R. Yehiel Yaakov Weinberg, in a
letter to his close friend Samuel Atlas in 1965, poignantly declares that
today’s world Jewry must realize that halachot
that create difference between Jew and non-Jews can no longer apply. “Meiri wrote as such,”
he writes, “but the teachers and ramim
whisper in the ears of the students that all this was written because of the
censor.”[i]
R. Menachem Meiri, the 13th century Talmudist and halachist, indeed writes in several places in his commentary to the
Talmud[ii]
that when the Talmud distinguished between Jews and non-Jews, it only applied
to non-Jews who were heathen savages. But, according to the Meiri, non-Jews who
possess religion and laws are not those referred to by the Talmud, and the Talmudic edicts to not apply in these cases. This medieval recognition of the moral content of
other religions and governments aligns with our recognition today, but the
traditional halachic process seems to
represent a lack of this recognition. This is what R. Weinberg was expressing
when he hints to the will of the young students to hold like the Meiri, but
held back by their teachers who wish to brush off Meiri’s comments as being
invalid as halachic statements.
Although the moral desire to hold
like the Meiri and other such minority opinions is certainly a powerful one
today, we must be careful to consider the other side of the moral/halachic coin in the adoption of such
“resolutions”. It is the truism that “every kula
is a chumra, and every chumra is a kula”, and in our rush to eschew the distinctions between Jews and
non-Jews in halacha, we may cause a
negative impact on other areas of halacha
where those distinctions can be helpful in solving vexing problems.
We can see a case of such a
distinction coming to the rescue by looking at a teshuva of R. Yitzchak
Elchanan Spektor[iii].
R. Yitzchak Elchanan Spektor
(1817-1896) was one of the greatest halachic decisors of the 19th century. R.
Spektor received a letter from a rabbi of a certain community where a terrible
event took place. A Jewish girl, engaged to be married to a nice Jewish boy of
a prestigious family, was raped by a non-Jewish man. Unfortunately, she became
pregnant with her rapist’s child, but still, her fiance wished to go ahead with
the marriage. Alas, there was a problem. The halacha is[iv]
that one may not marry a woman who was impregnated by another man while she is
pregnant, nor while she is nursing another man’s child. The reasoning provided
is that there is a fear that he, the second man, would not care for the welfare
of the first man’s child. To prevent serious potential problems, the rabbis of
the Talmud[v]
enacted that one who wishes to marry this woman must wait until both these
periods are over, i.e. when the baby is 24 months old.
However, writes the rabbi to R.
Spektor, if the boy is asked to wait the 24 months (and the length of the
pregnancy) until he can marry this girl, there is a fear that he will move on
to other prospects. Additionally, there was also a fear that her family’s
prestige would be adversely affected from this situation, and perhaps she would
be unable to find someone else to marry. Is there any way to waive the Talmudic
waiting period in the face of this terrible situation?
Before we get to R. Spektor’s
answer, we should explain at the outset that the examination of the enactment
will be a close look at its use of the word “chaver”. The Talmud[vi]
states that, “lo yisa me’uberet chavero,
v’lo yisa me’yuneket chavero” - “one may not marry a woman impregnated by
one’s fellow, nor may one marry a woman who is nursing his fellow’s [child].”
The use here of the word “chaver”,
which literally means “fellow”, is not meant to convey fellowship in terms of
friendliness. This is especially true when we are questioning the status of a
rapist in this case, who is definitely not that type of “chaver”. Instead, the debate will revolve around the halachic category of “chaver” - in this case, is it being used
specifically by the Talmud to refer only to a “fellow Jew,” or it could be just
a way to say, “fellow person”, Jewish or gentile?
R. Yehezkel Landau, the Noda
B’Yehuda,[vii]
takes the former position, that since the term used by the Talmud to describe
the enactment is “me’uberet chavero”
- “a woman impregnated by one’s fellow”, and since “fellow” only pertains to
Jews, there is no waiting time necessary when she was impregnated by a non-Jew.
Thus, it would seem they could get married immediately should they so wish.
However, it is not so clear. R.
Akiva Eiger in his responsa[viii]
disagrees with such a suggestion, providing several examples when the Talmud
says “chaver” - “fellow”, yet clearly
refers to both Jews and non-Jews. For example, the Mishnah in Shabbat 150a
states that one may not hire workers on the Sabbath, nor ask his “chaver” to hire workers for him. The
Talmud immediately questions who this “chaver”
refers to, for if it were another Jew, that should be obvious; one cannot have
another Jew work for him on the Sabbath. And if it’s a non-Jew, that is also obvious
because of “amira l’akum” laws. So
what novel ruling does the Mishna mean to present? The conclusion of the Talmud
is that the Mishna refers to a case where he says cryptically to his fellow,
“Let’s see if you’ll meet me here tonight,” without explicitly asking him, and
implying not on the Sabbath itself. This does not seem to be specifically
referring to a Jew, but rather both to a Jew or a non-Jew, and Tosafot there[ix]
concludes this way.
R. Spektor points to other Tosafots
who also say “chaver” refers to both
Jews and non-Jews, Tosafot in Eruvin 32a[x]
and in Sukkah 39a[xi].
