The Role of the Warning in Sotah — Between the Marital Bond and Holiness (Column 755)
With God’s help
According to Jewish law, a married woman who has committed adultery deliberately with another man becomes forbidden both to her husband and to her paramour. This rule applies when we have clear testimony that she committed adultery and was thereby forbidden. What happens if we do not know? Seemingly this is only a doubt, and that is not enough to forbid her to her husband (she has a presumption of being fit and permitted to her husband, and changing status in a matter of sexual prohibition requires evidence of the highest order: two witnesses).
But in the book of Numbers (5:11-31), the Torah introduces the passage of sotah. It speaks there of a woman whom her husband warned, that is, he forbade her to seclude herself with a certain man, and she violated his warning and secluded herself, but there is no testimony as to what happened there. We suspect that they had sexual relations, and by virtue of this she became forbidden to her husband and to that man, but this is still only a doubt. The Torah innovates that in this doubt we are stringent, that is, we do not dismiss it as a mere suspicion or an abstract doubt, but take seriously the concern that they committed adultery. On that basis she is forbidden to her husband until she drinks the water, which will determine whether she was indeed defiled or not.
To enter the status of sotah, warning (the husband’s admonition not to seclude herself with a certain man) and seclusion (the woman’s secluding herself with that same man) are required. The accepted view is that the warning supplies grounds for suspicion, that is, it creates a basis for the suspicion, and the doubt becomes more significant, so one is stringent about it. In this column I would like to present a different conception of the role of the warning.
Doubt of impurity and doubt of sotah
The rule in Jewish law is that a Torah-level doubt is treated stringently and a rabbinic-level doubt leniently (for this reason, the medieval authorities indeed wonder why we needed any special innovation at all to be stringent in the doubt of sotah). Above I suggested the common explanation for this: the presumption of the woman’s fitness and her permissibility to her husband. Still, one must also reckon here with the warning and the seclusion, which create grounds for suspicion and arouse a more significant doubt (and perhaps this itself is the Torah’s innovation in the passage of sotah, since these two factors undermine the presumption).
And now, the Mishnah in Taharot (6:4) says:
Whenever you can multiply doubts and double doubts, in a private domain it is impure, in a public domain it is pure. How so? …
In other words, doubt concerning impurity is essentially different from ordinary doubts of prohibition in Jewish law. Contrary to the general rule that a Torah-level doubt is treated stringently, in impurity the outcome depends on the location in which the doubt arose (and also on an additional requirement: it must involve a subject capable of being questioned, that is, a mature human being with understanding and not an inanimate object). If the doubt arose in the public domain, one rules leniently; if in the private domain, one rules stringently.
Moreover, in the laws of doubt in Jewish law, one distinguishes between a Torah-level doubt, where one is stringent, and a double doubt, where one is lenient even in a Torah-level matter. By contrast, with doubt concerning impurity no such distinction is drawn: if it is in the private domain, one rules stringently whether there is one doubt or several doubts combined (a double doubt, a triple doubt, and so on); and if it is in the public domain, one rules leniently even in the case of a single doubt.
In the Talmud in Niddah 2b-3a this rule is learned from sotah: just as in sotah one rules stringently in a doubt arising in the private domain (she secluded herself, meaning that it happened in the private domain), so too in doubt concerning impurity. The same appears in tractate Sotah 28a-b, and from there the two requirements are also derived: in doubt concerning impurity one is stringent only if it arose in the private domain and only if it involves a subject capable of being questioned.
On prohibition and impurity in the marital bond
In column 472 I discussed the definition of holiness. Among other things, I cited the Talmud in Bava Kamma 11a, which discusses a doubt regarding the impurity of a woman after childbirth and her prohibition to her husband. The Talmud there says that if there is a single doubt one should be stringent, but if there is a double doubt one may be lenient. Tosafot there asks that if this is a doubt of impurity, there is no difference between a single doubt and a double doubt: in the private domain one must be stringent in both, and in the public domain one must be lenient in both. Tosafot explains that the discussion concerns her prohibition to her husband, and not the question whether she is impure, and therefore it must be treated as a doubt of prohibition and not a doubt of impurity. But this is difficult, for in the case of sotah too the discussion is only about her prohibition to her husband (there is no ritual-impurity aspect there at all).
There we saw that Tosafot’s words imply a distinction between two kinds of doubts regarding a woman’s prohibition to her husband: a niddah’s prohibition is judged as a doubt of prohibition, because it is a prohibition like any other. A sotah’s prohibition is judged as a doubt of impurity because her prohibition to her husband stems from the injury she inflicted on the marital bond between them (and the marital bond has a status of holiness). The assumption is that impurity appears only where holiness has been damaged. Therefore a niddah, whose prohibition to her husband is not connected to the marital bond between them (for she is forbidden to every man, not only to her husband), is a regular prohibition. But a sotah, who becomes forbidden specifically to her husband because of the injury to the bond between them, is judged as impurity and not as prohibition. See there for the precise definitions, their implications, and the proofs.
