory" wars according to those who accept a trifurcation of the categories; see note 14.

17. As explained above, Jewish ethics clearly distinguishes between the different categories of war. An obligatory war requires a different mode of ethical conduct than all other types of war. Particularly when discussing the obligation in the time of Joshua to conquer the land of Israel for the first time and the generic biblical obligation to destroy Amalek, Jewish law mandates a different set of ethical norms for these historical obligations. Thus Maimonides states:

It is a positive commandment to vanquish the seven nations [that used to occupy Israel] since it says "you shall vanquish them." Anyone who has one of the members of that nation subservient to him and does not kill him violates the negative commandment, since it says "no life shall survive [from the seven nations]." Their identity has since disappeared.

So too, Maimonides, based on a talmudic source, states that in the wars against Amon and Moab, Jewish law forbids the Jewish people from initiating peace discussions with them, although if they initiate such discussions Jewish allows one to reciprocate (Laws of Kings 6:6; similar sentiments can be found in Yerayim Mitzvah 250). Rabbi Joseph Karo, writing in the Kesef Mishnah, disagrees and states that it is inappropriate to accept overtures of peace even when they are initiated by Amon and Moab.

Unlike Jewish law's rules concerning "regular" war, these rules are not based normative ethical values, but were designed to be used solely in the initial period of Jewish conquest of the land of Israel or solely in circumstances where God's direct divine commandment to the Jewish nation was clear. Thus, for example, Rabbi David Kimchi (Radak) notes that the primary sin of the Jews in the incident of the Gibbonim was that they had clear methods of seeking God's counsel on what to do, and they chose not to seek his assistance; see generally, Rabbi Eleizer Berkovits, Not in Heaven: The Nature and Function of Halakha (NY 1983) for a discussion of the role of the Divine in Jewish law.

Thus, "Jewish law" as used in this article refers to that time period when direct visible Divine interaction in the world ceases; it is methodologically improper to discuss Jewish ethics in the presence of the active Divine with any other system of ethics, since the active (acknowledged) presence of the Divine changes the ground rules for ethical norms. Normative Jewish law confines itself to a discussion of what to do when the active Divine presence is no longer win the world, and thus normative rules are in effect. This distinction, and the distinction between old-testament Judaism and modern Jewish law, has been lost to some commentators; see e.g. Note: Judaic Sources of and Views on the Laws of War, 37 Naval L. Rev. 221 (1988).

18. Sotah 44b.

19. The Talmud additionally recounts that there are three ritual requirements for an Authorized war to commence. The first is the consent of the Sanhedrin (Parliament); see Sanhedrin 29b. The second is the presence of a king or ruler; see Sanhedrin 20a. The third is consultation with the urim vetumim, a mystical ornament worn by the High Priest (not in existence for more than 3000 years); see Sanhedrin 16b. (For an explanation of what this garment precisely is, see Maimonides, K'lei Mikdash, 8:1-6.) A number of commentators significantly limit each of these three Talmudic requirements. Maimonides does not list the requirement of urim vetumim at all in his code. He does, however, state elsewhere (see Book of Commandments, chapter 14) that the urim vetumim are needed. So too, Aruch HaShulchan HeAtid, Melachim 74:7 states that they Urim are not needed and this is agreed to by R. Zevin, L`Or Hahalacha, p. 12. Nachmanides states (see Addendum to Maimonides Book of Commandments, positive commandment 4) that a king is not actually needed. Rather war may be undertaken by "a king, judge, or whoever exercises jurisdiction over the people." The Meiri argues that approval of the Sanhedrin is only needed if a significant minority of the nation does not approve of the war. However, he states that no approval is needed for popularly supported wars; see Sanhedrin 16a.

The details of the ritual requirements for such a war are beyond the scope of this paper; see generally, Bleich, supra note ? and Zevin, supra note 5.

20. Maimonides, Hilchot Melachim, 5:1.

21. "to diminish" supra text accompanying note 25 - 26.

