R. Yair Hayyim Bachrach as a Writer of Romance?, A Non-Jewish Song Made Holy, Love (and More) Before and After Marriage, and Memoirs that Maybe Tell Too Much

R. Yair Hayyim Bachrach as a Writer of Romance?, A Non-Jewish Song Made Holy, Love (and More) Before and After Marriage, and Memoirs that Maybe Tell Too Much
Marc B. Shapiro
Continued from here
There is an interesting responsum of R Yair Hayyim Bacharach, Havot Yair, no. 60, that deals with a man and woman who were in love and get married despite the strong opposition of the woman’s father. The story is quite romantic. It describes how during an epidemic in Worms in 1636 the beautiful and intelligent only daughter of one of the rich leaders of the local Jewish community falls ill. There is a man who had fallen in love with her and wants to take care of her in her illness. We are told that this man is tall and handsome, yet he comes from “the other side of the tracks” (i.e., from the lower class). He is able to get the agreement of both the father and daughter that if he takes care of the woman, which would be at great personal risk to himself, and she recovers, that they will marry. The woman indeed recovers but the man himself becomes sick, and the roles are reversed. The woman now takes care of him, which is only fitting since he caught the illness taking care of her. She too has fallen in with him and fortunately he survives, meaning that they are now able to marry. However, the father wishes to go back on his side of the agreement, which obligated him to provide a dowry, and that is the halakhic matter that the responsum focuses on.

Elchanan Reiner has argued that the entire story is a fiction, and what R. Bacharach, one of the most important 17th century halakhic authorities, has done is create a love story in line with the romantic stories that were appearing at this time in general literature. The story can therefore be seen as similar to a parable that is created for use in a sermon.[1]
The story R. Bacharach records is about a woman, indeed an only daughter, from a rich and important family. On the other side you have a poor man with no financial future. These are two people who in traditional Jewish society (and general society as well) normally would never be allowed or even want to come together. Yet because of the unusual circumstances of the epidemic, the man who dreams of the woman he could normally never have, is able to arrange a way to spend time with her and cross the boundary that otherwise would have kept them apart.
In the end we are inspired to see how love conquers all. For the sake of love the woman defies her father and gives up all the wealth that would be hers if she would only listen to her father and reject what her heart is telling her. It is a case of love vs. money, position, and power, and love wins. R. Bacharach mentions that when the father refuses to allow the marriage, the daughter says to him שעל כל פנים תזדקק לו הן בהיתר הן באיסור. What this means is that she threatens her father that if he doesn’t allow her to marry the man she loves, that she will be with him, i.e., sleep with him, anyway. For his part, the father says that he will not give her a dowry, and in the end ולקחה המשרת חנם. In other words, they married, but without any money from her father. They did what virtually no one else in 17th century Jewish society did. They married for love, choosing their own partners, without concern for status or money. According to Reiner, what R. Bacharach has given us in abridged form is nothing less than a Jewish version of Romeo and Juliet or West Side Story.
The late R. Raphael Posen responded to Reiner’s article, rejecting completely the latter’s hypothesis.[2] He acknowledges that the case described in R. Bacharach’s responsum may be theoretical, and notes that there are many such theoretical cases in the responsa literature. As for the romantic elements in the responsum, he states that in responsa one can find much “juicier” stories than the one discussed by Reiner, and there are also cases of lovers’ entanglements from completely different eras. Posen refers in particular to two responsa that appear in the Tashbetz. These responsa predate R. Bacharach by a couple of centuries. They also were written in North Africa, a place that did not have the sort of romantic literature that according to Reiner was the model for R. Bacharach’s responsum.
Reiner has a short and somewhat biting response to Posen.[3] He states that Posen’s article shows the very mentality that created the need for R. Bacharach to “cover up”, as it were, the love story he inserted into his responsa.
לא ניתן היה להעלות על הדעת דוגמא טובה הימנו להציג לקורא את פניה התרבותיים של השכבה החברתית שמפניה היה על חיים יאיר [!] בכרך מוורמס להסתיר לכאורה את סיפורו: שכבה העשויה מתלמידי חכמים בינוניים ובעלי בתים למדנים למחצה, הקוראים את הטקסט באופן חד ממדי, מפרשים אותו פירוש אחד ויחיד, שאינו סוטה מערכי היסוד הבסיסיים ביותר של סביבתם.
Reiner also states that what upset Posen was that Reiner’s portrayal of R. Bacharach diverges from the standard portrayal of “gedolei Torah” in that Reiner assumes that R. Bacharach was aware of the world around him and responded with originality to its intellectual challenges. Reiner obviously did not know Posen, as he assumed that Posen was an unsophisticated haredi ideologue with no appreciation for complexity in great rabbinic figures. The truth is that Posen, who represented the best of the German Orthodox tradition, was the exact opposite of this, as anyone can see by examining his essays in Ha-Ma’yan and elsewhere. As for the substance of the dispute between Reiner and Posen, I would love to hear which side readers come down on.
Regarding love prior to marriage, which we also discussed in the last post, it is noteworthy that there is a non-Jewish song focused on this theme that was turned into a religious song. Here is a Yiddish version of the original song, recorded by R. Yekutiel Yehudah Greenwald. It would have originally been sung in German or Hungarian [4]
וואַלד, וואַלד, ווי גרויס ביסטו
ראָזא, ראָזא, ווי ווייט ביסטו
וואָלט דער וואַלד ניט גרויס געווען
וואָלט דאָך מיין ראָזא נענטער געווען
וואָלט מען מיך פון וואַלד אַרויסגענומען
וואָלטן מיר זיך ביידע צוזאַמענגעקומען
This translates as:
Forest, Forest, how large you are,
Rosa, Rosa, how distant you are,
If the forest was not so large,
My Rosa would be closer,
If I would be taken out of the forest,
We would both come together.
By changing only a few words, R. Isaac Taub, the Kaliver Rebbe (1744-1828) turned this love song into a religious song, the title of which is גלות, גלות.[5]
גלות, גלות, ווי גרויס ביסטו
שכינה, שכינה, ווי ווייט ביסטו
וואָלט דער גלות ניט גרויס געווען
וואָלט דאך די שכינה נענטער געווען
וואָלט מען מיך פון גלות ארויסגענומען
וואָלטן מיר זיך ביידע צוזאַמענגעקומען
All this is well known in the hasidic world. It is so well known that one can only wonder how R. Yaakov Moshe Hillel could attempt to deny what I have just mentioned. In his Va-Yashav ha-Yam,[6] R. Hillel states, “Heaven forbid” to believe that any love songs were ever turned into religious songs by great rabbis:
(וכן מה שמפיצים שמועות כאלו על גדולים אחרים שהיו שומעים מהגוים שירי עגבים ומעתיקים אותם אל הקדושה, להלחין עליהם גם שירות ותשבחות גם קדישים וקדושות) אנא דאמינא ולא מסתפינא דחלילה להאמין כזה על גדולי ישראל שכבר כתבנו לעיל דלדעת כל הפוסקים אסור לשמוע שירי עגבים, ובעצם השמיעה לבד יש איסור, ואיך יתכן שגדולי ישראל יתעסקו בדברים מכוערים כאלו, חלילה להעלות כן על הדעת.
I have often written about how people are sometimes so convinced of something that when they are confronted with an alternative perspective in the writings of authoritative sages or in a report by a trustworthy person, they argue that the text is a forgery or the report is fraudulent, because gadol X never could have said or done such a thing. The situation with R. Hillel is even beyond this. The fact that the Kaliver Rebbe took a love song and turned it into a religious song is something that is known by all pretty much all educated Hungarian Hasidim (and not only Hasidim). It is worth noting that he didn’t just take the tune and add religious words, which is the case with other songs taken from the non-Jews. He actually kept the words, just changing a few of them.[7] Yet R. Hillel refuses to believe any of this. R. Hillel is a Sephardic Jew from India who probably knows close to zero about the history of Hasidism. Yet somehow he feels that he can declare that all the people who know the truth about this matter are not only incorrect, but are also degrading the honor of the Kaliver Rebbe.
Regarding love between husband and wife, I found an interesting passage from R. Levi Yitzhak of Berditchev.[8] He asks, why does the Torah tell us that Isaac loved Rebekkah? He answers that there are two ways a man loves his wife. One is that he loves her because of his physical lusts, “and this means that she is not his wife at all, rather, he [really] loves himself.” The other way of loving ones wife is because she is the “vessel” by which he can fulfill God’s commandments,[9] just like a person loves other mitzvot. “This is what it means that Isaac loved her, because he didn’t think at all about his physical desires, but was only intent on fulfilling God’s commandments.”
ויש אדם שאוהב אשתו ואינו מחמת תאות גוף שימלא תאותו רק מחמת שהיא כלי לקיים על ידה מצות הבורא ית’ שמו כמו שאדם אוהב שאר מצות וזה נקרא אוהב את אשתו וזהו ויאהבה יצחק שלא חשב כלל מחמת תאות הגוף שלו רק כדי לקיים מצות הבורא ית’ שמו ויתעלה זכרו.
R. Daniel Eidensohn has called attention to a similar approach attributed to the Baal Shem Tov, that you should love your wife as you love your tefillin. That is because with each of them you have the opportunity to fulfill mitzvot. See here. I don’t think this sort of interpretation will find much appeal in modern times, as it completely ignores the most obvious, and most important, type of love from husband to wife, which one hopes is present in every marriage. In fact, it is not only in modern times that such an interpretation would not be appealing, as all of the pre-modern sources that speak about loving one’s wife are indeed referring to real love.
R. Levi Yitzhak’s stress on love of one’s wife since she gives one the ability to perform mitzvot (i.e., purely utilitarian) is also at odds with other hasidic sentiments. For example, there is a famous story about a hasidic rebbe who was ill. A Lithuanian rabbi came to visit him late one night. He knocked on the door and when the rebbe answered the door, the rabbi said, “I have come to fulfill the mitzvah of bikur cholim”. The rebbe replied, “It is very late now, and I am tired and not in the mood to be the cheftza for your mitzvah.” This story is told among hasidim as a way to knock the non-hasidim. The lesson is that the Lithuanian rabbi should have come to visit the rebbe because he had the basic human emotion of wanting to show empathy to another who was suffering. Instead, he showed that this was foreign to his way of thinking, and his primary goal was simply to fulfill the mitzvah. And for that, the rebbe was not interested in taking part.
Since we are talking about love, I can’t resist sharing the following story told about R. Jacob Lorberbaum of Lissa. Like all of these types of stories, we can’t say if it actually occurred, but the fact that it is told is itself significant even if in this case I find it hard to believe that the sentiments expressed would be widely shared by any group. The story is found in R. Israel Beckmeister’s Ahavat Yisrael (Tel Aviv, 1976), pp. 49-50.

According to the story, a student once came to R. Lorberbaum and told him that since his wife hadn’t given birth in ten years he wished to divorce her. R. Lorberbaum asked him what his wife says about this, and he replied that she doesn’t want to be divorced as she loves him greatly. He also added that he too loves his wife greatly. R. Lorberbaum told him that he shouldn’t love her so much, and he should return home and God would grant him a child.
The student could not understand what R. Lorberbaum was telling him, since how could he tell a husband not to love his wife so much. When he returned home his wife asked him what R. Lorberbaum said, and he replied sharply that it does not concern her. This led to an argument and he slapped his wife, causing her to faint and leading to a great rift between them. The wife’s parents intervened and they were able to make peace between the couple, and following this the wife became pregnant and had a son.
R. Lorberbaum, who served as sandak, asked his student if he followed what he told him, i.e., not to love his wife so much. The student replied that he did, and that he also slapped her. R. Lorberbaum told him that the slap was too much, but that he should know that the scientists have stated that if a husband and wife are very much alike they cannot have children. Thus, when he heard that his student and his wife loved each other greatly, he understood why they couldn’t have children, and that is why he told the student that he shouldn’t love her so much. In other words, only if there is some distance between them will they be able to have children. (The nonsense that earlier generations believed in never ceases to amaze me. I realize, of course, that future generations might think the same about us.)
Another relevant text is found in R. Hayyim ben Betzalel of Friedberg’s Sefer ha-Hayyim. As part of my Torah in Motion tour of Germany this summer, we are going to Friedberg. The most famous of the rabbis of Friedberg was R. Hayyim ben Betzalel, the brother of the Maharal and a great scholar in his own right. In preparation for the trip I am reading material by and about R. Hayyim, and the following is one of the fascinating things I found.
In his Sefer ha-Hayyim,[10] R. Hayyim notes that the demons want to connect themselves with scholars or even with any men. However, this is difficult since men are on the highest spiritual level, and thus distant from the demons. Therefore, the demons connect themselves to women who are on a lower spiritual level than men, and thus closer to the demons. In other words, at the bottom you have demons, women are above them, and men stand at the top. As R. Hayyim explains, both demons and women share an important characteristic, namely, that they are naturally defective: חסירי היצירה. As proof for this contention about women, he cites Sanhedrin 22b:
אשה גולם היא ואינה כורתת ברית אלא למי שעשאה כלי
“A woman [before marriage] is a shapeless lump, and concludes a covenant only with him who transforms her [into] a [useful] vessel.”
The fact that the Talmud refers to a woman as a “shapeless lump” is proof for R. Hayyim that she is on a lower level than a man, and this basic division is not altered after marriage.
This then leads R. Hayyim to call attention to Exodus 22:17 which states מכשפה לא תחיה, “Thou shalt not suffer a sorceress to live.” He asks, why is only a sorceress mentioned, and not a sorcerer מכשף? He also calls attention to Avot 2:8, מרבה נשים מרבה כשפים, “The more wives, the more witchcraft,” which also makes the connection of sorcery to women. R. Hayyim explains that because of the closeness of women and demons the Torah was concerned that women would seek to “go down” and achieve completeness by connecting themselves with the demonic forces below them. This wasn’t such a worry when it came to men since they were “two levels above” the domain of the demons.
All of this is quite interesting, and R. Hayyim ben Betzalel was very happy with this explanation (which must be causing some readers to pull their hair out.) After offering it he expressed pride in what he wrote:
והנה לא קדמני אדם בפירוש זה והוא ענין נכון אצלי.
So what does this have to do with what I have been discussing in the post? R. Hayyim warns men not to be too connected to women (which includes their wives) since this will mean that they are trying to complete themselves and find perfection by means of someone who is on a lower level than them. I believe this to be in complete opposition to the modern romantic notion that men and women can be soulmates, for one cannot be a soulmate with one whose soul is literally on a lower level.[11]
Since I mentioned love between future husbands and wives, I should also note that there was concern that because young men and women were engaged, that they might initiate a physical relationship before the marriage. This explains the takkanot in Candia (1238) and Corfu (1663) forbidding an engaged man to even enter the house of his future father-in-law (where his fiancée lived).[12] The Corfu takkanah also states that an engaged woman is not permitted to be in the house of her future husband. The Corfu takkanah does make an exception that a month before the wedding the man and woman can be in the homes of their future in-laws. This is because there are wedding plans that need to be taken care of. But the takkanah specifies that the engaged couple must not be left alone.

The Candia takkanah states that if for some reason the man has to enter his future father-in-law’s home, he has to bring two men with him to act as his “guards”. The only exception to this rule is if the young man is studying Torah with his future father-in-law. In that case he can be at the home, since “the study of Torah is such as to weaken the force of the tempter.”

Solomon Buber records a 1776 oath signed by a man in Lvov declaring that he will not enter the house of his future bride under any circumstanced.[13] This was no doubt required by the rabbi. According to the text of the oath, if the man violates his pledge