One may add here another point that I noted there. The Torah treats an adulterous woman as though she commits a trespass against her husband, that is, she has betrayed the marital bond. Moreover, the rule is that a woman becomes forbidden to her husband (if he is an Israelite) only when she did this deliberately, and not under compulsion or through inadvertence. However, Maharik rules that one must distinguish here between two types of inadvertence: if she did not know that this was forbidden, she is not regarded as inadvertent for this purpose, and nevertheless she becomes forbidden to her husband. Only if she did not know that her partner was not her husband (she thought he was her husband) does she not become forbidden. And the root of the distinction is that even if she did not know that adultery is forbidden, in practice she still commits a trespass against her husband; that is, she harmed the marital bond, and therefore she becomes forbidden. Her prohibition to her husband does not stem from the prohibition involved in the act, but from the reality of injury to the marital bond.
This sharpens the distinction I made above. The doubt in sotah regarding her prohibition to her husband is not a doubt about the prohibition she violated, since it is not the transgression that determines her prohibition to her husband. The doubt concerns whether she damaged the marital bond, and precisely for that reason this doubt is defined as a doubt of impurity rather than a doubt of prohibition.
The difficulty posed by the "petach patuach" passage
But now a further difficulty arises. We reached the conclusion that a woman’s prohibition to her husband after adultery falls under the category of impurity, and therefore its doubt is judged as a doubt of impurity rather than a doubt of prohibition. But in the Talmud we find doubts regarding an adulterous woman that are treated as doubts of prohibition. For example, the Talmud in Ketubot 9a discusses the case of a husband who claims I found an unobstructed opening, and asks whether he is thereby forbidden to remain with his wife out of concern that she committed adultery:
Rabbi Elazar said: One who says, “I found an unobstructed opening,” is believed to forbid her to himself. But why? It is a double doubt: perhaps it occurred under him, perhaps it did not occur under him; and even if you should say it occurred under him, perhaps it was by coercion, perhaps willingly! This is necessary only in the case of the wife of a priest. And if you wish, say instead: in the case of the wife of an Israelite, for example where her father accepted betrothal for her when she was less than three years and one day old.
Someone who claims that he did not find his wife’s virginity intact is believed to forbid her to himself. The Talmud asks why, since there is a double doubt here: perhaps she had relations before the betrothal and perhaps after it; and even if it was after it, perhaps she was coerced, in which case she is not forbidden (if her husband is an Israelite). In the end, the Talmud offers two answers that place the case in circumstances where there is only one doubt.
The Talmud here distinguishes between a single doubt, where one is stringent, and a double doubt, where one is lenient. But as we saw, such a distinction is relevant only to doubt of prohibition, not to doubt of impurity. Recall that above I argued that a doubt regarding whether a woman remains permitted to her husband because of injury to the marriage bond ought to be treated as a doubt of impurity, as in sotah. So why does the Talmud here distinguish between a single doubt and a double doubt? This is of course a doubt that arose in the private domain (and it also involves subjects capable of being questioned), and therefore we ought to have been stringent in any case. But even if we forced the matter and said that this happened in the public domain, then we should have been lenient even in a single doubt. Either way, it is clear that the Talmud sees this as a doubt of prohibition and not of impurity, and the question is why.
A possible explanation
Clearly, in both cases the doubt concerns whether the woman committed adultery. The natural tendency is to attribute the difference between the cases to the fact that in sotah there is warning and seclusion. True, in the case of the woman in the "petach patuach" passage there was seclusion as well, of course (by definition this happened in the private domain), but there was no warning. When we speak of warning and seclusion, the main point is the warning, provided that it was followed by seclusion. This combination creates grounds for suspicion that the woman indeed committed adultery, and therefore intensifies the doubt. But that still does not suffice to explain the difference. Even if warning and seclusion create grounds for suspicion, intensifying the doubt should not transform its category from a doubt of prohibition into a doubt of impurity. At most, it could eliminate the doubt and turn the matter into a certainty. But that is not the case, for in sotah one is stringent even in a triple doubt (as with doubt of impurity in the private domain). So the issue here is not the degree of doubt but its type. We are looking for an explanation of why the type of doubt in the case of "petach patuach" differs categorically from the doubt of sotah. Why do warning and seclusion create a difference in kind?
We saw above that the difference between the prohibition of niddah, whose doubt is treated as a doubt of prohibition, and the prohibition of sotah, whose doubt is treated as a doubt of impurity, is that the prohibition of sotah counts as impurity because it is created by injury to the marital bond (and that is regarded as an injury to holiness, that is, as impurity). From here one may perhaps argue that ordinary adultery is not regarded as an injury to the marital bond severe enough to count as impurity. For there to be a truly grave injury to the marital bond with her husband, he must first warn her, and she must then violate that warning. Warning and seclusion do not merely increase the weight of the doubt by creating grounds for suspicion; they change its very nature. Where there was warning, the doubt is whether there was injury to the marital bond, and therefore it is a doubt of impurity. Adultery without prior warning, as in the "petach patuach" passage, is not regarded as a sufficiently grave injury to the marital bond, for even if she did commit adultery, she did not violate a warning or command from her husband. Their bond is harmed less, and perhaps in such a case we have not crossed from the category of prohibition into the category of impurity.
