(2011/5771)

 If the Israeli Prime Minister orders Israeli soldiers to perform a certain task and one's Rosh Yeshiva rules that the task constitutes a violation of Halachah, whom should he follow - the Prime Minister or his Rosh Yeshiva? This question emerged as a burning issue during the evacuation of the Jewish communities of the Gaza Strip in August 2005. Many rabbis, led by the venerable Rav Avraham Shapira zt”l, the Rosh Yeshiva of Yeshivat Merkaz HaRav, strongly urged soldiers to disobey orders. Other major leaders of the community such as Rav Aharon Lichtenstein and Rav Ovadia Yosef, instructed soldiers not to disobey orders. In practice, only 69 out of an estimated 20,000 religious soldiers who participated in the withdrawal refused to follow instructions during this painful episode. I, in fact, instructed soldiers to follow the rulings of Rav Lichtenstein and Rav Ovadia Yosef. 

 The Root of the Problem- The Division of Torah and Political Leadership

The Torah in Parashat Shofetim identifies two institutions of authority. First, the Torah speaks of the Beit Din, the Sanhedrin, whose Torah leadership we must follow. Regarding them, the Torah exhorts us to abide by their rulings, “Al Pi HaTorah Asher Yorucha VeAl HaMishpat Asher Yomar Lecha Ta’aseh” (Devarim 17:11). The Torah subsequently speaks of the leadership of a king. The Torah forbids rejecting either of these institutions of authority. In fact, both a rebel against Torah authorities (Zakein Mamrei) and a rebel against political authorities (Moreid BeMalchut) can be punished by death. This punishment is so severe, because a rebel against either institution threatens the stability and viability of society. Ramban (Shemot 22:27) and Sefer HaChinuch (Mitzvah 71), in explaining the prohibition of VeNasi BeAmcha Lo Taor, write that the Torah forbids cursing any national leader, be he from the Mamshelet Malchut (political authority), or from the Mamshelet Torah, the Torah authority.

The Rambam outlines the parameters of these two authorities. Regarding the Sanhedrin, the Rambam (Hilchot Mamrim 1:1) writes "The Supreme Rabbinic Court in Jerusalem is the seat of the Oral Law and the center of judicial authority, and the source of all legislation of the Jewish people”. On the other hand, the Rambam (Hilchot Melachim 4:10) describes the role of the king as that of waging war and maintaining law and order in society. (See Derashot HaRan no. 11 for a fuller discussion of the role of the king. For a discussion contrasting the views of the Rambam, the Ran, and the Abarbanel, regarding the role of a king, see my essay in Beit Yitzchak 5749:142-150.)

Accordingly it seems that in the Torah's vision of society, the Sanhedrin administers the legislative and judicial aspects of society and the king constitutes the executive branch of government. It is important that to note that Rav Kook writes in a celebrated responsum (Teshuvat Mishpat Kohein number 144) that someone who is recognized by the Jewish people as a leader is, to a great extent, the Halachic equivalent of a Nassi or Melech (based on Radvaz’s comments to the Rambam Hilchot Melachim 3:8). Rav Kook’s approach has been adopted by many other Poskim such as Rav Yitzchak Herzog (Techukah LeYisrael Al Pi HaTorah 1:152), Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 5:64) and Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 10:1:14). Rav Waldenberg writes,

“Even in our times, the president, government and Knesset (despite all their problems regarding spiritual matters, and thus it is clear that with regard to Torah, any decisions made counter to Torah are invalid) that were chosen by the majority of Jews who reside in their land…are regarded as the Melech (king) as regards all national matters.” 

Even if one does not subscribe to this approach, the importance of proper political leadership is emphasized by Chazal who teach (Avot 3:2) that we should pray for the welfare of the government of the country in which we reside, for if the government's discipline collapses, utter pandemonium will prevail.

Although the division of powers between the Torah and political authority has the advantage of checks and balances and avoidance of absolute power which often corrupts absolutely, there is the distinct disadvantage of potential conflicts arising between the two authorities. A classic example of such a conflict is when Pinchas and Yiftach (as recorded in a Midrash cited by Tosafot to Ta’anit 4a s.v. VeHaynu) could not reach agreement about how to resolve the dilemma regarding Yiftach’s daughter (Shofetim Perek 11). Yiftach swore that if he would be victorious in his battle with Ammon he would offer the first thing that would walk out of his house as sacrifice to Hashem. When he returned home after his triumph, his only child was the first to emerge from the house.

