Rabbinic Limitations on War
Deuteronomy 20 permits wars of aggression, but the talmudic rabbis made it difficult to declare one.
"Rabbi Jose the Galilean says: afraid and disheartened alludes to one who is afraid because of the transgressions he had committed…Rabbi Jose says: A High Priest who married a widow, an ordinary priest who married a divorcee…a lay Israelite who married an illegitimate…behold such a one is afraid and disheartened."
As interpreted by the Gemara [Talmud], this debate is perceived to be over which sins ought to prevent one from participating in a voluntary war, one arguing that the exemption only applies to violations of biblical law and the other, even the most minute rabbinic law.
Thus, from a biblical ordinance that saw soldiers who were afraid as counterproductive, the rabbinic tradition develops a new category for exemption: sin. It is not simply the psychological fear for one's own safety due to one's sinful past, for if so, there would be no grounds for distinguishing rabbinic from biblical law. If the person were afraid, regardless of cause, he would be destructive.
The language of Rabbi Jose in the Mishnah, "Behold such a one is afraid and disheartened," is not an attempt to describe new causes for fear but to prescribe what one must be afraid of and thus to fix the occasions when one is excluded from participating in the war.
This broader reading, that it is the gravity of sin that ought to prevent one from participating in a discretionary war, leads to Rabbi Jose defending the view that the violation of the most minute rabbinic law ("speaking between donning one phylactery and the other") constitutes a justification for exemption.
From this point it follows that because all Israelites are in reality violators of some rabbinic ordinance, there can be no Israelite army that is qualified to embark on a war of aggression. Wars of aggression are the right of a sinless people, an oxymoron.
Milhemet reshut [discretionary wars of aggression] might thus be loosely connected to a group of other laws, such as the law of the rebellious son which lo hayah v'lo nivrah, never was, nor was it ever meant to be implemented, but was written in the Torah so that we would learn it and receive reward for the learning alone without any intention of it ever being enacted.
You Can Fight, But First You Need to Ask Permission
Further, rabbinic law attempted to curtail and control the discretionary wars of Israel by legislating that the political leadership (the king) had no authority on its own to declare a milhemet reshut. "Discretionary wars can be waged only by the authority of a court of seventy‑one (Sanhedrin)." (Sanhedrin 2a; 20b)
In theory, it seems, the purpose of this legislation is to place discretionary wars under the authority of Judaism's religious leadership and ensure that Israel does not become a warmongering nation drafted into the service of power hungry kings. The members of the rabbinic court, which is intimately aware of Judaism's theological and ethical agendas, are thus the qualified guardians over a law that threatens these agendas.
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