Jews as Human Beings: D. The Two-Story Model – Ishut (Column 749)

In the first column in this series I discussed the ethnic question: is a Jew a different species from a Noahide, or is he a species within the general human genus? I argued for the second position. In the previous column we saw a similar model regarding the relationship between the halakhic system and the Noahide system. This is not a question about the Jew but about Judaism (on this distinction, see in my booklet on secular Judaism). In the third column in the series I discussed several halakhic and moral ramifications of this picture. In this column I present the two-story picture from another angle: the laws of ishut (marital law / personal status). The next column will conclude the series, and there I shall present it in the context of hekdesh (consecrated items) and service of God.

The Two-Story Model in Ishut

In a article in Midah Tovah for Parashat Ki Tetze, 5767, I discussed a two-story model with regard to ishut. When one contemplates it, one understands that this is a view from a different angle on the same two-story picture that was described in the previous columns.

The starting point is the Rambam’s well-known words at the beginning of Hilkhot Ishut, where he writes:

Before the giving of the Torah, when a man would encounter a woman in the marketplace, if he and she wished to marry, he would bring her into his house and cohabit with her privately, and she would become his wife. Once the Torah was given, Israel were commanded that if a man wishes to marry a woman, he must first acquire her in the presence of witnesses, and only afterwards will she be his wife, as it says (+Devarim 22+): “When a man takes a wife and comes unto her.”

At first glance, the Rambam is merely giving historical background and describing what preceded the giving of the Torah and what was innovated afterwards. But my sense is that this halakhah is not just a description of the situation, but a necessary introduction for understanding our ishut today. What the Rambam is coming to say is that before the giving of the Torah, marriage was an existing social institution, but it operated in a natural way, without formalization or regulation. If a couple decided to live together and establish a home, they would enter the house and thereby establish a home. And when they wished to separate, they decided to do so and separated. Just like any couple of friends, only with an intention to make it more stable and binding. When the Torah was given, it “decided” to require us to precede these lives with a formal act of institutionalization, a kinyan (legal acquisition). Now the institution of marriage consists of two stories (levels): the first story (chronologically, not historically) is the kiddushin (betrothal). This is an act that halakhah defined and established, and it must precede the marriage. Afterwards, one can return to doing what was always done: decide to live together and build a home. This is the second story, which is not a halakhic entity but the very same thing that existed before the giving of the Torah. It is a social rather than a halakhic institution.

Let me preface by saying that almost the entire tractate of Kiddushin and the writings of the poskim deal with the laws of kiddushin. Nissuin (marriage in the narrow sense) hardly receive halakhic attention. The reason for this is that we are dealing with a natural social institution and not a halakhic institution. Halakhah does not have much to say about it. In principle, no witnesses are required, nor any formal halakhic requirement. One only needs to make sure that they are truly living together seriously. By contrast, the laws of kiddushin are saturated with very detailed and highly complex halakhic discussions. It is patently clear that this is the formal part of the process, and therefore halakhah focuses almost exclusively on it.

Constitutive and Regulative Laws

In analytic philosophy, a distinction is made between two types of systems of rules: a system of constitutive rules and a system of regulative rules. Take, for example, the rules of chess. One who moves the knight as a bishop does is not violating the rules of chess. He simply is not playing chess at all, but some other game. Therefore there is also no penalty, since this is not a case in which you played incorrectly, but one in which you did not play the game at all. Compare this to a foul in soccer or basketball, where a sanction is imposed on one who commits it and the game continues. There, a foul is part of the tactics of the game, and one who commits it is certainly regarded as still playing that game. This is very different from chess. It is somewhat similar to the claim that in Israeli law there is no prohibition to murder. What is written is that the punishment of a murderer is such-and-such. If you murdered, you are still “in the game” (still a citizen), but a sanction is imposed on you.

In contrast to constitutive systems, like the rules of chess, there are regulative systems. A foul in the rules of basketball is a regulative rule, not a constitutive one. It regulates how we are to play, but even if I transgress it, I am still engaged in that game. All of the traffic laws are regulative and not constitutive. Even one who does not drive in accordance with the law makes use of the traffic system and participates in the game. But if he violates the law, a sanction is imposed on him. The traffic laws do not define the engagement in traffic; they regulate it. This is in contrast to the rules of chess, which constitute the game of chess. They are the ones that define it, and one who deviates from them simply is not playing chess.

Similarly, we can distinguish between two kinds of commandments (mitzvot): constitutive mitzvot and regulative mitzvot. Constitutive mitzvot are commandments that define the field in which they operate. Regulative mitzvot do not define the field but rather regulate it (how to conduct oneself properly within it).

This can be illustrated by examining the verses about the commandment of tzitzit. The Torah tells us “and it shall be for you as tzitzit,” meaning that the structure of blue and white threads at the edge of the garment will be for us as tzitzit. If halakhah were constituting the concept of “tzitzit,” then the verse “and it shall be for you as tzitzit” would be entirely superfluous. What would it be coming to say? It is obvious – this is the definition of the concept of tzitzit. The Torah’s formulation indicates that the concept of tzitzit existed beforehand, and the Torah merely comes to tell us that it wants our tzitzit to be specifically this way. That is, the laws of tzitzit are regulative, not constitutive. Do not make for yourselves a different emblem (tzitzit – “lock of hair,” the ornament of the head, according to Ibn Ezra ad loc.), but make your emblem specifically like this.

