CCARJ, Winter 1993, 51-56 (TFN no.5750.2 273-279)

CCAR RESPONSA

Nuclear War

5750.2

She’elah

The Justice and Peace Committee of the CCAR feels that many of the resolutions which deal with social issues and which the Conference ultimately adopts are not as thoroughly grounded in rabbinic thought as they might be. Our Committee wishes to make a particular contribution to the Religious Action Center by assessing some of these issues from the perspective of Jewish law, and therefore calls on the Responsa Committee for assistance. At this time, matters dealing with nuclear weapons are of continuing concern and we therefore ask the following: How can we deal with nuclear war from within the Jewish tradition? (Rabbi Douglas E. Krantz, Chair)

 

Teshuvah

The Responsa Committee warmly welcomes the spirit of the question and has attempted to frame an answer that will meet the needs of the Committee. However, let it be said at the beginning, we cannot treat this question as we would other she’elot.

 

The problem we face lies in the nature of the traditional teshuvah, which aims at answering a specific question with a straightforward (or occasionally a conditional) yes or no. When this cannot be done, the question is said to lack justiciability, that is to say, it is not meet for a responsum, though of course it may be meet for ethical and moral considerations. The resolutions on nuclear war which the CCAR has issued proceed from a sense of strong moral concern, chief of which is the deep-rooted Jewish perception of what constitutes kiddush ha-chayim,the sanctity of life.

 

Responsa, however, aim at a different level of consideration. They are halakhic in nature and conclude that a certain matter does or does not satisfy the standards of Halakhah, adding thereto the particular principles of the Reform movement. A responsum therefore resembles a judicial opinion which, though it may not find that the law deals with the matter precisely, applies its language and intent to the case at hand and thereby arrives at a conclusion. This conclusion is usually not the only one that could be drawn, and in fact another court may vitiate it. Yet it must always be issued from within the law, which is to say, it must constitute a judicial and not a legislative act. If, after the exercise of judicial methods, the law cannot be seen as addressing itself to a certain question, judges will as a rule conclude that it cannot receive a judicial answer and, instead, would require a legislative response. Of course, whether or not there ought to be a legislative response is for the legislature to determine. Until that happens, the law, being silent on the specific issue, may be said to be neutral.

 

The problem with Jewish law is, to be sure, of a somewhat different nature. We lack a legislative body, for with the coming into existence of the Torah the basic law was proclaimed once and for all, and what followed could only be interpretation. The Halakhah came to fill the void. In its scheme, laws are therefore either Torah or rabbinic laws (de-oraita or de-rabbanan ), with the latter being quasi-legislative and, in the Tradition, fully compelling.

 

The Reform movement arose because this process of authoritative interpretation had lost its creativity and did not meet the needs of the modern age. In time the CCAR, through resolutions, platforms, and such publications as Sha’arei Mitzvah attempted to play a quasi-legislative role (although the term “legislative” was consciously avoided).

 

The Responsa Committee of the CCAR bridges these two poles. It begins with the dicta of Halakhah and then asks whether there is any reason why Reform should disagree with them. That, in fact, is the nature of Reform Judaism itself: it begins with tradition and, if necessary, develops it further, according to its best insights.

 

There are some broad and contentious issues which can indeed be approached from the point of view of the Halakhah and are therefore justiciable. Euthanasia and abortion are two of them; they can be dealt with from within the legal framework of Jewish tradition. But other questions cannot be treated in this fashion, at least not in their entirety. Thus, we derive from the totality of our tradition the moral imperative to alleviate the lot of the poor and disadvantaged, or to fight racism in all its forms. But that does not mean that a Responsa Committee can rule that our Jewish sources require us to support the California grape boycott or the principle of school bussing. There is a fine but real distinction between the free-wheeling application of moral demands and the narrower exposition of halakhic precedents. The former will best be met by resolutions and the like, the latter by responsa. The two approaches together weave the fabric of our movement.