אהיה נדון כעובר על השבועה בכל מיני עונשין וקנסים עצומים וחרפות ובזיונות בלי שום המלטה בעולם
R. Jonathan Eybeschuetz, in a sermon delivered in Metz in 1744, declared that “from this point on” he would only write a betrothal contract if the man and woman give their solemn agreement not to touch one another until after the wedding.[14]
As is clear from the sermon of R. Eybeschuetz just referred to,[15] many engaged couples were ignoring the law of negiah. Even Mendelssohn did not follow it, as we see from a letter he wrote to his fiancée. “Even the kisses that I stole from your lips were mixed with some bitterness, for the approaching separation made me heavy of heart and incapable of enjoying a pure pleasure.”[16]
In his autobiography, R. Leon Modena records the following about his young fiancée who was on her deathbed. He was 19 years old at the time.
On the day she died, she summoned me and embraced and kissed me. She said, “I know that this is bold behavior, but God knows that during the one year of our engagement we did not touch each other even with our little fingers. Now, at the time of death, the rights of the dying are mine. I was not allowed to become your wife, but what can I do, for thus it is decreed in heaven. May God’s will be done.”[17]
This story reminded me of an incident R. Jacob Emden records in his autobiography, although the details are entirely different. The translation of this lengthy passage is by Jacob J. Schacter in his outstanding dissertation on R. Emden.[18]
A miracle also occurred to me, especially relevant to matters spiritual. (It was) a miracle similar to that of Joseph the righteous and (even) slightly more so. I was a young man, tender in years, in the full strength of my passion. I had been separated from my wife for a long time and greatly desired a woman. A very pretty unmarried young girl who was my cousin happened to meet me there and was alone with me. She brazenly demonstrated great love to me, came close to me and almost kissed me. Even when I was lying in my bed, she came to cover me well on the couch, in a close loving manner. Truthfully, had I hearkened to the advice of my instinct she would not have denied my desire at all. Several times it (indeed) almost happened, as a fire (consumes) the chaff. Frequently there was no one in the house with me but her. They (i.e. the members of her family) were also not accustomed to come for they stayed in the store on the marketplace, occupied with their livelihood all day. Had God not given me great strength, the excellency of dignity and the excellency of power (Gen. 49:3), to overcome my fiery instinct which once almost forced me to do its bidding, (and) were it not for the grace of God which was great upon me, (I would have been unable) to withstand this very powerful temptation, greater than all temptations. I was a man at the prime of my strength and passion. There was a very pleasant beautiful woman before me who demonstrated for me all manner of love and closeness many times. She was related to me, unmarried, a tender child and recently widowed. She may have been ritually pure or would have ritually purified herself had I requested it. If I had wanted to fulfill my passionate desire for her, I was absolutely certain that she would not reveal my secret. I controlled my instinct, conquered my passion and determined to kill it. My heart was hollow and I did not . . . Blessed be the Lord who gives strength to the weary for I was saved from this flaming fire.
Schacter does not translate the next sentence in the memoir in which R. Emden expresses the wish that as a reward for standing firm, he and his descendants until the end of time will be protected from sexual temptation.
Here are the pages from the Warsaw 1896 edition of Megilat Sefer, pp. 82-83.
In 2012 a new edition of Megilat Sefer appeared, edited by R. Avraham Yaakov Bombach. Here is page 106 from this edition.
As you can see, the Bombach edition has omitted the entire story R. Emden tells. While R. Emden thought it was important for people to know about how he overcame his evil inclination, and he therefore recorded it for posterity, Bombach obviously felt that this is “too much information.” Instead of discussing the significance (and strangeness) of R. Emden allowing us entry into his most personal memories, Bombach chooses the other path and censors that which he is uncomfortable with.
On the other hand, in the introduction to the recently published memoir of the Sephardic scholar, R. Joseph Hayyim Abuhbut,[19] the editor calls attention to the very passage I have quoted, and which was censored by Bombach. He notes how much value the reader can derive from this passage in seeing how R. Emden was able to overcome temptation.
מה מאוד מופלאים הם דברי הגאון יעב”ץ זצ”ל . . . כמה תועלת תצמח לקורא כאשר יווכח לראות באיזה נסיונות נתנסה זה האיש המרעיש ארץ, מי מילל ומי פילל.
R. Elijah Rabinowitz-Teomim mentions in his autobiography that he lived in the home of his future father-in-law together with the girl he was engaged to.[20] At that time he was around sixteen years old and she was under fifteen. He mentions that she was in love with him: והיא דבקה אחרי בלבה. As with R. Emden, he makes a point of telling us that although he engaged in much conversation with her, as they had become very close (“like brother and sister”), he never touched her in all the time he lived in her home. Unlike R. Emden who tells us how much he was tempted and that he “greatly desired a woman,” R. Rabinowitz-Teomim tells us that his relationship with the girl was purely platonic, and he never even thought about her in a sexual way. 
בשלהי שנת תרי”ט העתיק אאמו”ר ז”ל משכנו לעיר ראגאלי ועמו יצאו כל ב”ב, ונשארתי לבדי בשילעל בבית המחותן . . . בכל משך היותי בבית המחותן לא הייתי רחוק מהמשודכת והיינו מדברים זע”ז, ובשגם אחרי נסע בית אאמו”ר ז”ל משם ונשארתי בבית אביה, כל היום, והיא דבקה אחרי בלבה, כאשר ראיתי וידעתי גם שמעתי כי יקרתי בעיני’. . . היינו קרובים זה לזה כאח לאחות, לשוחח כנהוג בבני הנעורים, אבל לא עלה לבי על דבר אחר, חלילה, ולא נגעתי בה אפילו באצבע קטנה כל משך שבתי עמהם, כדת שלת תורה.
So we have three memoirs by leading rabbis, all of which mention them with a girl. Both R. Emden and R. Rabinowitz-Teomim feel it is important to inform the reader that they never touched the girl. As we have seen, R. Emden was very proud of how he overcame his evil inclination and that is why he tells the story. I don’t know why R. Rabinowitz-Teomim thought it was important to mention the matter, especially as no one would have assumed that he had any physical contact before marriage.
I found another interesting source in R. Eleazar Kalir’s Havot Yair.[21] R. Kalir, who died in 1801, was the rabbi in Kolín, today in the Czech Republic. He discusses the common phenomenon of engaged couples having physical contact, and he tells us that no rebuke can stop the practice. He also says that the fault for this must be placed mostly upon the parents, since they are happy to see this behavior by the engaged couple and thus make no efforts to stop it.
בעו”ה רבו המספחת זו בישראל שתיכף אחר התקשורת התנאים, החתן הולך אל הכלה ואינו נזהר מח”ו [חיבוק ונישוק], והיא גם היא אסור לו משום נדה שהיא בכרת . . . ובעו”ה הדבר הזה הוא כמנהג הקבוע, ואולי הוא ממנהגות סדום ודור המבול שהשחיתו את דרכם, והיתר זה אינו בא רק כמאמרם, עבר ושנה נעשו לו כהיתר, ובעו”ה אין התוכחה מועלת בזה, שאמר יאמר מה בכך, שאני הולך אל הכלה שלי, שהיא המיועדת לי, על זה סיים הנביא וכלה מחופתה שאינה נקראת כלה אלא לאחר חופתה, ואז רשאי ליחד עמה, ואמרו כלה בלא ברכה אסורה לבעלה כנדה, וק”ו בעודה לא טהרה מטמאת נדתה.
ולא על החתן לבד יש להתלונן אלא ביותר על אבותיהם שרואים דבר זה, ולא די שהם שותקים אלא אף משמחים אלי גיל בראותן מעשים הללו בעיניהן ממש כצאן לטבח יובל . . . והוא מסייע ידי עוברי עבירה, בראותו תולדותיו כיוצא בזה ולא די דאינו מוחה אלא אף מסייע לדבר עבירה, ואדרבה מוטל על האבות להיות מוחים ובפרט מי שסיפק בידו לעשות.
Elsewhere in his book, we see that R. Kalir told his female congregants that on Shabbat morning they should leave the synagogue and go home before the end of services. This was to prevent men and women mixing which would happen if the women were still there when services ended.[22] It is hard to believe that he found much of a receptive audience for this request.
To Be Continued
1. In my last post I mentioned Maxine Jacobson’s new book on R. Leo Jung. Anyone who is interested in purchasing a soft-cover copy of the book for $25 can contact her directly at maxine.jacobson at sympatico.ca.

2. One of the most prolific authors of halakhic works in English is Rabbi Ari Enkin. His most recent book (which is his eighth such publication) is Halichot V’halachot. Anyone who is interested in modern issues and their halakhic ramifications will enjoy this book and his previous volumes. The topics he discusses run the gamut, from Shabbat and holidays, to kashrut, interpersonal issues, and civil and monetary law. As one can see from the numerous references in each essay, Rabbi Enkin has great erudition in the responsa literature, particularly the modern halakhic authorities. He cites these authorities no matter which ideological camp they are found in, and as such should be a model for all. Those who wish to order the book can contact the author at rabbiari at hotmail.com. His website is here.

3. On June 5, 2016, in honor of Yom Yerushalayim, I will be speaking at the Community Synagogue of Monsey, 89 West Maple Avenue. The title of my talk is “R. Shlomo Goren: The Revolutionary Chief Rabbi.” The talk will follow minhah which is at 8:15pm.

[1] See Reiner, מעשה שאירע בק”ק ווירמייש”א ברעש הגדול שנת שצ”ו, Ha-Aretz, Oct. 4, 2006, available here.
[2] See Posen, מגדלים פסיכולוגיסטיים, Ha’aretz, Oct. 17, 2006, available here.
[3] See Reiner, שערי פירושים לא ננעלו, Ha’aretz, Oct. 24, 2006, available here.
[4] Toyznt yor Idish lebn in Ungarn ([New York, 1945]), p. 173.
[5] See ibid.
[6] Vol. 2, no. 7 (p. 145).
[7] See R. Avraham Mordechai Katz, “Be-Inyan Shirat Nigunim ha-Musharim Etzel ha-Goyim,” Minhat ha-Kayitz 8-11 (2006), pp. 73-74, who makes this point and responds to R. Hillel. Regarding using non-Jewish music, Dov Weinstein called my attention to this shiur on the Yeshivat Kise Rahamim website which begins with music from Abba’s song “Dancing Queen.” I can’t imagine that the person who inserted the music has any clue where it comes from.
The Kise Rahamim website is where you can find R. Meir Mazuz’s shiurim, but a number of short videos are not included on the website. For example, this video appeared on Yom ha-Zikaron 2016:



R. Mazuz refers to the day as “kadosh ve-nora” and calls for synagogues to recite the prayer for Israeli soldiers every Shabbat. As he notes, if someone donates ten shekalim you make a blessing for him, so how could you not make a blessing for one who spills his blood for the Jewish people? I understand full well why haredim don’t say the prayer for the State of Israel. Yet I have never understood how haredi society could refuse to recite a mi-sheberakh prayer for the soldiers, the same soldiers who are the only reason why there can be a haredi society in Israel in the first place. Interestingly enough, in all the conversations over the years that I have had with haredim regarding this matter, to my recollection I have never met one who agreed with, or was willing to defend, his community’s avoidance of the prayer. (I am referring to mainstream haredim, not Satmar or other anti-Zionists.)

[8] Kedushat Levi (Warsaw, 1902), p. 15b, s.v. ויביאה יצחק
[9] The text has מצות which could be read as singular or plural.
[10] (Jerusalem, 1993), p. 153 (Sefer Selihah u-Mehilah, ch. 10). See Byron Sherwin, “In the Shadows of Greatness: Rabbi Hayyim Ben Betsalel of Friedberg,” Jewish Social Studies 37 (Winter 1975), pp. 49-50.
[11] Since this post has dealt a good deal with love, let me add one more point about a different sort of love. There is an old question, why when the kohanim bless the people do they say וצונו לברך את עמו ישראל באהבה? Where do we find that the kohanim were told to bless the people “with love”?  A number of different answers have been given, and one famous answer, intended as a joke, is as follows.
Before giving us the text of the priestly blessing , the Torah, Numbers 6:23, states:
דבר אל אהרן ואל בניו לאמור, כה תברכו את בני ישראל אמור להם.
This word, אמור, sounds a lot like the French and Italian words for love, so we see that God is telling the kohanim to love the people.
As mentioned, this is a famous answer. Not so famous is that it was actually stated by R. Leon Modena with reference to Italian. He, of course, also intended it as a joke. See Ziknei Yehudah, no. 127:
ואמרתי על דרך צחות דכתיב כה תברכו אב”י אמו”ר להם אמור בלע”ז היינו באהבה.
[12] See Louis Finkelstein, Jewish Self Government in the Middle Ages (New York, 1964), pp. 271-272, 279, 320-321.
[13] Solomon Buber, Anshei Shem (Cracow, 1895), p. 132.
[14] See Ya’arot Devash (Jerusalem, 1988), vol. 1, p. 62, s.v. ואתם עם ה’. The last three sources I have cited are mentioned by Salo Wittmayer Baron, The Jewish Community (Philadelphia, 1942), vol. 3, p. 206. For other relevant sources, see David Biale, Eros and the Jews (Berkeley, 1997), pp. 70ff.
[15] See Ya’arot Devash, vol. 1, pp. 61, 62
[16] Alexander Altmann, Moses Mendelssohn (Portland, 1998), p. 93.
[17] The Autobiography of a Seventeeth-Century Venetian Rabbi, trans. Mark R. Cohen (Princeton, 1988), p. 91.
[18] “Rabbi Jacob Emden: His Life and Major Works” (unpublished doctoral dissertation, Harvard University, 1988), pp. 55-57.
[19] Meoraot Yosef (Elad, 2014), p. 14 (first pagination).
[20] Seder Eliyahu (Jerusalem, 1983), pp. 22-23.
[21] (Jerusalem, 2004). p. 76.
[22] Ibid., p. 75.



The Agunah Problem, part 2; Wearing a Kippah; More Censorship by ArtScroll

The Agunah Problem, part 2; Wearing a Kippah; More Censorship by ArtScroll
Marc B. Shapiro
1. Continued from here.
There is even an opinion, which as far as I know is accepted by many, that if a man apostatizes the beit din can still not force him to issue a divorce. This is first mentioned by R. Meir of Rothenburg and his reason is quite surprising. He says that a woman would rather be married to an apostate than not married at all.[1]
כתב מורי רבינו עובר על דת או אפילו משומד אין כופין אותו להוציא ותדע מדלא מנה רשע עם שכופין אותן להוציא וטעמא דטב למיתב טן דו מלמיתב ארמלו אם לא שעבר על דת שקיבל עליו חרם שהוא כלפי דידה כגון שלא להכותה או שלא להקניטה.
This position, and the opposing one that we do force a meshumad to give a get: משומד כופין אותו על ידי גוים, is mentioned by R. Moses Isserles, Even ha-Ezer 154:1.
Today, there is no way in the world that a religious woman would wish remain married to an apostate, so how could the hazakah טב למיתב טן דו מלמיתב ארמלו be applicable in such a case? I therefore don’t see how any beit din could tell a woman whose husband apostatized that they are not able to compel him to divorce her. Incidentally, R. Solomon Luria couldn’t believe that R. Meir of Rothenburg really meant what he said. According to R. Luria, the word משומד here does not mean “apostate” but a משומד לכל התורה, that is, a complete sinner who is still in the Jewish community and can be brought back to Torah observance, perhaps even by his wife.[2]
כל זמן שלא נטמע ביניהם אפי’ הוא משומד לכל התורה כולה אין כופין אותו מאחר שיכול לקיים שאירה כסותה ועונתה כראוי וגם אולי על ידה יתחרט ויחזור למוטב ובזה יתיישבו דברי מהר”ם שכתב שאין כופין כלל אפילו משומד.
This is not the standard position as pretty much everyone assumes that R. Meir of Rothenburg was talking about an actual meshumad. Yet it must be noted that as with R. Luria, R. Jehiel Jacob Weinberg also found R. Meir of Rothenburg’s language strange, since how can you say טב למיתב טן דו מלמיתב ארמלו about a woman living with an apostate? R. Weinberg therefore suggested that perhaps R. Meir just meant a sinner.[3] Elsewhere, R. Weinberg sees it as obvious that a Jewish woman would not want to marry an apostate, even one who has repented from his apostasy.[4]
והנה זה דבר ברור שהמומר מאוס בעיני כל אחד מישראל, ואפילו אם חזר בתשובה שלמה הוא מאוס כשזוכרים שהמיר את דתו, וק”ו ב”ב של ק”ו אם לא עשה תשובה שלמה אלא הרהר תשובה בלבו ואח”כ חזר לסורו שהוא מאוס ואין שום בת ישראל מתפייסת עם אדם כזה.

הכל יודעים ששום בת ישראל לא תנשא לאיש שהמיר דתו אפילו אם עשה אח”כ תשובה בלבו ואפילו אם ימיר את דתו החדשה בדת ישראל.

Just as with the case of a real meshumad, it is hard to imagine that today a woman who wants to divorce her husband because he has become completely non-observant, and the husband refuses to give the get, that this woman would not be regarded as an agunah. I am speaking about the more modern communities. What about in the haredi world? I was shocked to read the following in a recent work by R. Judah Itah explaining why it is that even today a woman would rather be married to an apostate than be alone, something that is obviously factually incorrect and is a terrible indictment of Jewish women.[5]
והנה בדין זה אם כופין המומר לכאורה איירי דבאה האשה ומבקשת מהבי”ד שיעזרו לה לצאת מרשות המומר כי לא טוב לה להיות בחברת המומר. א”כ היאך אתה דוחה את רצונה בנימוק דטוב לה כיון דטב למיתב תן [!] דו וכו’ הרי היא זועקת דאין זה טובה בשבילה. וצ”ל דקים לחז”ל דכל אשה רוצה להיות בחברת איש מלהיות בודדה, ומה שאומרת שרצונה לצאת מהמומר לא זה סיבה בגלל המומר אלא אפשר מפני שעיניה נתנה באחר ולכן אין כופין המומר, דלא מאמינים למה שאו’ שכל רצונה לא להיות בחברת המומר.
Can R. Itah really believe that a Bais Yaakov girl could live with an apostate and the only reason she would scream to get out of the marriage is because she has her eye on someone else? If there was a haredi woman who chose to remain with an apostate rather than demand a divorce, wouldn’t the haredi world regard her as a traitor?
In the previous post I discussed R. Weinberg’s responsum dealing with a man accused of sexual abuse. In that case, R. Weinberg refused to force him to give a get. This responsum is mentioned in a 2013 decision by the Jerusalem Beit Din available here. In a 2-1 decision the beit din refused to order a convicted sexual abuser to give his wife a get. The majority recommended that the husband give a get, but as far as compelling the husband, or even telling him that he was obligated to give a get, the beit din felt that its hands were tied.
We are taught that the ways of Torah are pleasant. Can it really be that a woman who wants to be divorced from a sexual abuser has no recourse? Must it be the case that the beit din’s hands are tied and the husband can keep his wife a prisoner? 
This brings me to a suggestion which can perhaps solve some of the problems at least in the State of Israel. I am not naive enough to think that it will ever be implemented, but I do think that it is a good approach. As I just mentioned, the Jerusalem Beit Din case of the convicted sexual abuser was decided by a 2-1 majority. One of the dayanim thought that the husband could be compelled to give the divorce, but unfortunately for the wife he was in the minority. If you examine the decisions of the various batei din you find that some dayanim are more liberal than others when it comes to ordering the husband to issue a divorce. This doesn’t mean that the other dayanim are “bad guys”, as some feminists like to portray them. They just feel bound by certain halakhic restrictions. The more liberal dayanim, however, follow a halakhic tradition that assumes that if the husband and wife have been separated for a long time, or if there are good reasons for the woman to want a divorce, even if these reasons are not mentioned in the Talmud, then the husband can be forced to issue the get.
Since I think we all agree that freeing women from dead marriages is a positive goal, would it violate any halakhic procedure for certain communities to have batei din composed exclusively of those rabbis who accept the halakhic position that a husband can be obligated to divorce his wife even in cases not specified in the Talmud? This would not be an example of deciding the halakhah before the case was heard, but only of creating a beit din of dayanim who are at least open to a more liberal understanding of when divorce is to be required.
This would no different than the conversion courts set up in Israel recently under the direction of R. Nachum Rabinovitch. Only dayanim who have a liberal perspective on conversion are on this court. This doesn’t mean they will always agree on all points, but they will agree on certain baseline positions. This might be a solution to the sort of case that appeared before the Jerusalem Beit Din, discussed above. Had the make-up of the beit din been different, rather than a 2-1 decision leaving the wife in a miserable marriage perhaps for the rest of her life, the decision could have been 2-1 or 3-0 in her favor.
I don’t think anyone would object if a community said, for example, that they will only hire a rabbi who supports, or opposes, the heter mekhirah. That is the community’s prerogative. So why should it be problematic to say that for certain communities only dayanim who have a liberal perspective on when a husband is obligated to give a get should be seated on batei din dealing with these issues? I think that some dayanim will be fine with this. While their interpretation of halakhah does not generally permit them to obligate a husband to give a get, they recognize that others have a different perspective. It is not uncommon for a posek to tell a questioner that he should inquire of another posek who will probably give him a more lenient answer. For example, both R. Shlomo Zalman Auerbach and R. Ovadiah Yosef, when confronted with questions about abortion, rather then reply that it was forbidden they advised the questioners to ask R. Eliezer Waldenberg, as he had a more lenient opinion in this matter.[6] Many more such examples could be cited dealing with a whole host of issues.[7]
Here is what appears in R. Eliyahu Sheetrit’s Rabbenu, p. 137. 

