The Original Source of Militia Law?

torah_scrollIn an online publication of the Denver University Law Review, Dave Kopel argues that Ancient Hebrew Militia Law, as described in the Book of Deuteronomy (a book considered canonical by Jews and Christians alike), is the forerunner of American militia concepts. He may be on to something. The Bible is the one book that Revolutionary-era citizens were likely to have in common, whether they were poor farmers who had no other book, better-off artisans who had a few volumes, or rich planters or merchants with densely-packed libraries.

Most interesting to us, was the book’s handling of exemptions and conscientious objectors.

The Book of Deuteronomy (the second law) is the last book of the Torah (also known as the Pentateuch). Deuteronomy provided generous exemptions from militia service: anyone who had built a new house but not yet dedicated it, or who had planted a vineyard but not eaten of it, or who was betrothed but who had not consummated his marriage, or who had been married for less than one year.[6]

A modern Conservative Jewish version of the Pentateuch with commentary, the Etz Hayim, observes that the exemptions protected anyone whose death in battle would be especially unfortunate. But why do they not rely on God to prevent tragic death? Although God may work miracles, protecting the righteous from harm, we may never force God’s hand by demanding a miracle—putting good people in danger and expecting God to protecting them. We cannot ignore our obligations to make the world a safer and more just place by depending on God to set things right.[7]

The “fearful and fainthearted” were also excused, lest they depress the morale of the willing.[8] This last exemption was militarily sound: a few faint-hearted people who fled might set off a panic causing the whole army to flee. A broken army, fleeing away in fear, would likely be slaughtered by its pursuing foes.

Henry V

Choose your Henry V: for us Branagh edges out Olivier.

Just goes to show you that some themes are of very great antiquity. And when you think one is of great antiquity indeed: consider Henry V’s 17th-Century plea:

[P]roclaim it, Westmoreland, through my host; that he which hath no stomach to this fight, let him depart; his passport shall be made and crowns for convoy put into his purse: we would not die in that man’s company that fears his fellowship to die with us.

Of course that speech is fictional, it’s Shakespeare’s, not really Henry’s. But allow for a minute the conceit that it was the warrior King’s; would he have known that the ancient Hebrews, too, declined to go to war in the company of “the fainthearted”?

via The online supplement to the Denver University Law Review – DULR Online Articles – Ancient Hebrew Militia Law.

3 thoughts on “The Original Source of Militia Law?

  1. Medic09

    I don’t find Kopel’s argument too convincing. It relies too much on opinions formulated from the Conservative movement, and intended to fit the sentiments of our time: to wit, that the regulations regarding draft of soldiers were heavily intended to prevent undue hardship on families and communities. That is indeed an outcome of such regulation; but a traditional understanding in place for thousands of years (and probably relevant to when these regulations were actually in force) is that the emphasis is more on preventing a destruction of morale among the warriors. I think this is well reflected in Maimonides’ presentation, which is generally considered pretty authoritative. Traditional Jewish law presumes an ab initio obligation to serve in the army/militia when called. The exemptions are predicated on the needs of the war effort, primarily of achieving victory; less so (though still possibly true) on the modern day liberals’ feel-good view that we should be considerate of those left at home. Support for the more traditional understanding in emphasis may be seen in context by considering other laws within the topic – such as permitting a warrior to take a woman captive as his wife, or the permission to eat non-kosher meat when out at war.

    Regarding Mr. Kopel’s thesis, let us not forget that while many of the founding generations of Americans knew their Bible and had some interest in ancient Israel (at least as so far as it helped understand Christianity); they had little love for contemporary Jews and Judaism, as reflected in any number of incidents and restrictive laws or regulations in place at the time. That’s just the way it was. I would question how much they would be consciously influenced by Jewish law with regards to contemporary affairs.

    A more thorough and interesting argument indicating the possible influence of Jewish law in English, and later American, common law is in Grosby’s article here: I think it more likely that the influence of ancient Jewish law on American law and legal philosophy came about originally through this subtle path of English Christian Hebraicists. The arguments between the republicans and the federalists over whether or not there should be a standing army may have been influenced through this path; but I rather doubt they were clearly aware of a Jewish influence in the debate.

    1. Hognose Post author

      Interesting insight in the Grosby article on Selden. I was unaware of him (probably learned something of him to get through exams or subject GRE long ago, but promptly purged the memory) although the general framework of 17th-Century disputes over power between Crown and Parliament should be known to many.

      It is interesting, though, that the Hebrews did not seem to have a standing army, whereas their enemies in Egypt and Babylon seem to have done so. One wonders if Napoleon’s levée en masse was really a new idea or just the same thing that Xerxes had at his disposal in antiquity.

      I hadn’t thought about tying it in to modern Israeli practice. I am aware of the tension around the national-service exclusions for the ultra orthodox, but as an outsider probably don’t understand the problem thoroughly.

  2. Medic09

    Another critical point which Mr. Kopel did not mention, and may not know, is that the exemptions mentioned in the Torah were only ever used for an ‘optional’ war. The sages in the Talmud explain that there are different sorts of war for legal purposes. An ‘obligatory’ war, such as a war of national defense (or other examples I won’t go into), has NO EXCEPTIONS in terms of a draft. So when calling out the populace to fight off invaders, those exceptions that supposedly were exempted because their deaths or disability would cause special hardship do not apply. This is universally agreed upon by Jewish legal and scriptural authorities throughout the ages. The exceptions only apply when the war is ‘optional’, such as a war of conquest waged to increase the king’s reputation. All of this is clearly stated in the Talmud and in later codes as having always been the case. Most of Israel’s wars in ancient times, and in modern times, were of the ‘obligatory’ type; in which case the entire exemptions discussion is largely theoretical.

    Regarding modern Israeli practice, the situation is greatly complicated by social and political issues. There is also the issue of the government (or the military) being the SME with regards to national needs. If they agree to an exemption, well then maybe it is possible in present circumstances. That of course presupposes their authority to also cancel such exemptions. Many of us in the religiously observant community (myself included back then) see IDF service as obviously a matter of national defense, and service therefore a matter of religious, as well as social or legal, obligation. But the national argument is complicated by socio-religious factors, as I noted.

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