The implication is that warning and seclusion are required not only to intensify the doubt by creating grounds for suspicion, as people ordinarily think. They change the category of the doubt: if there were warning and seclusion, this is a doubt of impurity and not a doubt of prohibition. Therefore in sotah the doubt is judged as a doubt of impurity, whereas in the case of "petach patuach" it is judged as a doubt of prohibition (because there was no warning or seclusion).[1]
A modern note on chauvinism
These points are somewhat difficult for the contemporary ear to hear. The husband defines the boundaries for his wife, and if she violates them she is said to betray the marital bond, that is, to damage it. The wife, of course, cannot warn her husband not to seclude himself with another woman. This reflects a conception of the husband’s mastery over the wife.
As is my way, I do not like apologetics. Intellectual honesty requires us to admit that the halakhic conception here is plainly chauvinistic (it was developed in a period in which male hegemony was taken for granted). I do not recommend adopting the norms and values that appear in the Talmud or underlie its conceptions. What obligates us is only the Jewish law established there. Therefore I am not committed to the chauvinism expressed in these laws, and I will try to minimize it as much as possible. But one thing can indeed be seen here: there is holiness in the marital bond, and there is significance to someone who harms it, beyond the mere prohibition involved in adultery. As for the lack of symmetry between the spouses, it is indeed expressed in the laws that deal with the sanctity of marriage, but one can separate the very idea of holiness and the importance of not betraying it from the asymmetry that enters the picture as an additional (and undesirable) component.
Possible implications
Above I cited Maharik’s distinction between an inadvertent act in which the woman did not know that the paramour was not her husband and an inadvertent act in law (she did not know that adultery is forbidden), with respect to her prohibition to her husband and to the paramour. Here I am making a similar claim: if she damages the marital bond, she becomes forbidden to her husband, but this is a doubt of impurity. If she did not damage the marital bond (without warning), then she becomes forbidden to her husband, but we do not have here a doubt of impurity; rather, a doubt of prohibition. Impurity is grounded in the factual injury to the marital bond, not in the prohibition as such. When there is a prohibition bound up with injury to the marital bond, it has the status of impurity for purposes of the laws of doubt.
Indeed, I was once asked on the site whether a woman who committed adultery with her husband’s permission becomes forbidden to her husband and to the paramour, or whether in such a case she did not damage their marital bond and therefore is not forbidden (especially in light of Maharik’s words). Again, one can say that she is forbidden, but if a doubt arises it will still be a doubt of prohibition and not a doubt of impurity. I was told that Rabbi Moshe Feinstein raised such a possibility and rejected it. In his view, Maharik’s innovation is a stringency, not a leniency. Even if she acted inadvertently, if she damaged the marital bond she becomes forbidden to her husband and to the paramour; but if she committed adultery with her husband’s permission and there is no injury to the marital bond, she is still forbidden because of the prohibition itself. That is, on his view it is not correct to say that the prohibition stems from the injury to the marital bond; rather, the injury to the marital bond is only a condition. But here I have suggested the possibility that even if she is still forbidden, when a doubt arises it will be treated as a doubt of prohibition and not as a doubt of impurity. On the face of it he is not right, and in fact her prohibition to her husband is due to the injury to the marital bond and depends on warning and seclusion. In a state of open marriage there is no injury to the marital bond, for the husband not only did not warn but actually agreed. True, I am not certain that in such a case she would not become forbidden to him (though there is room for such a side), but as for the doubt that would arise here, in my opinion it is indeed a doubt of prohibition and not a doubt of impurity. The practical difference concerns a double doubt: in impurity (in the private domain) we rule stringently, whereas in prohibition we rule leniently.
An interesting question would be a case in which a doubt arises regarding a sotah, after warning and seclusion with a stranger. Suppose it is clear to us that she thought the stranger was her husband, but we are unsure whether she had sexual relations with him there. Note that according to Maharik, if it were clear that she committed adultery, then in such a case she would be forbidden to her husband. But here we have only a doubt whether she committed adultery, and since there is no injury to the marital bond (for she mistakenly thought he was her husband), then even if she is forbidden to her husband, the doubt is judged as a doubt of prohibition and not as a doubt of impurity. Therefore here we would not make her drink the sotah waters, and we would not be stringent in a double doubt. More than that: in such a case perhaps we would not even be stringent in a single doubt, since she has a presumption of being permitted to her husband (her personal presumption of probity is not relevant to this discussion, for we are not suspecting her of having committed a deliberate transgression and of being a wrongdoer. The suspicion is one of something similar, that is, that she thought it was permitted. Her presumption of probity does not undercut that suspicion).
I am not familiar with any discussion of this issue, but reason suggests that such a doubt should be treated as a doubt of prohibition and not as a doubt of impurity. That is, if it is certain that she committed adultery, she would be forbidden to her husband. If it is doubtful whether she committed adultery, it is not clear to me whether she would be forbidden. But even if she were forbidden, that would be because of a doubt of prohibition and not because of a doubt of impurity. Therefore, if there is a double doubt, she certainly would not be forbidden.
The words of the commentators
In Shitah Mekubetzet on Ketubot there, a difficulty precisely of this sort is cited in the name of Rashba:
And he asked in the Shitah: what do we mean when we say that everywhere you can include a doubt and a double doubt in a private domain, its doubt is impure? And he answered that this applies only when impurity had already been established there; but if impurity had not been established there at all, then in a case of double doubt they do not prohibit. End quote.