It describes how R. Ovadiah Yosef did exactly what I am suggesting. He purposely arranged to have a dayan join the beit din on a certain day, knowing how this dayan held in a halakhic matter. In other words, R. Ovadiah was “stacking the deck” to get a decision he believed to be correct. If R. Ovadiah felt comfortable in doing this, then I don’t think there is a problem with picking dayanim who are known to accept the view that men can be required to issue a get in a wide range of cases.
Another way to solve the problems I have written about in the last two posts would be if the batei din accepted the view of R. Moshe Feinstein that when the husband and wife are living separately, and there is no chance of reconciliation, then halakhah requires the husband to give a get. I realize that R. Moshe’s position is not in line with the sources I have previously referred to, but since so much is at stake, perhaps the dayanim could agree that R. Moshe’s position is sufficient to rely on. This is what he states in Iggerot Moshe, Yoreh Deah 4, no. 15:2 (emphasis added):
ובדבר איש ואשה שזה הרבה שנים שליכא שלום בית, וכבר שנה וחצי דרים במקומות מופרדים, וכבר ישבו ב”ד חשוב ולא עלה בידם לעשות שלום ביניהם. וראינו גילוי דעת חתום מהב”ד שלא הועיל כל השתדלותם לעשות שום. וכנראה מזה שהב”ד סובר שא”א לעשות שלום ביניהם. אז מדין התורה באופן כזה מוכרחין להתגרש ואין רשות לשום צד לעגן, לא הבעל את אשתו ולא האשה את הבעל, בשום עיכוב מצד תביעת ממון. אלא צריכים לילך לפני ב”ד לסדר התביעות בענייני ממון ולסדר נתינת וקבלת הגט.
R. Moshe’s approach was anticipated by R. Hayyim Palache in the 19th century. Therefore, if some poskim feel that R. Moshe’s authority isn’t enough to rely on, R. Palache words might be sufficient for them (and indeed, in recent years some dayanim have relied on R. Palache).[8] R. Palache actually sounds like he is describing the contemporary scene when he says that if either husband or wife refuses to allow the divorce to go through in order to take revenge on a spouse, that the heavenly punishment for such an action is very great. He then says that if it has been eighteen months and the couple still can’t get along, then the husband is forced to give a divorce.[9]
וידעו נאמנה כי כל הבא לעכב מלתת גט בענין זה כדי להנקם זה מזה מחמת קינאה ושינאה ותחרות כאשר יהיה האופן פעמים שהאיש רוצה לגרש והאשה אינה רוצה וכדי להנקם מהאיש מעכבים הדבר שלא לש”ש עתידין ליתן את הדין . . . וכמו כן להפך כשהאשה רוצה להתגרש והאיש איו רוצה וכדי להנקם מהאשה מעכבים מלתת גט שלא לש”ש כם בזה לא בחר ה’ ויש עונש מן השמים . . . והנני נותן קצבה וזמן לדבר הזה דאם יארע איזה מחלוקת בין איש לאשתו וכבר נלאו לתווך השלום ואין להם תקנה ימתינו עד זמן ח”י חדשים ואם בינם לשמים נראה לב”ד שלא יש תקנה לשום שלום ביניהם, יפרידו הזווג ולכופם לתת גט עד שיאמרו רוצה אני.                     
As I mentioned, some dayanim will be very content not to sit on cases where their stringent approach will lead to a situation where the husband is not obligated to give his wife a get. They will recognize the problems women are sometimes placed in because of their approach and be happy that other dayanim have a different perspective, even though they themselves cannot agree. What then to do about the dayanim with a stringent perspective who will not agree to recuse themselves? I don’t see any reason why communities cannot declare that they do not wish to accept a situation where women are locked in dead marriages if there are valid halakhic options. As such, they will only hire dayanim who adopt a liberal perspective as to when a husband can be obligated to issue a divorce. This does not mean that these communities would be deciding cases in place of the dayanim, and every case is obviously different. However, there is nothing wrong with inquiring of a dayan what his halakhic philosophy is before seating him on the bench. This has nothing to do with deciding specific cases, as anyone who has ever watched a Supreme Court nominee hearing understands.[10] You are permitted to ask a question of a posek whom you assume will offer a lenient decision, as long as you are prepared to follow the decision even if in the end it is not what you expected. By the same token, one can appoint as a rav or a dayan someone whose halakhic philosophy is in line with the values of the community he will serve. That is all that I am suggesting
As mentioned in the last post, R. Jehiel Jacob Weinberg states that if there is a dispute among halakhic authorities, we must reject the view that will bring the Torah into disrepute in people’s eyes (Kitvei ha-Gaon Rabbi Jehiel Jacob Weinberg, vol. 1, p. 60):
ואגלה להדר”ג [הגרא”י אונטרמן] מה שבלבי: שמקום שיש מחלוקת הראשונים צריכים הרבנים להכריע נגד אותה הדעה, שהיא רחוקה מדעת הבריות וגורמת לזלזול וללעג נגד תוה”ק.

This formulation of R. Weinberg can provide justification for the approach I am suggesting. Interested readers should also examine R. Eliezer Waldenberg, Tzitz Eliezer, vol. 5, no. 26, where he writes to R. Elyashiv and justifies his liberal perspective. He sums up his position with these important words

ואחרי זאת בקחתנו גם בחשבון חומר השעה המיוחד שאנו חיים בה בתקופתנו אשר רבו שוטני התורה וכן בראותינו פירצת הדור הצעיר המנוער מתורה ויראת שמים וכשלא מוצא אוזן קשבת לדבריו עושה במחשך מעשיו, וכמה פעמים הרי אזנינו שומעות ולא זר מהמכשולים הגדולים שהנשים נכשלות ומכשילות את הרבים באיסור א”א ואנו עומדים רפה אונים באין בידינו להעמיד הדת על תלה, נדמה לי ששפיר ישנו במה שכתבתי בספרי שם כר נרחב לתת מקום לדון בכובד ראש בהערכת כל מקרה ומקרה שלטענת מאוס עלי ולהשתמש לפי הצורך בכפיה . . . ולכן לפענ”ד נאמנים המה דבריו של המהר”א טוואה בחוט המשולש שכותב שאפי’ לדעת הסוברים שלא לכוף אם יש צורך שעה בכפייה יכופו דאין לדיין אלא מה שעיניו רואות, ובלבד שתהא כוונת הדיין לש”ש ויחקור על הדבר כראוי.

I quoted R. Waldenberg at length as there are some people who thought that my previous post sounded “reformist”, because I argued that divorce halakhah should not be decided in a vacuum but should take into account the contemporary reality. As you can see, this is exactly what R. Waldenberg says.

R. Waldenberg concludes that the final decision on this matter should come from all the rabbinic courts in Israel. He does not want to have a situation like we have today, where different courts have entirely different approaches when it comes to how to deal with divorce law. 

There is another point that is important to make. I have heard people say that the problem of the agunah that we have today, where a man refuses to give his wife a get, is a new phenomenon. This is completely incorrect, as this phenomenon is already seen in the medieval responsa. However, you won’t generally find it discussed among the responsa that deal with agunah. The matter is discussed when dealing with whether one can be forced to give a divorce. From medieval times until the present, women in unhappy marriages have demanded divorces. As we have seen, in situations that many people today would consider cases of agunah, in prior generations the rabbis ruled that the woman was not entitled to a get

Even in earlier years, however, we do find examples of agunot where the husband refused to give a get, even after being told to so by a beit din, and the community tried to help. The 19th century Hebrew newspapers have a number of such cases. Here is one example that appeared in Ha-Magid, Feb. 13, 1861, pp. 27-28.
It is interesting that when they caught up with the man they imprisoned him in the rabbi’s house. They also took his money and used it as leverage.
Let me make one final point. In matters of divorce my feeling is that when either husband or wife wants a get, and it is obvious that there is no future in the marriage, then neither party should prevent the divorce from taking place. There shouldn’t be any reason to go to a beit din to force a divorce. Adults should be able to see that the marriage isn’t working out and come to a conclusion that it is time to end it. Any husband who chooses to withhold a get when he knows that the marriage is over is acting in a very cruel way, and the full weight of halakhically acceptable communal pressure should be brought on him. Nothing should scandalize us more than a so-called religious person keeping his wife captive as a means of revenge. I would even suggest reading the names of some agunot during the Shabbat prayers, in order to sensitize people to the issue.
I know that many people will regard what I have just written as obvious. What I will now say might anger some, but I think that it too should be obvious. I have often heard it said that a get should never be withheld, and that the get should be given immediately. For example, on ORA’s website it states: “[I]t is never acceptable to refuse to issue a get once the marriage is irreconcilable.” On JOFA’s website it states: “As soon as it becomes clear that there will be no reconciliation, the Get should be written and delivered to the woman so that it cannot be used as a bargaining tool in financial or custody negotiations.” 

While in general both these statements are correct, it is not correct that this is always the case. For instance, let’s say the wife runs away to Europe with the kids. Does anyone seriously think that the husband is still obligated to give her a get? In such a circumstance it is entirely appropriate for the husband to insist that she come back to the United States and settle all custody issues before a get is issued. Or let’s say a husband and wife separated, and the wife refuses to let the husband see his children. It could be many months before the secular court rules on the matter of visitation. Why would anyone think that in the meantime the husband is obligated to give his wife a get if she refuses to allow him to see his children? I don’t think that there is any reputable beit din in the world that would side with the woman in these two cases. These are obviously extreme examples, and have nothing to do with the typical agunah case we hear about. Yet we should be aware that there are nuances that sometimes come into play, and every case must be investigated by a reputable beit din before judgments are made.

Finally, those who want to learn more about the matters we have been discussing should consult R. Shmuel Gartner’s detailed book, Kefiyah be-Get (Jerusalem, 1998). A 2000 page book with the title Mishpat ha-Get has just appeared. I have not yet seen it but it must have important material as well. There is also another book that is worth noting, R. Raphael Aaron Ben-Shimon’s Bat Na’avat ha-Mardut (Jerusalem, 1917). R. Ben-Shimon (died 1928) was a leading Egyptian rabbi and author of a number of significant works. What makes Bat Na’avat ha-Mardut of particular interest is that he has a number of formulations that if written today would lead certain people to claim that he was a feminist or an adherent of Open Orthodoxy. For example:

P. 4:

ואמנם בזמנינו זה הנה מתלאה, כי הוסב דין המורדת לאכזריות נוראה כי בתי דינין בזמנינו האחרונים, לסיבת כי לא מצאו כל הדין מפורש מה יעשה לה להמורדת בטענת מאיס עלי ואחרי אשר אין לנו עתה דין הכפיה לכוף את הבעל לגרש בשום אופן אחזו בשיטת החומרא עד דיוטא התחתונה, ושמו להם לקו כי המורדת היא כאשה מפרת באמונה וכל חמירא דאיכא ברשותייהו נתנו אותה על ראש המורדת האומללה, כאלו הוא דין דאיסור והיתר אשר המחמיר בה בטוח הוא ממכשול יותר מהמתיר, וע”כ העמידוה על גחליה ריקה. חופשה לא ניתן לה, הפסידה נדוניתה וכ”ש כתובתה, ואף אם חזרה בה לא יקבלו תשובתה
P. 8:
דהרמב”ם ז”ל נתמלא חמלה וחנינה על בנות ישראל
P. 154:
 ואמינא ולא מסתפינא שאם היה הרמב”ם ז”ל חי אתנו היום, היה מרעיש העולם, על אחרוני זמננו אשר דנין את המורדת דמאיס עלי במשפט מר וקשה ואכזרי כנ”ל, ואומר בקול רם הלא תבושו הלא תכלמו לתלות בי קלון אכזריות כזאת אשר לא דמיתי, ולא עלתה על לבי, הן אנכי חסתי על נפשות בנות ישראל, שיחיו חיי צער ויהיו כשפחות וכשבויות חרב להבעל לאיש שנוי [שנאוי] נפשם
2. In the previous post I referred to a couple of Supreme Rabbinic Court decisions. In these cases R. Elyashiv was a member of the court and the decisions were published in the Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael. In both of the cases I cited the decision was unanimous and no individual dayan is recorded as having authored the published decision. Nevertheless, the rulings are reprinted in R. Elyashiv’s Kovetz Teshuvot, vol. 1, as if they were written by him alone (and maybe they were, but no evidence for this is provided). This volume was not published by R. Elyashiv but by one of his followers, and is a collection of previously published court rulings and responsa. There are 253 sections and the table of contents at the beginning of the volume provides the original sources of all the material.
When you look at the list of sources you find something unusual. While the names of the various books and journals are given one also finds some abbreviations. This is strange since these abbreviations are nowhere explained, and abbreviations are only used for a very small number of the many different sources. I was unable to figure out what all of the abbreviations mean but I did figure out the following:
פ”ד = פסקי דין של בתי הדין הרבניים בישראל
י”א = יביע אומר
ד”י = דרך ישרה
מ”ש = משפטי שאול

When reprinting rulings from R. Elyashiv that appeared in the Israeli government Beit Din publication, rather than telling the reader where they are taken from, all we get is פ”ד. Similarly, the typical reader will have no way of knowing that material has been taken from R. Ovadiah Yosef’s Yabia Omer, R. Yitzhak Yedidyah Frankel’s Derekh Yesharah, and R. Shaul Yisraeli’s Mishpetei Shaul. Obviously, for the individual who published the Kovetz Teshuvot, there is something problematic with all of these individuals, and with the government beit din, and he therefore wouldn’t even mention the name of their publications.
If you look at Yabia Omer, vol. 3, Orah Hayyim no. 33, and Mishpetei Shaul, no. 34 you can see the original letters from R. Elyashiv. Needless to say, in these letters he relates to R. Ovadiah and R. Yisraeli as valued rabbinic colleagues. However, in Kovetz Teshuvot the beginning of the letters has been deleted, and the reader therefore has no idea who R. Elyashiv was corresponding with. Elsewhere in Kovetz Teshuvot, when the recipient of a letter is “kosher” in the eyes of the publisher, the beginning of the letter is indeed included.[11] For some reason, in the list of sources the publisher does not abbreviate the titles of R. Isaac Herzog’s Heikhal Yitzhak and R. Yitzhak Nissim’s Yein ha-Tov. Yet he still deletes the beginning of R. Elyashiv’s letters taken from these books, so the reader does not see the very respectful way he refers to R. Herzog and R. Nissim. Here, for example, is how R. Elyashiv’s letter appears in Heikhal Yitzhak, vol. 2, no. 24.

As you can see from the titles R. Elyashiv gives to R. Herzog, he has the utmost reverence for him.

Here is how the page appears in Kovetz Teshuvot, where all this is deleted.

Also, notice how at the beginning of the letter in the original it says אני מודה לכ”ג מרן, yet the wordמרן  is deleted from Kovetz Teshuvot. In the second paragraph R. Elyashiv writes
ואנכי לא באתי בשורות אלה אלא להשיב על מה שהעיר מרן שליט”א

In Kovetz Teshuvot מרן has been removed, leaving us with להשיב על מה שהעיר שליט”א, which doesn’t make sense since שליט”א does not follow a verb.[12]
For those who have read my new book, this example will not be surprising and illustrates once again the lack of basic intellectual integrity that we find in some segments of the haredi world. From the response to my book, I can tell you that the ones most upset about this sort of thing are none other than haredim. They really believe in the haredi outlook and can’t understand why some members of their society, such as the publisher of Kovetz Teshuvot, feel that the haredi position is so weak that it can only survive by misleading people. How could a haredi not be upset when seeing how a publisher feels that he knows better than R. Elyashiv which rabbis are deserving of respect, and therefore takes upon himself to “correct” R. Elyashiv’s “mistakes”? If this is not a complete undermining of Daas Torah, then I don’t know what is.
3. In this post I referred to the German Orthodox practice of men not wearing a kippah. R. Yoel Catane informed me on the authority of his mother, a native of Frankfurt and a relative of the Breuer family, that even R. Joseph Breuer when he taught secular subjects at the Hirsch school in Frankfurt did so without a kippah. R. Catane also points out that many German Orthodox Jews continued the practice of going bareheaded even when they came to Israel. R. Catane gives as an example of this Yitzhak Ernst Nebenzahl, who served as State Comptroller in Israel and was punctilious in his Torah observance. His son is the famous Rabbi Avigdor Nebenzahl. Even in his old age in Jerusalem, the elder Nebenzahl continued his practice of going bareheaded, which when it came to the German Orthodox was not a reflection about their level of piety. Here is a picture of him without a kippah.
Dr. Aharon Barth, a grandson of R. Azriel Hildesheimer, was also a well-known German Orthodox Jew. He served as the director of Bank Leumi and was one of the two people whose signature was on the first currency of the State of Israel. He also wrote the Orthodox philosophical work Dorenu Mul She’elot Netzah, which has been reprinted a number of times and has also been translated into English, French, and German. You can read about Barth here. Here is his picture showing him bareheaded.

R. Catane mentioned the following anecdote. Once Barth was giving a lecture to bankers in Israel and he heard some thunder. He stopped the talk, took a kippah out of his pocket and put it on his head, made the blessing on the thunder, then put the kippah back into his pocket and continued with the lecture.
4. In Saul Lieberman and the Orthodox I wrote about how in its English translation of R. Zevin’s Ha-Moadim ba-Halakhah, ArtScroll censored references to Saul Lieberman, removing his rabbinic title. Leon Well pointed out to me that ArtScroll didn’t just remove the “R.”, but in one case removed Lieberman’s name entirely. In Ha-Moadim ba-Halakhah (Tel Aviv, 1955), p. 133, in the article on Shemini Atzeret, R. Zevin writes:

בנוגע לתוספתא משער ר”ש ליברמאן [!] ב”תוספת ראשונים” השערה חריפה

In the Festivals in Halachah, vol. 1, p. 346, the following “translation” appears: “As regards the passage from Tosefta on which Rashi’s interpretation is based, Tosefes Rishonim ventures a daring speculation.”

On the topic of Saul Lieberman’s name being censored, Professor Yaakov Spiegel called my attention to the following. Here is R. Dov Berish Zuckerman’s Beit Aharon: Beurei ha-Rambam al pi ha-Meiri (Jerusalem, 1984) p. 311.