 

To take an example closer to the she’elah at hand, the stockpiling of nuclear weapons represents to some a distinct and identifiable ecological hazard. Others, who approve of such stockpiling, will argue that it is necessary in order to deter another power from launching a nuclear attack. Both points of view are justifiable in the Halakhah. One is the preservation of nature and its gifts, expressed in the principle of bal tashchit (Deut. 20:19-20); and the other is the need for self-defense, expressed in the principle of the “law of pursuit” (see below). It depends ultimately on a political judgment which of the two is to prevail in a given case. The Halakhah can delineate only the underlying principles and precedents, and one hopes that Jewish decision makers will keep them in mind. 1 We therefore proceed to outline some of the halakhic considerations which deal with the issue of war in general and, specifically, with nuclear war.

 

II

 

1. The permissibility of war.

 

It is the responsibility of each individual to respect and guard the life of other human beings (based on the injunction va-chay bahem, Lev. 18:5), and the saving of a single life is reckoned as if it were the saving of the whole world.2 Therefore, human beings have no inherent right to kill others, except by divine command, and God alone can give permission to go to war. This is derived from the interpretation of Adonai ‘ish milchamah, which was understood as “God is the master of war” (see Rashi on Exod. 15:3), that is to say, God alone determines whether a war and the concomitant killing of human beings is permissible.

 

Jewish tradition distinguishes two types of war, an obligatory war (milchemet mitzvah, such as the defense of Eretz Yisrael), and a discretionary war (milchemet reshut, such as the enlargement of borders). The latter required God’s permission, which was obtained through the Urim and Tumim, and later with the consent of the Sanhedrin. With these authorities no longer available, the gap between obligatory and discretionary wars has become larger, in that a discretionary war is hemmed in with greater restraints.

 

On the other hand, self-defense is a right given to all human beings. Tradition derived it from Exod. 22:1-2 and encapsulated it in the so-called “law of pursuit”: ha-ba’ lehorgekha, hashkem le- horgo, if some one is after your life you may anticipate him and slay him first.3 Unfortunately, in the process of defending oneself others may be endangered. Rabbi J. David Bleich comments on this problem:

 

War almost inevitably results in civilian casualties as well as the loss of combatants. Yet the taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit cannot be invoked even by the intended victim, much less so by a third party who himself is not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process, since to do so would only entail the loss of another innocent life. In such situations the talmudic principle,4 “How do you know that your blood is sweeter [lit. redder] than the blood of your fellow?” is fully applicable. 5

 

The Halakhah has developed various rules concerning the waging of war: regarding military service; the safeguarding of the environment; the treatment of the inhabitants of a beleaguered city; and restrictions on harming non-belligerents in general. These may be brought to bear on specific issues.

 

2. Nuclear War.

 

By its very nature nuclear war is indiscriminate and even unpredictable in the size and nature of the destruction it causes. While of course the Halakhah has no comment on a weapon which is so new and revolutionary, it does treat of large-scale killing in war time.

 

Such discussion has focused on a rather obscure phrase in the Talmud.6 There, the Sages debate which words are to be considered “holy” (and therefore may not be erased from a text) and which are “profane.” The name of Solomon fits the former category, with the exception of its occurrence in the Song of Songs 8:12 and, some say, also in 3:7. In order to prove the point, an opinion of the Amora Samuel is adduced who quotes the Song in support of an entirely different matter — and it is the latter which, in this round-about way, refers to large-scale war. Samuel is quoted as saying:

 

A government which [during warfare] kills one sixth of the population be’alma is not held culpable.7

 

A literal reading of this cryptic pronouncement would seem to suggest that killing of up to one sixth of the world’s population might be permissible, but the meaning of the Aramaic text is not at all certain. Some believe that be’alma refers to the warring nation’s own realm and indicates the number of soldiers that might be killed in combat;8 while others hold that Samuel referred to a Jewish state and wanted to provide a limitation on conducting a milchemet reshut. The Hatam Sofer goes even farther and concludes that what Samuel was driving at was the very opposite, namely, that such extensive killing (or potential killing) was prohibited altogether– both in the national and the international context.9

