Q&A: Most Sexual Relations Are with the Husband
Most Sexual Relations Are with the Husband
Question
Is the rule that most sexual relations are with the husband a majority that is present before us, meaning we judge based on the total set of sexual relations of a specific woman, or a majority that is not present before us, meaning that in the world at large most women become pregnant from their husbands?
The Talmud in Chullin 11b brings the rule that most sexual relations are with the husband as a source for the law of a majority that is not present before us. By contrast, from the Talmud in Sotah 27a (and from Rashi there) it sounds like we are judging the specific woman before us:
…And the Jewish law is: a man should marry the daughter of a woman who was rumored to have committed adultery, but he should not marry a woman rumored to have committed adultery. For Rav Tachlifa of the West taught before Rabbi Abbahu: If a woman commits adultery, her children are still fit, because most sexual relations are with the husband. Rav Amram asked: If she was exceedingly promiscuous, what is the law? According to the one who says that a woman becomes pregnant only close to her menstrual period, you need not ask, for he is unaware of it and does not watch her. Your question is only according to the one who says that a woman becomes pregnant only close to her immersion, what is the law? Since he knows about it, does he guard her, or perhaps since she is exceedingly promiscuous, he does not? Let it stand unresolved.
Rashi: If she was exceedingly promiscuous — for there is concern that most of her sexual relations were with other men; what is the law as to whether her children are fit.
I thought perhaps one could say that the Talmud in Sotah also assumes this is a majority that is not present before us, and “exceedingly promiscuous” is merely a weakness in the majority as applied to that woman. But this answer does not fit Rashi, who says that the problem with an exceedingly promiscuous woman is the concern that most of her sexual relations were with other men, not merely that the majority has been undermined for her. It seems that Rashi understands “most sexual relations are with the husband” as a majority that is present before us, except that in the case of an exceedingly promiscuous woman perhaps there is no such majority.
(I saw a reference to the words of the author of Hafla'ah in the book Netivot for Sabbath, where he explicitly writes that this is a majority that is not present before us:
"…And the reason appears to be as we wrote in our novellae, that when we say ‘most sexual relations are with the husband,’ the meaning is not because the husband is commonly available to her… rather, the meaning is that most women in the world have relations and become pregnant from their husbands and do not commit adultery."
How would he explain Rashi in Sotah?)
Answer
You don’t need any sources for this. It is clear from the definitions that “most sexual relations are with the husband” is a majority not present before us, and that is true even if we are dealing with a specific woman. Specificity has nothing to do with it. I have discussed here more than once the definitions of a majority that is present before us and one that is not, and you can search for it here.
Discussion on Answer
My hesitation is about how to interpret “most sexual relations are with the husband”: is it a general statement about the nature of the world, that most women tend to become pregnant from their husbands and not from another man, or is it a statement about each individual woman, where we judge the act of intercourse from which she conceived from within the total set of acts of intercourse she had? The first possibility I called a majority that is not present before us, and the second I called a majority that is present before us. The need for sources is in order to decide this interpretive question, because the wording “most sexual relations are with the husband” leaves room for both possibilities.
You are mixing together two different planes. A majority not present before us is a majority that is not the result of direct information but of information about the world, a generalization from a sample. A majority present before us is the result of direct observation, as in the case of the stores. The application of a majority not present before us can be to all women or to one specific woman. Usually it is about a specific woman, who is the case under discussion. With regard to a specific woman, it could be a majority present before us only if we know direct information about her acts of intercourse, and the question is about one specific act among them. If we have specific information about the case before us, the general information about the world is not relevant to this case. For example, in the case of the stores, most stores in the world may sell non-kosher meat, but if there is information about a specific city that the majority there are kosher, then that is the relevant majority and not the worldwide majority.
From this you can understand that both formulations you brought here in your last message are obviously cases of a majority not present before us.
I understand, thank you very much!
My intuition identifies a majority not present before us with general determinations about the nature of the world, so I assumed that the majority of the acts of intercourse of a specific woman would be a majority present before us. Do you know of other examples of a majority not present before us that applies to a specific case?
If I understood correctly, in a case where we have certain information about the woman’s acts of intercourse, that would be defined as a majority present before us. According to Maimonides’ view, brought by Rabbi Shimon Shkop, that in capital cases we follow the majority only when it is a majority not present before us, it would come out that one could sentence someone who strikes his father to death even if it is known that his mother committed adultery, but if we have certain information about the number of times she committed adultery, even if she did so only once, then we could no longer sentence him to death because in capital cases we do not follow a majority present before us. It is a bit hard for me to understand how having more information that would seem to support capital liability — before that we did not know how many times she committed adultery — would lead to exemption from the death penalty.
Suppose we have direct information about the acts of intercourse of a specific woman. That is a majority present before us. A majority not present before us is usually about the nature of the world, and therefore the result of a generalization. Of course, the discussion by force of that majority is always about a specific woman, but that changes nothing as to the definition of the majority itself.
But notice that according to the definition, even if we have knowledge about the acts of intercourse of a specific woman, it still depends on whether we are discussing one of the known acts of intercourse — say there were ten acts, of which nine were with the husband, and the discussion is about one of them, whether it is from the majority or the minority — that is a majority present before us. But if the discussion is about her next act of intercourse, that is the result of a generalization from the known data, and in my opinion that is a majority not present before us even though it concerns a specific woman. I assume some people would dispute that, because they think a majority not present before us is always general, but in my opinion I am right. A general majority is always a majority not present before us, but not every majority not present before us is necessarily general. In my view, a majority not present before us is a majority created by generalization from a sample. Of course every general majority is of that kind, but above I gave an example of an individual woman where that is true as well.