Back to Ishut

In this terminology, what the Rambam is coming to say regarding ishut is that the laws of kiddushin are regulative, not constitutive. They did not come to constitute a new domain that did not exist beforehand, nor to erase and replace what came before. They came to regulate how we are to conduct marriage, which is a social concept that existed before the giving of the Torah and remained in place afterwards. However, now there are directives about how to do it properly. One can, of course, say that the Torah constitutes the domain of kiddushin, since it did not exist before it. But in any case it regulates the domain of nissuin, which existed beforehand. It constitutes a domain whose purpose is to regulate an existing domain. It does so by adding an additional halakhic story (level) on top of the existing universal story, which brings us directly to the two-story model I described in the earlier columns.

Note that this is not merely a parallel model to what we saw in the previous columns with the same logic (two stories), but nothing more than a specific application of the general model described there. There we spoke of the first story, which is universal, the story of Bnei Noach, which is relevant also for Israel, who are human beings. Above it stands an additional, particularistic story that applies only to Jews. This is precisely the picture I described with regard to the concept of ishut. Ishut before the giving of the Torah, nissuin, is universal and belongs also to Bnei Noach. After the Torah was given and an additional story was added for Israel, the same question arises that we discussed in the previous columns: after the Torah was given and a halakhic concept of ishut (which includes kiddushin) was created, was the previous story erased and the halakhic structure replaces it? Or does it come on top of the first story, which remains in force even after the Torah was given? The Rambam’s answer, according to my proposal, is that the additional story does not cancel the previous universal story, which remains in place even in the current Jewish-halakhic model.

Let us now see some practical ramifications of this picture.

Practical Ramifications: The Commandment of Divorce

In the article in Midah Tovah for Parashat Ki Tetze, 5767, I discussed several practical ramifications of this model. The first of these is the commandment of divorce. The enumerators of the mitzvot count it as a mitzvah. Thus, for example, the Rambam writes in Sefer HaMitzvot, positive commandment 222:

And the 222nd mitzvah is that He commanded us to divorce by means of a document in any case when we wish to divorce, and that is His exalted statement (Ki Tetze 24): “And he shall write her a bill of divorce and place it in her hand.” And the ordinances of this commandment, that is, the laws of divorce, have been fully explained in the tractate joined to this, that is, tractate Gittin.

Here this is presented as a kiyyum (optional / conditional) mitzvah, meaning that if you wish to divorce, you do it in this way. It can be understood as a definitional mitzvah (if you did so, the woman is divorced; if not – she is not. See Sefer HaMitzvot, positive commandments 95–96). But if this is indeed the definition of the mitzvah, it is clear that if the person did not divorce his wife, nothing has happened. There is no violation of a positive commandment (see the series of columns 414 – 418).

However, the Sefer HaChinukh writes, in mitzvah 527:

It is a mitzvah upon one who wishes to divorce his wife to divorce her by means of a document.

We were commanded that when we wish to divorce our wives, we divorce them in writing, and with regard to this writing Scripture says “a bill of severance,” and this is what our Sages, of blessed memory, called a get. And so the translator translated this “book” (sefer) as “get,” and about this it is said (Devarim 24:1): “And he shall write her a bill of severance and place it in her hand and send her out of his house…”

And one who transgresses this and divorces his wife without writing her a get in accordance with the commandment of the Torah and as our Sages, of blessed memory, explained, has nullified this positive commandment. And his punishment is very great, since her status is that of a married woman, while he treats her as divorced; and the punishment of a married woman is known, for it is among the gravest transgressions in the Torah.

That is, one who divorces a woman without a get in accordance with the Torah’s commandment has nullified this positive mitzvah, and furthermore his punishment is great. If so, it is possible to nullify this positive commandment, and therefore it is clear that here we are not dealing with a kiyyum or definitional mitzvah.

It seems to me that the most natural explanation for the Chinukh’s words is based on what we saw above. Kiddushin are the second, particularistic-halakhic-formal story added on top of the institution of marriage, which is a natural and universal social institution. Divorce before the giving of the Torah was done in a natural way. Just as the creation of the home was accomplished by decision and by actually beginning the married life, so its dissolution was accomplished in a natural way – simply by separating, and that’s all. But just as in the creation of the home the Torah added a formal story on top of the universal story, so too with the dissolution of the home. If the couple decide to dissolve the relationship, then the marriage has in any case been dissolved (for before the giving of the Torah this was sufficient to dissolve the home). But the Torah requires that this be done by giving a bill of divorce, and this dissolves the kiddushin. That is, the get belongs to the second, formal halakhic story, and its role is to dissolve the second story that was created with the kiddushin.

If so, when a couple decide to separate, their marriage is automatically dissolved. Now the Torah requires the husband to give his wife a get and release her to remarry – that is, to dissolve the kiddushin as well. This is a conditional positive commandment: once you have decided to dissolve the home, there is a full-fledged obligation to give a get and not leave the woman an agunah because of the halakhic chains of kiddushin. From here it follows that if the husband does not do so, he has nullified a positive commandment.[1] It is just like a person who wears a four-cornered garment without tzitzit. There, too, this is a nullification of a conditional positive commandment. When the condition for obligation is fulfilled (you wore a four-cornered garment, or you decided to dissolve the relationship), you are obligated to fulfill the conditional mitzvah, and if you did not fulfill it, you have committed the transgression of nullifying a positive commandment.

In this way we can also resolve the question raised by the author of Birkat Shmuel on the Rambam, Hilkhot Gerushin 2:7, where he writes:

And what is the difference between “invalid” (pasul) and “void” (batel)? Wherever it is stated in this work regarding a get that it is “void,” it is void by Torah law; and wherever it is stated that it is “invalid,” it is invalid by rabbinic decree.