This volume appeared posthumously, published by Machon Yerushalayim. If you look at the second column, 6 lines from the bottom, it says שוב הראני חכם אחד. Who is the anonymous scholar? What appears in this book had earlier been printed in Talpiot 4 (1949), p. 139. In the original we find הר”ש ליברמן שליט”א.[13]

David Farkas called my attention to another case of ArtScroll censorship, this time in its new Midrash Rabbah. Here is a page from Bereshit Rabbah, Miketz, Parashah 90.

In the Etz Yosef commentary there are three dots, showing that something is missing. This is the only time I am aware of that when ArtScroll engaged in censorship they let the reader know that something was removed, so I guess we have to be thankful for this.

What was so terrible in the Etz Yosef that ArtScroll had to delete it? Here is the uncensored version of the commentary, and as you can see, Etz Yosef cited Mendelssohn. That is why it had to be removed.

While on the topic of censorship, let me share another example of censorship of R. Kook. This time R. Kook’s name is removed from R. Meir Abovitz’s commentary on the Jerusalem Talmud.

5. I want to call readers’ attention to a new book recently sent to me by R. Yaakov Shapiro. Its title is Halachic Positions: What Judaism Really Says About Passion in the Marital Bed, available here. This is the most detailed book there is on halakhah and marital sexuality. In many ways it is designed to counter a lot of the stringencies that have arisen over time and which the author feels are non-halakhic and also psychologically unhealthy, thus making a happy, balanced marriage much more difficult. You can also watch the author herehere and here. I think readers will be surprised, and perhaps upset, when they learn that some of what they have been told is forbidden is actually permitted according to the standard halakhic authorities. See also what I wrote here in note 26.

I also should add that this book is not for the prudish, as it is very explicit in what it discusses. This in fact relates to one of the themes of the book, that halakhah itself is not prudish as sex is an important part of life and is discussed in halakhic works just like everything else. Having said that, I must note that there is a difference between being prudish and refraining from inappropriate slang when discussing halakhic matters. While the author is careful in this matter, he does refer to another recent book that makes this mistake. I am uncomfortable in even recording the title of this other new halakhic work by Rabbi S. Even-Shoshan, but readers can see it here.

I don’t think I am being overly fastidious if I say that in my opinion any halakhic work with a title like that should not be regarded as a legitimate text. My yardstick in this regard is if one would feel comfortable using a word when speaking with a great rabbi or when giving a lecture. Thus, while the term “oral sex” is fine (and I was even present when a well-known rav was asked a question using these words), for the life of me I can’t understand how a rabbi discussing a halakhic topic can use a slang word.[14] In fact, I don’t think that even an acceptable term like “oral sex” should be used in the title of a book, as it is needlessly provocative. This sort of provocative title is also found with another book published by Rabbi Even-Shoshan. One who wants to write about these matters should use a title like “Jewish Sexual Ethics” or “Marital Intimacy in Halakhah”, with all the details discussed in the book.[15]

6. In the last post I wrote about a dispute in understanding a text between Rabbis Israel Brodie and Shlomo Yosef Zevin on one side, and Profs. Shlomo Zalman Havlin and Israel Moshe Ta-Shma on the other. I was incorrect in this, as R. Zevin actually agrees with Havlin and Ta-Shma. Thanks to Rabbi Dovid Solomon for noting this.

[1] Hagahot Maimoniyot, Hilkhot Ishut 25:4.
[2] She’elot u-Teshuvot Maharshal, no. 41. Cf. Yam Shel Shelomo, Yevamot 4:22.
[3] Seridei Esh, vol. 3, p. 75.
[4] Kitvei ha-Gaon Rabbi Yehiel Yaakov Weinberg, vol. 2, pp. 443, 447.
[5] Even Sapir (Jerusalem, 2013),  pp. 358-359.                     
[6] See R. Ovadiah Yosef, Ma’yan Omer, vol. 8, p. 173; R Nahum Stepansky, Ve-Alehu Lo Yibol, vol. 3, p. 296.
[7] Since I referred to Ve-Alehu Lo Yibol in the last note, see also in this book, vol. 3, p. 191, for another example, this time dealing with a kashrut issue. R. Auerbach thought that the matter was forbidden, but stated that if the questioner wished he could also ask R. Waldenberg for his opinion. See also ibid., p. 212, where the author asked a question of R. Waldenberg and he replied, “Do not ask me. I am stringent in this matter. Go to R. Ovadiah and ask him.”
[8] Hayyim ve-Shalom, vol. 2, no. 112. Another important source is R. Shlomo Moshe Amar, Shema Shelomo, vol. 3, Even ha-Ezer no. 19. In an email to me, Prof. Amichai Radzyner noted that in recent years many dayanim have been adopting a more liberal position regarding when a husband can be forced to give a get, and also when he is told that he is obligated to give a get even if the court cannot force him. Much important material in this regard is found in the many issues of the journal Ha-Din ve-ha-Dayan, found here
[9] R. Palache’s responsum is cited by many and is an important source for those who have argued for a more liberal approach to Jewish divorce law. I don’t think anyone will be surprised that R. Abraham Samuel Judah Gestetner, who in his Megilat Plaster [Monsey, 2014] makes the ridiculous argument that R. Jacob Emden’s Megilat Sefer is a Haskalah forgery, also says that this responsum of R. Palache was inserted into the volume by an unknown heretic. See ibid., p. 85.
[10] My own opinion is that no one should be appointed a dayan in the State of Israel unless he has served in the army. After all, how can a dayan understand the people appearing before him without having had such an experience? Yet I realize that this is a pipe dream.
[11] Strangely enough, he includes the beginning of the letter to R. Yitzhak Yedidyah Frankel even though, as I have mentioned, he doesn’t tell us where the letter comes from.
[12] The censorship in Kovetz Teshuvot was also noted by Avraham (Rami) Reiner in his fine article, “Kavim Rishoni’im le-Darko ha-Hikhatit shel ha-Rav Yosef Shalom Elyashiv,” Netuim 17 (2011), p. 78 n. 12.
[13] R. Zuckerman also mentions Lieberman’s point, and refers to him by name, in Kol Torah 12 (Adar 5718), p. 22.
[14] It is worth noting that there are some passages in rabbinic literature that if said by anyone today would be regarded as nibul peh (this is the correct transliteration, not “nivul”). See Changing the Immutable, ch. 6, for some examples. See also Megillah 25b: “R. Huna b. Manoah said in the name of R. Aha the son of R. Ika: It is permitted to an Israelite to say to a Cuthean, Take your idol and put it in your שי”ן תי”ו (buttocks).” Tanna de-Vei Eliyahu: Eliyahu Zuta, ch. 22 (end), is very explicit: ‘בני אותו מקום שאתה אוהב וכו
[15] An example of what I am talking about is Jennie Rosenfeld and David Ribner, The Newlywed Guide to Physical Intimacy. This book is explicit in its discussion, but the title is an appropriate one.



The Agunah Problem, Part 1; Incarceration and Free Speech

The Agunah Problem, Part 1; Incarceration and Free Speech
Marc B. Shapiro

1. There has been a lot of discussion recently about the International Beit Din and its rulings allowing certain marriages to be voided, thus freeing women from being agunot. As is to be expected, this beit din has been subject to strong attacks, even of a personal nature, despite the fact that the members of the beit din are recognized talmidei hakhamim. These dayanim are intent on keeping everything above board and have published the reasoning behind their rulings, thus giving opponents the opportunity to engage in halakhic argumentation.
From what I have read, the International Beit Din has three approaches to freeing agunot. One is annul the marriage based on mekah taut, i.e., there was some problem with the husband that would have prevented the wife from marrying him had she known of it. This is a perfectly valid mechanism that has been used by many poskim, such as R. Zvi Pesah Frank, R. Moshe Feinstein, and R. Avraham Shapiro. Although one can, of course, criticize the application of mekah taut to a particular case, the mechanism itself is part of standard halakhic operating procedure and the International Beit Din is well within its rights to use mekah taut when possible. 

The second approach is to find a problem in the marriage ceremony itself, meaning that the marriage never took place. For example, one can show that there were no proper witnesses to the marriage. Here again, one can disagree with particular rulings, but not with the basic approach.

The third approach is that of get zikui, which in the current context means that the beit din issues a divorce to the woman on behalf of the man, even if the man has not approved of this and even if is against his will.[1] While there has been a good deal of discussion of this approach, I can’t find on the International Beit Din’s website that any marriage has actually been dissolved by using this mechanism. Unlike the other two approaches, there is little precedent for use of a get zikui, which means that its chances of being generally accepted are nil.
The use of a get zikui is actually suggested by R. Jehiel Jacob Weinberg, Seridei Esh, vol. 3, no. 25. In fact, R. Weinberg’s responsum is the most detailed discussion of get zikui but surprisingly it is not included on the International Beit Din’s website. It must be noted, however, that R. Weinberg is only prepared to suggest a get zikui if the husband would want the get to be given. However, in the contemporary agunah situation the problem is that the husbands do not want to give the wives a get, and concerning these cases R. Weinberg writes: נפל היסוד של כתיבת גט מטעם זכי’
Is there another possible approach? How about a heter meah rabbanim for a married woman if she can’t get a get? I know you are thinking that this is crazy, but look at the following page, which comes from the medieval work Etz Hayyim by R. Jacob Hazan.[2] 
As you can see from the very end of the page, it states that the rabbis required a man to give a get if he contracted a marriage באיסור, which in this case means he was already committed to marry someone else. Then it says that if this man disappeared the woman can be freed with a heter meah rabbanim (actually, it says ish, not rabbanim, but I don’t want to get into that now). This is a very radical position, that a woman can be freed by a heter meah rabbanim, and it is attested to nowhere else. Not surprisingly, R. Israel Brodie, the editor of Etz Hayyim,[3] calls attention to this unusual halakhic position. R. Shlomo Yosef Zevin also refers to this novel idea.[4]
But are Rabbis Brodie and Zevin correct? Israel Moshe Ta-Shma and Shlomo Zalman Havlin say no, and see this as a serious mistake. According to them, the last case discussed in Etz Hayyim has nothing to do with the man who married באיסור but refers back to a case mentioned earlier on the page of a man who was only committed to marry a woman. If this man then disappears, מתירין הבחורה במאה איש. In other words, the woman is released from any obligation to marry the missing man, but this has nothing to do with a woman already married. I will let the readers decide for themselves who is correct.[5]
As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.
Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]:
ברוך ה’ א-להי ישראל אשר הזריח לנו את המאור הגדול הזה אשר במבטו החודר פלש למעמקי הדורות וצפה גם את דורנו הפרוץ לבשתינו ולמגנת לבבנו, אוי לעינים שכך רואות ואוי לאזנים שכך שומעות, ואלו ראו שאר חכמי הדורות את דורנו היו חותמים על פסקו של רבנו בשתי ידים. כי המציאות הוכיחה צדקת רבנו, שכל התובעת ג”פ בימינו וטוענת מאיס עלאי, לא רק עיניה נתנה באחר אלא היא כבר בחיק האחר או האחרים וחביטא קמייהו כמברכתא, ולפיכך מצוה לכוף את הבעל המתעקש בכל כפיה אפשרית כדי להפריד בין הדבקים ויפה שעה אחת קודם.
However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.
I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces. 

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:
ובעל משפט צדק ח”א סי’ נ”ט כתב דאפי’ רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי’ לו’ לו שחייב להוציא
Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.
Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]
כשם שאין כופין בעל לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייבין את הבעל לגרש עקב טענה זו
This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.
Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22).

AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din.
R. Zvi Hirsch Grodzinski, perhaps the leading talmudist and halakhist in the United States in the early years of the twentieth century, discusses a case where a woman committed adultery (or only claimed to have done so; the matter is not clear, but for this post I am assuming she actually did commit adultery). She then wished to get divorced from her husband.[11] She must have had some connection to Judaism as she requested that her husband give her a get. I think most people would assume that in such a case, where the woman will no longer be living with her husband, that it is essential that the husband give her a get so that she is no longer committing adultery. With the get she can repent and move on with her life. Hopefully, she will be able to find another husband and live as pious Jew.
Yet just because most of us might intuitively feel this way, this does not mean all halakhists have to agree. R. Grodzinski concludes that the husband cannot be forced to give the get. To use today’s popular language, this meant that he was allowed to keep her as an agunah for the rest of her life. Of course, R. Grodzinski would deny that the woman was an agunah. Despite the woman’s adultery, I think most people will still be troubled reading the following words from R. Grodzinski, from which we see that he saw no problem in condemning her to live the rest of her life without receiving a get.
כ”ש בנ”ד שנאסרה עליו ע”י זנות דאין כופין אותו לגרשה בגט, כיון שהיא נתנה אצבע בין שיניה, וגרמה לעצמה במעשיה הרעים והוא לא עשה און, ולמה נכוף אותו ליתן לה גט, לא תבעל לו ותוצרר אלמנות חיות כל ימיה, הלא אינה מצווה על פו”ר, וכי בשביל שהיא הולכת אחרי שרירות לבה וזנתה תחתיו נכוף אותו לגרשה
I don’t think you need to be a member of JOFA or Open Orthodox to be upset by what R. Grodzinski writes, as it probably closed off any chance of repentance on the part of the woman. He also views the withholding of the get as a suitable form of punishment for the woman. Not being obligated in the commandment to procreate, she can be kept a “living widow”.[12]
For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]
החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט
This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]
הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.
What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.
Also of interest are the three reasons the court suggests why a woman would not be happy if her husband was going to prostitutes: 1. He will be spending their money, 2. He will be using them as his sexual outlet and will not want to sleep with his wife, 3. He could pass on a disease to her.
While it is true that a wife’s anger will include reasons 1 and 3, these are not the main reasons she will be upset. For example, the husband could be as rich as a former New York governor and have used protection, yet the wife will still be devastated for the simple reason that his actions were a terrible breach of trust. More than anything else, modern marriages are based on trust. As for reason 2, it is hard to imagine that there is any modern woman who, if she discovered that her husband was going to prostitutes, would want to be divorced because of this reason.
Where did the dayanim get these three reasons, as surprisingly, they don’t tell us? I found reason 1 cited in the Beit Yosef, Even ha-Ezer 154 (towards the end, s.v. מצאתי כתוב בשם ספר אגודה). It originates in R. Alexander Susslein Ha-Kohen’s Sefer Agudah: Yevamot, no. 77.[15] Reasons 2 and 3 are found in the Arukh ha-Shulhan, Even ha-Ezer 154:16.[16]
These reasons undoubtedly reflect a different understanding of marriage, one which does not see the modern romantic notion of trust as the centerpiece of a marriage. Since people’s psychology has changed over the centuries, I don’t think that the reasons offered by medieval authorities operating in a completely different environment can determine what modern women will regard as “deal-breakers” when it comes to marriage. If a modern woman has different expectations of what marriage is than what people had years ago, I would think that this must be taken into account by a beit din in determining what situations require ordering the husband to give a get.
In fact, Sefer Agudah cites another reason why the court compels a husband visiting prostitutes to divorce his wife.
פעם אחת בא מעשה לידי לאה טוענת על ראובן שהיה רועה זונות והוא כופר. ופסקתי שאם תביא עדים שהוא כן יוציא ויתן כתובה. איבעית אימא קרא, איבעית אימא גמרא, איבעית אימא סברא . . . ואיבעית אימא סברא דגרע מכל הנהו דפרק המדיר.
In the final words just quoted (and underlined), Sefer Agudah is referring to this Mishnah in Ketubot 77a:

ואלו שכופין אותו להוציא מוכה שחין ובעל פוליפוס והמקמץ והמצרף נחושת והבורסי בין שהיו עד שלא נישאו ובין משנישאו נולדו ועל כולן אמר רבי מאיר אע”פ שהתנה עמה יכולה היא שתאמר סבורה הייתי שאני יכולה לקבל ועכשיו איני יכולה לקבל. 

The following are compelled to divorce [their wives]: A man who is afflicted with boils, or has a polypus, or gathers [objectionable matter] or is a coppersmith or a tanner, whether they were [in such conditions or positions] before they married or whether they arose after they had married and concerning all these R. Meir said: Although the man made a condition with her [that she acquiesces in his defects] she may nevertheless plead, “I thought I could endure him, but now I cannot endure him.”

This final reason given by Sefer Agudah is based on sevara and not on a rabbinic text.[17] I don’t know why it was not cited by the dayanim, but it supports the point I made that the beit din need not be bound by examples given in the Talmud or other rabbinic sources. Rather, it can evaluate the current psychology of women and how they regard marriage.

