פרשת שופטים

Devarim Chapter 19: The Cities of Refuge and the Regulation of Murder

The Context: Public Mitzvot in Sefer Devarim

This chapter is part of the series of mitzvot like the whole main book of Devarim called Mishneh Torah — this list of mitzvot. If we group them together in certain groupings, in the most general sense the entirety of what is read in parashat Shoftim is the public mitzvot, mitzvot of the public order. Which means the structure of the laws, the structure of the courts, the structure of the leadership, the people who are in charge of the laws, are in charge of the people. So not so much the specific laws but the structure of the laws, the structure of the justice and of the entire society.

So here in chapter 19 we get to a very specific law and it’s framed in a very specific way. The general category that these laws belong in is the laws of murder.

Murder as a Primary and Foundational Law

Now murder is one of the most primary laws, one of the first laws in a certain sense, of course. It’s one of the Aseret HaDibrot [Ten Commandments], which already should show us that this is a very primary law, a very basic law. It’s mentioned right away in parashat Mishpatim, many times we have murder as one of the primary things.

But there’s something more complicated with it. Just murder, of course, is kind of simple. But there are complications because murder is not only the first law as in the first moral law, what a person shouldn’t do. It’s also one of the first basis of a city. A city is the kind of place, a civilization, place where people live, a state is where murder is taken care of, where violence is controlled, where there’s a law to take care of the violence.

The Complexity of Accidental Murder

Now there’s murder, premeditated murder, where someone murders someone, okay. We have the laws that are going to be mostly about the punishment of that murder. What happens if we can’t find the murderer, as we’ll talk about.

But then there’s also non-premeditated murder, what we call manslaughter. Sometimes people get killed whether by mistake, whether by negligence, whether by some accident. There’s a variety of levels of premeditation of intent in murder and that is also something that needs to be taken care of.

Why Accidental Murder Must Be Addressed

We cannot allow — not only can we not allow deliberate murder — a city is something, the whole point of a city, you have some self-defense, you have some level of people protecting each other. So we have to protect each other also from accidental murder.

If someone’s moral system or someone’s political system only cares about deliberate murder and says well, it’s a mistake, you know, it’s all God that did it and so on, that is incorrect. Of course one of the first times that it mentions it, it talks about how we say God did it or nature did it. It happened by itself. It’s not describable to a person. But nevertheless there needs to be some solution for this. There needs to be some way to take care of this problem.

Of course, the fact there’s a solution or maybe some kind of a punishment even for someone that causes death through negligence or through non-intentional murder is also that people will be much more careful. In other words, we create this whole system. Everyone knows the system of a society like the job of the Chachamim [Sages] is to make mishmeret l’mishmarti [safeguards for safeguards] — to create different kinds of gates around the law.

So the biggest law that needs gates around it is the law of murder and there’s literal gates like we learn about a gate that you create so people shouldn’t fall off your roof. That’s a gate around the law of murder and the only reason we need such gates and things like that, people take care of safety, is because even accidental murder gets taken very seriously.

From Private Vengeance to Regulated Justice

So now the primary way in which — I told you I talked about accidental murder being taken seriously and now it goes one level more. One level more is that in the primordial law and the law before there is systems of courts that take what we call nowadays the monopoly of violence and take the entire monopoly and dispense justice entirely. There is some sort of personal law, some sort of law of vengeance really, but it’s not just vengeance as in the wild sense.

This is what the law, the primary law, which is the law of murder, the prohibition of murder is based on. It’s based on the fact that people have relatives, people have other people who care about them, who are in some kind of a covenant with them. And if someone murders one of my people I will murder him or even I will murder one of his people. That’s the law of war. That’s the basic thing.

Now cities are about regulating even this, right? So originally we have: You murder me, even by mistake, I murder you or my next of kin, the people responsible for me, the people who I promised to protect, who are promised to protect me will murder you.

Now when there’s a city which has a law justice, the courts and so on, they’re trying to take over this also. So the Torah and the first step is trying to take over this privatized justice, so to speak, this law of vengeance to somehow regulate it, to begin to regulate it.

The Law of Arei Miklat (Cities of Refuge)

So one of the first laws we got about this is the law of Arei Miklat [Cities of Refuge], which is that we set up specific cities where someone who murdered someone unintentionally, or we’ll see in the next part of this chapter the complication about that, he will go to that city and that city will protect him. It’s sort of a sanctuary city, right? A city where the people who broke the law in that sense are protected.