The Rambam determines that in the laws of divorce we distinguish between two kinds of problems with a get: (1) problems by virtue of which the get is void (batel); (2) problems by virtue of which the get is invalid (pasul). A void get is not a get at all, and it is as though no act of divorce has taken place. By contrast, an invalid get is valid by Torah law, but the Sages invalidated it. Throughout tractate Gittin, the Gemara deals with various invalidities in a get, and for each group of such defects there are different laws. There are invalidities that nullify the divorce entirely; if she married another man on the basis of such a get, even the children she bore to the second husband are mamzerim (rabbinically, of course, since we are dealing with rabbinic invalidities). There are invalidities for which a woman who remarries must leave her second husband, but ex post facto her children are not rabbinic mamzerim. There are invalidities for which, ex post facto (if children were born), the woman need not leave her second husband at all. There are invalidities for which even le-khatchilah she does not need to leave, but a new, valid get must be given. And there are invalidities that do not even require giving another get, that is, they have no halakhic consequence at all, except for the manner of writing or delivering the get in the first place.

The author of Birkat Shmuel asks: is the giving of a get a mitzvah such that we can speak of “an optimal mitzvah” and “a non-optimal mitzvah”? What is the meaning of invalidities that have no halakhic consequence? If an invalid get was given, was the commandment of divorce fulfilled in a non-mehudar (non-optimal) way? But there is no commandment at all to divorce one’s wife. The only relevant question is the outcome: is the woman divorced or not? If she is divorced in every respect, then what is the point of these invalidities? More generally, we may ask: how can le-khatchilah invalidities be relevant in a definitional mitzvah? Obviously, according to our approach this mitzvah is not definitional, but conditional. If so, there is more room to understand that there are le-khatchilah invalidities also in this mitzvah. One who wrote an invalid get fulfilled the mitzvah of divorce by get in an imperfect manner. We thus learn that this is a true mitzvah and not a definition, and from this we see the two-story model in ishut described above.

“And He Acts Treacherously Against His Wife” – The Words of the Maharik

Halakhah determines that a woman who intentionally committed adultery under her husband becomes forbidden to him and to her paramour. But if she did so unwittingly or under duress, she does not become forbidden. The Maharik, in root 167, introduces a major novelty. In his view, if the woman thought that the man with whom she is having relations is her husband, then her status is that of one who erred, and she indeed does not become forbidden to her husband. But if she knew that this man was not her husband, yet did not know that it was forbidden to commit adultery with him, then in such a case she becomes forbidden to her husband, just as in the case of an intentional transgression. In general halakhah, both of these situations would be regarded as unwitting, but here he distinguishes between them.

The Maharik explains that in the second case the woman “acts treacherously against her husband,” even if she did so without being aware of the prohibition. After all, she wanted to have marital relations with someone who is not her husband, and therefore, even if there were no prohibition in this, she is acting treacherously toward the marital bond between them. Such betrayal dismantles the marital bond and renders her forbidden to her husband and to her paramour. The meaning is that the Maharik sees the marital bond as something that is not purely halakhic. With respect to the prohibition, the woman is completely unwitting, since she did not know that this act is forbidden by halakhah. But with respect to the reality of the marital bond, she is intentional, for she wanted to harm that bond. Her prohibition to her husband stems from betrayal of the reality of the marital bond and not from betrayal of the prohibition. This is yet another demonstration that the marital bond is not constituted by halakhah but merely regulated by it. In other words: the halakhic aspects do not exhaust the marital bond; they only constitute a particularistic addition to the universal meaning of the relationship. Thus, the Torah’s marital bond as such is nothing other than the marital bond in its human meaning accepted in the broader world, with additional halakhic elements. The Maharik claims that the universal component of the relationship (which belongs to Story A) also has novel halakhic ramifications (in Story B).

“Once He Has Set His Eyes Upon Divorcing Her, He No Longer Has Fruits”

The Gemara in Gittin 17a deals with the question why one must write the date in the get. In the course of the discussion it emerges that, according to R. Shimon in the Mishnah (there, 17a), who validates a get written during the day and signed at night, the husband only has the fruits (usufruct) of her nichsei melug until the time of writing the get. A bit later, on 18a, the Gemara states this as a simple matter:

“R. Shimon validates. Rava said: What is the reason for R. Shimon? He holds: once he has set his eyes upon divorcing her, he no longer has [rights to] the fruits.”

So we have a tannaitic opinion (which also has a place in halakhah) according to which, from the moment of writing the get, the husband no longer has the fruits of the nichsei melug. Why indeed do his rights to the fruits cease at the moment the get is written? What occurs at the moment of writing the get that removes the husband’s rights? At first glance, we would expect everything to occur at the time of the actual divorce (that is, at the time of giving the get). The writing is only a preparation for the divorce.

Note that Rava formulates R. Shimon’s reasoning slightly differently. He does not attribute it to the time of writing the get, but to the fact that the husband has already “set his eyes upon divorcing her.”[2] That is, at the moment that the husband writes a get, she becomes a “divorcee of the heart.” This is a situation in which the man has already decided to dismantle the family unit, but has not yet given a valid get in accordance with halakhah. In such a situation, part of the marital bond (nissuin) is dismantled, even though the kiddushin still remain until the get is given. Here we have a halakhic expression of the two-story thesis: even without a get, there has already been a divorce, for the marital unit has been dissolved. The fruits are no longer the husband’s in such a situation, even though the kiddushin still remain in force.