From this you can understand what the law would be in the case of striking one’s father that you mentioned.
So every majority created by generalization from a sample is necessarily a majority not present before us?
What about Maimonides’ ruling (Forbidden Intercourse 15:27):
“It appears to me that in any country in which there is a maidservant or a gentile woman fit to bear children, since the foundling discovered there is in doubt either a gentile or a slave, if he marries a female convert, as we explained, she is in doubt a married woman, and one who has relations with her is exempt, for one is not executed on the basis of doubt.”
Seemingly, in order to say that this majority is a majority present before us, you would have to claim that we have certain information about each of the women in the country who are fit to give birth; otherwise it is a generalization from a sample and it would create a majority not present before us, on which Maimonides does rely in capital law.
(Even if you argue that this is indeed a case where we have certain information about all the women in the country, my earlier difficulty returns: why is it that when such information is not accessible we can rely on the majority, but when we do have certain information — again, even regarding just one maidservant — we can no longer rely on that majority in capital cases?)
I have complete information about the women in that country: that most of them are fit and one is not. That is enough information to create a majority present before us. I didn’t understand your question.
Apparently I didn’t understand the concept of “complete information.” I thought there were two ways to determine the ratio between the fit and unfit women in the country: one can go through all the women in the country one by one and check the number of fit and unfit women, and one can sample a group of women from the country and calculate the ratio based on the sample. I assumed the first way would be defined as a majority present before us and the second as a majority not present before us, because the second is based on a generalization from a sample. What am I missing?
Nothing. That is exactly what I mean.
So in your view Maimonides is speaking specifically about a case where we went through all the women in the country and counted how many were fit? From his wording it sounds like it is enough to know that there is one maidservant there who is fit to bear children for the foundling to have the status of possible slave, and there is no need to know the exact ratio of fit to unfit. But if we do not know the precise ratio by counting, then it is seemingly obtained by generalization from a sample…
The second point troubling me is the arbitrariness in Maimonides’ preference for a majority not present before us in capital cases. Suppose, in this example, we have two ways of calculating the same ratio of fit to unfit women, one exact and the other based on generalization. What is the logic of relying specifically on the less exact ratio? If we understand that a majority not present before us is really specifically a general determination about the nature of the world, its preference over a majority present before us is more understandable to me. But according to what you are saying, the same ratio of fit to unfit women can be defined either as a majority present before us or as one not present before us, depending on how the ratio was calculated, and then it is not clear to me why one should be preferable to the other.
I don’t understand this discussion. If we know there is a maidservant, then we know by direct knowledge that there is a minority of maidservants. And that is at most a majority present before us of fit women. Why do I care about the exact number? There is no generalization here.
As for why a majority not present before us would be preferred to one present before us, see Shaarei Yosher, Gate 3, and I also explained it here.
And also in my lectures on statistics and inference.
I’ll try to formulate the question differently:
We discussed two cases in which we resolve a doubt by following the majority: a foundling discovered in a city, and the child of a woman who committed adultery. In the case of the foundling, we saw that one maidservant in the country is enough for the foundling to be of doubtful status, and one cannot rely on the majority of fit women in order to define him as a Jew whose betrothal is valid. By contrast, in the case of the woman who committed adultery, even when we know that she had relations with another man at least once, one can rely on the rule that most sexual relations are with the husband even in capital cases.
In other words, in the case of the foundling there are x women in the country, at least one of whom is a maidservant, and we are trying to determine the mother’s status from within the group of all women in the country. In the second case the woman had relations y times, at least one of them with someone who was not her husband, and we are trying to determine the status of the act of intercourse from which she conceived from within the total acts of intercourse she had. I cannot understand why the first case is a majority present before us and the second is a majority not present before us. What is the difference between the cases? Why is one of them a generalization from a sample and the other not?
I apologize for dragging out the discussion; I’m really trying to understand the relation between a majority present before us and one not present before us.
In the first case we know there is one maidservant and that the majority are fit women. That is not the result of a generalization but of direct knowledge. It is a majority present before us. In the second case we have no specific knowledge about the men residing in the city; rather, we assume it is like the general distribution in the world, where most of them are fit. Therefore it is a majority not present before us.
We are repeating ourselves.
In column 79 you define the difference between a majority that is present before us and one that is not present before us as follows:
“What is the difference between these two types? A majority that is present before us is based on a collection of contingent facts (depending on which city we are talking about). It is not a law of nature but an accidental situation, grounded in observation of these concrete facts. We have information about this specific situation through direct familiarity with the facts that obtain in it. By contrast, a majority that is not present before us speaks about the ordinary way the world operates, that is, a general set of cases in every place and at every time. It is a law of nature that does not depend on specific information about a particular situation.”
From your words it seems that specificity is very important in defining the nature of the majority: if it is specific information about a particular case, and not a law of nature, then it is a majority that is present before us.
When a pregnant woman comes before us and we try to determine whether the fetus is fit, we are judging the status of the act of intercourse from which she conceived by means of the majority within the group of acts of intercourse she had. Seemingly this is a majority based on familiarity with the accidental situation of this particular woman (and therefore in the case of an exceedingly promiscuous woman one cannot use this majority), and not on a law of nature, so it should be a majority that is present before us. I didn’t understand why it is obvious that this is a majority that is not present before us.