The Dual Nature: Protection and Punishment

And they’re not just protected. It’s not just a protection like, okay, we allowed accidental murders. So it must be understood as the society, the more formalized law of justice taking ownership over this and they will take care. In some sense just the fact that he has to live in that city is already some kind of punishment, right? It’s a kind of exile or banishment or prison. He has to be imprisoned in that, although the Torah doesn’t frame it that way.

The Torah frames it as saving the murderer or the accidental murderer, the manslaughterer from being killed by the Goel HaDam [blood avenger], by the person who’s avenging the blood. It can also, in Chazal [the Sages], definitely read it as a punishment in itself. And that’s because I think that’s the goal of this kind of thing.

But also we have to imagine that this city is not just magic that it protects them — there’s some kind of organization where they take care of finding out what’s going to happen and so on.

Who Is Allowed to Go to the City of Refuge

And we see when the Torah gives this law, it also gives details of who is allowed to go to it.

So now one more step we have to add to this is that the whole Sefer Mishneh Torah [Book of Deuteronomy] is planning for the people going into Eretz Canaan, Eretz Yisrael. But not only going into but also eventually expanding their politics, expanding their state. Expanding by conquering more land, by just creating bigger cities and so on. And therefore there’s specific provisions in the laws for when this will be expanded, when this will be taken over more and what will happen in that. This was very explicitly made in Parashat V’etchanan. And here we have it in a more simple sense.

The Establishment of Three Cities

So what we have is the law when it says: When Hashem will cut off the nations who you are fighting with and you will take over their cities, then you will separate three cities. And also you’ll prepare the way to these three cities. You will divide into thirds the limits, the borders of your land. And anyone, any murderer will escape, will flee to these three cities.

Now, of course, this doesn’t mean that now you have a free pass for murder. That was not the point of this law. The point of this law was to regulate accidental murder, right? Or, yeah, accidental murder.

So we have a whole parsha explaining who will be allowed to go to this city. So as I said, first it gives you the law with three cities. And, of course, this is according to how great or how large your state is. You will have a third. So it doesn’t give like an absolute measure. It doesn’t tell you exactly how far. Obviously, the point is that in each third of the country — which maybe these were like states within the country — like each state or each part should have one of these cities where their [accidental killers] should go.

Defining Who Qualifies for Refuge

But who should go there? Not just any murderer. Only whoever hits or kills, right? Hurts his friend bivli da’at [without intention]. Da’at doesn’t mean knowledge, right? It means intention.

The Beautiful Expression: “He Does Not Hate Him from Yesterday”

And the way to express this very beautifully: He does not hate him from yesterday. He’s not a hater, right? That’s another way of saying premeditated murder, right? If someone is in a fight with someone, he’s a hater from the day before, the day before that, that means he planned the murder. He didn’t plan it.

The Example: The Axe in the Forest

So that’s one way. Someone kills someone unknowingly, unwittingly. Or there’s another way in which we could know that it was not intentional. Sometimes someone goes in the woods to cut down trees. And his hand somehow slips from the axe he’s holding to cut the wood. And the metal will fly and find his friend, right? Kill his friend accidentally.

So that we know it’s not — nobody — I mean, there’s like a conspiracy. If he’s just chopping wood and it was an accident, a work accident where his axe flew into his friend’s head and killed him. These are the people. This was the person who will go to this city.

The Reason for the Cities: Protecting from the Goel HaDam

And the person, as in the style of this book and some other works in other ways, repeats itself. Why we need the city? Because the Goel HaDam, the avenger of the blood will chase him. Because his heart will be — that’s the way of saying he will be upset, right? He will be mad and he will be correct, right? And he will achieve him. He will catch him. Because the way will be far.

But he does not deserve, he does not have the law of death. Because the law of death is only for someone who is a sonei [hater], right? Who is premeditated. But this person does not hate him from yesterday. Therefore he does not deserve death. Therefore I’m telling you to separate these three cities.

Why Specifically Three Cities

And specifically three. If there’s only one, you still might not have enough time. The Goel HaDam might still find you. So you need to have three. So there’s always a chance of the person escaping to them.

Provision for Expansion: Adding Three More Cities

And therefore, if Hashem will give you even — make your land even bigger — and he will give you the entire land. And as the Torah never forgets to repeat here: Why will he get the entire land? Because you will do the mitzvah. That will give you success in your wars and so on. And you will love God.

Why do we need the city? Because the Goel HaDam [the avenger of the blood] will chase him, because his heart — that’s the way of saying he will be upset, right, he will be mad, and he will be correct, right — and he will achieve him, he will catch him, because the way will be far. But he does not deserve, he does not have the law of death, because the law of death is only for someone who is a sone [one who hated beforehand], right, who is premeditated, but this person does not hate him from yesterday. Therefore he does not deserve death.