22. It is worth noting that Christian ethics developed a similar dichotomy between types of war:

Augustine and the other later Christian (Catholic and Protestant) writers recognized another type of war not recognized by Greek and Roman law. This was the concept of the Holy War. That is, a war in which God himself called His people to fight. In such a war, ruthlessness was the norm. . . . In just wars God's express will could not be so clearly discerned, so restraint was required. . . .

Note, supra note 16, at 224.

However, the "failure" of Christian ethics occurred when this category was expanded beyond the small number of specified "Holy" wars and rather:

Later Christian writers maintained that the Church could "take the part earlier played by God in commanding wars for the faith and directing Christians to battle against the Church's enemies. . . . " It was argued that the Pope, as God's earthly representative, had the authority that, in the Old Testament, God wielded by His own hand. Hence, the justification and rationale for putting all heretics, pagans, and infidels to the sword. Christians were not only permitted to fight, they were commanded to by God's messenger, the Pope.

id.

Jewish law never greatly expanded the category of Compulsory war; Christian ethics might have had no choice, since it had no doctrine of Authorized wars.

23. See Maimonides' commentary to Sotah 8:7. Maimonides' commentary to Mishnah was originally written in Arabic. This is the most common translation.

24. See Translation of J. Kapach, Mishnah Sotah 8:7. This is generally considered the better translation.

25. Commenting on Maimonides, id. Korban Ha'Edah (In his addendum, Shiurei Korban, to the Palestinian Talmud, 8:10) has a slightly narrower definition, which is very similar to diBoton. An authorized war may be undertaken "against neighbors in the fear that with the passage of time they will wage war. Thus, Israel may attack them in order to destroy them". Thus, an authorized war is permitted as a preemptive attack against militaristic neighbors. However, war cannot occur without evidence of bellicose activity.

26. See Rabbi Abraham Isaiah Karlitz, Chazon Ish, Mo`ed 114:2. He writes, "they kill Israel intermittently, but do not engage in battle." Rabbi Menachem ben Meir (Meiri), in his commentary on the Talmud (Sotah 43b) states that an authorized war is any attack which is commenced in order to prevent an attack in the future. Once hostilities begin, all military activity falls under the rubric of Obligatory.

27. Rabbi Yecheil Michael Epstein, Aruch Hashulchan HeAtid advances a unique explanation. He writes that the only difference between an authorized and an obligatory war is the status of those of people exempt from being drafted -- those people mentioned in Deuteronomy 20:5. In an obligatory war, even those people must fight. However, he writes, the king is obligated to defend Israel "even when there is only suspicion that they may attack us;" see Melachim, 74:3-4. Thus the position he takes is that vis-a-vis the government there is only slight difference between authorized and obligatory wars - the pool of draftable candidates.

28. In addition, the varying types of wars are flexible, not rigid. Armed aggression can begin as being permissible because of "pursuer" and then, due to a massive unwarranted counter-attack by the enemy, can turn into an obligatory war; after the battlefield has stabilized the war can become an authorized war.

29. See Rabbi Joseph Karo, Beit Yosef Choshen Mishpat 525:6-7 (uncensored version).

30. How one categorizes each individual conflict can sometimes be a judgment about which reasonable scholars of Jewish law might differ; that does not, however, mean that such decisions are purely a function of individual choice. As with all such matters in Jewish law, there is a manner and matter for resolving such disagreements. For further discussion of this issue, see Shulchan Aruch Yoreh Deah 242 and commentaries ad locum

31. And prohibited wars. Perhaps the most pressing ethical dilemma is what to do in a situation where society is waging a prohibited war and severely penalizes (perhaps even executes) citizens who do not cooperate with the war effort. This question is beyond the scope of the paper, as the primary focus of such a paper would be the ethical liberalities one may take to protect ones own life, limb or property in times of great duress; see e.g. R. Mordecai Winkler, Levushai Mordechai 2:174 (permitting Sabbath violation to avoid fighting in unjust wars); but see R. Meir Eisenstadt, Imrai Eish Y.D. 52.