He explains that in doubt of impurity in the private domain, the case is one in which impurity has been established there, and therefore one is stringent even in a double doubt. On the face of it, it seems that in his view "petach patuach" really is a case of impurity, but since the impurity was not established there, one is not stringent in a double doubt. Already here I would note that it is not clear why sotah is compared to impurity. In sotah too, would we be stringent even in a double doubt? Presumably yes, just as in impurity. Was she there also established as impure? It may be that he means to argue that seclusion after warning creates grounds for suspicion, and this is regarded as though it had been established that she became defiled. By contrast, in "petach patuach" we have a balanced doubt, and therefore one is not stringent there in a double doubt.
But his words are puzzling. On his approach, even in a single doubt I would not be stringent, for she has a presumption of being permitted to her husband. Perhaps in his view that presumption was weakened because he found a petach patuach, but that certainly is not comparable to seclusion after warning, which tips the scales toward the suspicion that she became defiled. An open entrance can also result from intercourse before the betrothal. Moreover, from his words it appears that in the case of petach patuach too we have returned to a situation in which there is an established status, as in sotah and impurity. It is not clear why the absence of such an established status should create a difference between a single doubt and a double doubt when we are dealing with a doubt of impurity.
In Sha’arei Yosher I, 16, this is discussed at length:
247. Now regarding the fundamental law of sota, whether it is a law of impurity or of prohibition, this is not stated explicitly in the Talmud or in the words of the medieval authorities (Rishonim) of blessed memory. Therefore it is fitting to clarify this matter from several places in the Talmud that relate to it. First, let us state what appears in Ketubot, chapter 1 (9a): Rabbi Elazar said: One who says, “I found an unobstructed opening,” is believed to forbid her to himself. But why? It is a double doubt: perhaps it occurred under him, perhaps it did not occur under him; and even if you say it occurred under him, perhaps it was by coercion, perhaps willingly. This is necessary only in the case of the wife of a priest. And if you wish, say instead that it is the wife of an Israelite, for example where her father accepted betrothal for her when she was less than three years and one day old. End quote. And I saw in the Shitah Mekubetzet there that he brings a remarkable note, as follows: And the Shitah asked: But do we not say that wherever you can multiply doubts and double doubts in a private domain, its doubt is impure? And he answered that this applies only when impurity had already been established there; but if impurity had not been established there at all, then in a case of double doubt they do not prohibit. End quote. Now the question is clear to all, but his answer is obscure and sealed, without explanation. And if his intention is that without warning and seclusion it is like a doubtful creeping creature, and doubtful impurity in a private domain applies only if there was definitely a creeping creature there, have we not already cited above in chapter 14, mishnayot and a Tosefta in tractate Taharot, that even a doubtful corpse and doubtful creeping creature is also impure in a private domain?
248. Perhaps the intention of the author of this approach is based on what Tosafot wrote in Sotah 28a, s.v. “Is it not logical,” as follows: “And this is the explanation in tractate Niddah: there, regarding sota and a doubtful creeping creature, the flaw — namely the creeping creature and the adulterer — is before us together with the pure items and the woman. But regarding a mikveh, before immersion we saw no flaw at all on the basis of which to entertain doubt.” End quote. It is clear from their words that they innovated this rule: that doubtful impurity in a private domain is impure only if, at the time the impurity could have occurred, the possible sides of the doubt were revealed to us; but if the doubt arose only after the event, the Torah did not innovate that doubtful impurity should be treated as certain. According to this, even in the case of “an unobstructed opening” it would not apply to forbid her definitively under the law of impurity in a private domain. But in any case, the words of Tosafot just cited are not universally accepted, for according to Tosafot in several places, the Talmud’s statement at the beginning of Niddah — where it says there, “there are supporting indications in the matter” — is to be understood in its plain sense, that through warning and seclusion the side suggesting impurity is strengthened beyond an evenly balanced doubt. But the aforementioned Tosafot in Sotah explain the Talmud’s intention there — “there are supporting indications in the matter” — to mean that the flaw became known to us at the time the impurity could have arisen. Therefore we must find a resolution to this great difficulty, so that the various approaches may be reconciled. Something similar was also noted by the Maharsha in his novellae to tractate Niddah 19, regarding “I was raped after you betrothed me”: what help is presumption, since we derive from sota that in a private domain we deem it impure even where there is a presumption? See there under the words “Rabbi Yehoshua,” where he remains with the matter unresolved.
[…] In any case, the plain meaning of the sugyot concerning “I found an unobstructed opening” and “I was raped after you betrothed me” is not interpreted according to the laws of doubtful impurity, but rather like any ordinary doubt of prohibition, as is clear to anyone who studies the matter.
251. Therefore, it seems to me that the law of the sota is not a case of doubt concerning impurity at all, but only a doubt concerning prohibition. In the case of a doubtful sota through warning and seclusion, the Torah was stringent to treat her like a definite sota; similarly, the Torah was stringent regarding doubtful impurity in a private domain to treat it like definite impurity. And in a public domain, in both cases the Torah was lenient. But their laws and rationales differ from one another; rather, the Sages received as a halakha given to Moses at Sinai that the fact that the Torah uses the language of impurity regarding sota is meant to teach another matter: that if an actual doubt of impurity arises for us, its law should be like this law of a doubtful sota.
