The single most crucial difference between the two categories [of war] is this requirement [when it comes to optional wars] of authorization by the Sanhedrin, an aggregate of Judges with the best brains and the most heightened moral awareness in the nation.
The Communal Conscience
The Sanhedrin was representative of the people, as the king was not. In fact, as noted by Rabbi Meir Simha Cohen of Dvinsk [1843-1926], in his Meshekh Hokhmah, a consensus of the nation, itself, could substitute for the formal Sanhedrin: zib’bur b’Erez Yisroel yesh lahem din bet din ha-gadol.
Whether it was a clear mandate of the national consensus or the formal approval of the Sanhedrin, the “Community Conscience,” no war, except one of defense, could be declared simply by the Chief Executive. Milhemet Reshut required the validation of this “Community Conscience”–the physical embodiment of what Socrates called “the conscience of the laws.”
This selective pacifism is a characteristic response of Jewish law to the harsh realities of this world. It is a pragmatic pacifism which determines each situation over against the eternal values. It avoids the pitfalls of absolutism and perfectionism and applies, positively, the Jewish quality of counter-power. Even more, opting for selective pacifism requires a more sophisticated level of moral discrimination as it seeks to balance values and choose among the competing claims of the soul. It requires a heightened awareness of the political as well as the military dilemmas in the context of moral values.
The Individual Has No Voice
But there is a sleeper in this affirmation of Jewish selective conscientious objection. It is true only on a national level, not on a personal one. Determination of the justice of a war was never left to individual decision. That burden devolved upon the state and, other than strictly for defense, war could not be embarked upon without the prior legitimization of the moral conscience of the community, the Sanhedrin.
Those who maintain that Judaism espoused personal selective conscientious objection as a legitimate draft deferment have based their argument on a 9-word addendum of the Tosefta [a supplement to the Mishnah] to Rabbi Akiva’s explanation of the meaning of one category of exemption, the yarei verakh ha-levav, “the fearful and the faint-hearted” (Sotah 44a).
“Rabbi Akiva says: ‘fearful and faint-hearted’ is to be understood literally, viz., he is unable to stand in the battle ranks and see a drawn sword.” Adds the Tosefta: “Even the most powerful, and the mightiest of the mighty–if he is a compassionate soul, he must return from the ranks.”
With the best of intentions and with the greatest desire to transform the biblical phrase into relevant, liberal, modern terminology, the Tosefta’s “compassionate soul” who must return from the war is not a conscientious objector. First, the Tosefta’s addendum itself must accord with Akiva’s principle that the phrase be taken literally, viz. “faint-hearted.” This “compassionate soul” has a psychological revulsion from bloody combat, but hardly relates to the tough-minded conscience and its religious or humanistic base.
Indeed, how would one interpret the biblical prescription, immediately following, that the anointed priest preach to the soldiers, Al yarekh levavkhem, “do not be faint-hearted.” Surely he did not warn, “Do not be compassionate!” Further, if we here refer to a conscientious objector, why is he not included among those who never leave for the war, instead of with those who must go to war but are now entitled to return. Obviously his faint-heartedness is an intuitive reaction, not a considered and deliberate moral judgment.
Finally, the Halakhah placed no additional burden of proof on the “compassionate.” On the contrary, it exempted this category from the requirement made of all others who claim exemption and return from the camps–that they bring testimony (else, as Nahmanides says, hordes of soldiers would invent similar situations and deprive Israel of ever being able to wage war). Only the faint-hearted, according to Rabbi Akiva, need bring no evidence–“His evidence is with him at all times!”
Most important, however, for the assertion that there is no personal conscientious objection, is that it is highly unlikely that after the Sanhedrin had rendered a moral decision affirming the right to war, the individual could place himself above them, in a position of greater insight or greater authority, and declare that, for himself, the war was immoral.
After the war, far from the blood and bullets of the battlefield, it must be affirmed that Judaism rejected total pacifism, but that it believed strongly in pragmatic pacifism as a higher and morally more noteworthy religious position. Nonetheless, this selective pacifism is only a public, national decision, and not a personal one. The public was not permitted to embark on mortal combat without the prior authorization of the Sanhedrin, functioning as the community conscience.
That having once been declared, however, it was expected that all individuals would subscribe to the decision. In an American culture and a Protestant ethic which places a premium on the individual conscience these words may register as anachronistic. But that is how I read my Judaism.
Reprinted with permission from “After the War–Another Look at Pacifism and Selective Conscientious Objection,” in
, volume 10, number 4 (1971).