32. The question of who is "innocent" in this context is difficult to quantify precisely. One can be a pursuer in situations where the law does not label one a "murderer" in Jewish law; thus a minor (Sanhedren 74b), and according to most authorities, an unintentional murderer both may be killed to prevent the loss of life of another. So too, it would appear reasonable to derive from Maimonides' rule that one who directs the murder even though he does not directly participate in it is a murderer, may be killed. So too, it appears that one who assists in the murder, even if they are not actually participating in it directly is not "innocent"; see comments of Maharal M'Prague on Genesis 32. From this Maharal one could derive that any who encourage this activity fall within the rubric of one who is a combatant. Thus, typically all soldiers would be defined as "combatants." It would appear difficult, however, to define "combatant" as opposed to "innocent" in all combat situations with a general rule; each military activity requires its own assessment of what is needed to wage this war and what is not. (For example, sometimes the role of medical personal is to repair injured troops so that they can return to the front as soon as possible and sometimes medical personal's role is to heal soldiers who are returning home, so as to allow these soldiers a normal civilian life.)

33. These rules are generic rules of Jewish law derived form different talmudic sources and methodologically unrelated to "war" as an institution. For a discussion of these rules generally, and various applications see Rabbi Joseph Karo, Shulchan Aruch Choshen Mishpat 425 (and commentaries). In addition, Jacob ben Asher, Tur, Choshen Mishpat 425 contains many crucial insights into the law (however, the standard text of this section of the Tur has been heavily censored, and is not nearly as valuable a reference as the less widely available uncensored version.)

34. See section I.

35. See e.g. Number 21:21-24 where the Jewish people clearly promised to limit their goals in return for a peaceful passage through the lands belonging to Sichon.

36. Leviticus Rabba Tzav 9.

37. Commenting on id. One could distinguish in this context between Obligatory wars and Commanded wars in this regard, and limit the license only to wars that are obligatory, rather than merely commanded. It would appear that such a position is also accepted by Ravad; see Ravad Commenting on Laws of Kings 6:1 and Commentary of Malbim on Deuteronomy 20:10.

38. See his commentary on id.

39. I would, however, note that such is clearly permissible as a function of prudent planing. Thus, the Jewish nation offered to avoid an authorized war with Emor if that nation would agree to a lesser violation of its sovereignty; see Numbers 21:21.

40. Of course, there is no obligation to do so with specificity as to detailed battle plans; however, a clear assertion of the goals of the war are needed.

41. Laws of Kings 6:1. These seven commandments are: acknowledging God; prohibiting idol worship; prohibition of murder; prohibition of theft; prohibition of incest and adultery; prohibition of eating the flesh of still living animals; and the obligation to enforce these (and others, perhaps) laws. For a discussion of these laws in context, see Aruch HaShulchan Heatid, Laws of Kings 78-80.

42. Commentary of Nachmanides on Deuteronomy 20:1; of course, if after the surrender, a Jewish government were to rule that society, such a government would enforce these seven laws; however it is not a condition of surrender according to Nachmanides.

43. This is just one facet in the debate between Maimonides and most other authorities as to whether Jewish law requires the imposition of the Noachide code on secular society. Elsewhere in Maimonides "Law of Kings" (Chapter 8:1-5) Maimonides explains that in his opinion there is a general obligation on all (Jews and Gentiles) to compel enforcement of these basic ethical rules even through force in all circumstances; see also Kings 14:14 for a similar sentiment by Maimonides; Nachmanides disagrees with this conception of the obligation and seems to understand that the obligation to enforce the seven laws is limited to the gentile rulers of the nation, and is of a totally different scope; for a general discussion of this, see R. Yehudah Gershuni Mishpatai Melucha 165-167. It is worth noting that a strong claim can be made that Tosaphot agrees with Nachmanides in this area; See Tosaphot, "velo moredim," Avoda Zara 26b.

44. or naval blockade.