He explains that sotah is not impurity but prohibition; but when there is warning and seclusion the Torah decreed (by using with regard to sotah the language and she became defiled, although the matter is one of prohibition) that we should treat it as though there were certain prohibition, and through the rule of if it is not needed for the matter itself it taught us that in actual doubt of impurity as well we should treat the matter as certain (if it is in the private domain and involves a subject capable of being questioned). He then adduces proofs for this from the language of Maimonides.
But his words are puzzling, for the Talmud implies that sotah is indeed impurity and not prohibition. The innovation is not that it is treated as certain (in my lectures on Sotah I discussed disputes among the medieval authorities on this point), but that it is a case of impurity. Moreover, if there is really no substantive similarity between sotah and impurity, and this is merely a formal comparison, why does the Talmud compare impurity to sotah in requiring the private domain and a subject capable of being questioned? What has one thing to do with the other?[2]
It seems to me that according to my proposal above, the matter becomes easier to understand. There is no need for his forced reading that sotah is not really a doubt of impurity and is only used as a source for doubt of impurity because of the Torah’s wording. Sotah really is like impurity, but only where there was warning and seclusion. Those create a state of impurity because she betrayed the sanctity of the marriage bond. By contrast, "petach patuach" is adultery without warning and seclusion, and therefore there is no betrayal of the marriage bond, so this is a doubt of prohibition and not a doubt of impurity.
I have now found in Ritva on Ketubot there (also cited in Shitah Mekubetzet) that the Jerusalem Talmud was concerned even with a double doubt in sotah:
And they brought proof for this interpretation from the Jerusalem Talmud, where we read there regarding that which was taught: “Whoever did not act according to this practice cannot make a claim of virginity.” What case are we dealing with? If he examined and found, then he found blood. If he did not find blood — he examined, but she did not examine. Rather, we are dealing with a case where he did not examine, but he found [an unobstructed opening]. She says, “It is virgin blood,” and he says, “No, rather it is the blood of a bird.” His position is weakened because he did not act according to this practice. This was said only regarding not causing her to lose her ketubah, but as for maintaining her as his wife, he is not permitted to do so because of the possibility of a doubtful sota. End quote.
And some say that no proof can be brought from the Jerusalem Talmud, which disagrees with our Talmud, for there too they were concerned for the possibility of a doubtful sota even in a case of double doubt, as they read there on the mishnah of “one who marries a woman,” where Rabban Gamliel and Rabbi Eliezer disagree, etc.: this was said only regarding not causing her to lose her ketubah, but as for maintaining her as his wife, he is not permitted to do so because of the possibility of a doubtful sota. But according to our Talmud, the fact that Rabban Gamliel says “she is believed” implies that she is fully believed, even to her husband, and even in a case of only a single doubt, because there is a presumption in favor of her bodily status, and she is certain while he is uncertain, as stated there in this chapter. It is possible that the Jerusalem Talmud is speaking only of the wife of a priest, or of a minor Israelite girl, where there is only one doubt. And even if you say that the Jerusalem Talmud disagrees here with our Talmud, in any case regarding the other matter here, namely that it is only a single doubt, even if there is blood he is believed to forbid her to himself, for we do not find that it disagrees with our Talmud except in the words of the Jerusalem Talmud, that to forbid her to him, even if there is blood here, she is forbidden to him. Thus wrote the Ritva of blessed memory.
The Jerusalem Talmud, which is concerned even with a double doubt in sotah, clearly equates sotah with impurity. The rule that in the private domain one is stringent even in the face of multiple doubts was said not only regarding impurity, as Rabbi Shimon Shkop suggests, but also regarding sotah, and from sotah it is learned to impurity. Hence it is clear that the Jerusalem Talmud understood that in sotah too this is a doubt of impurity and not of prohibition. The discussion in the Ketubot passage concerns only the claim of "petach patuach," and there the Talmud assumes that its law is not like the doubt of sotah, precisely because no warning occurred there.
Implication regarding a yevamah
By chance, just yesterday I saw the words of the author of Beit HaLevi, from which a similar claim emerges regarding a yevamah. He cites Maimonides, who writes in Hilkhot Yibbum VaHalitzah, chapter 2, at the end:
And a yevama who committed adultery while still awaiting levirate marriage is not forbidden to her yavam; rather, if he wishes he performs halitzah, and if he wishes he enters levirate marriage.
We see here that a yevamah who committed adultery does not become forbidden to the yavam. Conversely, in Hilkhot Sotah 2:2 he writes:
And these are the women who are not fit to drink, even though she wishes to drink and her husband wishes to give her to drink; rather, they leave without a ketubah once witnesses to seclusion come after witnesses to warning, and they become forbidden to their husbands forever. And there are fifteen such women, namely: a betrothed woman; a woman awaiting levirate marriage; a minor married to an adult; an adult woman married to a minor; the wife of an androgyne; the wife of a blind man, or a lame man, or a mute, or one who cannot hear, or one whose hand is cut off; and likewise a lame woman, a mute woman, a blind woman, a woman with a mutilated hand, and one who cannot hear. Any one of these is not fit to drink.