Return to the State of Betrothal

Among the early authorities there is an explicit dispute regarding whether, in practice, the husband still has fruits after the get has been written. The Rif (see Gittin 8b in his pagination) explains that the fruits are his until the time of giving, for her redemption from captivity (the obligation to ransom her) is certainly his until the time of giving the get (see Ketubot 47b, where the obligation to ransom her was instituted in exchange for his rights to the fruits of the nichsei melug; and there, 52a, it is explained that the reciprocity in obligations is preserved). But the Ran and the Ramban there ask why we should not say that also the obligation to ransom her ceases from the time of writing the get. In practice, it is not entirely clear whether, in fact, the husband loses the fruits from the time he has set his eye upon divorcing her or from the time he actually divorces her (see also the commentaries around Hilkhot Gerushin 1:25. In the Rambam, Hilkhot Gerushin 22:24 implies that this is from the time of divorce, but see there in the Ohr Sameach ad loc., and this is not the place to expand). In any case, there is certainly such an opinion, and perhaps it holds in halakhah as well.

The author of Korban Netanel on the Rosh there, sec. 5, writes that it is impossible to say that her redemption ceases from the time of writing, for her redemption is her right from him and not his right from her. It is impossible that his action will nullify her rights. But according to our approach, these matters are not difficult at all. We have seen that from the time he has set his eyes upon divorcing her, the nissuin cease, and the kiddushin remain. In practice, this means that she returns to the state of an arusah (betrothed) until she receives a valid get from her husband, at which time the betrothal will also cease. If so, the loss of rights is not a mere consequence of the husband’s intention, but the result of a new legal status that has been created. An arus (betrothed husband) does not have rights to the fruits of his arusah’s nichsei melug and is not obligated to ransom her. Just as in the establishment of the home, so too in its dismantling: when one goes back from the state of nissuin to the state of kiddushin (this occurs from the time that he has set his eyes upon divorcing her), all the laws of kiddushin return and the laws of nissuin are nullified.

From the Time He Has Set His Eyes Upon Divorcing Her, It Is Forbidden to Have Relations with Her

In that very same sugya (Gittin 18a), the question is discussed: from when do we count for a woman the ninety days of distinction she must wait after divorce until she remarries (so that in any situation it will be clear from whom a child born to her derives)?

“Rav Kahana, Rav Papi, and Rav Ashi counted from the time of writing; Rav Papa and Rav Huna the son of Rav Yehoshua counted from the time of giving. And the halakhah is: from the time of writing.”

That is, what is determinative is the time of writing the get, not the time of divorce, and so is the halakhah (see Rambam, Hilkhot Gerushin 11:19, and Shulchan Aruch, Even HaEzer 13:1).

Again the question arises: why does the time of writing the get have halakhic significance? The answer lies in another law, which also connects to our topic. The Rambam writes there:

And from the day of the writing of the get we count for the divorcee, and even if it was [a get] on condition or it did not reach her hand until after many years, we count from the day of the writing, for he does not seclude himself with her from the time he has written it for her.

That is, from the time the get is written, it is forbidden for the husband to have relations with her. So it is in the Shulchan Aruch there (even though the Rema there brings opinions that are stringent and count from the time of giving the get).

The source of this law is the sugya in Gittin 90a:

“Rav Mesharshiya said to Rava: If his heart is to divorce her, and she sits under him and serves him, what is the law? He recited about him [the verse] (Mishlei 3): ‘Devise not evil against your neighbor, while he dwells securely with you.’”

That is, there is a prohibition from the words of Kabbalah (Ketuvim) to have relations with one’s wife when he thinks in his heart to divorce her. And so we find in the sugya in Nedarim 20b:

“‘And I will purge out from among you the rebels and those who transgress against Me’ (Yechezkel 20:38) – Rabbi Levi said: These are the children of nine middot, the children of ‘ASNaT’ mashgiach – the children of fear, the children of rape, the children of hatred, the children of nidui (ban), the children of exchange, the children of strife, the children of drunkenness, the children of a ‘divorcee of the heart’, and the children of confusion.”

That is, the children of a “divorcee of the heart” are one of nine categories.

Indeed, the early authorities dispute the scope of this prohibition. Some hold that the prohibition is only to have relations with her (Minchat Chinukh and Chelkat Mechokek), while others hold that the prohibition is to continue living with her even without relations (Tur, Raavad on the Rif, and Meiri). But according to all opinions, something has occurred at the stage of “divorce of the heart.”[3] It seems that yet another component of the nissuin ceases at this stage.

Note that according to the opinions that it is forbidden for him to live with her (and not only forbidden to have relations with her), it is clear that there is a mitzvah to divorce her. This strongly reinforces our claim at the end of the previous section regarding the view of the Chinukh, that the mitzvah to divorce is a conditional mitzvah and not a definitional one. When a person wants to divorce his wife, and she is already a “divorcee of the heart” for him, there is a positive commandment to divorce her, that is, to complete the dissolution of the bond between them and thereby permit her to the general public. It is forbidden to leave a woman bound to him in chains if he cannot live with her. The reason for the prohibition is to prevent the woman from becoming an agunah.

Indeed, in the state of kiddushin there are poskim who prohibit divorcing her (see Maharshadam as brought in Minchat Chinukh, ch. 10 of Hilkhot Gerushin, halakhah 21), whereas here we saw that there is even a mitzvah in this. But it is clear that direction and vector matter. Ordinary kiddushin are on the way to nissuin, whereas a “divorcee of the heart” is a state on the way to divorce. Therefore, the prohibition to have relations is from the words of Kabbalah (and not merely a rabbinic prohibition as in the case of ordinary kiddushin). Therefore also, according to all opinions, there is no prohibition to divorce her, and according to our approach there is even a mitzvah in this.

