A Halachic and Hashkafic Analysis of the Draft for Yeshiva Students: Part 1

Guest post from shulman

A guest post from beloved commenter Shulman. It goes without saying that this is no substitute for Daas Torah, but is meant as a supplement. It does not necessarily represent the opinion of other IM contributors.

Introduction

Much of the confusion surrounding the charedim stems from the unnecessary blending of various topics. In reality, this discussion needs to happen on three different core levels, each one with its own respective complexities. Without examining each one individually though, it becomes challenging to form a well-informed opinion or identify specific points of agreement or disagreement. As a result, one may be left to choose a side based solely on a general sense of what feels right, which is hardly a solid basis for forming an opinion. This article aims to delineate the different topics so that readers on both sides of the aisle can understand their stance on each and make informed decisions.

I will share my personal opinions along the way, but if someone disagrees with a specific point, recognizing that disagreement itself can help individuals align themselves appropriately and thoughtfully with their respective camps.

The three general topics are: (1) halacha, (2) hashkafa, and (3) politics. Each of these areas in turn requires its own thoughtful consideration. We'll aim to unpack each one to gain a clearer understanding. Although some of these topics overlap, we’ll do our best to separate them in a clear and coherent way.

1. Halacha

From a halachic perspective, there are three key issues that fuel the debate: (a) milchemes mitzvah (obligatory war), (b) the laws of shecheinim (neighbors), which dictate that everyone in the city must contribute to communal protection, and (c) concerns related to shmad (religious coercion) and the preservation of Torah.

1a. Milchemes Mitzvah

The Rambam includes in the ingredients of what makes a war a milchemes mitzvah the idea of “saving Israel from an oppressing (attacking) enemy,” which classifies it as an obligatory war. We can debate whether this applies to our current situation—there are arguments on both sides. Frankly, there’s not much in the Shulchan Aruch on the topic, aside from a brief reference in hilchos shabbos, and I’m unsure how most people can feel confident in their conclusions on this issue.

There’s a debate over whether a Jewish king is required (based on the phraseology of the Rambam), which is debatable, and the question of whether the enemy needs to be actively attacking at that moment (a distinction mentioned explicitly in the Gemara), whose parameters are rather vague. Since this isn’t something we've had to address during this long galus until pretty recently, there aren’t many halachic authorities prior to the last century who have delved into the details, leaving us in a bit of a gray area. Personally, I find the arguments about needing a king or that we aren't in a situation of active attack to be weak, and I’d lean toward assuming that milchemes mitzvah would still apply in our situation. However, other reasons have been presented—some strong, others less so—and I’m far from being in a position to issue a halachic ruling.

(Anyone interested can and should read the sefer תורתו אומנותו by שלמה בניזרי who brings many of the relevant sources (not necessarily good conclusions; leave that to yourself to determine after reviewing the sources on your own). I'd humbly suggest that everyone who does go through the sugya, should do so trying to come out not like your specific community's priors in order to reach the most objective conclusion.)

That said, I’d like to highlight one key point: to my knowledge, there’s no halachic exemption for those living outside the specific city under attack when it comes to milchemes mitzvah. While I don’t claim to have all the answers, this does raise an important question—why aren’t we calling on able-bodied individuals in the U.S. to contribute to the war effort? For some reason, it appears that milchemes mitzvah isn’t the primary focus. This may be because the IDF seems to have the situation under control from a hishtadlus perspective (as far as this topic is concerned; see 1b) in which there is no requirement to run after others, or there could be other reasons at play.

But it's also the case that when we boil down the concerns people raise about the charedim, they seem to be more concerned about the morality of the neighborly laws anyways and not about the technicalities of if this actually qualifies as a milchemes mitzvah. This, to me, ends up obfuscating the issue as we get mired in intricacies of a topic we know little about. So let’s shift our focus to what I anyway believe to be the real issue at hand.

1b. Hilchos Shecheinim / Hatzalos Nefashos

This issue is more straightforward. It starts with a Mishna and Gemara in Bava Basra 7b-8a and is explicitly stated in Shulchan Aruch (Choshen Mishpat 163): everyone in the city is obligated to contribute to communal needs, including its protection. Yes, everyone. But even before that, it starts with a pasuk in the Torah. לא תעמוד על דם רעיך. There is a clear mitzvah of hatzalos nefashos. The concept of שוויון בנטל (sharing the burden) is not just a slogan—it’s a clear halachic requirement. There’s no need to appeal to secular morality or logic for those who don’t immediately accept them; this comes directly from God’s Torah, which has guided us throughout our history: There is a mitzvah of hatzalos nefashos, there is a concept of hilchos shecheinim, and legally, everyone in the city must “share the burden” of this duty.

That being said, there is an exemption for those categorized as רבנן, or as the poskim refer to it, תורתם אומנותם—those whose occupation is Torah study; the reason being, their Torah protects them. This is also a well-established halacha (ibid. se'ifim 4-5, sourced in the Gemara and rishonim). Anyone who dedicates their entire life, day and night, to studying God’s word, giving up worldly pursuits and making Torah their profession, is exempt from civic duties pertaining to protection. That much is clear.