Here we see that a woman awaiting levirate marriage who is suspected of adultery is indeed not fit to drink, but she nevertheless becomes forbidden to him. This apparently contradicts the earlier law, for if she becomes forbidden to him when it is doubtful whether she committed adultery, how can one say that if she certainly committed adultery she is not forbidden to him?
The author of Beit HaLevi (part II, sec. 40) resolves this as follows:
According to this, the rulings of Maimonides, the Tur, and the Shulchan Arukh are quite understandable: they ruled that a woman awaiting levirate marriage who committed adultery is permitted to the yavam, and nevertheless they also correctly ruled that through warning and seclusion she becomes forbidden to the yavam, because his own objection is present, since he warned her. That is their view.
He elaborates there at length, but in brief his claim is that warning and seclusion are what forbid her. That is, a woman awaiting the yavam does not become forbidden if she certainly committed adultery, because intercourse by itself does not forbid her to the yavam. But if she secluded herself after a warning, that itself forbids her. Not because of the concern that she committed adultery, but because she thereby betrayed her bond to him and acted against his warning. This is exactly my claim above: warning and seclusion do not merely create grounds for suspicion, but transform the woman’s act into a betrayal of her husband. And that has two consequences: she becomes forbidden to the husband because of the warning and seclusion themselves (and not because of the concern that she committed adultery), and where there is no warning and seclusion, then even if she committed adultery she is not forbidden. This takes my innovation one step further: not only does intercourse after warning and seclusion forbid her, but warning and seclusion themselves forbid her, even where certain intercourse without them would not have done so.[3]
In Beit HaLevi there, he develops this principle at length and uses it to explain a number of passages and difficulties. We shall now continue the Ketubot passage mentioned above, because this principle seems to appear there explicitly.
Continuation of the Ketubot passage: the status of warning and seclusion
Further on in the Talmud in Ketubot there is an assumption that Rabbi Elazar’s innovation was that the husband is believed to forbid her to himself by force of self-imposed prohibition, and the practical difference concerns her ketubbah. If this were actual evidentiary credibility, it would apply to her ketubbah as well; but the law of self-imposed prohibition concerns only what relates to him, not what relates to her (see the discussion of the students of Rabbenu Yonah in Shitah Mekubetzet on Ketubot there).
According to this, the discussion regarding the doubts describes the husband’s own deliberation: does he regard the situation as a single doubt or as a double doubt, from which it follows whether he must be stringent upon himself. But all of that is under the law of self-imposed prohibition. The Talmud therefore now asks that the law of self-imposed prohibition already appears elsewhere (Mishnah Kiddushin 65a):
What is this teaching us? We already learned: If a man says to a woman, “I betrothed you,” and she says, “You did not betroth me” — she is permitted to his relatives, and he is forbidden to her relatives! You might say that there, he certainly knows, but here he only assumes and does not know for certain; therefore it teaches us otherwise.
In Kiddushin the husband knows perfectly well whether he performed the betrothal or not, but here there is concern of something similar, that is, because of his lack of experience he may not know that the opening was not really open.
In the conclusion, the innovation is that the husband is believed even regarding "petach patuach." That is, the innovation here is not about the husband’s basic ability to forbid something to himself (the law of self-imposed prohibition), but about the assumption that he is not mistaken. This innovation can be understood in two ways: 1. It is a factual innovation, namely that a husband really does understand the matter of "petach patuach." 2. Alternatively, the innovation is normative (halakhic): even if there is concern that he is mistaken, the law of self-imposed prohibition is not judged by considerations of the sort that govern ordinary law. That is, if this case came before judges, they would not accept his testimony, because they would fear that he lacks expertise. But if the husband himself thinks there was a prohibited "petach patuach," then even if he is mistaken it is forbidden to him. Still, where there is a double doubt, even on his own view we would not forbid, because then he himself should not be concerned. Everything is judged according to the concerns he himself entertains, and not according to objective concerns.
Parenthetically, it seems that precisely this is the dispute between the opinions cited by Rashba in Shitah Mekubetzet there:
And the Rashba of blessed memory said as follows: Rabbi Elazar said that one who says, “I found an unobstructed opening,” is believed to forbid her to himself, for he knows the matter, and he renders her for himself a self-imposed prohibition. And some say that it makes no difference whether he is married or unmarried, since he says that he knows the matter, and one may not feed a person something forbidden to him. And some say that this applies specifically to a married man, but an unmarried man is not believed, as I shall write below. And this is specifically when he says, “I am certain that I did not incline [the organ],” but otherwise she is permitted, for the presumption is that he inclined it and did not know. And that which we say below about that man who came before Rabban Gamliel son of Rabbi, and he said to him, “Perhaps you inclined it” — the reason for the matter is because one maintains the woman in her presumptive status.
Those who say that it makes no difference whether he is married or unmarried assume that the law of self-imposed prohibition applies even where the husband really is not expert, that is, that the innovation in the conclusion is legal and not factual: we do not feed a person something that, in his view, even if mistakenly, is forbidden to him. In other words, the law of self-imposed prohibition applies not only where his claim could be true but we lack objective evidence for it, but even where it is objectively clear to us that it is a mistake. But the husband himself thinks that this is the situation, and we require him to conduct himself accordingly. The first opinion holds that the innovation is factual, that the husband is indeed expert, and therefore it applies only to a married man and not to an unmarried one.