The weight of the evidence seems to point in the direction of R. Eiger and not
the Noda B’Yehuda, and thus, at the outset, it would seem that our sorry couple
would have to wait or cancel the engagement.
However, R. Spektor continues, there
are many who don’t hold like Tosafot. Rashi[xii]
holds that “chaver” does not refer to
an am ha’aretz, an ignoramus of
certain laws, and by implication, all the more so it does not refer to a
non-Jew. In addition, R. Moses Isserles[xiii]
states as a “yesh omrim” the position
of Hagahot Ashiri, R. Israel of Krems[xiv],
who holds that “chaver” does not
refer to non-Jews, and indeed, R. Israel holds this way on Avoda Zara 6a as
well. Thus, with a Rashi, and two Ashiri’s (and R. Isserles assuming the
Ashiri’s position as well), the Noda B’Yehuda seems to be on safe ground after
all. If so, the conclusion one would make is that "chaver" only refers to Jews, and the woman pregnant through the gentile could get married to her Jewish husband without fear.
Another path toward leniency is a
closer look at Tosafot, who hold “chaver”
refers to both a Jew and a non-Jew in other cases. Does this necessarily extend
to our case?
Perhaps, suggests R. Spektor, the Tosafot we have seen would
agree with the reasoning put forth by R. Yom-Tov Lipmann Heller. In his Tosafot
Yom Tov,[xv]
he claims that the reason the term “chaver”,
which means fellow or friend, is chosen, is to denote that it is common for
both parties in those cases to have some kind of familiar relationship. Thus,
the reason why “chaver” would apply
to a non-Jew who is asked to hire workers for Shimon is because Shimon probably
wouldn’t ask him if they didn’t have any prior relationship. Indeed, we could
apply this understanding to Tosafot in Eruvin and Sukkah as well, and R. Moses
Sofer states this similarly.[xvi]
If this is the reasoning of the use
of the word “chaver”, it does not
apply to the “chaver” statement in
our case, where the “chaver” refers
to the father of the child. A man who marries a woman who is pregnant does not
usually have any connection to the father of the child, and his relationship to
the woman doesn’t come from any relationship with the father of the child.
Thus, they are not “chavers” in the
same sense as the other cases, where this would be so. “Chaver” in this case must have been chosen because it specifically
refers to a Jew and not a non-Jew. In reading the line of the Talmud carefully,
this may reveal why there are two separate clauses to the enactment. It doesn’t
say, “One may not marry a pregnant woman nor a nursing woman of his fellow”, but rather, “One may
not marry a pregnant woman of his fellow
nor a nursing woman of his fellow.”
This indicates that the author of this Baraita wanted to especially emphasize
the uniqueness of this “chaver” over
other “chaver” cases, i.e. that this
refers to Jews specifically and not non-Jews.
It seems, then, that we have plenty
of support for the Noda B’Yehuda’s position, and they may marry immediately.
However, R. Spektor introduces another element, the authority of Maimonides. He writes that he is unwilling to be too lenient, since Maimonides[xvii]
and others provide the reasoning for the enactment, i.e. that he would not care
for the welfare of the baby, as part of the law. If so, this worry would not be
different depending on if the father is part of the tribe or not, and so it
would seem that to Maimonides, “chaver”
would apply to both Jews and non-Jews. Although the Noda B’Yehuda does indeed
deal with this position of Maimonides, R. Spektor feels that given Maimonides’
clear position, we may only be lenient to allow this boy and girl to get
married after the pregnancy, just a few months instead of years, by making sure
she swears not to nurse her child herself, but rather gives over that
responsibility to a wetnurse. This would bypass Maimonides’ issue about
protecting the baby.
Throughout R. Spektor’s responsa, as
exemplified by this responsum, we find a constant seeking to find ways to be
lenient in exigent circumstances, while also remaining felicitous to the halachic process. It is no wonder that
the great majority of his responsa deal with many varieties of aguna questions, given this methodology.
As we noted from the outset, it is important to realize that the discussion
above, and the leniencies derived from it, could never have taken place if R.
Spektor had cast away the distinctions between Jews and non-Jews within halacha. We must be wary of adopting
such broad halachic rules like the
Meiri’s, while with conscientious deliberation, search out new ways to be loyal
to halacha as well as to our own
morality.
Indeed, there are cases where R.
Weinberg, who himself held like the Meiri for moral reasons, would use a halachic argument that he felt was
immoral if it lead to halachic leniency.
Professor Marc Shapiro points out in his book[xviii]
that R. Weinberg declared the justification of Tosafot that a Jewish woman is
permitted to her husband
R. Tam’s states that sex with a Gentile does not cause a woman to become forbidden to her husband. R. Weinberg had ethical problems with the reason R. Tam gives, and I don’t think it goes too far to say that he thought that, from our modern perspective, R. Tam’s justification is to be regarded as immoral.[13] Yet I also note that in seeking to find a heter for a woman who committed adultery with a non-Jew to return to her husband he is prepared to make use of R. Tam’s position.[14] I don’t think this raises any problems, since at the end of the day, R. Tam’s position is part of the halakhic tradition. If it can be used to to reach a lenient decision, then it serves a purpose, even if the contemporary posek doesn’t agree with the underlying assumptions of R. Tam’s pesak
[14] Kitvei R. Weinberg, vol. 1, p. 58.
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