Torah-Level Ramifications

Until now we have dealt with rabbinic laws. We saw that they cease from the time he has set his eyes upon divorcing her, and we explained this on the basis that she returns to the status of an arusah. But we also find additional aspects, some of them Torah-level, that also cease from the time he has set his eyes upon divorcing her.

The Gemara in Bava Batra 146a discusses one who entered after his wife into a ruin with the intention of divorcing her:

“Rav Yehuda said in the name of Rav: There was an incident with a certain man about whom they said that his wife was frivolous, and he entered after her into a ruin to test her. He said to her: ‘I smell radishes in the Galilee’; she said to him: ‘Who will give us of the dates of Jericho and we shall eat them with it!’ The ruin fell upon her and she died. The Sages said: Since he entered after her only to test her, if she died in the meantime, he does not inherit her.”

Most poskim explain this Gemara as referring to an arusah, and he does not inherit because he had not married her fully (there is no inheritance from kiddushin alone). But the Rashbam there, 146b, s.v. “the ruin fell upon her,” writes:

“‘The ruin fell upon her and she died’ – and the husband came before the court and wanted to inherit his wife, and the Sages said: Since he entered after her in order to test her and to divorce her, and she died in the meantime before they were reconciled, he does not inherit her. There are those who have this girsa and establish it with regard to an arusah, but this does not seem correct to me. For even if he had relations with her during the period of kiddushin before bringing her under the chuppah, he does not inherit her, as Hanan bar Ami taught: ‘His arusah – he does not observe mourning for her…and if she died, he does not inherit her.’ For the husband does not inherit his wife until she enters the chuppah, as we derive (above, 109a) that the husband’s inheritance from “his flesh that is closest to him” is [only] after she has entered the chuppah.

Therefore, we establish it in a case of a nesu’ah, and this is the girsa: “And the Sages said that since he entered after her to test her, if she died in the meantime before they became reconciled, he does not inherit her.” From here we learn that one whose wife dies in the midst of dispute, when he had it in mind to divorce her, no longer inherits her, as we say in tractate Gittin (18a): from the time he has set his eyes upon divorcing her, he no longer has [rights to] fruits.”

The Rashbam rejects the interpretation that this is about an arusah and instead establishes the Gemara as referring to a nesu’ah. In his view, from here we learn that in every case, from the time that he has set his eyes upon divorcing her, he no longer inherits her, just as we saw that from that time he no longer has rights to the fruits.

Most poskim did not understand the Gemara this way (see Shulchan Aruch, Even HaEzer 90:5, and the Bi’ur HaGra, sec. 16, and the Beit Shmuel, sec. 21 there), but at least according to the Rashbam (and so it is in the Ri Migash, cited in the Chiddushei HaRamban there, and in Torat HaAdam ad loc.), from the time he has set his eyes upon divorcing her he no longer inherits her.

The later authorities (see the Rashash there and others) have already pointed out that the Rashbam compares a Torah-level law (the husband’s inheritance, derived from “his flesh” – this is his wife) to a rabbinic law (the right to the fruits), and therefore his argument is not clear. It is interesting to note that the early authorities who disagree with him did not mention this as a problem in his words (aside from a hint in the language of the Ritva ad loc.).

According to our approach, the explanation of the Rashbam’s position and that of his associates is straightforward. There is no analogy here between the loss of fruits and the inheritance, but rather, since the “divorcee of the heart” returns to the status of an arusah, all the laws of an arusah apply to her. One of these laws is that the husband no longer inherits her. That is, those who raise difficulties understood that the fact that the husband has no fruits is a special rabbinic enactment or penalty, and therefore they saw no room to compare it to the law of the husband’s inheritance, which is a Torah-level law. But the Rashbam sees this as a general principle, namely that the marital bond returns to the status of kiddushin, and the loss of the fruits and the cessation of the obligation to ransom her are merely rabbinic consequences of a situation that has already changed on the Torah level. Therefore it was obvious to the Rashbam that also the Torah-level laws that depend on nissuin would cease in this situation.

The Rashash there adds that, according to the Rashbam, the husband is also not permitted to become impure for her (for the obligation to become impure for her is likewise derived from the same derashah: “his flesh” – this is his wife). He adds that the husband also does not mourn for her, and this too follows from the same derashah. The bottom line is that the conclusion from the words of the Rashbam, Torat HaAdam, and the Ri Migash is that we are not dealing here with local cancellations, but with a principled return to the status of kiddushin, with all its ramifications. It is reasonable that at least according to these views, all the other Torah-level and rabbinic obligations that apply toward and with respect to a nesu’ah (and not to an arusah) will also cease, similar to the aspects we have seen.

See also in Meshech Chochmah, Parashat Beha’alotekha, where he asks who the priest was in Moshe Rabbeinu’s Sanhedrin (similar to Tosafot who investigated who the priest was who saw Miriam’s lesions). The problem was that all the priests were Moshe Rabbeinu’s relatives, and therefore they could not sit together with him on the Sanhedrin. He explains there (similar to the Rashbam above) that from the time that Pinchas distanced himself from his wife, he no longer inherits her, and therefore he is fit to testify regarding her relatives. Likewise, we find in the sugya in Gittin 35b that a priest married to a divorcee, even though he is disqualified from the Temple service, from the time he vows to divorce her he is fit to resume the Temple service. Here too we have a Torah-level law that changes from the time he has set his eyes upon divorcing her (though here a vow is required), and it is not necessary that there be an actual divorce.