Therefore I am telling you to separate these three cities, and specifically three. If there’s only one, you still might not have enough time, the Goel HaDam might still find you, so you need to have three, so there’s always a chance of the person escaping to them.

Expansion of the Land and Additional Cities

And therefore, if Hashem will give you even, make your land even bigger, and he will give you the entire land — and as the Torah never forgets to repeat here, why will he get the entire land? Because he will do the mitzvah, that will give you success in your wars, and so on, and you will love God, and he will give you success — then you will have a bigger place, then you will add another three cities, so even in your expanded land, you still have this space.

And this very clearly shows us how Ir Miklat [city of refuge] is like part of the basis of building a city, of building a state. You want to make it bigger, you have to make in the bigger place these Arei Miklat [cities of refuge], so that the law of murder, including this unintentional murder, including the regulation of the punishment of the vengeance over unintentional murder should be regulated.

Preventing Innocent Bloodshed

And as it finishes, so that clean blood, dam naki [innocent blood], unguiltless blood should not be spilled in your land, which Hashem gives you, and then you will have blood on you, there will be blood guilt on you, if you allow murder. And part of allowing murder, you see there, we’re at step three, right? Besides for, of course, just murder happening is already something that the land, in some sense, has to atone for. But if you will now allow the murder of the person who murdered unintentionally, and that will not be justified, then again, you will have to, you will have the murder, the blood guilt on you. Okay?

The Case of Premeditated Murder

Now, we have the opposite. But if someone is a sone [hater], he did plan, he planned, he, how do you say, he ambushed him, right? And he stood on him, he ambushed someone and he killed him, and that person thinks he’s going to escape, then, we do not allow him. The elders of his city will send, his city, right, the original city where he came from, will take him from there, and they will give him to the hands of the Goel HaDam and kill him.

So here, we still have the Goel HaDam as the one avenging the death, even when it was premeditated, even was purposeful murder, it’s the Goel HaDam killing him. The point is that if the person is, the death is just, have been an accident, then we allow the Ir Miklat to protect you. Otherwise, we don’t allow it, and we will take you out and return you to the original law, which is that the Goel HaDam is allowed to kill you.

No Compassion for the Intentional Murderer

And the pasuk finishes, lo tachos einecha [do not have compassion], do not have compassion of this, because for the same reason, you need to clean, u’vi’arta [and you shall purge], the guilt, the clean, the guiltless blood needs to be, the guiltless blood spilled, dam here means not blood literally, the guilt of the blood, guilt of pure blood, which was spilled in vain and spilled unjustifiedly, that has to be cleaned, and that is part of the, that is what a good society is.

Sometimes people think that giving leniency to murder is something nice. The Torah does not seem to think that, it’s the opposite. Lo tachos einecha — we do have, we do have rachmanus [compassion], right, in other words, we do have rachmanus, we do have compassion on the person who did it accidentally, but we do not have compassion on the person who did it purposefully. Okay?

So that’s one law about creating the cities, and each area, each sort of, each province has to have one, at least one city, in which the Goel HaDam, for the, Ir Miklat.

The Prohibition Against Moving Boundaries

Now we have another law, which is really about the organization of the city, interesting law, but I think that’s the, this is the context where it comes in. Lo tasig gvul re’acha [Do not move the borders of your friend] that the earlier generations, your predecessors have bordered, have created, like there’s a verb for bordering here, I don’t know how you would say it in English, asher gavlu [that they bordered], to shine him.

The point is that we have, there’s another one basic part of establishment of a society, right, this is my land, this is your land, there might be even like cities who have borders, and each city belongs to some family or to some people in some way, and these were established by the predecessors, by the ancestors, they have established these borders between cities.

The Importance of Established Borders

Sometimes someone thinks, oh let me change it around, let’s steal some land. It’s not just theft, right, it’s not just like land theft, there’s something more basic here. It’s you’re moving the borders that your ancestors have agreed on already, and that’s like the peace, the peace, the peace of a place is based on the fact that people have agreed on their borders. I live here, you live there, this is my plot, this is your plot. If people move it, that’s basically destroying the basic peace, not just like a one-new-story.

We’re very used to living in a place that has already peace, so we don’t realize this, but if you go in places where there’s less social order or less legal order, then you’ll realize that this is a very important thing. And therefore right later we’ll see, there’s a special kelala [curse], there’s a curse, a damnation for people who masig gvul [move boundaries], so this is sometimes hard to notice, so this is the law, we should not do that.

