Discretionary War

§ The court judges cases involving an entire tribe that sinned, or a false prophet (see Deuteronomy 18:20–22), or a High Priest who transgressed a prohibition that carries a possible death sentence, only on the basis of a court of seventy-one judges, i.e., the Great Sanhedrin. And the king may bring the nation out to an optional war, i.e., a war that was not mandated by the Torah and is not a war of defense, only on the basis of a court of seventy-one judges. They may extend the city of Jerusalem or the courtyards of the Temple only on the basis of a court of seventy-one judges. And they may appoint a lesser Sanhedrin of twenty-three judges for the tribes only on the basis of a court of seventy-one judges.

The mishna teaches: In what case are these statements said? They are said with regard to elective wars, as opposed to obligatory wars or wars whose mandate is a mitzva. Rabbi Yoḥanan says concerning the various categories of war: The elective war referenced by the Rabbis is the same as a war whose mandate is a mitzva referenced by Rabbi Yehuda, and the war that is a mitzva mentioned by the Rabbis is the same as the obligatory war mentioned by Rabbi Yehuda. Therefore, Rabbi Yehuda is merely stating that the wars which the Rabbis call elective are to be seen as mandated by a mitzva. Rava said: With respect to the wars that Joshua waged to conquer Eretz Yisrael, all agree that they were obligatory. With respect to the wars waged by the House of King David for the sake of territorial expansion, all agree that they were elective wars. When they disagree, it is with regard to preventative wars that are waged to reduce the gentiles so that they will not come and wage war against them. One Sage, Rabbi Yehuda, called this type of war a mitzva, and one Sage, the Rabbis, called it an elective war. There is a practical difference between these opinions with respect to the principle: One who is engaged in a mitzva is exempt from performing another mitzva. According to Rabbi Yehuda, one fighting in this kind of war is exempt from performing another mitzva. MISHNA: In certain cases of unsolved murder, the Torah prescribes a ritual performed with a heifer whose neck is broken. During the course of this ritual, the judges say a confession in the sacred tongue, Hebrew, as it is stated in the verse: “If one be found slain in the land which the Lord your God has given you to possess it, lying in the field, and it is not known who has smitten him; then your Elders and your judges shall come forth” (Deuteronomy 21:1–2). What is the procedure for this ritual? Three members of the High Court [Sanhedrin] that is in Jerusalem would go out to see the corpse. Rabbi Yehuda says: Five would go out, as it is stated: “Your Elders,” in the plural form, indicating at least two; and it is written: “And your judges,” in the plural form, indicating another two judges; and a court may not be comprised of an even number of judges because they need to be able to issue a majority ruling. Consequently, they add to them one more Elder.

(4) For it is your God יהוה who marches with you to do battle for you against your enemy, to bring you victory.”

(10) When you approach a town to attack it, you shall offer it terms of peace.

(25) Pour out Your wrath on the nations who have not heeded You, Upon the clans that have not invoked Your name. For they have devoured Jacob, Have devoured and consumed him, And have laid desolate his homesteads.

(Lev. 7:11:) “This is the law of the sacrifice for peace offerings.” This text is related (to Prov. 3:17), “The ways [of wisdom] are ways of pleasantness, and all her paths are peace.” Whatever is written in the Torah is written to [establish] peace. Although wars are written about in the Torah, they are written about for the sake of peace. You find that the Holy One, blessed be He, cancelled the decree [of utter destruction (herem)] for the sake of peace. When? When the Holy One, blessed be He, said to Moses (in Deut. 20:19), “When you besiege a city a long time.” Now concerning that whole matter, the Holy One, blessed be He, had said that he should destroy them, as stated (above in vs. 17), “No, you shall utterly destroy them.” However, Moses did not do so. Rather he said, “Am I to go and smite who has sinned and who has not sinned? Instead, let me come against them in peace, as stated (in Deut. 2:26-27), “Then I sent messengers from the Desert of Kedemoth [unto King Sihon of Heshbon] with words of peace […]. I will traverse your land.” When he saw that he did not come in peace, he smote him, as stated (in Numb. 21:35), “So they smote him, his children, and all his people.” The Holy One, blessed be He, said to him, “I Myself told you (in Deut. 20:17), ‘No, you shall utterly destroy them,’ but you did not do this. By your life, just as you have said, so will I do.” Thus it is stated (in Deut. 20:10), “When you draw near unto a city to fight against it, you shall offer terms of peace unto it.” Therefore, it is so stated (in Prov. 3:17), “The ways [of wisdom] are ways of pleasantness, and all her paths are peace.”

There is no need to seek the permission of the court to wage a milchemet mitzvah. Rather, he may go out on his own volition and force the nation to go out with him. In contrast, he may not lead the nation out to wage a milchemat hareshut unless the court of seventy one judges approves.

The next verse states: “And what man is there that has betrothed a wife, and has not taken her? Let him go and return to his house, lest he die in the battle, and another man take her” (Deuteronomy 20:7). He is sent home if he is one who betroths a virgin, or if he is one who betroths a widow. This applies even if his yevama, his late brother’s wife, is a widow waiting for him as her yavam to perform levirate marriage; and even if he heard that his brother died in the war and the widow begins to wait for him only then, he returns and goes home. Each of these men, although they are exempt, still hear the address of the priest and the regulations of war at the local camp, and thereafter they return to their respective homes. However, they still support the war effort, and they provide water and food for the soldiers and repair the roads.