The conclusion is that between a woman and her husband there are two types of bonds: kiddushin, which create a formal halakhic bond, and nissuin, which create a natural-social bond. The bond of nissuin is termed in various contexts “she’er” (kinship/flesh-relationship). We shall now see some ramifications of this.

First Ramification: She’er After Death

As is well known, when the husband or wife dies, the marital bond between them ceases, as if a get had been given (see the opening Mishnah of Kiddushin). Yet we find views that hold that the bond of she’er remains even after the wife’s death, and that only the kiddushin between them cease.[4]

The source of this is the Gemara in Yevamot 55b:

“Rava said: Why did the Torah write ‘lying of seed’ (shikhvat zera) with a designated maidservant, ‘lying of seed’ with a married woman, and ‘lying of seed’ with a sotah? As to the designated maidservant – as we said. As to the married woman – to exclude one who has relations with a dead woman. This works well according to the one who says that one who has relations with a dead [forbidden] woman is exempt, but according to the one who says that he is liable, what can be said? Rather, [it comes] to exclude one who has relations with his dead wife. I might have thought that since after death she is still called ‘his flesh’ (she’aro), he should be liable for [relations with] a married woman; therefore it teaches us [otherwise].”

The Gemara explains that those who hold that one who has relations with a dead [forbidden] woman is liable explain the verse as speaking of one who has relations with his dead wife. Why is a verse needed to teach that one who has relations with a dead woman is exempt? The Gemara attributes this to the initial thought that since the woman is called “his flesh” (she’aro) of her husband even after she dies, we might think that one who has relations with her corpse should be liable as for [relations with] a married woman. Ultimately the verse teaches that one who does this is exempt, and so is the halakhah in the Rambam and the Shulchan Aruch. It would have been possible to understand that the Gemara’s novelty is that the woman is not called “his flesh” after death, but from the wording of the Gemara it is fairly clear that the novelty is different: even though, ultimately, she is indeed called “his flesh” after her death, nevertheless it is a novelty that one who has relations with her is exempt (and from the wording it also appears that there is a prohibition in this).

By contrast, in the sugya in Bava Batra 114b, which deals with matters of inheritance, it is obvious to the Gemara that the husband does not inherit his wife in the grave (Rashi and Tosafot dispute whether the case is where he is in the grave or where she is in the grave, and this is not the place to expand):

“This comes to teach us that a woman and her son [are equal], similar to a woman and her husband. Just as a woman and her husband – the husband does not inherit his wife in the grave – so too a woman and her son – the son does not inherit his mother in the grave to pass [the inheritance] on to his brothers from the father.”

It seems that the Gemara does not view the woman as the flesh (she’er) of her husband, and from here it learns that the same holds with regard to the son and his mother.

Tosafot in Yevamot, s.v. “after death,” asks:

“And that which is obvious to us in the chapter ‘Yesh Nochalin’ (Bava Batra 114b) that the husband does not inherit his wife in the grave, and it also states there that just as a man does not inherit his wife in the grave in order to pass [the inheritance] on to his relatives, so too a woman does not inherit her son in the grave in order to pass [the inheritance] on to her brothers from the father – that which is obvious to it with regard to the husband more than with regard to the son is from this derashah here, which teaches us that after death she is not called ‘his flesh’ (she’aro).”

Tosafot understands that the conclusion of the sugya is that there is no she’er after death, in the way we rejected above. But in Tosafot in Bava Batra, s.v. “like a woman,” he asks:

“But it is difficult: why is it more obvious to it about the husband than about the son? That which the Ri ben Meir explained – that therefore it is obvious to it with regard to the husband, because the she’er ceases for him by death just as it does by divorce – does not seem [correct], for it says in ‘HaBa al Yevimto’ (Yevamot 55b) that after death she is still called ‘his flesh’ (she’aro).”

The Ri ben Meir explains like Tosafot in Yevamot, that the husband’s she’er ceases after death, as it does by divorce. Apparently he would explain our sugya in Yevamot as we rejected above, but Tosafot himself rejects his words and proves from the wording of that sugya that there is she’er after death, as we saw above. Afterwards, Tosafot suggests another explanation for the Ri ben Meir’s difficulty according to his own (Tosafot’s) view, and says that indeed there is she’er after death, but it is a partial she’er (and therefore it has limitations regarding certain modes of inheritance, and this is not the place to expand). Thus we find that the Ba’alei HaTosafot dispute whether there is she’er after death or not.

According to our approach, we might view this contradiction differently. The sugya in Yevamot deals with relations with a dead woman, and the prohibition under discussion is that of [relations with] a married woman. This prohibition stems from kiddushin and not from nissuin, for from the time of kiddushin there is a prohibition on the whole world to have relations with her. Nissuin add nothing in this regard. By contrast, in the sugya in Bava Batra, the question is about inheritance, and the law of the husband’s inheritance, as we saw, depends on nissuin and not on kiddushin. Seemingly we may conclude from here that the Gemara in Yevamot is uncertain whether death nullifies the kiddushin, while with regard to nissuin it is obvious to the Gemara in Bava Batra that the nissuin cease with the wife’s death.

However, in that case the terminology of the Gemara in Yevamot – that after death she is called “his flesh” (she’aro) – is difficult, for as we saw, the term “she’er” refers specifically to nissuin and not to kiddushin.