The Laws of Witnesses

One more, and now we’re back to general, the general order of justice, that’s the main last part of this chapter, and it’s the laws of witness, the laws of proof. How do we know that something happened? There’s always, whenever there’s a court, whenever there’s a judge, you have to know what happened, and here the Torah gives some limits to that.

The Requirement of Two or Three Witnesses

So do not allow one witness to stand against someone. In other words, we should listen to one witness in the area of any sin, of any chatas [sin], and if you do, you should have at least two or three edim [witnesses]. And of course the halacha struggles to understand what is two or three edim, if two is enough, then what’s the point of the third, but in the simple meaning it’s not hard to understand. The point is one witness is not enough, two or three at least. The point is of course three is better than two, maybe we can get into different, and halacha is very formal, like the laws of evidence are very formalized, but even in reality it doesn’t really work that way.

People sometimes get confused, they think because there’s such formal laws in the Gemara that means that’s how beis din [court] actually works. Beis din don’t actually work that way, and they’re not meant to work that way, and that’s why we have two or three edim. So the point is there’s independent verification, we understand the logic of this. One person might have dreamt it or something, you have two, then you have some independent verification that it actually happened, three is even better. And of course how to exactly figure this out, that’s the job of the judges or the people who make these rules to figure out exactly what to do.

The Law of False Witnesses

Now there’s one more very important law about witness. Of course the big problem with a court who mostly relies on witnesses, especially in those days, nowadays we very much rely on documents, now we have video and other kinds of evidence, physical evidence, and already in Talmud and Chazal we have much reliance on physical evidence of various kinds, especially contracts and things like that. In the Torah we do not find that there’s not really reference in any laws to physical written contracts or anything like that. Basically all law is dependent on oral witnesses, live witnesses, and this opens us up to many different problems.

Of course the first big problem is false witness. False witness is the biggest issue for a court system that’s mostly based on witness testimony. Therefore we need to have very extreme measures to deal with people who give false witness. Of course that’s why we have also the concept of falsely swearing, which is another way of proving that you’re right in this kind of culture, that’s why that’s taken very seriously, and the same thing false witness is taken very seriously.

The Procedure for False Witnesses

So here we have something very simple and very basic. If two people come and give false witness, and it gives lifnei Hashem, lifnei hakohanim, lifnei hashoftim [before Hashem, before the priests, before the judges] in their days, and we find out, v’darash [and they investigate] — Hashem doesn’t say here how, the judges figure out that you’ve been lying, of course the Talmud has some formalization of this, but again we’re trying to read it in the simple sense — and what happens is we do to the witness what he wanted to do to his brother, to the guilty party according to him.

Eye for Eye in the Context of False Testimony

And this law seems to have been taken, this is a very extreme law, which is why we get the exhortation in the end, v’lo tachos einecha [and do not have compassion], do not let your eye have compassion, you should give exactly what they want, a soul for a soul, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. This is particularly said about this, and we understand this very well because this is the kind of, we call it, very basic, the deterrence that you need, because otherwise it’s very hard to understand what the price is for being a false witness, right?

A false witness is always something that has low risk and high reward. Like if you hate someone and you give false witness and you cause him to be put to death or punished monetarily or punished with corporal punishment and then, you know, in the worst case you’ll get some small fine or something.

The Brilliance of the Deterrent

So this law, very smartly and very strictly, makes the deterrence here, because it gives the price of bearing witness to be the price of exactly what you want to do. You want to kill someone, you should know that that means that if we catch you being a liar, lying, you will be killed in the same way that you wanted to kill that person, and the same for any other punishment.

And of course that’s why this doesn’t mean necessarily only if the person was killed. Halacha says specifically if he wasn’t killed, but the point is, because it has to be specifically about the act of bearing witness itself. The act of bearing witness itself has to have this level of seriousness, this level of the deterrence, that it should carry the weight of the kind of thing you’re trying to do. Otherwise witness is a very weak thing to rely on, so we need these very extreme measures against it.

That’s the chapter 19.

Laws of War in Sefer Devarim Chapter 20

Introduction: The Context of War Laws in Parshat Shoftim

We're reading Sefer Devarim, chapter 20. As we discussed, this entire series — the entire Parshat Shoftim — is about public law or laws of the public order. And now, more specifically, we have laws of war.