45. Laws of Kings 6:5. Maimonides understands the Jerusalem Talmud's discussion of this topic to require three different letters. If one examines Shevit 6:1 closely one could conclude that one can send only one letter with all three texts; see Aruch HaShulchan Laws of Kings 75:6-7.

46. Supplement of Nachmanides to Maimonides Book of Commandments Positive Commandment #4.

47. Id. Se also Minchat Hinuch 527. Rabbi Gershuni indicates that the commandment is limited to Compulsory wars, rather than Obligatory wars. His insight would seem correct; Mishpatai Melucha commenting on id.. It is only in a situation where total victory is the aim that such conduct is not obligatory.

48. Charles C. Hyde International Law, (Boston, 1922) 656; for an additional article of this topic from the Jewish perspective, see Bradley Artson "The Siege and the Civilian" Judaism p.54. A number of the points made by Rabbi Artson are incorporated into this article, although the theme of the purpose of the Jewish tradition in the two articles differ somewhat.

49. See R. Yecheil Epstein, Aruch HaShulchan HeAtid, Laws of Kings 76:12.

50. Although I have seen no modern Jewish law authorities who state this, I would apply this rule in modern combat situations to all civilians who remain voluntarily in the locale of the war in a way which facilitates combat. This author doubts if (for example) anyone who voluntarily remained in Berlin in World War II would be classified as an innocent civilian according to Jewish law.

51. See Rabbi Saul Yisraeli, Amud Hayemini 16:5 and R. Joseph Babad, Minchat Hinuch Commandment 425 who discusses "death" in war in a way which perhaps indicates that this approach is correct. See also Bleich, supra note 5, at 277 who states "To this writer's knowledge, there exists no discussion in classical rabbinical sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities..."

In many ways this provides guidance into the ethical issues associated with a modern airplane (and long range artillery) based war. Air warfare greatly expands the "kill zone" of combat and (at least in our current state of technology) tend to inevitably result in the death of civilians. The tactical aims of air warfare appear to be fourfold: to destroy specific enemy military targets; to destroy the economic base of the enemy's war-making capacity; to randomly terrorize civilian populations; and to retaliate for other atrocities by the enemy to one's own home base and thus deter such conduct in the future by the enemy.

The first of these goals is within the ambit of that which is permissible since civilian deaths are unintentional. The same would appear to be true about the second, providing that the targets are genuine economic targets related to the economic base needed to wage the war and the death of civilians are not directly desired. It would appear that the third goal is not legitimate absent the designation of "Compulsory" or "Obligatory" war. The final goal raises a whole series of issues beyond the scope of this article and could perhaps provide some sort of justification for certain types of conduct in combat that would otherwise be prohibited, although its detailed analysis in Jewish law is beyond the scope of this paper and relates to circumstances where retaliation or specific deterrence might permit that which is normally permitted; Rama, Yoreh Deah 334:6 and Taz (ad locum) and Minchat Chinuch, Commandment 338.

52. Laws of Kings 6:8; See Betzer Eviezer, supra note 5 at 120-121.

53. In his supplement to Maimonides, Book of Commandments (Positive Commandment 6).

54. The rules related to sexuality in combat are unique in Jewish law because the Talmud (Kidushin 21b) explicitly states that even that which is permissible was only allowed because of the moral weakness of men in combat. While the details of these regulations are beyond the scope of this paper (See Zevin, supra note 5, at 52-54 for a detailed description of these various laws), it is clear that the Bible chose to permit (but discourage) in very narrow situations rape in wartime so as to inject some realistic notion of morality into what could otherwise be a completely immoral situation. The rules explicitly prohibited multiple rapes, encouraged marrying such women, and limited the time period where such rape was permitted to the immediate battlefield.

A number of liberalities in ritual law were also allowed, reflecting the unique aspects of war. Why these particular laws did not apply in war time, but others did, is a topic beyond the scope of this paper.

55. Shevuot 35b. Tosafot notes that this applies even to a Jewish government fighting an authorized war; See generally, Rabbi J. David Bleich, Nuclear War, Tradition 21:84-88 (1984) (reprinted in Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, D. Landes, ed. p.209 (1991).)

