This passage from the Tosefta is part of the tannaitic effort to guide Jewish conduct during a war (see, additional examples in Tosefta Eruvin 2:6 and Mishnah Eruvin 1:10; see also a parallel in Sifre Deuteronomy 203, Finkelstein edition, p. 238). Here, rabbinic halakhah presents Jews not only defending themselves but also laying siege on gentile settlements in an optional war (milḥemet hareshut). This form of volitional war was initiated by Israelites to expandtheir territory. It is one of several categories of warfare discussed in tannaitic literature, sometimes with different definitions: in Mishnah Sotah 8:7, for example, milḥemet hareshut is contrasted with milḥemet mitzvah, which is described as a response to an enemy attack. In that context, milḥemet hareshut, which could also be understood as “a non-compulsory war,” refers to either an Israelite offensive against non-Jews or a campaign to expand Jewish territory (see different views on this type of warfare in Jerusalem Talmud Sotah 8:7, 23a). An “obligatory war” (milḥemet ḥovah) also occurs in writings from this period, often referring to military campaigns that were commanded by God (for various opinions on these categories, see also Henshke, “The Optional War” and the commentary on Tosefta Eruvin 2:6).
David Henshke claims that Jewish literature from the Second Temple period, such as texts from Qumran and 1 Maccabees, does not include the concept of optional war (milḥemet hareshut); rather, this definition first appears in tannaitic compositions. Moreover, he argues that Josephus and Philo opposed this form of warfare; thus, he concludes that Second Temple texts offer no legitimacy for optional wars (“The Optional War,” p. 51-59). However, Israel Ben-Shalom maintains that Josephus presents diverse views on optional wars and the permissibility of engaging in battle on Shabbat during such wars. He explains that Josephus’s perspectives vary according to his sources and his particular goals and motivations in his discussions on these subjects. Moreover, in contrast to Henshke, Ben-Shalom claims that, in practice, the Hasmoneans fought on Shabbat not only to defend themselves but also in what rabbinic texts would later define as optional wars. In that context, he recalls the extended sieges conducted by the Hasmoneans (The School of Shammai, p. 90-93).
It seems, therefore, that the exercise of military power for territorial expansion would necessarily entail armed actions on Shabbat. Thus, this tosefta regulates such operations. Our text addresses a possible contradiction between the laws of Shabbat and required activity during a siege. Scholars have devoted significant attention to the subject of Jews fighting on Shabbat (Herr, “The Problem”; Ben-Shalom, The School of Shammai, p. 89-90), yet this tosefta focuses on a specific topic: How close to Shabbat may Jewish forces lay a siege (assuming that it will likely continue through Shabbat)? Section A prohibits starting a siege “less than three days before Shabbat.” That is to say, in the case of an optional war, a siege may begin from Sunday up to sunset on Tuesday (since each day begins at sundown in the Jewish calendar). However, even if a Jewish army initiated a siege between Tuesday eve to Friday before sunset (when Shabbat begins), it may be maintained during the Shabbat. Although neither obligatory nor divinely commanded warfare are mentioned here, the Tosefta seems to assume that this restriction does not apply to these wars. Indeed, Jerusalem Talmud Shabbat 1:7, 4a-b explicitly articulates this understanding:
אין מקיפין על עיר שלגויים פחות משלשה ימים קודם לשבת. הדא דתימר במלחמת הרשות. אבל במלחמת חובה אפילו בשבת. שכן מצינו שלא נכבשה יריחו אלא בשבת. דכת' "כה תעשה ששת ימים". וכת' "וביום השביעי תסובו את העיר שבע פעמים". וכת' "עד רדתה". אפילו בשבת.
It is prohibited to surround (lit. [They] do not surround) a town of gentiles less than three days before Shabbat. This pertains to [lit. is said about] an optional war (milḥemet hareshut), but regarding the obligatory war (milḥemet ḥovah), even on Shabbat [laying a siege is permitted]. For we found that Jericho was conquered on Shabbat. As it is written [in Scripture]: “[Now Jericho was shut up inside and out because of the Israelites; no one came out and no one went in. The Lord said to Joshua, ‘See, I have handed Jericho over to you, along with its king and soldiers. You shall march around the city, all the warriors circling the city once.] Thus you shall do for six days’” (Joshua 6:1-3, NRSV); and, it is written [in Scripture]: “On the seventh day you shall march around the city seven times” (Joshua 6:4, NRSV); and, [further,] it is written [in Scripture]: “Until it falls” (Deuteronomy 20:20, NRSV) – even on Shabbat.”
According to the Talmud, the limitations imposed on optional wars are applicable to obligatory wars. The Talmud quotes the biblical narrative about the fall of Jericho to demonstrate that a siege may begin on Shabbat in an obligatory war (however, this Scriptural example describes a war that was commanded by God so, perhaps, two categories of warfare are depicted in this text). Saul Lieberman explains that the siege of Jericho takes place on Shabbat since, on the first six days of this mission, the Israelites returned to sleep in their camp after they marched around the city, and the conquest of this city actually started on Shabbat (Tosefta Ki-Feshutah, vol. 3, p. 343; on the tannaitic traditions that this city was conquered on Shabbat, see Kahana, Sifre Zuta, p. 289). The Talmud also draws on Deuteronomy 20:19-20, which presents the laws for a siege:
“(19) If you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an ax against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you? (20) You may destroy only the trees that you know do not produce food; you may cut them down for use in building siege works against the town that makes war with you, until it falls” (Deuteronomy 20:19-20, NRSV; italics added).
These verses speak of an extended siege. It is not clear whether the talmudic section that uses this verse (at the end of our passage) was quoted to support the permission to lay a siege on Shabbat (i.e. in an obligatory war) or, more likely, to affirm the continuation of a siege that started at least three days before Shabbat (in an optional war). In other words, since this talmudic passage addresses both optional and obligatory wars, the type mentioned here is ambiguous (for Henshke, “The Optional War,” p. 72, this selection is concerned with obligatory warfare; see also Herr, “The Problem,” p. 252). Section B of our tosefta attributes this midrash to Shammai the Elder, who was active during the reign of Herod or his successors. Shammai quotes this passage from Deuteronomy to teach that a city may be besieged during Shabbat. However, in the Tosefta, this tradition is positioned to affirm the law in Section A which, as we have seen, permits maintaining a siege that was laid before Shabbat in an optional war (see also Sifre Deuteronomy 104, Finkelstein edition, p. 240). For Ben-Shalom, the attribution of this permission to fight on Shabbat during an optional war to Shammai the Elder is not coincidental, since his house (or school) represents the early (i.e. ancient) halakhah that originated in the Hasmonean period. The House of Shammai tended to advocate for such military operations and was later associated with zealots and their wars against Rome (The School of Shammai, p. 93; but cf. Kahana, Sifre Zuta, p. 287-288).
The attribution of the teaching in Section B to Shammai the Elder may indicate the early origins of this law, perhaps from a time when Jews exercised military power, whether in revolts against Rome or, even earlier, during Hasmonean rule. Nonetheless, it is noteworthy that the Tosefta, whose completion is dated to the third century CE, preserves this law, and many others that regulate Jewish military conduct. Significantly, these laws typically mention gentiles in general terms, without reference to Rome. Thus, our text belongs to a body of Palestinian rabbinic teachings that are concerned with the daily operations of a military camp despite having been compiled when Jews lived under Roman rule, without their own rebel forces or an army. Nonetheless, the Jewish military camp remained a topic of discussion.
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