The parsha that starts כי תצא למלחמה [Ki Teitzei l'milchama — When you go out to war] — everyone knows this law, which is the beginning of the next parsha, called Ki Teitzei after its opening words — deals with specific laws of war. But here we have the regulation, the laws of war, more the beginning of the war, the general laws of war. There's some back and forth to other parts and then it comes back to that, as we'll see in the next chapters.

This is, of course, a part of the law, or a kind of law, which isn't mentioned at all in the previous books. So much of Mishneh Torah — one of the things we always should notice, and Ramban keeps on talking about this — is which laws are repeats of the previous four books, which laws have some difference in the way they're framed or in their details than the previous four books, and which laws are entirely new, entirely just belonging to this context of the Torah being given to the people who are at the threshold of going into the land and conquering it. And pretty obviously, the laws of war are those that belong to this category.

Previous War Narratives and Their Laws

Of course, we already had stories of Moshe fighting wars, specifically in the end of Sefer Bamidbar, which we've discussed over there. And there's some laws which might be taken to be general laws of war, how the wars should be fought — specifically the halachot of the war against Midyan, the halachot of purification from tumat met [ritual impurity from contact with the dead], which come after the laws of war. And a big part of it is that you need to purify yourself from touching dead people, or maybe even from the act of killing them in a war.

But here we have more general laws of war. In other words, also the positive aspects — also how the war is fought, and some laws about that, and some limitations, or some, what we would call now, laws of war, some limitations on the extent to which wars can be fought, but also some of the opposite. And these go together, as we'll explain, and that's pretty obvious to anyone that follows how these things work. You can't have laws of peace, of like how you give space for peace within a war, if there isn't also the other side, which is the sort of punishment or deterrence for not accepting that peace, or for not working along with the war.

The Absence of "Just War" Theory

Of course, what is missing entirely in these discussions is the question, later called the question of just war — like which wars should you go to at all? This question isn't discussed here. And it's obviously assumed as the pasuk starts: you will go out to war on your enemies. So of course, you could say their enemies are their enemies because they went to war against them. But to read it in a more plausible way, which is, of course, the decision to make war is probably the decision that the king makes, which we've seen earlier, or possibly the judges — in the Talmud, it seems like it's a law, so we have to ask the judges. But for sure, it's the job of the king, and that's the job of a rightful king to decide — one of his main jobs is to decide which wars are right and correct to fight.

That's not discussed here and possibly not seen as something that could be legislated. The only thing that's legislated is the way in which you fight. And there are some specific differences between different kinds of war and what kind of terms should be given in each of them, as we'll see. That seems to be the law.

The First Law of War: Do Not Fear (Pesukim 20:1)

Now, the first thing we have to start at the beginning. The first law of war, the first instruction for war — it's hard to decide if this is a law. The Rambam thinks this is literally a law. But of course, even the Rambam understood what that means. It's not like a law in the sense of a ritual law, which is like this.

The first law is: as you will go out to war, you will see horses, you will see chariots, riders, many more people than you. And of course, you would have to calculate beforehand if there's a chance of winning. It doesn't say that you should go out to wars in which you're outnumbered. What it's saying is that even if you go to war and you see many horses, many riders, many chariots, more than you, do not fear them because Hashem, your God, is with you, who has taken you out of the land of Egypt.

The Lesson of Yetziat Mitzrayim

This is one of the important lessons of Yetziat Mitzrayim [the Exodus from Egypt], which we learn throughout Sefer Devarim from the beginning of it, from Moshe's big speech in the beginning. And in the law here, just as God has taken us out of Egypt, which obviously had also chariots — that's the thing that Egypt had most famously, their great שש מאות רכב בחור [shesh me'ot rechev bachur — six hundred choice chariots] from Yetziat Mitzrayim — and God has saved us by battle, right, and a kind of battle, by Kriyat Yam Suf [the splitting of the Sea of Reeds] from the Egyptians, so in the same way, He can help you in this war. Of course, assuming that this is done according to the virtues, according to the values of the God that took you out of Egypt, as we've discussed in previous shiurim, how you act in the way of that God teaching you and that story showing you.

Why This Is Considered a Law

And here there's this general statement: don't fear them. Of course, the Rambam says it's like a law, because of course everyone knows that cowardice and loss of morale is the biggest thing that makes people lose wars, and especially in the way ancient wars were fought, where there's even less emphasis in some sense on technical, material power, but also in the way — it's still this way in many ways. And this is why it makes sense for people like the Rambam to say that this is a law, because these are the basic things that need to be taken care of in the law.

