The Torah (Devarim 6:10-11) makes an astonishing implication in its description of the incredible boon we find when we enter the land of Kena’an – “Houses already filled with all sorts of fine items, pits already dug, and vineyards and olive groves that you did not plant, that you may eat to your satisfaction.” The Torah implies that we may eat any of the items we find in the homes of the people of Kena’an that we shall conquer, even if the food is not kosher! In fact, the Gemara (Chullin 17a) supports this explanation, stating that we may even eat dried pig that we find in these homes! Chazal rule that this is permissible, despite the fact that they could have interpreted the Pesukim as permitting only those items, such as vineyards and olive groves (assuming they are not Orlah), which are kosher.
Rambam (Hilchot Melachim 8:1) severely limits the application of this Halachah. He imposes four limitations on the Halachah, stating that it applies only to front line soldiers, only if they are in enemy territory (where the supply lines from the Jewish army are disrupted), only if they are very hungry and only if there is no other food available. The Kesef Mishneh (ad. loc.) explains that the soldiers to whom Rambam refers need not be dangerously hungry to the point that they will die if they do not eat. Rather, they are simply very hungry, and they cannot find kosher food. The Netziv (Ha’ameik Davar to Devarim ad. loc.) explains “that the permission granted is due to Pikuach Nefesh (danger to life), as being overly concerned about Kashrut during war can lead to endangering lives.”
The Torah, according to the Rambam’s approach, is expanding the definition of Pikuach Nefesh in a wartime scenario. Soldiers in battle are in a situation of severe stress and must be as alert as possible to preserve their own lives, the lives of their comrades-in-arms, and the nation they are protecting. A soldier who is not properly fed might not fight as effectively as he must, and he might thereby endanger lives.
The scenario described by the Rambam was the very unfortunate and regrettable reality encountered by some Israeli soldiers who fought in the 2006 Second Lebanon War. Soldiers were located deep in enemy territory, where the supply lines were disrupted. They were very hungry, and non-kosher food was available in the homes they had taken over. These soldiers asked if it was permissible for them to follow the Rambam’ opinion and partake of the non-kosher food (Techumin 27:399).
In fact, many years ago, I counseled a relative, who was assigned to command a security checkpoint in Shomron from early morning to the afternoon, to drink water on Shivah Asar BeTammuz, lest he become dehydrated and incapable of properly executing his potentially life-saving duties. Since then, the rabbinate of Tzahal has greatly improved its services, and I now counsel those who ask to present such dilemmas to their Rav Tzeva’i (military chaplain).
One major impediment to following this Rambam is the fact that the Ramban (Devarim ad. loc.) rejects his interpretation. The Ramban understands that the permission granted has nothing to do with combat conditions or Pikuach Nefesh. Rather, it is specific permission given under specific circumstances for all of Am Yisrael to eat the non-kosher food that is found in the homes of the people that we conquer during the time of Yehoshua. According to the Ramban, this Halachah has no practical relevance beyond the time of Yehoshua bin Nun. Support for the Ramban may be garnered from the fact that there is no mention of war or soldiers in Devarim 6:10-11.
We offer two explanations for why the Torah, according to the Ramban, granted such permission to our ancestors. One possibility is that this permission demonstrates the principle of Yalta (Chullin 109b) that for everything non-kosher, there is a kosher counterpart. The examples she offers are the permitted Cheilev (fat) of a Chayah (a non-domesticated animal), which is the counterpart of the forbidden fat (Cheilev) of a Beheimah (domesticated animal); a part of the permitted Shivuta fish (which tastes like pig), which is the counterpart of pig; and Dam Tohar (see VaYikra 12:1-8), which is the counterpart of Dam Niddah.
Yalta thus illustrates that the forbidden items do not represent the essence of the prohibitions, per se, but stem purely from the requirement to obey Hashem. One might similarly suggest that the Torah permitted us these counterpart items to emphasize that we abstain from forbidden foods not because there is something inherently wrong with them, but only due to adherence to the divine discipline.