What’s less clear is exactly who qualifies for this exemption. Not every yeshiva student necessarily meets these criteria. Firstly, it is unanimous that the exemption applies only to those who are truly sitting and learning diligently and are (at least on their way to becoming) talmidei chachamim. It also involves meticulousness in observing halacha and having a deep sense of yiras Shamayim (see Beis Yosef ibid., which IMO is sourced in the Gemara as elaborated in Toras Chaim 8a).

There is some debate among the rishonim about who exactly is considered תורתו אומנותו. Ritva and Meiri argue that only those who never engage in work qualify for this exemption. However, the consensus—expressed by the Ramban, quoting the Ri Migash in the name of the Rif (and cited by the Ran, Nemukei Yosef, Tur etc.), as well as the Rosh (end of siman 26)—and reflected in Shulchan Aruch and accompanying poskim (see also Shach), is that even someone who works but devotes his every spare moment to studying Torah is included. The Ritva adds that this exemption applies not only to established rabbis but also to Torah students, and there’s no reason to believe anyone disagrees with this, even if they don’t mention it explicitly.

While it's often difficult to practically determine which individuals qualify as honest and true "תורתם אומנותם" talmidei chachamim, we do have two major takeaways: (1) those who don’t meet this exemption are, according to halacha, shirking their responsibilities to their neighbors in violation of a clear Mishna and SA in hilchos shecheinim. (2) Those that do qualify are squarely and fairly exempt, and to remove those select few from "their posts" would be a סכנה, as they are the נטורי קרתא, protectors of the city discussed in the Yerushalmi (Chagiga 1:7) amongst many other sources. 

From what I gather, most people in the Modern Orthodox/Religious Zionist camp would have little issue with everything mentioned so far. They wouldn't object to exempting those who genuinely qualify, even if the percentage of those qualifying is higher than they might assume (I wouldn't be surprised if it falls somewhere up to even 30%). The real concern lies with the majority who may not qualify—what justification do they have?

However, there is another factor to take into account, and that is the spiritual dangers of klal yisroel. This is a bit more complex, so let's break it down. 

1c. Shas Hashmad

In the charedi world, there exists a small but vocal minority that believes serving in the army poses a risk of shmad. This group has representation in the government through Eitz and holds significant influence in America, particularly under Reb Malkiel. If their perspective is accurate, the implications are much more serious.

Personally, I do not share this belief, and to my knowledge, most charedim align with my view. The majority of Israeli charedim belong to parties like Gimmel and Shas, which are more moderate and recognize that circumstances have changed over the past fifty years. They believe the army genuinely seeks their manpower rather than attempting to shmad them.

However, the minority does harbor such concerns, and while I disagree, their worries are not entirely unfounded. Some government officials still hold this "shmad" viewpoint, and although I believe these reshaim are in the minority and not worth excessive concern, I can understand their perspective, especially in a political landscape where parties wax and wane.  Additionally, the army has yet to fully demonstrate its reliability. The Nachal Charedi program, which aimed to accommodate charedim by removing the greatest risk - separating the boys and girls, unfortunately was a failed experiment. It’s true that the already vulnerable charedi "dropouts" were the ones subjected to this experiment, and their emergence even weaker than before doesn’t provide much insight into what might occur if we expanded the program to include a broader range of charedim and fostered a more charedi environment. However, in the end, they have little to show for themselves to appease those who believe this constitutes a situation of shmad.

In the mainstream charedi community, we no longer view the situation as a shmad crisis, especially since many government officials are willing to accommodate our needs. Given this context, the focus shifts back to the issue of hilchos shecheinim. Thus, with the right accommodations, we can and should find a compromise and share the country's burden without jeopardizing our core values or disrupting what is currently working for our mesorah, as the UTJ party is currently working toward.

But, let it be clear, just because it’s not a shmad per se, this doesn't mean that just everything goes. Our values are central to who we are, and they are not something we can just toy around with. What we would need is a compromise that would respect our principles, and like it or not, we won't just dismantle our system to satisfy those who neither share nor respect our views. 

For instance, if a full draft were instituted based on the first principle in hilchos shecheinim (that everyone must share the burden), how would we ensure that the second halacha that exempts true talmidei chachamim is upheld? We would have no way of doing so. While the current yeshiva system allows a problematic loophole where anyone can claim exemption, the truth is that it is difficult for an outsider to distinguish between those who deserve it and those who don't- something only an insider can accurately determine. The last thing we want is for the government to make that call.

So, as it stands, the system allows for talmidei chachamim to remain in yeshiva, but also allows many undeserving others to stay. But if we dismantle it, there’s a very high risk (borderline certainty) that this will lead to drafting the thousands of talmidei chachamim who are truly exempt, with catastrophic consequences for the Olam Hayeshivos and Klal Yisroel as a whole. Who's to say that hilchos shecheinim takes precedence over the more important halacha/value of preserving the integrity of the talmidei chachamim? Charedim could understandably and rightfully argue that forcing talmidei chachamim out of their learning would be spiritual destruction and would endanger our physical protection also.

Again, I don’t claim to have all the answers, and finding a compromise here won’t be easy. However, several potential solutions are on the table in the Knesset that address these concerns, and we can hope the right balance is found.