56. Immanuel Jakobovits, Tradition 4:202 (1962); (reprinted in Confronting Omnicide: Jewish Replections on Weapons of Mass Destruction, D. Landes, ed. p.199 (1991).) See Walter Wurzberger. Nuclear Deterence and Nuclear War, Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, D. Landes, ed. p. 224 (1991) and Note: Judaic Sources of and Views on the Laws of War, 37 Naval L. Rev. 221 (1988).

57. Rabbi J. David Bleich, "Nuclear War" Tradition 21:84-88 (1984). Although this author finds this statement logically persuasive, it is difficult to find a clear source in the Jewish tradition which permits one to threaten to do that which is prohibited to do; see e.g. Rabbi Moses Isserless, Choshen Mishpat 28:2.

58. See e.g., Rabbi Aaron Zakai, HaBeit Hayehudi volume 7 chapter 3.

59. Assuming that such weapons exists and have the stated limited effect.

60. Deuteronomy 20:2-9.

61. See Laws of Kings 7:1-4 and comments of Kessef Mishnah, Radvaz and Lechem Mishnah ad locum all of who interpret Maimonides as agreeing with Ravad on this issue. Maimonides in his book of commandments appears to adopt the position of Ravad in total; see Book of Commandments, commandment 191.

62. Compare Lechem Mishnah commenting on id and Aruch HaShulchan, Laws of Kings 76:3 for an analysis of Maimonides' position.

63. There is some dispute over how a person would prove his acceptability for any one of these exemptions; See R. Yehudah Gershuni, Mishpatai Milucha 7:15 for a detailed discussion of this issue and Zevin, supra note 5, at 31-32.

64. See commentaries on Maimonides, supra note 62.

65. Maimonides accepts the opinion of Rabbi Akiva as normative; Laws of Kings 7:3, while Hinuch accepts the opinion of Rabbi Yossi; Hinuch Commandment 526; Most authorities accept Rabbi Akiva's opinion as normative; see Aruch Hashulchan 76:22; see also Shagat Aryeh Hachadashot 14:2 for more on this dispute.

66. See Aruch HaShulchan 75:18.

67. As explained above, it seems intuitive that those who argue with Maimonides requirement of acceptance of the Seven Noachide laws as explained above, would disagree with its application here too; see e.g., Rabbi Yehuda Gershuni, Mishpatai Hamelucha p.173.

68. Such can also be implied from Maimonides own comments on Laws of Kings 6:5.

69. In Judaism, the term "chilul hashem" (desecration of God's name) denotes a prohibition whose parameters is fixed not by objective legal determinations, but by the moral values of the observers. This is a very atypical prohibition in the Jewish legal system.

70. Ralbag, commenting on Joshua 9:12.

71. Radak, commenting on Joshua 9:12. This theory would have relevance to a duly entered into treaty that was breached by one side in a non-public manner and which the other side now wishes to abandon based on the private breach of the other side. Radak would state that this is not allowed because most people would think that the second breaker is actually the first one and is not taking the treaty seriously.

72. Ketubot 111a

73. See e.g., Prof. H. Soloveitchik, Religious Law and Change: The Medieval Ashkenazic Example, AJS Review 12:2 205-223 (1987).

74. See e.g. Shulchan Aruch Yoreh Deah 151 for a description of when such conduct is permissible.

75. See e.g. Shulchan Aruch Choshen Mishpat 421:11 and 426-426 which mandate violence as a response to violence. That is of course not to say that pacifism as a tactic is frowned on. Civil disobedience as a tactic to gain sympathy or as a military tactic to resort to in a time of weakness is quite permissible

76. Sanhedrin 72a.

77. Shulchan Aruch, Choshen Mishpat 421:11.

78. However, it is quite clear that there are many circumstances where violent wrong unquestionably will occur regardless of the Jewish response. In that situation, certainly Jewish law prefers pacifism to assistance in the commission of a wrong. The Jewish response to intentional wrongdoing comes in three forms: 1) stopping the wrong; 2) rebuking the wrong doer; and 3) declining to assist the wrong doer. Level one is better than level two and level two better than level three. For a detailed responsa on the hierarchical relationship between these three values, see Rabbi Moses Feinstein, Iggrot Moshe Even Haezer 4:61(2).