For another example of how different current understandings are from what they used to be, look at this responsum of R. Zvi Hirsch Ashkenazi, Hakham Zvi, no. 133.
It deals with a man who committed adultery with a married woman, and his wife therefore wishes to divorce him. In such a case, contemporary Orthodox Jews of all persuasions would agree with the general view in society, that if the wife can forgive her husband and remain married, then it is no one else’s business what goes on in their lives. However, contemporary Orthodox Jews would also agree that if the betrayal is so devastating that the wife will never be able to trust her husband again, and she wants a divorce, then the husband should be required to give the divorce. To paraphrase what the Sefer Agudah said, this is certainly on the level of the things for which the Mishnah in Ketubot requires a husband to grant his wife if she requests if.
Yet the Hakham Zvi refuses to require the man to issue the divorce. One of the things he says is that even the Sefer Agudah would agree that in order to force a divorce the husband has to have been given prior warning not to visit prostitutes. In the case the Hakham Zvi was asked about, he says that there is another reason not to require the get, and that is that the man claims that he wishes to repent. So here we have a case where a man commits adultery, his wife cannot accept this and requests a divorce, and the man refuses and says he will repent. Today people would say that this woman is an agunah, as she is trapped in a marriage she doesn’t want to be in with a husband who cheated on her. Yet the Hakham Zvi rules in favor of the man that no divorce is required.
One can find numerous examples where poskim rule similarly. Here, for instance, is a decision of the Tel Aviv Beit Din.[18]
I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]
To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.
In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]
ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב”ן ומהר”מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו’
In deciding which opinion to follow, that of R. Karo or R. Isserles, I think that a point made by R. Jehiel Jacob Weinberg is relevant. He states that if there is a dispute among earlier halakhic authorities, we should reject the view that will bring the Torah into disrepute in people’s eyes.[23]
ואגלה להדר”ג [הגרא”י אונטרמן] מה שבלבי: שמקום שיש מחלוקת הראשונים צריכים הרבנים להכריע נגד אותה הדעה, שהיא רחוקה מדעת הבריות וגורמת לזלזול וללעג נגד תוה”ק

Can anyone deny that in the dispute between R. Karo and R. Isserles, the sort of consideration R. Weinberg was referring to would force dayanim, even Sephardic dayanim, to decide in accord with R. Isserles? In today’s day and age, it would be simply incomprehensible to people that a man who regularly beats his wife cannot be forced to give her a get.
There is another noteworthy decision given by the Supreme Rabbinic Court, again consisting of Rabbis Yitzhak Nissim, Bezalel Zolty, and Yosef Shalom Elyashiv.[24] The case was that a married man left his first wife and married another wife. The problem was that he never divorced the first wife, making him a bigamist. Furthermore, he refused to give his first wife a get. The woman therefore turned to the Beit Din asking them to force him to do so. The conclusion of the Beit Din was that while in this case, as opposed to the ones we saw earlier, the man was indeed obligated to divorce his wife, nevertheless the Beit Din could not force him to do so. Since the Beit Din ruled that he was obligated to give the get, his not doing so would make the woman an agunah in the eyes of the court. But since the Beit Din felt that it was unable to force the man to issue the get, who knows how long (maybe her entire life) the woman was forced to remain an agunah. Unfortunately for the woman, R. Shaul Yisraeli, also a member of the Supreme Rabbinic Court, was not one of the dayanim in this case, since he wrote to R. Elyashiv arguing that the court should indeed force the husband to give the get.[25]
Since I mentioned R. Weinberg earlier in this post, take a look at this responsum from Seridei Esh, vol. 3, no. 29.
R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn’t know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.
R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.
None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.
Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”.
Nevertheless, the notion that the husband has to be warned is found elsewhere as well. For example, regarding a husband who beats his wife, R. Moses Isserles, Shulhan Arukh, Even ha-Ezer 154:3, states that according to some such a man can be forced to give his wife a get. The Vilna Gaon explains, in words that lead to a liberal understanding of when a man can be forced to divorce his wife:
יש אומרים שכופין כו’: שאפילו על שאר דברים שאין לה צער כל כך כגון המדיר שלא תלך לבית אביה או לבית האבל כו’ [כתובות עא ע”ב] או שלא תשאל נפה וכברה כו’ [שם, עב ע”א], כל שכן במצערה בגופה. תשובת הרמב”ן סימן ק”ב.
Yet after stating that some say that a man who beats his wife can be forced to divorce her (an opinion he himself held, as we saw earlier in the quotation from Darkhei Moshe [26]), R. Isserles adds that a prior warning is required: ובלבד שמתרין בו תחילה פעם אחת או שתים.

Now that we have seen some of the real halakhic difficulties that stand at the center of the so-called agunah problem, in the next post I will offer a simple suggestion that I think can solve at least some of the cases.

2. Someone who read my earlier posts that discussed various punishments ordered by Jewish courts asked me about a quotation from R. Shlomo Yaffe, dean of the Institute of American and Talmudic Law, which offers a different perspective. See here. Before even getting to the particular quotation, let me say that I have real problems with some of what was said (or at least reported to have been said) at the recent conference on Jewish law reported on the link just given. For example, Rabbi Yaffe was asked, “If there were no First Amendment would we still have the freedom of speech?” The only correct answer has to be that without the First Amendment our freedom of speech will be endangered, and it could even become illegal to speak publicly about certain laws in the Torah (e.g., homosexuality), as this could be categorized as “hate speech”. But instead, Rabbi Yaffe replied: “Absolutely . . . We know that God had freedom of speech. He spoke and the world came into being. . . . We have free will and the ability to express ourselves.” How does this bit of darshanut answer a serious question about the importance of the First Amendment?
Professor Jeremy Waldron stated at the conference, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”[27] This is exactly why we need a First Amendment and why free speech must be protected. If it became illegal for some idiot to say, “All Muslims are terrorists,” then the next thing would be punishing people for saying that “Muslims are more likely to support terrorism than adherents of other religions,” and bans on the drawing of Muhammad’s picture and insulting the Prophet would not be far behind because after all, these are viewed by Muslims as defamations of their religion. (Muslims in Europe have already demanded that those insulting Muhammad not be protected by free speech laws.)
In other words, giving an inch in this matter would open up the floodgates and would be the end of free speech in America. As I already mentioned, this would also be a big problem for the traditional Jewish community, since it is only the constitutional guarantee of free speech that prevents “progressive” groups from legislating against “hate speech” found in religious communities. Based on the quote from Waldron, I would assume that he is a supporter of the “speech codes” that at one time were so popular at universities, until people began to realize the stifling effect they actually had on free speech. For those who are having trouble remembering what they learnt so many years ago: The First Amendment was created precisely in order to protect unpopular speech.
The particular quote from Rabbi Yaffe that I was asked about is the following: “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being.” What this means is that incarceration is only designed to protect the innocent, but Jewish law and tradition does not recognize incarceration as a means of punishment. This statement is simply false. Let us remember that incarceration must be seen as an improvement over the physical punishments I have detailed in earlier posts. Given the choice between lashing people and mutilating them, certainly incarceration is preferable. (See also what I wrote here.) As for incarceration itself, the Rambam states as follows in Mishneh Torah, Hilkhot Sanhedrin 24:9:
יש לכפות ידיים ורגליים ולאסור בבית האסורין
What this means is that a judge may bind a prisoner’s hands and feet and may imprison him. Punishment is one of the reasons that this is done, as Maimonides explains ibid. 24:10. Although there is nothing in the Torah about imprisonment, it was used as a punishment throughout Jewish history.[28] Simhah Assaf, who writes a good deal about Jewish prisons in Ha-Onshin Aharei Hatimat ha-Talmud, pp. 25ff, informs us that such prisons were found in Babylonia, Spain, Italy, Moravia, Poland, and Lithuania. One can also add Hungary and Bohemia to this list. According to Assaf, it is only in France and Germany that we don’t find Jewish prisons.[29] In addition to actual prisons, we also find something else: 

A symbolic imprisonment, which served as a means for expiation as well as one of humiliation and embarrassment, consisted of shackling a suspected murderer, for example, during a service. He was to have his hands as well as his body chained. This was apparently a tradition received from R. Judah the Pious.[30]

[1] See R. J. David Bleich’s discussion of get zikui in Tradition 35:4 (2001), available here. See also the responsum of R. Solomon David Kahane in Sefer ha-Yovel Karnot Tzaddik (Kefar Habad, 1992), pp. 253ff. For the Safed beit din’s decision to issue a get to a woman whose husband was in a vegetative state, see here, and see the beit din’s defense of its decision here. An entire book was published in opposition to this decision; see here.
[2] Vol. 2, p. 236.
[3] Vol. 3, p. xi.
[4] See Sinai 60 (1967), p. 319.
[5] See Havlin in Ha-Ma’yan (Tevet 5728), pp. 33-34 n. 14.
[6] In previous posts I have cited numerous examples that show that the notion that men and women are equal is also a modern idea. The standard traditional view was that a woman is secondary to her husband and under his authority. I mention this here only because I recently found a very interesting formulation that is relevant to what we will be discussing. In R. Hayyim Aryeh Leib ben Joseph Hayyim, Sha’ar Bat Rabim (Warsaw, 1900), parashat Tazria, p. 24a-b, he explains why a woman, who is “enslaved to her husband as a slave,” does not choose to run away like other slaves do.
והוא ימשול בך: לעבוד עבודתו. ואעפ”י שהיא משועבדת לבעל כעבד ודרך העבד לברוח מאדונו כדי שלא להשתעבד מ”מ גזר ה’ עלי’ שתחפוץ להשתעבד לבעלה כשפחה מדה כנגד מדה כי חוה נתנה גם לבעלה ויאכל במצותה לכן נענשה שלא תהיה היא עוד מצוה עליו אלא הוא יצוה עלי’ כל רצונו כן כתב רמב”ן.

[7] Mishneh TorahHilkhot Ishut 14:8.
[8] Sefer Nashim, vol. 1, pp. 306-307.
[9] See Shulhan Arukh, Even ha-Ezer 77:2.
[10] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol.  7, p. 3 (emphasis in original).
[11] Ha-Measef 9 (5664), nos. 1, 24.
[12] Ha-Measef 9 (5664), p. 1b. Many of his words are taken from She’elot u-Teshuvot ha-Rosh 43:8.
[13] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 139. R. Eliezer Waldenberg had a different approach. See Tzitz Eliezer, vol. 4, p. 109:
מכל האמור יש כר נרחב לדון בדבר כפיה לגרש במקום שישנו בטענת המאיס עלי אמתלא מבוררת, ובית הדין רואה צורך השעה לכוף את הבעל לגרש כדי שלא תצא האשה לתרבות רעה.
[14] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 141. A decision directly opposed to this was given in 1979 by the Supreme Rabbinical Court. The dayanim were R. Mordechai Eliyahu, R. Joseph Kafih, and R. Shaul Yisraeli. See Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 12, p. 25:
אפילו אם נעשה “רועה זונות” לאחר שאשתו עזבה אותו אין לחייבה לחזור ולחיות אמו.

[15] The Sefer Agudah’s ruling is cited in R. Moses Isserles, Shulhan Arukh, Even ha-Ezer 154:1. However, R. Isserles does not provide the Sefer Agudah’s reason, only his conclusion that a man who visits prostitutes can be forced to divorce his wife.
[16] It appears that the Arukh ha-Shulhan derived reason 2 from a formulation in the Sefer Agudah. However, R. Yosef Goldberg argues that the Arukh ha-Shulhan is mistaken and that the Sefer Agudah cannot be seen as a source for this reason. See Goldberg, “Teviat Ishah le-Hayev et Ba’alah be-Get,” Zekhor le-Avraham  (2000), vol. 2, pp. 669ff.
[17] See also R. Simeon ben Zemah Durah, She’elot u-Teshuvot Tashbetz, vol. 2, no. 8:
ואפילו לכוף אותו להוציא יש לדון מקל וחומר דבעל פוליפוס, דהשתא מפני ריח הפה כופין, מפני צער תדיר שהוא מר ממות לא כל שכן.

[18] Piskei Din shel Batei ha-Din ha-Rabaniyim be-Yisrael, vol. 8, p. 254.
[19] For a detailed discussion of the matter, see R. Avishai Teherani, Amudei Mishpat, vol. 1, Even ha-Ezer, no. 12. R. Teherani’s own conclusion is as follows:
המכה את אשתו, ואין סכנת נפשות לאשה, אין כופין אותו להוציא, שיש לחוש שלא נכשל בגט מעושה, אכן אם יש לאשה סכנת נפשות אמיתית, כופין אותו לגרשה בטרם יהרגנה, ויש לדיין ליתן עיניו בזה הרבה, כי כבר היו מעשים מעולם [!] ברצח האשה
(emphasis added). This is hardly a position that will find a sympathetic ear among most contemporary Orthodox Jews. R. Hanan Aflalo, Asher Hanan, vols. 3-4, no. 77, adopts an entirely different tone. With regard to the matter of a woman who wants a divorce because her husband visited prostitutes, unlike the decisions already mentioned, R Aflalo shows a real understanding of how a modern woman relates to this sort of thing. He writes as follows (p. 421):  
מאסה בו על עצם המחשבה שגופו היה דבק בגופן של נשים אחרות במעשה הניאוף והטינוף שבו, ובכך נגעלת מעצם המחשבה לכך לחזור עמו לחיי אישות ולשלום בית. ובאמת שמילים וטענות אלו יש בהם ממש.
R. Uriel Lavi, av beit din of the Safed beit din that issued the controversial get to a woman whose husband was in a vegetative state (see note 1), and who has been villified in the haredi world and through their pressure kept off the Supreme Rabbinic Court (see here), has the same sympathetic approach as R. Aflalo. See his Ateret Devorah, vol. 2, p. 644:
חיוב הבעל בגט הוא מפני המאיסות שבמעשיו. אמנם בעלמא באומרת מאיס עלי אין כופין גירושין, אך כשמאיסות זו היא כה חמורה ונובעת ממעשיו הנלוזים של הבעל, ואין זו בעיה חריגה של האשה, אלא מאיסות המוכרת והמקובלת בנסיבות אלו אצל כל הנשים, יש לכפות את הבעל.
It is precisely rabbis with this type of modern understanding that can provide a solution to the problem we have been discussing, as we will see in the next post.
[20] Beit Yosef, Even ha-Ezer 154 end, s.v.מצאתי בתשובת רבינו שמחה 
[21] Darkhei Moshe, Even ha-Ezer 154:21 (The text is from the Machon Yerushalayim edition which has added material from Darkhei Moshe ha-Arokh).
[22] R. Isserles also adds the following which is relevant to recent events in which a number of people were sentenced to prison for kidnapping and torturing men who refused to give a get.
נראה דטוב שלא לכופו ליתן גט אלא בדרך זה להחרימו או לתופסו בידי גוים או בשוטים שלא להכותה או שיוציא ויתן גט ובדרך זה לא מיקרי כפייה על הגט רק לקיים מה שמחוייב לעשות.
[23] Kitvei ha-Gaon Rabbi Jehiel Jacob Weinberg, vol. 1, p. 60.
[24] Piskei Din shel Batei ha-Din ha-Rabaniyim be-Yisrael, vol. 7, p. 65.
[25] Mishpetei Shaul, no. 34
[26] For a detailed discussion regarding whether the beit din can force a wife beater to divorce his wife, see R. Isaac ben Walid, Va-Yomer Yitzhak, vol. 1, no. 135.
[27] If someone said, “All NRA members are terrorists,” would Waldron think that NRA members also have a right to be protected against that defamation? And if not, why not? What possible legal distinction is there between belonging to a religion and belonging to an organization?
[28] See R. Yehoshua Inbal, Torah she-Ba’al Peh (Jerusalem, 2015), p. 215.
[29] Assaf, Ha-Onshin, p. 25.
[30] Eric Zimmer, Harmony and Discord (New York, 1970), p. 93.



Avunculate Marriage in the Bible

Avunculate Marriage in the Bible

By Reuven Chaim (Rudolph) Klein
Rabbi Reuven Chaim Klein is the author of the Lashon HaKodesh: History, Holiness, & Hebrew [available here]. His book is available online and in bookstores throughout the world. Rabbi Klein published articles in various journals including Jewish Bible Quarterly, Kovetz Hamaor, Kovetz Chitzei Gibborim, and Kovetz Kol HaTorah. He studied at premier Yeshivas including the Mir in Jerusalem and BMG in Lakewood. He was most recently a fellow at the Tikvah Institute for Yeshiva Men (Summer 2015) and lives with his wife and children in Beitar Illit, Israel.
Anyone who has a copy of the first edition of his book on Lashon HaKodesh is eligible to receive a PDF of the “Additions and Corrections” section of the new edition. Please send requests directly to the author at: historyofhebrew@gmail.com

The term “avunculate marriage” refers to marriage between a man and his niece. In this paper, we will explore the Bible’s view on the permissibility of such unions, and discuss several examples of such marriages in the Bible. Not only does rabbinic literature generally presume that such marriages are permitted, the Talmud even encourages it. On the other hand, other sources ban these relationships. The Sadducees believe that the Bible forbids such marriages. While various Tosafists believe that such marriages are Biblically permitted, they still prohibit marrying one’s niece (at least in some cases) for other reasons.

Abraham & Nahor marry their nieces

Upon close examination, one will find that at least six Biblical personalities married their nieces. Each of these cases can and are interpreted in various ways; calling into question their relevance to our discussion. However, the mere fact that tradition allows for these sorts of interpretations shows that avunculate marriage is compatible with Biblical tradition, and constitutes a legitimate building block in the institution of the Jewish family.

The first two examples of avunculate marriages in the Bible are those between Abraham and Nahor and their respective nieces. The Torah says:

And Terah lived seventy years, and begot Abram, Nahor, and Haran. Now these are the generations of Terah: Terah begot Abram, Nahor, and Haran; and Haran begot Lot. And Haran died in the presence of his father Terah in the land of his nativity, in Ur of the Chaldees. And Abram and Nahor took them wives: the name of Abram’s wife was Sarai; and the name of Nahor’s wife, Milcah, the daughter of Haran, the father of Milcah, and the father of Iscah. (Gen. 11:26–29)

This passage records that Abram (i.e. Abraham), Nahor, and Haran were brothers. Nahor married Milcah, the daughter of Haran; and Abraham married Sarai. According to an ancient tradition preserved in rabbinic sources (Seder Olam Ch. 2; TB Megillah 14a; and TB Sanhedrin 69b) and by Josephus (Antiquities of the Jews Book I, Ch. 6), another name for Sarai is Iscah. The assertion that Sarai is the same person as Iscah is supported by the fact that the Torah provides the paternity of Nahor’s wife Milcah, yet does not mention the paternity of Abraham’s wife Sarai. Given that the Torah delineates one wife’s father, we would have expected it to mention the father of the other wife as well. This difficulty can be resolved if we assume that Sarai is Iscah, since the Torah states that Haran was the father of Iscah.[1]

If we assume that the Haran who is mentioned as Abraham and Nahor’s father-in-law is the same person as their brother Haran, and that Sarai is Iscah, then this passage records two instances of avunculate marriages: Nahor married his niece Milcah and Abraham married his niece Iscah/Sarai. However, it is debatable whether Nahor and Abraham’s marriages to Milcah and Sarai were truly avunculate marriages. In order to claim that they were, one must rely on two assumptions, both of which are subject to dispute. Firstly, Ibn Ezra (to Gen. 11:29) expresses skepticism regarding the identification of Iscah with Sarai.[2] Secondly, even if Iscah is Sarai, some commentators (including Abarbanel(Gen. 11) and the Medieval work Moshav Zeqenim[3]) understand that the Bible refers to two different men named Haran. One was a brother to Abraham and Nahor (and father of Lot); while the other was the father of Iscah/Sarai and Milcah.[4] Accordingly, there is no clear consensus on whether Abraham and Nahor married their nieces.

Dinah’s daughter

Later in Genesis, the Bible relates that when Joseph was the Egyptian viceroy, he married Osnath daughter of Poti-Phera (Gen. 41:45). According to many Midrashic sources (Pirkei D’Rabbi Eliezer Ch. 38; Masekhet Sofrim 21:9; and Targum Pseudo-Jonathan to Gen. 41:45(, Osnath was none other than the daughter of Dinah (Jacob’s daughter) and her rapist, Shechem. This “illegitimate” child was initially shunned by Jacob’s family, but eventually found her way back in by marrying Joseph. Thus, Joseph’s wife Osnath was his niece, the daughter of his sister Dinah. Although others understand that Osnath was actually an Egyptian woman,[5] the Midrashic sources above reject the notion that Joseph would marry a non-Israelite woman.
Similarly, Rabbeinu Hayyim Paltiel quotes a Midrash[6] which says that Simeon married the daughter of Dinah who was born by rape through Shechem.[7] According to this Midrash (which is probably mutually exclusive with the above mentioned sources), Simeon married his niece, the daughter of his sister Dinah.
These examples differ from the others under consideration because these are the only explicit examples of a man marrying his sororal niece (i.e. his sister’s daughter). All the other examples involve a man marrying his fraternal niece (i.e. his brother’s daughter).