Indeed, specifically according to the opinion that the novelty of the verse is that there is no she’er after death, we can explain that in Yevamot the Gemara was in doubt whether some aspect of the kiddushin remained even after death, and the novelty is that it does not. In Bava Batra, however, the discussion relates to she’er, and it was obvious to the Gemara that she’er ceases after death. But the view in Tosafot (and this is also the simple reading of the Gemara in Yevamot) that there is she’er even after death still requires investigation.

Second Ramification: Eating Terumah

Another topic in which later authorities distinguish between she’er and the kinyan of kiddushin is the case of a priest’s wife eating terumah. As is well known, terumah may be eaten only by priests and not by Israelites. What is the law when a bat Yisrael marries a kohen? The Torah itself states that she may eat terumah. Does this apply also to an arusah, or does eating terumah depend on nissuin? It emerges that even an arusah may eat terumah.

However, Chazal base the permission of a kohen’s wife to eat terumah on two different scriptural derivations. In Ketubot 57b and parallels, they derive it from the verse “And if a priest acquire a person as an acquisition of his money” (Vayikra 22:11), and they learn from here that his wife may eat terumah, since she is his monetary acquisition (i.e., she is acquired to him by the money of the kiddushin). In Kiddushin 5a it is explained that on the Torah level this applies also to an arusah. We find in Chazal yet another derivation from the verse (see, for example, Rashi to Bamidbar 18:11): “All that is pure in your house may eat it.” Later authorities (see, for example, Imrei Moshe and Avnei Miluim, responsum 17 at the end of the book, and others) suggest that the first derivation deals with an arusah of a kohen and the second only with a nesu’ah of a kohen.

There are several ramifications to this distinction, and we shall not go into them here. The basis of this distinction is that the arusah’s bond to her husband has characteristics of a kinyan,[5] and therefore her eating terumah can be learned from the verse “an acquisition of his money shall eat of it.” By contrast, the nesu’ah has an additional bond to her husband – that of she’er. She eats terumah also by virtue of being “all that is pure in your house” (as stated, this has several halakhic ramifications, and this is not the place to elaborate). The early authorities in Yevamot 66a (see Tosafot, s.v. “minayin le-kohen,” and the Chiddushei HaRamban there, and others) raise the possibility that a kohen’s wife eats terumah on her own account and not by virtue of her husband. This too seems related to our distinction. The she’er makes her into a kind of “priestess,” and not merely someone who eats by virtue of her husband. An arusah is only his monetary acquisition and eats by virtue of him.

Third Ramification: The Husband as the Wife and the Wife as the Husband

The Gemara in Sanhedrin deals with the invalidity of relatives for testimony. Among other things, it addresses the invalidity of a woman to testify for her husband and vice versa, stating:

“They asked him: What is the law regarding a man testifying about the wife of his stepson? In Sura they said: The husband is like his wife. In Pumbedita they said: The wife is like her husband. As Rav Huna said in the name of Rav (Nachman): From where do we know that the wife is like the husband? For it is written (Vayikra 18): ‘The nakedness of your uncle’s brother you shall not uncover; unto his wife you shall not approach; she is your aunt.’ But is she not the wife of his uncle?! From here we see that the wife is like the husband.”

The Gemara sees the wife as part of her husband. The early authorities expand this and say that in all other kinship relations, each step distances the ends of the chain. For example, one’s mother’s brother is two kinship steps away from him. By contrast, when one of the steps is a marital relationship, then at least in certain cases the distance does not change. The reason is that the bond between a woman and her husband is a bond of identity, and therefore it does not add distance.

The Gemara in Berakhot 24a uses a similar principle, in a somewhat different formulation (“his wife is like his own body” – ishto ke-gufo):

“Rav Yosef, son of Rav Nechunya, asked Rav Yehuda: Two people sleeping in one bed – may this one turn his face and recite Shema, and that one turn his face and recite Shema? He said to him: Thus said Shmuel: Even if his wife is with him. Rav Yosef objected: His wife, and needless to say another?! On the contrary! His wife is like his own body, but another is not like his own body!”

This principle appears in a different context also in the sugya in Bechorot 35b.

Tosafot, in Ketubot 52b, s.v. “ve-hayu,” explain the husband’s obligation to ransom his wife from captivity with a large sum, beyond her own value (despite the prohibition to ransom captives for more than their value), on the basis that “his wife is like his own self” (ishto ke-gufo). They add that with regard to his daughter, the prohibition to ransom for more than the captive’s value remains in force. This aspect is particularly interesting for our purposes, for as we saw above, the obligation to ransom his wife exists only from the time of nissuin; that is, this is an obligation that stems from she’er and not from kinyan. If so, the principle that “his wife is like his own self” describes only the she’er and not the kinyan. The arusah is not like the body of her arus, since she is not yet his she’er.

Fourth Ramification: Palginan Dibura

The Gemara in Sanhedrin 9a deals with the principle of “palginan dibura” – splitting a statement. The meaning of this is that in certain situations where a person gives testimony some of which is problematic and some of which is admissible, instead of disqualifying the entire testimony we split it: the problematic part is erased, and the valid part remains and is accepted.