79. Tur, Choshen Mishpat 425. Maimonides, Murder 1:13

80. Shulchan Aruch Choshen Mishpat 421:11

81. Of course there are circumstances which even obligatory wars need not be fought; however these circumstances all relate to the inability to triumph, rather than a theological opposition to war.

82. Maurice Lamm, After the War -- Another look at Pacifism and Selective Conscientious Objection, in Contemporary Jewish Ethics, p221-238; M. Kellner, ed. (NY 1978).

83. Two small criticisms could be voiced of his essay. First, an individual's "selective conscientious objection" can be justified in the Jewish tradition as a response to an unjust war. Frequently societies will embrace a military policy directly contrary to the Jewish tradition as to when a war is permissible. Jewish citizens in that society are faced with a dilemma as to their own conduct: should they fight in an unjust war? Should they publicly oppose the war (and risk societal scorn and perhaps a rise in anti-semitism) or should they simply find a way to avoid fighting. A number of solutions have been addressed to this question, which forces an individual to weigh the consequences to Jews in one's host country with the biblical commandment not to kill and not to stand by when others are killed. A number of solutions have been advanced to this dilemma in Jewish law and there is no reason why selective conscientious objection should not to be acceptable in a society that allows one to declare such a status and avoid military service in that manner. Second, pragmatic pacifism is a moral value in the Jewish tradition, but in this author's opinion, it is only a value of significance in situations where active (physical) removal of the impropriety is not possible.

One may not, under any circumstances, kill an innocent person to save one's own life; however one may (but need not) be silent in the face of a killing of an innocent person by another if that murderer will seriously punish or kill one in retaliation for protesting. Jews in the Diaspora have historically sometimes been persecuted when they are involved in political opposition to a governmental policy. While Jewish law prohibits murder no matter what the consiquences, Jewish law does not require that one do whatever one can, no matter what the consequences, to save the life of another. Indeed, as has been noted elsewhere the obligatoin to save the life of another perhpas is suspended in the face of very significant financial consequences; see Rabbi A. Cohen, Privacy: A Jewish Perspective, 1 Journal of Halacha and Contemporary Society (1981) at page 84. Absent an antisemitic taint, certainly it is suspended in the face of significant physical duress; see Shulchan Aruch Yoreh Deah 157:1-2 and commentaries ad locum.

84. Quietism originated as a late seventeenth century devotional movement in the Catholic church whose main figure was Miguel Molinos, a priest (d. 1696). Quietism maintained that anyone "can achieve an entirely disinterested insight into God; this insight is permanent, internally undifferentiated and free from images and affects, and it involves a previous destruction of one's own will and consciousness ... This state of perfectly passive contemplation is not only the highest form of religious life, but makes other, more specific forms of worship ... either useless or even harmful insofar as they divert the soul from union with God." Encyclopedia of Religion "Quietism" vol. 12 p.153-155.

85. See Rebecca Shatz-Uffenheimer, Hachasidot Kemisticah (Jerusalem, 1980) chapters 2-4 for a description of the various quietistic practices found in modern Chasidism.

86. Encyclopedia of Religion "Quietism," at 154.

87. id.

88. "sexual permissiveness is thus justified [by quietism]" id. at 154.

89. That is not to say that each and every one of its values is without a place in the Jewish tradition. Certainly as ably demonstrated in Hachasidot Kimysticah, supra note 84, (see the English preface for a clear statement of this principle) there are certain overlaps in philosophy between early Chasidism and Quietism. However, Chasidism never denied the legal or moral value of Jewish law as Quietism denied the value of cannon law. So too, Chasidism kept the essential framework of Jewish ritual observance; the same cannot be said of quietism.