You can't say, well, it should be just promises or chizuk [encouragement], you should tell people that they shouldn't be afraid, but how could you command them not to be afraid? But when we say command, we just mean to say this is one of the structural things that need to be taken care of if you go to war. You need to go to war, you need to take care of fear, you need to take care of the cowardice, and therefore you have to tell the people, firstly, that the law themselves, the Torah themselves tells the people: don't fear them.

The Kohen's Speech Before Battle (Pesukim 20:2-4)

And then we have the next part of this law. As you get close to the war, to the battle — probably translated as battle here — then the priest goes and speaks to the people and he tells them this precise thing that I've just told you in general. He tells them that, and he starts a speech: שמע ישראל [Shema Yisrael — Listen, Israel].

This is how speeches are started in Sefer Devarim, one of the main ways speeches are started. שמע ישראל — of course we know the famous Shema Yisrael that we say every day, but this is like, now we say "Listen up," listen, Shema Yisrael.

The Content of the Speech

You are now going to war on your enemies, do not be afraid. The Mishnah interestingly reads this, על אויביכם [al oyvechem — on your enemies], that you have to emphasize this to people. Sometimes people don't realize that the people they're going to war against are their enemies. Like you're not going — this is not a civil war. If there will be a civil war then these laws don't apply, then we have to find out a different — I mean we shouldn't do that war. But you're going to war on your enemies, against your enemies, which means they act toward you as enemies, and therefore you should act to them as enemies. Don't get confused.

And therefore don't let your hearts be soft, and this doesn't mean, or at least doesn't only mean, be hard — it means don't be afraid, right, don't be afraid. And there's four different words that sort of mean the same thing: don't be afraid, don't be something like fast to run away, don't be broken. These are all ways of saying the same thing: don't get broken by the fear, because Hashem your God is going with you, to fight with you, to save you.

The Practical Application: Exemptions from Battle (Pesukim 20:5-8)

Now we have — so that's the morale-boosting speech that the Kohen has to give, or is told to give now, in the beginning of the war, as they get close to the battle. Now there's also a practical result from this idea.

The Principle Behind the Exemptions

Since we understand that the most dangerous thing in war is to lose courage, to lose the morale, there's also practical laws which say that people who in many ways will destroy the morale, either for themselves or for their friends, should rather not be taken to war. You don't go to war with people who are going to be afraid; they're just going to make you lose. So don't even go to war with those people.

So there's three levels of the same idea, which is all about the courage and the internal strength that people need to go to war:

1. The mitzvah in general: don't be afraid

2. The Kohen gives this speech: don't be afraid

3. Afterwards the Shotrim, which we've seen in the beginning of the parsha, right, שופטים ושוטרים [Shoftim v'Shotrim — Judges and officers] — the people who are, it's not clear what Shotrim means, right, we translate as police, something like the enforcers, the leaders — speak to the people and they tell them these four things, four people who should return, who should return home.

The Four Categories of Exemption

And they're divided into three and one, because they're slightly different. The three are ones that have somewhat of a good excuse for being fearful of going to war, for not being ready, for not being in the state of life where you want to go to war.

If you want to go to war you need to be in the kind of state in life where you are ready to go into war, and part of going to war means you're ready to die in that stage and it won't be the worst thing for you to die. Of course dying is always a bad thing, especially dying in battle — meaning it's not an expected life or death — but there are still people who are in the stage of life where it's worse for them. And since it's worse for them they will not fight to their full ability. That's the real problem: they will not fight to their full ability and therefore we can't have those people in war.

First Exemption: The New House

And those people are: the first person who built a new house and has not yet moved into it, or not exactly clear, but has not started living in it. I'm not exactly clear what this means — it has not started, like, established it, not initiated it. So he's worried about his house. He's like, I can't die, I put in all this effort into building a new house and then I will never even have even one day of living in it. And the pasuk says, lest you die in the war and someone else will take it. But of course this is speaking for the person's fears.

There's nothing wrong with someone dying if there's a just war, then from the perspective of the objective point of this war, there's nothing wrong with a guy that has a new house dying in the war. But the point is that he will — that's why I understand — he will think that and it's like being always worried: wait, someone else is going to take my house that I've put in all this effort and I will never live in it. And that will cause him not to be able to fight. So therefore go home.

Second Exemption: The New Vineyard

Same thing: someone has planted a vineyard and never drank from the first fruits of it. That's what the verb חלל [chilel] means, the content of a vineyard. Same thing: go home because you were afraid someone — you will die and someone else will do it instead in your place.