Uziel and Miriam

Amram had three children: Miriam, Aaron, and Moses. The Bible records the marriages of both of Amram’s sons: Moses married Zippora daughter of Jethro (Ex. 2:21), and Aaron married Eliseba daughter of Amminadab (Ex. 6:23). However, the Bible does not tell us about the family of Amram’s daughter Miriam.

Rabbinic literature states that she married Caleb (Exodus Rabbah §1:17; Sifrei, Beha’alothkha §78; and TB Sotah 11b–12a). However, according to the apocryphal work The Testament of Amram found amongst the Dead Sea Scrolls at Qumran (4Q543, 4Q549), Amram gave his daughter Miriam to his younger brother Uzziel to wed. That work understands that the sons of Uzziel listed in the Bible (Ex. 6:22) were born to his wife Miriam. Thus, that work believed that Uzziel married his brother’s daughter Miriam.

Othniel and Achsa

As related in the book of Joshua (15:16–17) and in the opening chapter of Judges (1:12–13), Caleb offered his daughter Achsa to whoever could conquer the Canaanite stronghold at Kiriath Sepher: “And Othniel the son of Kenaz, Caleb’s younger brother, took it; and he [Caleb] gave him [Othniel] Achsah his daughter to wife.” Othniel succeeded in conquering the city and thus won the hand of his brother’s daughter Achsa in marriage. Most assume that Othniel was Caleb’s full brother, although some explain that they shared only a mother, not a father.[8]
R. Ishtori ha-Parhi (1280-1366), the foremost Rabbinic topographer of the Medieval period, writes (Kaftor Va-Fereh Ch. 5) that the Sadducees consider themselves more pious than Rabbinic Jews because they forbid one to marry his brother’s daughter. Then, ha-Parhi cites this case as a Biblical precedent for allowing such marriages. Nonetheless, ha-Parhi notes that the case of Othniel only proves that one may marry the daughter of his maternal brother but does not necessarily prove that one can marry the daughter of his paternal siblings.

Elimelech and Naomi

There is a Talmudic discussion (TB Bava Bathra 91a) regarding the Book of Ruth which explains the relationships between its major players. It asserts that Elimelech (Naomi’s husband), Salmon (Boaz’s father), the anonymous relative who refused to redeem Naomi’s field, and Naomi’s father were all sons of Nahshon ben Amminadab. According to this understanding, Elimelech married his brother’s daughter—Naomi.

However, the Midrash (Ruth Rabbah §6:3) presents a dissenting view that Elimelech was a son of Salmon (and brother to Boaz). According to this understanding, Naomi was not Elimelech’s niece but his first cousin.

Mordecai and Esther

The Talmud (TB Megillah 13a) relates that Mordecai not only raised the orphaned Esther, but he also married her. Furthermore, some sources, including Josephus in Antiquities (Book XI, Ch. 6), Targum Rishon (to Est. 7:6),[9] and the Vulgate (Est. 2:7) explain that Esther was Mordecai’s niece. Ibn Ezra (to Est. 8:1) and Maimonides (there)[10] also repeat that claim. Together, these two ideas indicate that Mordecai married his niece. Nonetheless, this understanding is simply mistaken as the Bible quite explicitly states that she was his first cousin, not his niece: And he brought up Hadassah, that is, Esther, his uncle’s daughter… (Est. 2:7) and Now when the turn of Esther, the daughter of Abihail the uncle of Mordecai… (Est. 2:15).

The Talmud encourages marrying one’s niece

The prophet Isaiah tells of several acts of kindness that a man can perform that would prompt God to answer his prayers. He says:
Is it not to deal thy bread to the hungry, and that thou bring the
poor that are cast out to thy house? when thou seest the naked, that thou cover
him, and that thou hide not thyself from thine own flesh? Then shall thy light
break forth as the morning, and thy healing shall spring forth speedily; and
thy righteousness shall go before thee, the glory of the LORD shall be thy
reward. Then shalt thou call, and the LORD will answer; thou shalt cry, and He
will say: ‘Here I am.’…
(Is. 58:7–9)
When explaining these “good deeds” in practical terms, the Talmud (TB Yevamot 62b–63a) notes that and that thou hide not thyself from thine own flesh refers to a man who marries his sister’s daughter. While there is a controversy among the commentators concerning whether the Talmud only means one’s sororal niece or even his fraternal niece, it is clear that the Talmud encourages a man to marry his niece. Similarly, the Tosefta (Kiddushin 1:2) teaches, “A man should not marry a woman until his sororal niece comes of age [so that he can marry her], or until he finds [another woman equally fitting for him.”

Only Sororal niece, or even fraternal niece?

There are two approaches among the earlier commentators in how to understand the Talmud’s endorsement of marrying one’s niece. Rashi understands that the Talmud only endorses marrying one’s sororal niece. He explains that this act is considered particularly kind, because a man has a certain longing for his sister (more so than for his brother). Thus, by marrying her daughter, he will insure that his wife will be especially cherished.

However, the Tosafists (Tosafot to TB Yevamot 62b) quote in the name of Rashi’s grandson Rashbam that the Talmud’s endorsement also applies to one’s fraternal niece, not just to a sororal niece. He explains that the Talmud specifically mentions marrying a sororal niece simply because it is more common that a man’s sister will convince him to marry her daughter than it is for his brother to do so.

Nonetheless, Rabbeinu Tam disagrees with this assertion and instead maintains that the Talmud only means that one should marry his sororal niece. There are two modes of justifications given for this approach: Firstly, one’s sororal niece is similar to her uncle, as the Rabbis say, “Most children are similar to the brothers of their mother” (TB Baba Bathra 110a, Sofrim 15:10). This similarity between the two will ensure a stronger marriage, and that is precisely what the Talmud means to endorse.

Furthermore, the Tosafists quote in the name of Rivan (a son-in-law of Rashi and uncle to Rabbeinu Tam and Rashbam) that it is actually forbidden to marry one’s fraternal niece, so the Talmud must only have endorsed marrying one’s sororal niece. They explain that according to the rules of the Levirate marriage (mentioned in Deut. 25:5–10), a man (A) is commanded to marry the widow of his brother (B), if B dies childless. However, the Mishnah teaches (Yevamot 1:1) that if the widow is A’s daughter, then A is exempt from that commandment, because a man may not marry his own daughter. Thus, the Rabbis forbid a man (B) from marrying his niece (A’s daughter) so as to prevent a situation where the commandment of Levirate marriage will be abolished. This rabbinic ban on marrying one’s fraternal niece proves that the Talmud’s endorsement of marrying one’s niece only applies to a sororal niece.[11]
Nonetheless, this proof is incomplete because there are situations where there is no clash with the rules of the Levirate marriage. For example, if A is already deceased (and therefore anyways unable to perform the Levirate marriage), then B should be allowed to marry his daughter. Or if A is only B’s maternal brother, but not paternal brother (and therefore is not allowed to marry B’s widow even if she was not his daughter see TB Yevamot 17b), then he should be allowed to marry A’s daughter. Accordingly, one can argue that in these situations, the Talmud endorses marrying even one’s fraternal niece. This is especially compelling in light of ha-Parhi’s above mentioned proof-text from Othniel, which shows that one is allowed to marry his maternal brother’s daughter.
In short, Rabbeinu Tam—in agreement with his grandfather Rashi—understands that the Talmud only endorses marrying one’s sororal niece, but actually forbids marrying one’s fraternal niece. Rabbi Betzalel Ashkenazi (1520–1592) testifies that this is also the opinion[12] of the non-yet-extant Tosafot Shantz to the Talmudic Tractate Gittin.[13]In his commentary to the Bible, the ‎Alsatian sage R. Yohanan Luria (1440–1514) also follows Rabbeinu Tam’s view.[14]
However, Maimonides (in his commentary to the Mishnah Nedarim 8:5 and in his Laws of Sexual Prohibitions, end of ch. 2) understands that the Talmud does not mention one’s sororal niece to the exclusion of his fraternal niece. He thus rules that is considered a Mitzvah for a man to marry either his sororal or fraternal niece.[15] R. Meir Abulafia (1170–1244) writes (Yad Ramah to TB Sanhedrin 76b) that marrying one’s niece is considered commendable because she is the closest relative that a man is allowed to marry. He thus follows his older contemporary Maimonides in offering no distinction between a sororal niece and fraternal niece (because the degree of kinship to both is the same). Nonetheless, he notes that the Talmud mentioned one’s sister’s daughter in specific simply because marrying her is even more commendable. By doing so, he is performing an act of kindness towards his sister, who might otherwise have difficulty marrying off her daughter.[16]
R. Moses Isserles (1520–1572) settles the matter by ruling in accordance with the view of Maimonides and Rashbam that one should marry his sororal or fraternal niece (see his glosses to the Shulhan Aruch, Even Ha’Ezer §2:6; 15:25).

The Rabbinic View regarding Forbidden Relationships

Rabbinic Judaism extends the meanings of the Biblical passages (Lev. 18 and 20) which delineate forbidden relationships. They note that the Torah spoke of the incest laws from the man’s point of reference, but the laws apply equally to a woman. Thus, the Rabbis understand that all incestuous relationships mentioned in the Bible are forbidden to both the man and the woman involved (TB Yevamot 84b). However, the Rabbis do not add more forbidden relationships than those listed by the Bible; they only say that both parties are culpable. The Sadducees, on the other hand, add cases to the Bible’s list and forbid more cases of the same types of relationship. In this, the Rabbis understand the Bible’s meaning differently than the Sadducees and remain more faithful to the text of the Torah than did they.

The Sadducee View Regarding Forbidden Relationships

A Sadducean work found by Solomon Schechter at the Cairo Geniza criticizes those who marry their brother or sister’s daughter. This work reasons that since according to Mosaic law, a man is not allowed to marry his mother’s sister because she is his mother’s flesh (Lev. 18:13), a woman is also not allowed to marry her parents’ brother. The rationale for such an extension of the Biblical law is that the Torah does not simply list forbidden cases of incest, it lists forbidden categories of relationships. These relationships are determined by degree of kinship, without regard for gender. Thus, if a man is forbidden to his parents’ sister, the same prohibition says that a woman is forbidden to her parents’ brother because the degree of kinship—in this case, parent’s sibling—is the same.[17]
A copy of this document, now known as the Damascus Document, was also found among the Dead Sea Scrolls at Qumran (4Q270). It contains a condemnation of those men who marry their brothers’ daughters (although that particular source omits the prohibition of one’s sister’s daughter). A legal scroll found at Qumran known as Midrash Mishpatim (4Q251) contains a list of the Biblical prohibitions of incest, and includes a man marrying his brother’s or sister’s daughter. Another important document from Qumran known as the Temple Scroll (11Q19) [18] also forbids marrying one’s brother’s or sister’s daughter.[19]
Case
#:
The Bible
(Lev. 18 and 20) forbids a man from marrying his…
The Rabbis
say that this also means that a woman maynot marry her…
The Sadducees
would say that this also means that one maynot marry his/her…
Sadducean
approach is redundant because it is already included in case #/New case:
1
Mother
Son
Daughter/Father
(13)
2
Sister
Brother
n/a
n/a
3
Father’s wife
Husband’s son
Wife’s
daughter/Mother’s husband
9
4
Granddaughter
Grandfather
Grandmother/Grandson
NEW
5
Parent’s
sister
Siblings’ son
Niece/Parent’s
brother
NEW
6
Father’s
paternal-brother’s wife
Husband’s
paternal-brother’s son
Wife’s
paternal-sister’s daughter/Parent’s paternal-sister’s husband, Mother’s paternal-brother’s
wife/Husband’s paternal-brother’s son
NEW (2
scenarios)
7
Daughter-in-law
Father-in-law
Mother-in-law/Son-in-law
12
8
Brother’s
wife
Husband’s
brother
Wife’s
sister/Sister’s husband
11
9
Wife’s
daughter
Mother’s
husband
Father’s
wife/Husband’s son
3
10
Wife’s
granddaughter
Grandmother’s
husband
Grandfather’s
wife/Husband’s grandson
NEW
11
Wife’s sister
Sister’s
husband
Brother’s
wife/Husband’s brother
8
12
Mother-in-law
Son-in-law
Daughter-in-law/Father-in-law
7
13
Daughter (see
fn. 22)
Father
n/a
n/a

The Sadducean method of interpretation creates three pairs of redundancies in the Bible’s list (Cases 3, 7, 8, 9, 11, and 12) and also creates four new cases of incest which are not mentioned in the Bible, in addition to marrying one’s niece (Cases 4, 6, two scenarios, 10).

These two points demonstrate the weakness of the Sadducean approach. The method of interpretation used to justify including one’s niece in the Biblical prohibition against marrying one’s aunt would create a series of redundancies in the other listed cases of incest. Furthermore, according to the Sadducean methodology of Biblical interpretation, four other relationships should be classified as incestuous (in addition to marrying one’s niece). However, the Sadducees are inconsistent in that they explicitly mention their added prohibition against marrying one’s niece but fail to account for the other new cases of incest which their methodology creates.[20]

In fact, Saul Lieberman argues that the Rabbis classified marrying one’s niece as a positive deed specifically in order to counter the Sadducean view that marrying one’s niece is Biblically forbidden. He notes it is the Rabbis’ way to take things which are simply “allowed” by the Bible and encourage people to do them in order to undermine sectarian heretical views.[21]
Interestingly, in his abovementioned work, ha-Parhi notes that the Sadducees were not innovators in banning marriage to a niece: They adopted the prohibition from the Samaritans, who took the idea from the Arabs.[22] Later, the Karaites also followed suit and outlawed uncle-niece marriage.[23]

R. Yehuda Ha-Hassid’s view

The 12th century German leader of the Hassidei Ashkenaz movement, R. Judah Ha-Hassid, declares that one should not marry his niece, neither sororal nor fraternal (in his ethical will §22 and in Sefer Hassidim §477). However, his understanding of this prohibition clearly differs from the Sadducean approach. The Sadducees understood that the Bible itself prohibits marrying one’s niece, while Ha-Hassid does not. As a follower of Rabbinic tradition, Ha-Hassid must comply with Talmudic law, yet his mention of a prohibition against marrying one’s niece is clearly at odds with the Rabbinic approach which not only allows for such marriage but even encourages it.

R. Ezekiel Landau of Prague (1713–1793), in his halachik responsa (Noda B’Yehuda, Even HaEzer Tinyana §79), offers an innovative solution. He proves that R. Judah Ha-Hassid only wrote the prohibitions in his will and Sefer Hassidim for his descendants—not for all Jews—because otherwise his prohibition would contradict an explicit Talmudic passage that not only allows but even applauds a man marrying his niece. [24] Others interpret Ha-Hassid’s warning in accordance with contemporary science, which warns of the genetic dangers to children born to an uncle and niece.

Nonetheless, Ha-Hassid himself explains his true intent. He writes (Sefer Hassidim §488) that only a pious individual is allowed to marry his niece in order that his children be similar to himself (per the rabbinic dictum mentioned above). However, a wicked man who only intends to fulfill his own pleasures should not marry his niece, so that his children will not be like him. Thus, Ha-Hassid actually allows for avunculate marriage in the right circumstances, yet elsewhere he writes blankly that it is forbidden so that the not-necessarily-pious masses would refrain from such unions.[25]

Conclusion

There are essentially two general views regarding avunculate marriage in the Bible. The Rabbinic position is that avunculate marriage is permitted by Biblical law. In fact, according to Rabbinic tradition, there are even Biblical precedents for allowing such marriages. Nonetheless, the Rabbis do limit the circumstances under which one may marry his niece. They forbid marrying one’s fraternal niece, since this might interfere with the commandment of the Levirate marriage. There is also the pietistic view of the Hassidei Ashkenaz, who rule that only a pious man may marry his niece (because he will have pure intentions), while the masses should not engage in such unions.

By contrast, the Sadducean approach outlaws avunculate marriage entirely, and attributes this prohibition to the Bible. Even according to Rabbinic tradition, the aforementioned Biblical cases are not unanimously viewed as actually consisting of avunculate marriages. The Sadducees would likely interpret these cases such that they do not serve as precedents for legitimately marrying one’s niece.