Chazal question why Yiftach did not simply seek a Beit Din to be Matir Neder (annul the vow) with Pinchas, who Chazal record was the leading Torah figure of the time. The rabbinic court could have easily released Yiftach from his vow with the approach that Yiftach never would have made this vow had he known that his daughter would be the first to emerge from his home. They explain that this did not happen because Yiftach insisted that Pinchas visit him to convene the Beit Din, since he was the political leader. Pinchas, in turn, insisted that Yiftach come to him for the procedure since he was the religious leader (Chazal note that both Yiftach and Pinchas were punished for their intransigence). Chazal (cited by Rashi to BeReishit 1:16) refer to this situation as “two kings cannot share the same crown.” 

However, when one outstanding individual such as Moshe Rabbeinu, Shmuel HaNavi, David HaMelech and the Melech HaMashiach assumes both the roles of the Torah and political leader, such conflicts do not arise. The question arises, though, how to manage a conflict between the Torah and political authority, especially when the conflict emerges in such a critical area such as the military.

When the Torah and Political Leadership Conflict

Ordinarily, a king must be obeyed and the penalty for refusing to do so is death (Moreid BeMalchut Chayav Mitah). Both the Maharatz Chajes (Torat HaNevi’im pp.47-48) and the Netziv (HaAmek She’eilah Parashat VaEtchanan She’ilta 142) explain that the reason for the severity of this punishment is that the rebel is categorized as a Rodeif, one who literally threatens the lives of the members of society. Although as Rav Yehuda Shaviv notes (Techumin 15:122 and 129-130), this issue is greatly relaxed in a democratic society in which dissent (within limits) is deemed necessary for the functioning of a healthy society, nonetheless, in a military situation, dissent creates a very real danger. A successful military, so necessary for Israel, given the fierce and tenacious hatred of its many enemies, depends on discipline and respecting orders. In fact, the essential goal of a military’s basic training period is to habituate soldiers to obey orders.

However, the Rambam (Hilchot Melachim 3:9) writes that if a king issues an order to violate Halachah, the king's order should be disregarded. The most obvious source for this ruling is the Torah’s celebration of the Hebrew midwives of the first chapter of Sefer Shemot who resisted Paroh’s order to murder Jewish male babies. An example of appropriate disobedience of a king's order by soldiers is when the generals of Shaul HaMelech, Amasa and Avner, refused to follow the latter’s order to kill the Kohanim of Nov as punishment for aiding David (Shemuel I 22). Furthermore, Chazal (Sanhedrin 49a) criticize Yoav for not disobeying David’s order to arrange Uriah HaChiti’s death. 

Ambiguous Situations 

When a leader’s order is clearly in violation of Halachah, the reason for refusing to follow the order is understood by all. Hence, the refusal to disobey such an order would not lead to pandemonium and the breakdown of military discipline. For example, the refusal of Amasa and Avner to follow Shaul’s order to kill the Kohanim of Nov would not have led to disarray, because all decent people would have agreed that that was an appropriate situation to disobey such an immoral order. However, if it is unclear whether an order violates Halachah or not, then the Halachah may be quite different. Mutiny in this case will provoke solders to debate whether the mutiny was permitted or not, and in a military situation this can lead to pandemonium and a breakdown in military discipline, which is extremely dangerous for the short-term and long-term security of the country.

This may account for why the Rabbis did not call for disobedience in the situation described in Pesachim 56a. The Gemara relates that Chizkiyahu removed the door to the Heichal of the Beit HaMikdash and sent it to the king of Assyria in order to avoid war. The Gemara relates that Chazal disapproved of this action. Rashi (ad. loc. s.v. VeLo Hodu Lo) explains that they felt that Chizkiyahu should have had more faith in Hashem. The Tiferet Yisrael explains that Chazal did not call for disobedience to the king, because of Aymet Malchut, fear of the king. Chazal were not afraid that Chizkiyahu would harm them, as Chizkiyahu was an exceptionally righteous king. Rather, it seems that the Rabbis sought to protect the respect and integrity of the king. They seemed to have appreciated the ambiguity of the situation and that it did not warrant mutiny which would have threatened the societal stability. 

This also might explain why Chazal do not criticize Yoav for not resisting David Hamelech’s order to count the nation (see Shmuel II chapter 24). Rav Itamar Warhaftig (Techumin 15:153) suggests that this might be due to Yoav’s assuming that David felt it was permissible to do so, as there are certain situations during which counting the nation is permitted (see, for example, Ramban to Shemot 30:12 and BeMidbar 1:3). Therefore, a military order that is unambiguously wrong, such as gratuitously harming a peaceful demonstrator who is not endangering anyone, should be disregarded. If, however, the Prime Minister orders Tzahal to do something that is Halachically ambiguous, it seems that the order must be obeyed.

Conclusion

Next week we shall, IY”H and B”N, apply these principles to the terrible dilemma faced by religious soldiers during the evacuation of the Jewish communities of the Gaza Strip in August 2005.