Third Exemption: The Betrothed Man

Same thing: if you have betrothed a woman. This is one of the places where we see that there's a concept of אירוסין [erusin — betrothal], distinct from נישואין [nisuin — marriage], right. That means you promised a woman that you will marry her, you made her promise or her father, whoever is in charge of her, that you will marry her. And the same thing: I've went to all this effort to get a wife and I've never consummated a marriage. Same thing: go home.

Fourth Exemption: The Fearful and Soft-Hearted

And then they add one more thing. So these are three people who have something of a good excuse. But then they add after all of this, they say: anyone who's afraid, anyone who's afraid, who has a softness of heart, should please go home and not make soft [the hearts of his brothers]—

The Fearful Soldier and the Point of No Return

So this is, I think, the general point of all of these laws, but there's one more for explicit, and as of him, as Mechlech Yisrael [the fearful one in Israel], this means someone is afraid that he did a virus [aveirah — sin] and therefore he doesn't worth it to go to war, or the other shithead, literal shithead is just afraid, someone who doesn't have the courage, some people can't see swords open, can't see, literally can't see the war, so he doesn't have the courage for that, so therefore it's better for him to go home.

And then, after they do all of this, then they're ready, after the Shaitan [shotrim — officers] finished speaking to the people, they give the leaders, the generals, to go in the head of the people and lead them into battle. So these are all preparations for battle and, in other words, you need to organize an order of battle before you know who you're going to battle with, so first we have to make sure that everyone is ready and then we set that up.

There might be also a meaning in this, which is like, after that, you don't have a chance to lose, that's how the Mishnah reads it, after you've, you're not one of the people that took the chance, you give a chance to people to go home, after that, you don't have a chance to go home, you're considered a deserter, you get punished, you get physically blocked from going home, you can't, there's no way back.

So that's the law from the perspective of the people going to war, the fighters, the soldiers.

The Offer of Peace: Domination, Not Withdrawal

Now we have an important, the second important law of war, the second side, which is how the terms are given to the enemy, how do we deal with the enemy, and there's again an important law from before the battle. The first thing is, as you get close to a city and you want to fight about it, first you call it, you give it an offer of peace.

And here there's two options, very important to notice that the offer of peace works with these two options. Of course there's an offer of peace, really it's an offer of domination, right, it's not an offer of peace in the sense which is going to go away, because obviously there's a reason for this war, as we discussed, the Torah doesn't discuss why you're going to war in the first place, you're obviously going to war in the first place for some reason, there was some, something did, those people did something wrong, there's some reason why you deserve to go to war to them and to win them.

Why Offer Peace in a Justified War?

But you should still, this is why it's important, people don't realize, people think if I say it this way, okay so then why are we even offering peace, no, you offer peace precisely when the war was justified, if it's not justified then there's no point in the whole thing. The offer of peace is not saying don't do war when you don't need to, that's obvious. The offer of peace is saying even someone who deserves to be subjugated, they deserve to have a war against them, you should still offer them peace, which really means offering them submission, it means offering them some sense of fear, surrender terms, that's really the kind of surrender that the Torah imagines.

The Two Outcomes: Submission or Siege

It's like this: if they will answer you with peace, if they will open the door to you now, if they will open the doors for the city to you, then you will take the people and they will, which is a way of saying they will be your slaves, or usually we translate mas [tribute/tax] as tax, but the ancient tax wasn't always necessarily money, it might be taking their crops, it might be taking some of their people to work for you, but they will be kept alive, they will just be what's called a city under the empire, under another king.

But if not, if they will not make peace and they will war with you, then you will lay siege to the city, right, they didn't open to you so you have to lay siege to them, and the Torah promises or hopes that Hashem will give her in your hands, you will win the battle.

The Terms Must Be Credible

And then, this is the result of a battle, and this is also, I think these terms need to be very clear because otherwise people never have an incentive to make peace, they always say okay, I'll make peace at the last minute, it's very important, and this was also like a Roman law, once the battering ram touches the wall of the city, there's no peace terms anymore, because that's the only way your offer of peace can be credible. This offer of peace isn't like a nice peace, it's a strong peace, right, it's a peace where it says, their other option is this, so this is why this other option has to be there, I don't think it can work without that.

The Fate of the Conquered

So you kill all men, right, all males, but it means all men, not children, right, in other words, all soldiers, because in the ancient war, and really also nowadays, people, we like to imagine that there's men that are not soldiers, but they're kind of always, if there's a real siege on your city, then by default, all your able, what they call sometimes military-aged men, they are all your soldiers, so they all get killed. I don't know to what extent, like, yeah, you might be able to leave some over, it doesn't say, because obviously only in the next verse, like, in the story of Shiv Amen [Sheva Amim — the seven nations], it tells you explicitly not to leave over any living thing, so, but this has to be, it has to be like a full loss.