[1] L.
A. Feldman (ed.), Pirush HaRan Al HaTorah (Jerusalem: Machon Shalem,
1968) pg. 149.
[2]
While Ibn Ezra does not explicitly note his objections to this identification,
other sources quote a question in his name which implies a reject of this
tradition. Ibn Ezra asks that if we assume that the Bible lists Terah’s sons in
order of their birth, then Abraham was at least two years older than Haran.
Furthermore, it is evident from the Bible that Abraham was ten years older than
his wife Sarah (Sarai), as it says Then Abraham fell upon his face, and
laughed, and said in his heart: ‘Shall a child be born unto him that is a
hundred years old? and shall Sarah, that is ninety years old, bear?’
(Gen.
17:17). This would mean that Haran fathered Iscah/Sarai at the extremely
unlikely age of eight. Rabbeinu Hayyim Paltiel answers this objection by
noting that the Talmud (TB Sanhedrin 69b) itself already raised this
point. In fact, it uses this calculation to prove that in early generations men
fathered offspring from as early as the age of eight. See I. S. Lange
(ed.), Pirushei HaTorah L’Rabbeinu Hayyim Paltiel (Jerusalem,
1981) pp. 26–27 and S. Sasson (ed.), Moshav Zeqenim (London,
1959) pg. 15.
[3] S.
Sasson (ed.), Moshav Zeqenim (London, 1959) pg. 15.
[4] The
commentators propose this distinction because of the fact that the Bible splits
the genealogy of Haran’s descendants into two verses. The first verse only
mentions Lot, while the second says that he was the father of Milcah and Iscah.
However, Kimhi explains these verses in the exact opposite way: He
argues that the Torah sought to clarify that Haran was not only the father of
Lot, but also of Milcah and Iscah (which follows the view that this passage
only discusses one Haran).
[5]
Josephus (in Antiquities of the Jews Book II, Ch. 6) also understood
that Joseph’s wife was literally the daughter of Potiphar. However, see Midrash
Sekhel Tov
(to Gen. 39:1) and Midrash Tadshe (Ch. 21), printed in J.
D. Eisenstein (ed.), Otzar Midrashim (New York, 1915) pg. 486 and also
cited by Yalkut Shimoni (Joshua §9), which say that Osnath was among
several righteous female converts.
[6]
This Midrash appears nowhere else, save for Rabbeinu Hayyim Paltiel’s
commentary. However, there is a similar tradition (Genesis Rabbah
§80:11) which says that Dinah refused to leave the house of Shechem until
Simeon promised to marry her. According to that Midrash, Simeon married his
sister
Dinah, not her daughter.
[7] I.
S. Lange (ed.), Pirushei HaTorah L’Rabbeinu Hayyim Paltiel (Jerusalem,
1981) pg. 166.
[8] The
Talmud (TB Temurah 16a), followed by Rashi (to Jos. 15:17 and Jud.
1:13), writes that Othniel was only Caleb’s maternal brother, not full brother.
The rationale for this statement is that Caleb’s father is always given in the
Bible as Jephunah (Num. 13:6; 14:30; 26:65; 32:12; 34:19; Deut. 1:36′; Josh.
14:6; 14:14; I Chron. 4:15), while Othniel is always mentioned as a son of
Kenaz (Josh. 15:17; Jud. 1:13; 3:9; 3:11; I Chron. 4:13). According to this
approach, after Caleb was born, his mother married someone named Kenaz, and
bore Othniel to him. Rashi remains consistent with this view when he writes (in
his commentary to TB Sukkah 27b) that he is unsure of Othniel’s tribe,
because his relationship to Caleb was only through their mother, and
matrilineal descent does not impart tribal affiliation.
Kimhi
(to Josh. 15:17) adds that in the instances that Caleb also is referred to as a
Kenizzite (Num. 32:12; Josh. 14:6; 14:14), this term is a reference to his
step-father. Kimhi then suggests that Caleb and Othniel were actually
full brothers and that their father had two names: Jephunah and Kenaz (which is
why Caleb is also called a Kenizzite). Ultimately, Kimhi rejects this
approach and argues that the appellation “Kenizzite” refers to the family
of Kenaz, a common ancestor of both Caleb and Othniel. Ha-Parhi (cited
below) and Abarbanel (to Josh. 15:16 and in his introduction to Judges) concur
with Kimhi’s conclusion. [It has yet to be explored whether the term
Kenizzite used in connection with Caleb is related to the Kenizzites, a
Canaanite tribe which God promised Abraham will be conquered by the Israelites
(Gen. 15:19).]
[9]
Although, see Targum Rishon earlier (to Esther 2:7 and 2:15) who
explicitly writes that Esther was the daughter of Mordecai’s uncle, making them
first-cousins, not niece and uncle.
[10] Y.
Rivlin (ed.), Pirush Megillat Esther L’Rambam (Jerusalem, 1952)
pg. 60.
[11] See
Tosafot (TB Yevamot 99a) and Tosafot Yeshanim (ibid. 62b).
The same point is made earlier by Rav Sherira Gaon (who predated Rabbeinu Tam)
in a responsum printed by M. Grossberg (ed.), Gvul Menashe (Frankfurt,
1899) pg. 15.
[12] R.
Abraham Haim Schor (d. 1632) writes (Torat Haim to TB Sanhedrin
76b) that marrying one’s sororal niece is especially praiseworthy because
according to Biblical law, a daughter does not inherit her deceased father’s
property unless he has no sons. Accordingly, there is likely animosity between
a man and his sister, for the former will inherit their father’s property and
the latter will not. Therefore, it is especially praiseworthy for a man to
marry his sister’s daughter in order to alleviate this animosity and show his
sister that even she will derive benefit from their deceased father’s estate. Tosafot
Shantz
, as quoted by Ashkenazi, offers a very similar approach and adds
that marrying one’s brother’s daughter does not achieve the same effect because
one’s paternal brother will in any case inherit his father’s property. In this,
Tosafot Shantz offers another strong argument for Rabbeinu Tam’s position.
[13] M.
Y. Blau (ed.), Shitah Mekubetzet Yevamot (New York: Shitat HaKadmonim,
1986) pg. 302. See also Shitah Mekubetzet (to TB Nedarim 63b) who
also seems so inclined.
[14] Y.
Hoffman (ed.), Meshivat Nefesh (Jerusalem: Machon Yerushalayim, 1998)
pg. 18.
[15] See
also Meiri (to TB Yevamot 62b) who seems to agree with Maimonides.
[16] In
a similar explanation, R. Todros HaLevi ben Joseph Abulafia (1225–1285), a
nephew of R. Meir Abulafia, writes that marrying one’s sister’s daughter is
especially meritous because his sister likely has financial difficulties in
marrying off her daughter. Hida (Birkei Yosef to Even HaEzer
§2:6) quotes this unpublished explanation of R. Todros and adds that according
to this, there is no difference between a sororal niece and a fraternal niece,
the difference is only in whether the groom’s sibling has financial
difficulties.
[17] S.
Schechter (ed.), Documents of Jewish Sectaries Vol. 1, Fragments of a
Zadokite Work (Cambridge, 1910) pg. 5.
[18]
Interestingly, Midrash Mishpatim lists the prohibition of marrying one’s
niece before it lists one’s aunt, while the Temple Scroll lists
marrying one’s niece afterwards.
[19] See
E. Eshel, “The Proper Marriage according to the Genesis Apocryphon and Related
Texts,” Meghillot: Studies in the Dead Sea Scrolls Vol. 8–9 (Jerusalem:
Bialik Institute, 2010) pp. 29–51, who discusses numerous examples of the DSS
embellishing Biblical passages by adding marriages between first cousins. She
explains that the authors of those scrolls added cases of marriage between
first cousins and not between man and his niece precisely because the Qumranic
sect believed the latter to be forbidden.
[20] It
should be noted that three out of four of those cases (i.e. grandmother,
mother’s paternal brother’s wife, and grandfather’s wife) are explicitly banned
by Rabbinic decree, even though according to Rabbinic interpretation they are
permitted by Biblical law (see TB Yevamot 21a).
[21] S.
Lieberman, Tosefta Ki-fshutah (New York: JTS, 1973) pg. 915. Cf. E.
Segal, “Sarah and Iscah: Method and Message in Midrashic Tradition”, JQR,
vol. 82:4, pp. 417–429 who seems content to similarly explain the Midrashic
identification of Sarah with Iscah (mentioned above).
[22]
Ha-Parhi, in his abovementioned polemic against Sadducees, writes that
should one meet a Sadducee, one should tell him that according to Sadducean
religion one is allowed to marry his daughter because the Bible does not
explicitly forbid it and the Sadducees do not recognize the hermeneutical
arguments set forth by the Rabbis (TB Sanhedrin 76a) for its
prohibition. However, in light of the above, Ha-Parhi’s polemic is no
longer applicable because according to the Sadducees’ internal logic, marrying
one’s daughter is included in the prohibition of marrying one’s mother because
both are a violation of the child-parent relationship. That is, the Torah
forbids a man to lie with his mother and both Rabbinic and Sadducean
interpretation extend this prohibition to a woman who is forbidden from lying
with her son. However, Sadducean interpretation would also argue that included
in this prohibition is a man lying with his daughter because the Torah’s intent
is not simply to forbid a man and his mother, but to declare incestuous any
fornication between the child-parent line. The Rabbis, on the other hand,
understood that this is not the intent of the Torah and instead offer their own
source for the prohibition of marrying one’s daughter.
[23] N.A.
Stillman (ed.), “Malik al-Ramlī.” Encyclopedia of Jews in the
Islamic World
(Brill Online, 2013).
[24] For
an extensive survey of various authorities who agree or disagree with Landau’s
characterization of the prohibition cited by R. Yehuda Ha-Hassid, see Sdei
Hemed
Vol. 7 (Brooklyn: Kohath Publishing, 1950) pp. 2483ff.
[25] See
S. Guttman (ed.), Sefer Tzava’at Rabbi Yehuda HaHassid HaMefoar
(Jerusalem: Otzar HaPoskim, 2011) pp. 177–188 for an in-depth analysis of Ha-Hassid’s
stance on the topic.



An Incident of “Pilegesh B’Givah” in 19th Century Germany

AN INCIDENT OF “PILEGESH B’GIVAH” IN 19TH CENTURY GERMANY
by Eli Genauer
I recently purchased an antique Hebrew book for less than the price of a dinner at a moderately priced restaurant. This particular edition is what some would call a “common” — meaning it is the 36th edition (the fourth edition of a revised version) of this book and it was printed in the mid-19th century. Generally, the market does not assign a high price for books like these, but they can be a treasure trove of knowledge and information.
The work is Tikkun Shlomo and is primarily focused on the Shabbos liturgy.  I reproduced the title page:
Many will no doubt recognize the name of the compiler, Shlomo Zalman London (1661-1748) who wrote the book “קהלת שלמה”and that it was reprinted thirty times in the next 200 years.  
Tikkun Shlomo was first published in Amsterdam by Dr. Naftali Hertz HaLevi in 1733.  Dr. Levi published many a storied book, including the first edition of Mesilat Yesharim and the edition of the Shu”t HaTashbetz that is alleged (erroneously) to have been cosigned to flames.  According to Friedberg, when Dr. Levi published the Tikun Shlomo, not much else was being published in Amsterdam due to the effect of the Thirty-Year War.[1]  The Tikkun Shlomo was very popular, going through almost 40 editions by the late 19th century. Heidenheim expanded this work in 1835, and the edition I purchased was the fourth Heidenheim edition (two of the three were published in Roedelheim and the other in Lemberg).  
Things get off to a wonderful start in this book with the Hakdamah which is indicated to come from the third edition. In it, the unnamed editor pays tribute to his mentor Wolf Heidenheim Z”L and maintains that he has followed in his footsteps in all matters because “anyone who follows him will not err”. The editor only refers to himself at the end of the Hakdamah as “HaTzair”, but he leaves us an unmistakable hint as to his identity. Before we get to that, let us see what else he includes in this “Hakdamah”
ויהי מימים,ויקם עוד בּישׂראל פּורץ גדר,וישׁחת דברים נעימים, ויוסף עוד להרוס חומת שׂפת עבר ולדבּר תועה אשר לא כּדת. כּי פּרץ מצפון בא בא, ותפתח הרעה, וידפיס אישׁ אחד את המחזורים ב׳האננאפער׳, ויעבור חק, ויהפוך וישׁנה מדעתו את דברי התפילות ופיוטים, ויעקש ויעקל מאוד כמעט בכל דף ודף, ותהי זמירת ישׂראל בידו מעין משחת ומקור נרפשׁ, אשה יפה וסרת טעם, כּי שנה את טעמה ויתעמר בה וימכרה בּכּסף, וכן לא יעשׂה.
He takes great offense to a certain Machzor printed by “one man”. The Machzor to which he referring to is known as “Ordnung der Oeffentlichen Andacht für die Sabbath und Festtage des Ganzen Jahres, nach dem Gebrauche des Neuen Tempel-Vereins”, otherwise known as “Seder ha-‘Abodah, Minhag Ḳehal Bayit Ḥadash” printed in Hamburg (not Hanover) in 1819. Two editors are listed:  Seckel Isaac Fraenkel and Meyer Israel Bresslau. It was the new prayer book of the Hamburg Reform Temple dedicated in 1818.  To paraphrase what he writes about this effort: “ a great evil has descended from the north, one that has been perpetrated by a man who published Machzorim in the city of Hanover ( Hamburg ). In his hands, the prayers, which are like a beautiful  woman , are now left with no personality. His purpose was to destroy the Hebrew language, the prayers as we know them, and Judaism itself.”



He continues by writing that he has authored a work Zichron Livnei Yisroel ( Altona 1819) in which he lays out his war against these Machzorim.[2] The title incorporates this explanation:
זה ימים יצא בדפוס קונטרס מיוחד לתפילת ערבית ושחרית לשבת, ומעתיקי תפלה הזאת עברו גבול אשר גבלו הראשונים, גרעו והוסיפו כחפץ לבבם … חלילה … לשנות מסדר תפלתינו / … דברי … עקיבא בר”א ברעסלויא, ראב”ד פה ק”ק אלטונא
This was Rabbi Akiva Wertheimer (1778-1835), the Rav of Altona, Germany, today part of the city of Hamburg. He wrote “Zichron Livnei Yisroel” and was the editor of our edition of “Tikun Shlomo”. His opposition to the new Reform prayer service is noted in a book called “Shnos Dor V’Dor” printed in Jerusalem by Artscroll/Mesorah in 2004. It records the following that occurred in 1819 which coincides with the printing of his book “Zichron Livnei Yisroel”:
בשנת תקע״ט, עוד קודם להתמנורנו, בקום המחדשים ״אנשי ההיכל״
הרפורמי דהמבורג לשנות את סדרי התפילה היה הוא הראשון אשר יצא כנגדם והזהיר את כל הקהילות סביבות אלטונא מפניהם.
Continuing in the Hakdamah to Tikun Shlomo, we find that Rav Wertheimer has launched a campaign against the reformers by adding that he has sent this out broadside everywhere to warn others of this assault on tradition. He does this brilliantly by paraphrasing a Pasuk in Tanach ( Shoftim 20:6) which deals with the tragic story of “Pilegesh B’Givah” an incident which almost tore the Jewish people apart.
The Pasuk reads:  וָאֹחֵז בְּפִילַגְשִׁי, וָאֲנַתְּחֶהָ, וָאֲשַׁלְּחֶהָ, בְּכָל-שְׂדֵה נַחֲלַת יִשְׂרָאֵל:  כִּי עָשׂוּ זִמָּה וּנְבָלָה, בְּיִשְׂרָאֵל.
His paraphrase reads:
ואוחז בפּילגשׁו ואנתחה ואשׁלחה בכל גבול ישׂראל, למען יראו זקני עם וקציניו, והסירו גם את המכשלה הזאת מקרבּם
The full text of the broadside was published in Dukes, AW”H leMoshav, Cracow: 1903, 104-05.  Additionally, the National Library of Israel has a copy (perhaps that of Israel Mehlman, see his catalog Ginzei Yisrael, no. 1743).  The broadside is signed, Akiva br”a Bresslau without additional identifiers, i.e. the son of Avigdor Wertheimer.  As Dukes notes, Graetz mistakenly attributed this work to a different Akiva, Akiva Eiger.  But he was not the only one to publish against the Hamburg Temple and its prayer book in Altona that year.  The work, Eleh Divrei ha-Brit, was also published in Altona in 1819 and it contains, among others, the position of the Hatam Sofer.  
The battle was waged by both sides, and Meyer Israel Bresslau, one of the editors of the Hamburg prayer book, that same year responded with Herev Nokmat (available online here).  The other editor, Fraenkel, in the prayerbook includes a defense of the changes[3].  
As with many editors of Siddurim, Rav Wertheimer extols the exactness of his edition, claiming that he has fixed many of the errors that have crept into previous Siddurim. Specifically, he addresses the text of Mishnayos Shabbos which appeared in many Siddurim and which he has carefully edited especially when it comes to the “Nekudos”.
He continues and states that when it comes to words of foreign origin, such as in Greek, Latin or Arabic, he has also made sure that the “Nekudos” are correct reflecting the proper pronunciation in those languages.
Unfortunately this is not a simple task and this example will illustrate the difficulty in doing so.
The laws of what a woman may or may not carry outside on Shabbos are discussed in Shabbos 6:3. Among the items prohibited is something called a “Tzlochis Shel Palyiton”, a flask of “Palyiton.” Jastrow defines this word as “an ointment or oil prepared from the leaves of spikenard”. He adds that its origin is the Latin word “foliatum”. The Latin Lexicon website spells this word foliātum and gives the exact same definition. So how should this Latin word be spelled in Hebrew?
Rav Wertheimer indicates that it should be pronounced something like “Folia’tone”which is pretty close to the Latin word except for there being an “n” sound at the end of the word instead of the “m” sound.
I have a Mishnayos printed in Pisa during the same time period (1797) which makes it look more like “Pal’yi’tone”:
Two very old manuscripts of the Mishneh shed some light on how the word was originally spelled. One of the most famous is known as Codex Kaufmann ( MS Kaufmann A 50) which was written in 10th or 11th century Palestine. There we find the word looking more like “Pil’Ya’Tome”, with an “m” sound at the end:
The Parma manuscript referred to as MS Parma, De Rossi 138 written in 1073 has it the same as Kaufmann.
In recently printed Mishnayos such as from Feldheim, Artscroll, Steinsaltz, and Blackman, the word is spelled “פלייטון” with either a Patach ,Chirik, or “Shva”  under the “Peh”, or “פולייטון”, which looks more like Rav Wertheiner’s rendering.
One thing is clear- it is sometimes very difficult to write a foreign word with Hebrew letters and vowels, and it is also difficult to ascertain which version is “correct”.
Another wonderful aspect to the book that I bought was learning about the man whose name is embossed on the front cover. He is listed as יוסף אשר בן כ״ה (כבוד הרב) משה פאלאק   
We know a bit about Yosef Asher Pollock from some of the other books and manuscripts he owned. The following two citations are from the online catalogue of the Israel National Library:
1. A manuscript written in the 19th century by Chaim ben Yaakov Abolofia.
תקנות קהלת איזמיר. ‬
Los Angeles – University of California 960 bx. 1.9
ותו הספר: “מספרי יוסף אשר פאלאק ז”ל” משנת תרפ”ה. ‬
From this record we know that he had passed away before 1925 and that the manuscript is now in Los Angeles.



2. A manuscript written in the 18th century
(ספר הכונות (חלק שבת ומועדים. 
Amsterdam – Universiteitsbibliotheek MS Rosenthal 567
בראשו תו ספר של הבעלים “יוסף אשר פאלאק
This rare manuscript has been scanned and is available online. The first page looks like this:
From this one we also learn quite a bit more about Yosef Asher Pollock because it contains this bookplate on the inside front cover

We surmise from here that this was not the only book he had that was donated, as someone went to a lot of trouble composing and printing such a heartfelt donation plate. (“ Yosef is not here, nor is Shimon”) The year the bookplate was printed was 5693(1933). There is also a stern warning that since this is a gift, it may never be sold by the recipient.   