The Rosh in tractate Makkot 7a, in the name of the Raavad, writes that such splitting is done only in testimony whose disqualification in part stems from the fact that the witness is a party to the case (a ba’al davar) who testifies about himself. But in a case where the witness testifies about a relative, there is no room to erase the problematic part, and thus that part will disqualify the rest of the testimony (by the rule that “if part of it is void, all of it is void”).[6] For example, if a person testifies: “So-and-so lent me money with interest,” then there is a valid part of the testimony – the part in which he testifies about So-and-so that he lent money with interest. But there is also a problematic part – the part in which the person testifies about himself that he borrowed with interest (borrowing with interest is also a Torah transgression, and the rule is that a person cannot make himself into a wicked person – he cannot testify about himself that he is an offender). In such a case we apply “palginan dibura” and accept the testimony about the lender but not about the borrower. The problematic part is, as it were, erased from the record. By contrast, if a person testifies that So-and-so lent with interest to his relative (and not to himself), then the problematic part is invalid because it is testimony about a relative (and not testimony of a party about himself). In such a situation, the problematic part remains in the record, and, since there is a problematic part in the testimony, it disqualifies the valid part as well and the entire testimony is void.

Now, in the Gemara in Sanhedrin there we find a case in which a man comes and testifies: “So-and-so had relations with my wife.” What is the law in such a case? According to the Raavad’s distinction, we would expect that the entire testimony is disqualified. The reason is that the man is testifying here about his relative, and therefore the problematic part of the testimony remains in place and disqualifies the second part as well. Yet at least in its initial understanding, the Gemara assumes that we apply “palginan dibura” also in this case, which seems very difficult to understand according to the Raavad’s approach.

Apparently, it follows from here that the Gemara understands that a person’s testimony about his wife is not testimony about a relative, but is like testimony about himself, and therefore the possibility of applying “palginan dibura” arises. Once again we see that the bond of she’er is a bond of identity (“his wife is like his own self”). Note also that according to our approach, such a possibility could not arise with respect to an arusah, but only with respect to a nesu’ah.

I hope you will forgive me if, in conclusion, I bring also an aggadic ramification.

An Aggadic Ramification

The Gemara in Sotah 17a states:

“Rabbi Akiva expounded: ‘Man (ish) and woman (ishah) – if they merit, the Shekhinah is between them; if they do not merit, fire consumes them.”

Rashi explains there:

“‘The Shekhinah is between them’ – for He has divided His Name and caused it to rest between them: the yod in ‘ish’ and the heh in ‘ishah.’ ‘If they do not merit, fire consumes them’ – for the Holy One, blessed be He, removes His Name from between them, and they are left with ‘esh’ (‘fire’) and ‘esh.’”

That is, there is one letter of God’s Name with the man (yod) and one with the woman (heh). If they merit, the Name (y-h) joins them into a single entity. If they do not merit, the Name of God departs from between them, and what remains is twice “esh” (fire). The author of Tziyunim u-Biurim (the “Tzafnat Paneach” – tzaf) explains this more deeply. He explains that from the belief in God’s unity (yichud) it follows that the Name is one and uniform, and not composed of parts. He adds that God’s Name has the same properties: all its letters join into a single essence (this is an “organic composition” of the letters, i.e., they merge into a single entity), and it is not composed of discrete letters (“juxtapositional composition,” in which the parts are merely neighbors to each other but not merged).

He brings a halakhic illustration of this principle from the Yerushalmi. There is a dispute about one who writes on Shabbat the two letters shin and mem from the word “Shimon”: does he incur liability as one who writes two letters on Shabbat, or is he exempt because this is only part of a longer name and not an independent word? The Yerushalmi rules that with regard to the Name of God there is no dispute: one who writes two letters from the Name of God is liable according to all opinions. The explanation that the author of the Tzafnat Paneach offers is that God’s Name has no parts; when the two letters stand alone, they are not part of the Name of God but simply two letters. Therefore this is like one who writes two ordinary letters on Shabbat, and such a person is, of course, liable.

Now, explains the Tzafnat Paneach, we can understand the aggadah of Chazal in a deeper way. If the man and woman do not merit and there is no lasting bond between them, then the yod with the man and the heh with the woman stand each on its own, for there is no bond between them. If so, they cannot form the Name of God, since God’s Name is not composed of separate parts. Only when the couple merit do the two letters join into a single entity, and then they together form the Name of God, and thereby they unite the couple into a lasting bond. The Tzafnat Paneach explains that there is no need to say that the letters of the Name depart in order to be left with “fire”; it suffices that they become detached from one another, for in that they cease to be parts of God’s Name.

In our terminology we may say that this is the matter of “she’er.” The third partner of the couple is the One who turns them into a single composite entity.

[1] An apparent conclusion that follows from here is that one who chains his wife and refuses to give her a get nullifies a positive commandment. There is room for debate in a situation where the husband does not want to divorce and only the wife wants it.

[2] Tosafot in Bava Batra 146b, s.v. “nichnas achareha,” do not accept this identification, but their words are difficult (see also the Maharshal and Maharsha there).

[3] Some have written that the prohibition applies only when she does not know that he intends to divorce her (similar to the prohibition “You shall not hate your brother in your heart” – see Sefer HaMitzvot of the Rambam, negative commandment 206), which slightly modifies the picture.

[4] See, for example, Klei Hemdah, Parashat Emor, sec. 2.

[5] Of course, the intention is not that she is acquired to him as a slave, as the early authorities already noted. See on this in my article for Parashat Chayei-Sarah, 5765.

[6] The explanation is that when a person testifies about himself, his words have no status of testimony at all. This is not invalid testimony – it is not testimony at all. It is not entered into the record. By contrast, testimony of relatives is invalid testimony, meaning that it is, as it were, entered into the record but as invalid testimony. And testimony part of which is invalid is entirely invalid. See an extensive discussion of this in the book Kovetz Shiurim on Makkot there.