The Talmud now raises a difficulty concerning Rabbi Elazar’s ruling from another direction:
And did Rabbi Elazar really say this? But Rabbi Elazar said: A woman is not forbidden to her husband except through warning and seclusion, and in accordance with the case that occurred!
Rabbi Elazar says that a woman becomes forbidden to her husband only through warning and seclusion, and as in the actual incident. That is, if we are speaking of the husband’s personal certainty and his own claim (by the law of self-imposed prohibition) – then no. Apparently the husband’s credibility cannot forbid the woman. Self-imposed prohibition helps only to forbid something to himself, without consequences for others. It is like a litigant’s admission in a case that prejudices others.
In any case, the Talmud assumes here that her prohibition to her husband exists only where there was warning and seclusion, and not where there are witnesses to the adultery. On its face this is astonishing, for we saw that warning only creates grounds for suspicion, whereas witnesses to adultery are certainly conclusive proof. According to the conventional view, the innovation of the sotah passage lies in the laws of doubt: even seclusion together with grounds for suspicion is treated like clear witnesses to adultery. But if there are actual witnesses, how could she not become forbidden?
This, of course, takes us back to the same principle we saw above, especially with respect to the woman awaiting the yavam in Maimonides. It seems that the Talmud assumes that warning is not only for the sake of creating grounds for suspicion, but also for the sake of creating a situation in which she damages the marital bond. But here the conclusion is even more far-reaching than mine. I concluded that without warning we would have here a doubt of prohibition and not a doubt of impurity, but either way she would become forbidden to her husband (the practical difference lies only in a double doubt). By contrast, this statement of Rabbi Elazar concludes that without warning there is no injury to the marital bond, and therefore she is not even forbidden to her husband (just as we saw regarding the woman awaiting the yavam in Maimonides).
The meaning is that warning creates a different situation from one without warning even where there are witnesses to the adultery. The warning is not intended only to serve as evidence that adultery occurred, but to create a state in which the adultery harms the marriage bond, that is, the marital relation with the husband. The assumption is, as we saw above in Maharik, that a woman becomes forbidden to her husband not because of the prohibition involved in the act, but because of the injury to the marital bond. True, here in the Talmud this is only the initial assumption, and later I shall explain what the conclusion is and whether it contradicts the conception I have proposed here regarding warning.
Continuation of the sugya: does this remain in the conclusion?
The "incident that occurred" mentioned here in the Talmud is the episode of King David and Bathsheba (as is evident later in the passage). To this the Talmud objects:
But does that make sense? Was the case that occurred one of warning and seclusion? And furthermore, who forbade her?
After all, there was no warning and seclusion there. Moreover, they in fact did not forbid her to Uriah (nor to David). Recall also that Nathan the prophet’s rebuke of David (the parable of the poor man’s ewe-lamb) was about theft and not about adultery.
Rashi there writes:
Who forbade her to Uriah? For if she had become forbidden to Uriah, she would also have become forbidden to David, for we maintain regarding sota: just as she is forbidden to the husband, so too she is forbidden to the adulterer.
The Talmud now resolves:
That is not difficult. This is what he is saying: A woman is not forbidden to her husband except through warning and seclusion, derived from the case that occurred, for there was no warning and seclusion there, and therefore she was not forbidden.
They emend the wording, and now it is clear that without warning and seclusion she is not forbidden even if she committed adultery while married to him (were there witnesses there? It is not clear. If there were witnesses to seclusion, then this is exactly like seclusion, albeit without warning, and therefore without the law of sotah). Still, the assumption remains that in this statement of Rabbi Elazar warning plays a role beyond mere evidence, for with witnesses to adultery she is not forbidden, whereas with warning she is, even though evidentially witnesses are obviously stronger than warning and seclusion (which merely create grounds for suspicion). As noted above, this strengthens my claim regarding warning, and even takes it one step further.
In any case, the difficulty against Rabbi Elazar remains, for in his first statement regarding "petach patuach" he forbids a woman to her husband even though there was no warning and seclusion there (and also no witnesses to adultery):
In any case, the difficulty remains: warning and seclusion, yes; but an unobstructed opening, no!
The Talmud objects/responds:
But according to your reasoning, warning and seclusion, yes — but witnesses, no?!
And Rashi explains:
Witnesses, no? — this is said rhetorically: even if there are witnesses that she committed adultery, perhaps she is not forbidden without warning; but it is written, “because he found in her a matter of nakedness,” and furthermore, “she was not seized” — implying that she is forbidden.
His intention is that when the husband finds in her a matter of nakedness, this means that there were witnesses to adultery. In Sotah 3b it is explained that this is why he must divorce her, because she has become forbidden to him:
The verse therefore teaches: “because he found in her a matter of nakedness,” and elsewhere it says: “By the mouth of two witnesses or by the mouth of three witnesses shall a matter be established.” Just as the “matter” stated there is established by two witnesses, so too here, by two witnesses.
The Talmud understood that they wanted to say, in Rabbi Elazar’s view, that she becomes forbidden only through warning and seclusion and otherwise not, even if there were witnesses to the adultery.