Another explanation (based on Rav Elchanan Samet’s Iyunim BePharashi’ot HaShavua 2:311-313) is that Hashem seeks to limit the challenge we face upon entering Eretz Yisrael. We are faced with the enormous difficulty of eliminating the Avodah Zarah (idolatry), which is at times quite valuable (see Devarim 7:25, which states that some of the Kena’anim’s idols are made of gold and silver). Eretz Yisrael when controlled by the seven nations, as evidenced in Devarim 12:1-3, is awash with Avodah Zarah. It is an enormous challenge for our ancestors (and can be today as well if valuable Avodah Zarah falls into our hands, such as from the estate of a non-observant relative or as a gift from a business partner) to destroy Avodah Zarah, which sometimes can be worth a fortune.
Moreover, the Jews, upon entering Eretz Yisrael, have not eaten conventional food for forty years. They are in the midst of the war to conquer Eretz Yisrael and, therefore, are likely not to have the opportunity to properly cultivate various crops. Thus, they are very likely subsisting on whatever food they can find. When they conquer a home of a Kena’ani, they are confronted with Torah prohibitions and obligations that are enormously difficult to fulfill. Under these circumstances, Hashem permits the lesser of the two evils, non-kosher food, in order for us to withstand the challenge of having to utterly destroy Avodah Zarah, no matter how great its value.
Support for this explanation may be gleaned from the words of the Ramban, who states, “all the prohibitions were permitted to them except for the prohibition of Avodah Zarah.” This implies that the permission emerges from the concern for adherence to the Avodah Zarah prohibition. This is an example of Hashem not imposing too difficult of a challenge upon us (see Avodah Zarah 3a). Beit Din is similarly enjoined from imposing a decree that is too difficult for most of the community to endure (Avodah Zarah 36a).
The permission to violate the less severe prohibition is similar to Eliyahu’s permitting the offering of Korbanot outside the Beit HaMikdash on Mount Carmel (Melachim Aleph chapter eighteen) in order to wean the people of the northern kingdom from idol worship (see Rambam Hilchot Yesodei HaTorah 9:3). Rav Avraham Yitzchak HaKohein Kook similarly explains (Chazon HaTzimchonut VeHaShalom) that the Torah permits killing animals for food in order to stress the severity of the prohibition to murder.
Halachah LeMa’aseh – Practical Application
It is difficult for Posekim to permit soldiers to follow the Rambam’s opinion. The Shulchan Aruch does not address this issue, as it was not a relevant issue at the time of its composition, when there was, sadly, no Jewish state and no Jewish army. The Aruch Hashulchan HeAtid (Hilchot Melachim 77:2-3), which does address issues of war, strongly objects to soldiers following the lenient opinion in the wake of the many questions he poses against the Rambam. Indeed, Rav Yitzchak Herzog, the Ashkenazic chief rabbi of Eretz Yisrael during World War Two, counseled soldiers who were fighting the Nazis (Yimach Shemam) in the Jewish brigade of the British army to avoid non-kosher food despite the difficulty of doing so (Teshuvot Heichal Yitzchak O.C. 42). While praising those who fought in the Jewish Brigade and extolling its important role in fighting the evil Nazis, he reasoned that the Ramban certainly does not permit eating non-kosher food in such circumstances, and even the Rambam might limit the permission to soldiers fighting in a Jewish army.
Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 18:70), addressing the challenges faced by soldiers in Tzahal, is very reluctant to rely on the Rambam’s opinion in light of an insight of the Meshech Chochmah. The Meshech Chochmah notes that the Pasuk that follows immediately after the Torah permits us to eat the captured items states, “Be careful not to forget Hashem.” He interprets this as a warning of the possible very negative impact of consuming the non-kosher items, despite the Torah permission to eat them. He notes that the Gemara (Yoma 39a) warns of Timtum HaLeiv, the spiritual numbing of the heart that occurs as a result of consuming non-kosher items, even when it is permissible to do so.