But you will take their women, their children, their animals, their livestock, everything, all their possessions, you take them, and this is the spoils of war, which Hashem gave you, and you have that, so those are the two options of going to war.

The Exception of the Seven Nations

Now, there's an exception set to this option, it's not clear entirely to which exception, at which stage this exception is set, I think that we should probably read it, and I think Rambam and others read it this way, as being after peace was not accepted. So Rambam quotes explicitly a gemara that says, even for the wars, and these people, even the Shiv Amen, the seven nations of Canaan, there was an offering of peace, they could have accepted that, but after that, there's a difference.

Distant Cities vs. The Seven Nations

In the, in any city that's far from you, that's not part of the place where you have to actually live, so there's an option of, like, subjugating them, and they're being under you. But from these cities, if they do not accept terms of peace, which is them accepting really to live under you, and by your terms, then you will have to do something more than that, do not let alive any living being, Kal Neshumah [kol neshamah — any soul], don't let anything alive, and this probably means that's the basic point.

The Law of Cherem

And, but, you should do Kerem [cherem — total destruction/ban], right, Kerem means destroying it entirely, in other words, you're not even going to take their soul [spoils], right? Of course, this was not entirely done, even Yeshua [Yehoshua — Joshua] did some Kerem, not entirely, only certain cities, but what this means also is don't take any of their stuff, and we know in Sefer Devarim, many times there's a concern that you'll take their stuff, you'll take their idols, you'll take their, and then you will end up doing the same thing.

But, you will put them to ban, but make a Kerem, and it gives a list of precisely who, so this is a very precise law, these seven people, as God is commanding you.

The Reason: Cultural Contamination

And the reason for this, this is not, there's no, there's an important reason for this, since these are people that are going to be living with you, so if they entirely accept, that's one thing, but as long as they're enemies, subjugated enemies, the problem is that they will continue with their evil culture, and you do not want them to teach you all their abominations, which they do for their gods, as the Torah in other places says, it means they will teach you child sacrifice, and things like that, and you will send [sin] to Hashem your God, so you don't want them to teach that to you.

So you have to entirely destroy them, not destroy all of their culture, even their material culture, right, don't even take their gold and silver, their nice things, and so on. That's the law of the Kerem of the seven nations. That's, so, and this is like a qualification for the law of what you do when you win a city. So, for that, there's a qualification that it's not the exact same, when you are talking about these nations, that you have to live with them, because then you have to be worried about their influence, even after you won, that's an important thing.

The Law of Fruit Trees During Siege

Now there's one more law, again, a limitation on the war, so we discussed, and this is also a qualification, something we learned, we discussed that if you, that this is all about siege warfare, about conquering cities by siege, so there's an important limitation on the siege, it's very interesting to understand this law, what the point of it is.

Preserving Productive Infrastructure

And the law is, if when you place siege to a city, for many days, right, that's how the logic of a siege, you have to do it for many days until the city gives up, or you find you breach it, then you should not destroy its trees. You do not cut up the trees, you do not let an axe fall on their trees, in other words, the trees that produce fruit, that's the regular tree mentioned in the Tanakh, it's not just a tree with leaves, it's the trees that produce fruit, but you should eat from it, but do not cut it down.

The Rhetorical Question

And it gives a sort of reason for, as a tree, as not, right, it's a thing and a question, it's a rhetorical question, is a tree a human being that will run and come into the siege for you? In other words, we assume, and this is matching what we said, the aim in here, and specifically not from the Shevam [Sheva Amim], is not total destruction, we always want to conquer the city, we want to have the city as much as we can, we want to not destroy more than we need to.

So if there's an infrastructure, that's the way, the broader way to say this, right, there's infrastructure, there are fruit trees that give out fruit, don't destroy those trees, you need them to eat for yourself, you need them, once you conquer the city, you don't want the city to be entirely destroyed, so don't destroy their vital infrastructure that gives them food, because that's not smart. Humans, you're not destroying, they're going to be stuck in the siege, and yes, you want them to surrender in the end, you really want them to stay. But a tree, just outright destroying, that's not what you can do.

Using Non-Fruit Trees for Siege Equipment

But of course, you need trees for your siege, right, a siege, you build all kinds of things out of wood, siege towers and stuff like that, so that's what it says, you'll cut down the trees that are not, not trees that give out food, not fruit trees, you will cut down and create a siege, and then you will lay siege to the city until it goes down, until it surrenders in front, before you.