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December 20, 2014 / 28 Kislev, 5775
 
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The Tal Law and Jewish Law – In Conflict?

Ultra Orthodox Jewish youths studying religious texts at a Yeshiva in Jerusalem

Ultra Orthodox Jewish youths studying religious texts at a Yeshiva in Jerusalem
Photo Credit: Nati Shohat / Flash90

In February, Israel’s Supreme Court voted the Tal Law discriminatory and unconstitutional in a vote of six to three. The law, which provides exemptions for young men studying in yeshiva full-time, has been the subject of much criticism and controversy.

Advocates of maintaining the status quo, argue that those studying Torah provide a spiritual protection to the State of Israel. They also believe that Jewish Law requires exemptions for yeshiva students.

But what does Jewish Law really require?

The Mishnah (Sotah 8:7) states: “…In a Milchemet Mitzvah, all go out [to war], even a groom from his room and a bride from her wedding canopy.” While many explain that women are exempt from combat, they are to assist by “providing food and fixing roads” (Tiferet Yisrael, ad loc.), for example. By including bride and groom, based on Yoel 2:16, the Mishnah emphasizes that all are required to participate in the war effort, without exception.

Rambam defines a Milchemet Mitzvah as, “war [against] the Seven Nations, war [against] Amalek, and assisting Israel from the hand of the enemy who comes up against them” (Hil. Melachim 5:1). This last definition informs our discussion. With a nuclear threat from Iran looming, enemy States on our borders, and the constant threat of terrorism within, anyone who is intellectually honest must admit that we find ourselves today embroiled in a Milchemet Mitzvah, a national security situation that demands the help of all.

Those who advocate exemptions for students studying Torah full-time also find support in the Rambam’s Mishneh Torah. Rambam writes at the end of Hilchot Shemitta v’Yovel, that the Tribe of Levi is exempt from going to war as they are the ‘Army of Hashem,’ so to speak. They are to fulfill their role as spiritual leaders of the Jewish People. They do not inherit a portion of he Land and their material needs are provided for. Rambam then continues and writes:

And not only the Tribe of Levi, but also each and every individual whose spirit moves him and whose knowledge gives him understanding to set himself apart in order to stand before the Lord, to serve Him, to worship Him and to know Him, and releases his neck from the yoke of the many considerations that men are wont to pursue – such an individual is consecrated as the Holy of Holies, and his portion and inheritance shall be in the Lord forever and ever. The Lord will grant him in this world whatsoever is sufficient for him, as He has granted the Kohanim and Levi’im (Hil. Shemitta v’Yovel 13:13).

With this addendum, Rambam allows for anyone “whose spirit moves him” to devote himself solely to Torah study, free from the burden of army service and divorced of all material concerns.

But this passage is problematic. Later commentaries struggle to find a Talmudic source for Rambam’s ruling. Some suggest that this passage is based on Nedarim 32a, where our patriarch Avraham is criticized for drafting Torah scholars in the War of the Four Kings against the Five. Others point to Sotah 10a, which describes how King Asa was punished for mobilizing talmidei chachamim.

Rambam himself rules that even a bride and groom must assist in the war effort (Hil. Melachim 7:4). If bride and groom are not exempted, how can a yeshivah student, “whose spirit moves him,” escape the draft? And by suggesting that Torah scholars can look to their brethren for financial support, Rambam also appears to contradict what he writes in his commentary to Avot 4:5 and in Hilchot Talmud Torah 3:10-11, where he decries the practice of relying upon others and emphasizes the importance of balancing Torah study with a livelihood.

What is clear is that Rambam’s ruling here is not the rule, but the exception. His allowance is made for the elite, the select few individuals that are able to devote themselves wholly to avodat Hashem. Rabbi Aharon Lichtenstein asks,

To how large a segment of the Torah community – or, a fortiori, of any community – does this lofty typology apply? To two percent? Five percent? Can anyone who negotiates the terms of salary, perhaps even naden or kest or both, confront a mirror and tell himself that he ought not go to the army because he is kodesh kodashim, sanctum sanctorum in the Rambam’s terms? (“The Ideology of Hesder,” Tradition, Fall 1981).

Exempting entire sectors of the Jewish Community from army service and from pursuing a parnassah, is not what the Rambam intended.

About the Author: Rabbi Shimshon HaKohen Nadel lives and teaches in Jerusalem.


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