The Meshech Chochmah points to the Shulchan Aruch’s resolution (Orach Chaim 328:14; see also Mishnah Berurah 328:39) of a classic dilemma posed by the Rishonim regarding one who, on Shabbat, must consume meat to save himself from death but cannot obtain kosher meat. In such circumstances, one must choose between violating Shabbat, a capital crime, by slaughtering an animal to render its meat kosher, and eating available non-kosher meat, which is a negative prohibition. The Shulchan Aruch rules that one should violate Shabbat instead of eating non-kosher food, even though eating the non-kosher food is a less severe prohibition. The reason, explains the Meshech Chochmah, is that eating non-kosher food leaves a negative impact upon the Neshamah.
According to the Meshech Chochmah, the permission to eat non-kosher food is implicitly discouraged by the Torah, not unlike the Torah’s implicit discouragement (see Rashi to Devarim 21:11 s.v. VeLakachta) of availing oneself the Torah’s permission of the Eishet Yefat To’ar. He understands the permission as a concession to the Yeitzer HaRa (evil inclination; see Kiddushin 21b) and as something that maximum efforts should be made to avoid. The Rambam’s permission might be compared to the permission to eat on Yom Kippur granted to the one bringing the Sa’ir LaAzazel (see VaYikra 16:21-22) to the desert cliff. The Mishnah (Yoma 67a) states that food was offered him at each of the ten stations located en route from the Beit HaMikdash to the cliff. The Gemara (ibid.) notes that no one who walked the Sa’ir HaMishtalei’ach ever partook from the food on Yom Kippur, but the very fact that it was permitted helped them because of the paradoxical principle of Eino Domeh Mi SheYeish Lo Pat BeSalo LeMi SheEin Lo Pat BeSalo, one who has the option to eat cannot be compared to one who does not have what to eat. When one is given the option to eat, he is less desirous of the food than he would have been had it been forbidden to him. Similarly, it is possible that even the Rambam believes that the Torah permits the soldier to eat non-kosher food when behind enemy lines in order to (paradoxically) help him resist the temptation to eat non-kosher food.
Conclusion – The Experience of Mr. Jack Scharf zt”l
The experience of Mr. Jack Scharf zt”l of Riverdale, New York, a highly decorated soldier in the American army in the European theater during World War Two, adds much cogency to the comment of the Meshech Chochmah. In a speech at the Torah Academy of Bergen County in 2005, he recounted that he avoided non-kosher meat as a front-line combat soldier; the only meat he ate was the kosher salamis that his mother sent him from home, which were occasionally delivered to him. His friend Mr. Saul Leiman of Bronx, New York, also spoke at that event and noted that he also refrained from eating non-kosher meat during his years of serving in the United States army during World War Two in the Pacific theater, surviving on ice cream, fruit, and vegetables. Mr. Scharf also mentioned the very negative impact of non-kosher food on the Jewish soldiers who did not have the fortitude to refrain from non-kosher meat. He recalled that they were wont to flippantly remark, “Uncle Sam taught me how to eat ham,” which unfortunately means, “I became highly assimilated while serving in the American army.” It is no wonder that, on the one hand, Mr. Leiman and Mr. Scharf went on to raise observant Jewish families after the war, while, on the other hand, the experience of the hundreds of thousands of Jews who served in the American army during World War Two contributed mightily to the tragic assimilation of a large percentage of the American Jewish community.
Thus, as is noted in Techumin 27:407 by a contributor from Yeshivat Har Etzion, it is difficult to rely on the Rambam’s opinion in practice. Even under severe stress, soldiers should make every effort to avoid relying on the Rambam’s lenient approach or, at the very least, to minimize their reliance on this approach in a case which might involve Pikuach Nefesh. May Hashem quickly send Mashiach and render this and all Halachic discussions of war as merely theoretical discussions.