The history of the Bibliotheca Rosenthaliana in Amsterdam is also interesting, especially how the collection of Judaica survived the Nazi occupation. The library’s website notes the following:
“The Germans closed the Bibliotheca Rosenthaliana in the summer of 1941 and transported part of the collection to Germany, where it was earmarked for Rosenberg’s ‘Institut zur Erforschung der Judenfrage’.
Happily, these plans were thwarted with the German capitulation. Most of the boxes of books were in storage in Hungen, near Frankfurt am Main, where they were found and shipped back to Amsterdam. But the curator and his assistant together with their families had also been deported-for them there was no return”
Finally, it seems clear to me that my book was also a gift never to be sold. I surmise this from the fact that the name of Yosef Asher Pollack is beautifully embossed on the front cover of the Siddur, making it unnecessary to have an ownership bookplate inside the Siddur.
Nevertheless, on the inside front cover there is a rectangular remnant of a bookplate which has been torn off.  
Coincidentally, its size exactly matches the bookplate of the manuscript donated to the Bibliotheca Rosenthaliana, which contained the admonition of not selling the book. Tearing off this “warning label” enabled the book to be sold, something that most likely happened over time to many books that were donated to libraries.
___________________________________________________
[1] Friedberg, History of Hebrew Typography, Antwerp: 1937, 49.  Although Dr. Levi’s production may have slowed, the bases for Freidberg’s assertion that Amsterdam publishing was affected by the Thrity-Year War is uncertain.  During the 18th century, production of Hebrew books in Amsterdam ranges from 82 to a high of 246 per decade.  The 1730s, the period that Tikkun Shlomo was published, is in the mid-range of those two extremes, with 145 books published between  1730-39.
[2] This work is a single sheet broadside and begins with Moda’ah raba . . . Zikhron Le-veni Yisrael.  
[3] For a summary of his arguments, see Petuchowski, Prayerbook Reform in Europe, New York, NY: 1968, 53-54.



A Gemeinde Gemeinheit

A Gemeinde Gemeinheit
by Shlomo and Mati Sprecher
We are delighted that the occasion of our son’s wedding (Uri Sprecher to Rivi Zand, 4 Kislev 5769) solved a 150-year-old bibliographic mystery. When we chose to provide our guests with the opportunity to engage in limmud Torah during the course of the wedding by reprinting and distributing “Tshuvah Be’Inyan Kriat HaKetubah,” we assumed that, just as the title page and the publisher’s introduction indicated, it represented an actual Halakhic Responsum issued in 1835 by the Chief Rabbi of Bialystok, Rabbi Nechemiah, to a query submitted to him by Rabbi Shalom, the Chief Rabbi of Novgorod. The Responsum had been brought to print, some 2 ½ decades later, by Rabbi Nechemiah’s devoted disciple, Nehorai Zechnech-Lefavitch, who had just taken up residence in Vienna, a city in which the necessity of the public reading of the Ketubah was coming under question.
Nehorai Zechnech-Lefavitch, informs us that he had long sought to share his teacher’s wisdom with the world at large, and so he seized this opportunity to enlighten his Viennese hosts with his Rebbi’s lengthy and learned psak, which after closely examining all the arguments ruled that such a public recitation of the Ketubah was entirely and appropriately dispensable. This Tshuvah (aside from its scarcity as an example of ephemera,[1] i.e., a solitary Responsum appearing in print) was taken at face value and duly registered as such in all the standard bibliographies of Hebrew printing and Responsa literature. Even A.H. Freimann, in his authoritative work, Seder Kiddushin VeNissu’in (Jerusalem, 1964) cites this work (on page 41) and Daniel Sperber, in his magisterial Minhagei Yisrael (Jerusalem 1995), 4:89, follows Freimann’s lead in referencing this Teshuvah. Further attestation of its acceptance as an authentic Responsum is its inclusion in an anthology of rare Halakhic material bearing on Kiddushin and Nissu’in issued by Rabbi Yitzchok Herskovitz, Mili deVei Hillulah, (Brooklyn, 1998), adorned with the Haskamah of his illustrious father, Rabbi Ephraim Fishel Herskovitz, the noted Hasidic Posek of the Klausenberger Kehillah (who is also an acclaimed expert on Seforim).
However, our close reading of this Tshuvah led us in an entirely different direction. To us, the work’s style manifested clear Maskilic echoes, and its arguments rejecting the binding nature of centuries-old Minhagim were clearly not in accord with 19th –century Halakhic thought. Our reaction was that the work must certainly be pseudepigraphical and could not have arisen from the pen of the Chief Rabbi of Bialystok. In fact, a quick perusal of the reference literature demonstrated that there never was any Chief Rabbi of Bialystok named Nechemiah, nor, for that matter, was there any Chief Rabbi Shalom of Novgorod. As for Nechemiah’s disciple, Nehorai Zechnech-Lefavitch, well, one didn’t need to do much research in order to recognize the pseudonymous nature of this publisher’s name.[2] But who was really behind this masterful forgery, which deceived so many discerning readers for a century and a half?[3] Our initial thought was to place the blame on the notorious Abraham Krochmal or his erstwhile partner in literary crime, Yehoshua Heschel Schorr. They certainly had the requisite Talmudic knowledge to perpetrate a learned forgery.[4] But the tone of the work did not reflect their slashing, acerbic style. Our Tshuvah evinced a genuine love for Talmudic learning, albeit with a clear intent to utilize earlier sources to eliminate the prevailing Minhag of Kriat HaKetubah and replace it with an edifying sermon.
At an impasse, we reached out to Professor Shnayer Z. Leiman, who suggested that the scholar most likely to solve the mystery would be the doyen of Israeli bibliographers, Rabbi Shmuel Ashkenazi.[5] We were rewarded thanks to the tireless efforts of Eliezer Brodt who, on our behalf, pestered the aged Jerusalem sage until he successfully unmasked the name, but not quite the identity, of the author. Rabbi Ashkenazi concluded that the first line of the introductory poem that prefaced the Halakhic query contained the acrostic – “Meir Ish-Shalom.” (His initial contention was that this could not be the noted 19th –century Viennese scholar, Meir Ish-Shalom, because his heretofore known literary output began only some five years later, with his publication of the Sifre in 1864.)
Once Rabbi Ashkenazi had provided the key to the author’s name via the acrostic, it became apparent that all along the title page had been proclaiming that very same message. Let us recall the passage in Bavli Eruvin 13b where it is recorded that the celebrated Tanna, known to us as Rabbi Meir, was actually named Nehorai, according to one opinion; or alternatively, that both Meir and Nehorai were laudatory appellations reflecting his enlightening wisdom, whereas his actual name was Nechemiah. Recall also that the query first originated with Rabbi “Shalom” of Novgorod, and the word “shalom” appears twice more on the title page and is highlighted by the placement of a circle above one of its appearances.
Although none of the biographies[6] and bibliographies[7] devoted to the life and works of Meir Ish-Shalom attributes the Tshuvah Be’Inyan Kriat HaKetubah to him, we believe that a re-examination of Meir Ish-Shalom’s life supplies overwhelming confirmation that he is indeed the actual author of this Tshuvah. Born, as Meir Friedmann, in 1831, to a simple village couple in Krasna, his formative years were strained by extreme material and spiritual deprivation. At the age of Bar Mitzvah, his great desire to study Torah was realized by his acceptance to the Yeshiva in Ungvar, which was led by a distant relative of his mother, Rabbi Meir Asch-Eisenstadter, a noted disciple of the Hatam Sofer. Meir’s brilliance was soon recognized by his teachers, and he made great strides in Torah scholarship and adopted many stringent ascetic practices such as prolonged fasting, ritual immersion in ice-covered rivers and hours of un-interrupted Torah study and prayer. At the age of 19, he was granted Rabbinic ordination. Unfortunately, this phase of his life was cut short by a spiritual crisis induced by his exposure to Mendelssohn’s Biur and Wessely’s Hebrew poetry.[8] After a decade of hardship and wandering through Hungary and Slovakia, his wanderlust brought him fortuitously to Vienna in late 1857. That summer, the newly hired assistant to Vienna’s Chief Rabbi Mannheimer, Adolf Jellinek, began officiating at marriages. Claiming that sitting through the recitation of the Ketubah was too burdensome for the assembled guests, Rabbi Jellinek substituted in its stead an edifying sermon in the German language.[9] This reform of the Chuppah ritual was not endorsed by his employers, the leadership of the Gemeinde, who at that time still favored the classical Viennese approach of caution and consensus in religious reform,[10] and letters of reprimand directed at Rabbi Jellinek for this innovation are extant.[11] Rabbi Jellinek’s angry retort to Josef von Wertheimer, the Gemeinde’s President is also preserved:
Tatsache ist es; dass kaum eine kleine Zahl unserer grossen Gemeinde sich mehr um die Ketuba kummert, da die Vorlesung derselben fur jeden Sachverstandigen, der niche in Zogling der Pressburger Rabbinatsschule ist, als nutzlos und storend erscheint. Tatsache ist es, dass man hier mit mir umspringt, als ware ich der unfahigste, geistloseste, taktloseste und unbrauchbarste Mensch. In Berlin sitzen Manner wie Fr. Veit, Magnus, Dr. Oesterreicher, Geheimrat Joel Meyer im Vorstande; aber wahrlich diese Manner werden es nich wagen, ihre Prediger so zu tyrannisieren, wie es hier in Wien beliebt wird, wo alle Urteile nach Horensagen under Einflusterungen gatallt warden.[12]
Apparently, the ex-Yeshiva prodigy, newly arrived from Hungary, aided Rabbi Jellinek in resisting his Governing Board’s demands to re-institute the recitation of the Ketubah by fabricating a learned Responsum from a distant (and fictional) Rabbi proving that reading the Ketubah was a practice that had no sound Halakhic basis. This fabricated Responsum relied heavily on the reasoning advanced by Rabbeinu Meshulam in his celebrated correspondence with Rabbeinu Tam, which had recently appeared in print when the Sefer HaYashar was published for the first time.[13] Meir Ish-Shalom was thus able to demonstrate that Rabbi Jellinek’s innovation, far from being a deviation from correct Halakhic practice predicated on a reformist basis, was in reality a restoration of the authentic ritual promoted by Rabbeinu Meshulam, whose arguments, in the opinion of the Responsum, clearly bested the counter-arguments of Rabbeinu Tam.[14] 
After surviving this rocky beginning, Rabbi Jellinek enjoyed a productive career that spanned the remaining four decades of the 19th Century. In 1864, Rabbi Jellinek established the Beth Midrash, an adult-education program, and Meir Ish-Shalom, our Hungarian prodigy, finally secured a steady income as a teacher at that institution. In 1893, the program was expanded to include a seminary for the training of Rabbis, and Meir Ish-Shalom was appointed Professor of Rabbinics, a job he held until his death in 1908. Among his students was a fellow Eastern European expatriate and ex-prodigy – Solomon Schechter.
Although he remained a devoted student of Torah and Rabbinics, Meir Ish-Shalom did display intentions to abrogate other time-honored practices as well. For example, he argued that it was entirely correct to accede to the expressed desires of a non-Jewish husband to be allowed to purchase a burial plot alongside that of his Jewish wife, who had been interred in the Gemeinde’s cemetery. This ruling proved too radical even for his colleague, Isaac Hirsch Weiss, who strongly protested this breach of Jewish law and custom.[15] One of the ironies of history is that Isaac Hirsch Weiss has high name recognition as a foe of traditional Orthodoxy, because of his authorship of the controversial Dor Dor VeDorshav, whereas Meir Ish-Shalom’s Midrashic editions enjoy a respected position in the typical Yeshiva library. This anomaly was first noted by an actual Bialystoker Talmid Chakham, Rabbi Eliezer HaBavli, writing in HaLevanon 8 (1872): 372, who considered Meir Ish-Shalom to be firmly in the camp of the Maskilim and thus deserving of opprobrium and censure.[16] Imagine what Rabbi Bavli would have said had he known the true iniquity of Meir Ish-Shalom – creating a forged Tshuvah that justified discarding an ancient and hallowed Ashkenazi Minhag and attributing it to the “chief rabbi” of his beloved Bialystok.[17]
[1] Attesting to its ephemeral nature is the fate of my own personal copy. Since purchasing it at the renowned liquidation sale of Feldheim’s Lower East Side bookstore in 1988, I haven’t been able to extract it from whichever book I placed it in (for safe-keeping!). My fellow Feldheim shopper, Dr. Benny Ogorek, was kind enough to lend me his copy to produce the facsimiles that were distributed at the wedding. On these forgotten Hebrew booksellers of the Lower East Side (and especially Philipp Feldheim’s bookstores), see Shnayer Z. Leiman, “Montague Lawrence Marks: In a Jewish Bookstore,” Tradition 25:1 (Fall 1989): 59-69, and esp. 60, 68n5.
[2] Saul Chajes, who assembled all known Hebraic pseudonymy in his Otzar Beduyei HaShem (Vienna, 1933) also overlooked Tshuvah Be’Inyan Kriat HaKetubah, as it does not appear in the what he considered to be the comprehensive repository of all such literature. What is especially surprising is that Chajes spent the last two decades of his life in Vienna (1914-1933) and he was employed as the primary assistant to Bernard Dov Wachstein, the librarian and archivist of the Gemeinde’s magnificent library and communal archives, and therefore was no doubt aware of this pamphlet.
[3] With the possible exception of Benjacob who places a question mark after listing Rabbi Nechemiah of Bialystok as the author of the Tshuvah; see his Otzar HaSefarim (Vilna, 1880), 675, item #1013.
[4] See Allan Nadler, “The Besht as Spinozist: Abraham Krochmal’s Preface to Ha-Ketav ve-ha-Mikhtav,” in Daniel Frank & Matt Goldish, eds., Rabbinic Culture and Its Critics: Jewish Authority, Dissent, and Heresy in Medieval and Early Modern Times (Detroit: Wayne State University Press, 2008), 359-389, for examples of Krochmal’s not very successful pseudepigraphical attempts. See also Daniel B. Schwartz, “The Spinoza Image in Jewish Culture, 1656–1956,” (PhD dissertation, Columbia University, 2007), who discusses how Abraham Krochmal (son of Nachman Krochmal) “became a leading advocate for religious reform in the Hebrew press and served briefly as [Yehoshua Heschel] Schorr’s co-editor of He-Haluts” (page 207).
[5] For more information regarding this semi-mythic figure see S.A. Tefilinsky, Alpha Beta Kadmaita D’Shmuel Ze’ira (Jerusalem, 2000) which lists 289 publications that Rabbi Ashkenazi either wrote under various guises or had a significant role in editing (i.e., ghost-writing).
[6] The earliest complete biography of Meir Ish-Shalom was authored by his son, Joab Freidmann, Lector M. Friedmann (Wien, 1931). The noted Rabbinic scholar, Binyamin Ze’ev Benedikt, a native of Vienna and the son of Rabbi Lemel Benedikt, the Rabbi of the Adath Jeshurin Synagogue located in the Ninth District (Neunte Bezirk), had intended to write a full-length book devoted to the life and works of Meir Ish-Shalom, but settled instead for a fifteen-page essay that appeared in the Mosad ha-Rav Kook Bibliographical Yearbook, Areshet 2 (1960): 269-284. Benedikt had earlier compiled what he considered to be a complete bibliography of all Meir Ish-Shalom’s works, which appeared in Kiryat Sefer 24 (1948): 263-275. The attribution of the Tshuvah Be’Inyan Kriat HaKetubah to Meir Ish-Shalom eluded both Joab Friedmann as well as Binyamin Ze’ev Benedikt.
[7] See B.Z. Benedikt’s two bibliographies referenced above. Tuvia Preschel supplemented Benedikt’s bibliographies in Areshet 3 (1961): 468, but he too failed to include the Tshuvah Be’Inyan Kriat HaKetubah in the list of works authored by Meir Ish-Shalom.
[8] See Solomon Schechter’s obituary entitled “Lector Meir Freidmann” that was reprinted in Seminary Addresses and Other Papers (Cincinnati, 1915), 136.
[9] See Marsha L. Rozenblitt, “Jewish Identity and the Modern Rabbi: The Cases of Isak Noa Mannheimer, Adolf Jellinek, and Moritz Güdemann in Nineteenth-Century Vienna,” Leo Baeck Institute Yearbook 35 (1990): 111. According to Rav Moshe Leiter, “HaPulmus Hildesheimer – Yellinek,” HaDarom 17 (Nisan 1963): 105-133, Rabbi Leib Schwab, the lapsed disciple of the Hatam Sofer, was the Mesader Kiddushin at Rabbi Jellinek’s own Chuppah, in Budapest (May 1850) and he was the one who initiated this practice of skipping the reading of the Ketubah. He was also responsible for moving the Chuppah from the synagogue’s courtyard to the interior. Rabbi Leiter, however, provides no citation for these claims (which can be found on page 108 of his article).
[10] See Marsha Rozenblitt, “The Struggle over Religious Reform in Nineteenth-Century Vienna,” AJS Review 14:2 (Fall 1989): 179–221.
[11] Moses Rosenmann, Dr. Adolf Jellinek: Sein Leben und Schaffe (Wien, 1931), 83.
[12] Ibid, p. 84. For those whose German is somewhat weak (and I include myself in that category, Rabbi Jellinek’s response is as follows: “only a small number of our large community trouble themselves regarding reading the Ketubah, since the vast majority (besides those graduates of the Pressburg Yeshiva) consider it a useless and disturbing ritual.” The remainder of the letter voices a complaint which many a pulpit rabbi must feel regarding the tyrannical oppression perpetrated by the lay leadership on the hired clergy.
[13] (Vienna, 1811).
[14] For a comprehensive essay on this fascinating conflict between these two noted antagonists, see Dr. Avraham (Rami) Reiner’s article, “Parshanut VeHalakhah BePulmus Rabbeinu Tam VeRabbeinu Meshulam,” Shnaton HaMishpat HaIvri 21 (1998-2000): 207-239. The section that relates to our Responsum is found on pages 228-230.
[15] See the biographical essay by Yehudah Bergmann entitled “Meir Ish-Shalom” that appeared in Sefer HaZikaron LeBait HaMidrash LeRabbanim BeVinah (Jerusalem, 1946), 43.
[16] Cited by Rabbi Eliezer Katzman, “Chalutzei Tzava: Sefer HaTzava U’Mechabro- LeDmut HaRav HaGaon Rav Eliezer HaBavli ZT”L M’Bialystok,” Yeshurun 2 (1997): 666-679. 
[17] We wish to thank all those who helped us on this project: Rabbis Shmuel Ashkenazi, Eliezer Brodt, Menachem Butler, Eliezer Katzman, and Menahem Silber, as well as Drs. Shnayer Z. Leiman, Benny Ogorek, and Avraham (Rami) Reiner. And Achronim Achronim Chavivim – Uri and Rivi!