 

This whole discussion reveals much about the traditional technique of finding support for a certain point of view: it desires to trace our natural concern over uncontrollable warfare to ancient sources and thereby give it added authority. While the way of achieving this end is tortuous and tenuous, it does arrive at a judgment: indiscriminate warfare in a discretionary war is against Jewish tradition. And even if one were to read the talmudic text literally, there is little assurance that in a nuclear confrontation “only” a sixth of the world’s population would be annihilated.10

 

Questions of this sort would doubtless be raised in Israel, where halakhic opinions were expressed regarding the Lebanese War of 1982, because it was seen as a discretionary war. In such a case, the prohibition of killing innocent bystanders is applicable, while in an obligatory war matters would be quite different. If the very survival of Israel were at stake, the latter category would, halakhically speaking, give the government much greater freedom when waging war.

 

But the Justice and Peace Committee does not wish us to rule on Israel; rather we are asked to speak about Jewish obligations in the Diaspora. Here, it must be clear that the category of milchemet mitzvah does not apply, and that in consequence we are in the realm of greater restrictions. And even though the decision to wage war does not lie in Jewish hands alone, we who want to abide by the principles of our religion feel obligated to take a stand, either supporting or opposing a particular government policy.

 

However, it is the opinion of our Committee that such a stand best be taken not by way of a CCAR responsum but through Conference resolutions which, to be sure, ought to keep in mind the general principles adumbrated above.

 

We wish to emphasize that we do not thereby close the door to future inquiries. But it is desirable that they be specific and refer to an identifiable situation and not be couched in broad, general terms. This would also give our Committee the opportunity to assess whether there are particular Reform principles that should be taken into consideration.

 

Finally, it might be argued that this kind of investigation does not deal with real life, since persons who have their fingers on nuclear buttons are not likely to pay attention to halakhic issues. Still, in a democracy these same persons act in a context of perceived popular approval or disapproval, and therefore a delineation of moral principles prior to nuclear crises may render decision makers hesitant to disregard ethical positions which are embraced by the majority. This is true for Israel as well as the Diaspora. Responsa can help to shape the attitudes of Jews and, through them, of the nation.

 

Notes

Our emphasis on “Jewish decision makers” does not, of course, affect the responsibility of non-Jews to abide by moral injunctions. In halakhic terms, this responsibility falls under the rubric of “Noachide laws” (see Rabbi J. David Bleich, “War and Non-Jews,” in Contemporary Halakhic Problems, vol. II, New York: Ktav/Yeshiva University Press, 1983, pp. 159-166). These considerations, and the attitude which Reform Judaism would bring to them, exceed the limits of our teshuvah. M Sanhedrin 4:5. The commonly quoted passage reads kol ha-mekayyem nefesh achat mi-benei adam…(whoever saves a human life…), but another version has …nefesh achat mi-yisra’el…(whoever saves the life of an Israelite…). BT Sanhedrin 72a. BT Sanhedrin 74a. Contemporary Halakhic Problems, vol. III (1989), pp. 5-6. R. Bleich argues that the principle is incumbent on all human beings; see footnote 1, ibid., with sources. BT Shavuot 35b. The connection is made as follows: The Song of Songs (8:12), in a poetic vein and quite unrelated to warfare, mentions the figures 1,000 and 200. The former was seen, in typically allegorical fashion, to apply to ordinary people who live to observe the Torah, and the 200 to soldiers who are exposed to death and therefore likely to die. The total is 1,200, and the soldiers form one sixth of the number. Rashi, commenting on the talmudic passage, understands it to refer to a labor levy (angaria avodat ha-melekh, forced service to the king). Teshuvot, Orach Chayim, no. 208. This point is made specifically by R. Bleich, op. cit. , vol. III, p.10.

If needed, please consult Abbreviations used in CCAR Responsa.