Notice that Rashi proves that with witnesses she becomes forbidden not by an a fortiori argument, as one might think from the plain language of the Talmud (if grounds for suspicion suffice, then certainly witnesses suffice), but from the verse. Why is the a fortiori argument not enough? On my view, it is because there is no such a fortiori argument. Warning and seclusion are indeed weaker evidence than witnesses, but they transform the act into an injury to the marital bond, something that witnesses do not do. Hence it would still have been possible to think that she becomes forbidden only with warning and seclusion and not with witnesses. True, the verse shows that this is not so, namely that she becomes forbidden with witnesses as well. But the very fact that Rashi does not rely on the expected a fortiori argument leaves the underlying reasoning intact even in the conclusion: although her prohibition to her husband and the paramour does not depend on warning but on evidence that adultery occurred, that is, what forbids her is the adultery itself, still with respect to the conceptual status of the rule – whether it is prohibition or impurity (with practical relevance for the laws of doubt and double doubt) – warning and seclusion still play the central role.
In short, at least in the Talmud’s initial assumption there is an explicit premise that warning and seclusion play an important role in the woman’s prohibition to her husband beyond merely creating grounds for suspicion regarding whether she committed adultery. We also saw that this is not necessarily rejected in the conclusion, and the proofs we saw above from Maimonides regarding the woman awaiting the yavam and from the rule of "petach patuach" (and, as noted, in the responsum of Beit HaLevi there are further proofs for this) indicate that this is indeed the case even in the conclusion.
[1] In Shitah Mekubetzet on Ketubot there, in the name of Rashba, it is written:
And although every doubt concerning impurity in a private domain is also impure, and we derive it from sota, even though there are no supporting indications — which would imply that sota is not because of a claim supported by circumstantial evidence — that is not so. For doubtful impurity is so because there is no one who can say in this case, “it was not defiled.” But in the case of a woman who secluded herself, where her claim is certain, were it not for the supporting indications in the matter, we would not deem her defiled. And the Merciful One compared every doubt of impurity to sota, whether or not there are supporting indications, for the Torah compared them only with respect to a doubt in the different domains and where there is a mind to be asked; but with respect to supporting indications, it did not compare them according to the Rabbis of Rabbi Shimon. And according to Rabbi Shimon, it compared them completely, as stated at the beginning of tractate Niddah. So it seems to me.
He argues that in sotah there are indeed grounds for suspicion, but on the other hand she claims with certainty that she did not commit adultery. So the two offset each other. In his view, that is the reason grounds for suspicion are needed: to offset her claim and thereby leave us with an evenly balanced doubt. He understands that in sotah there are grounds for suspicion, whereas in other cases of doubt concerning impurity in the private domain one is stringent even without such grounds.
[2] He would presumably explain that the whole matter of a subject capable of being questioned and the private domain was said only regarding impurity, even though its source is the passage of sotah, because of the rule of if it is not needed for the matter itself. But that is very strange, for those requirements were not actually written there. We simply infer them from the fact that in sotah there is a subject capable of being questioned and that it happens in the private domain. But sotah is also a woman, and we also make her drink. So perhaps impurity too would apply only to women, or perhaps anyone whose impurity is in doubt should be given the sotah waters? Clearly there is some explanation for the relevance of these two requirements both in sotah and in impurity. Therefore all of Rabbi Shimon’s words are a very forced interpretation.
[3] It is important to understand that despite what I wrote here, if it became clear in some way that she had not had relations, then even if she secluded herself after warning, it is obvious that she is not thereby forbidden to the yavam. After all, even in the case of an ordinary married woman who drank and it became clear that she had not had relations, her prohibition to her husband lapses despite the fact that she secluded herself after warning. In other words, the claim that warning and seclusion forbid her is true only so long as there remains concern that she had relations (even though the relations themselves, without warning and seclusion, would not have forbidden her).
Discussion
Thank you very much, an interesting sugya.
Two comments:
1. It is a bit difficult to make the type of doubt depend on the husband’s warning, as though his warning creates harm to his marital bond. The warning is indeed primarily the husband’s law, but if the husband cannot warn (imprisoned, mentally incompetent, etc.), we find that the court can warn, and if she secluded herself after a court warning she becomes forbidden to her husband. So here is a warning by a third party that changes the presumption/type of doubt and forbids her, even without the husband’s warning and without harm to his marital bond.
2. Regarding the comment about chauvinism: the comment does not necessarily relate to warning and seclusion, which are laws concerning forbidding a woman to her husband out of concern that she committed adultery under him. A husband cannot commit adultery under his wife, since he is permitted to have multiple wives, and therefore there is no chauvinism in the very possibility that a husband can warn and a wife cannot. A wife’s warning would make no difference, and even two witnesses would not forbid him.
This is, however, a secondary result of a chauvinistic halakhic conception of marriage, in which the woman is obligated to remain faithful to her husband while the man is permitted multiple wives.
Many thanks,
Lavi
That is exactly what I wrote. If it is clear that she committed adultery, she becomes forbidden, but in a case of doubt she does not.
Correct, but the Yerushalmi here apparently assumes that “an open entrance” is like sotah. That itself is what I argued against. What we do see in it is that, in its view, even in sotah a double doubt is forbidden, as with impurity. The concluding sentence is mine, not the Yerushalmi’s.
The court warns in the husband’s name. When she secludes herself after such a warning, that too is a trespass against the husband.
Indeed. The whole picture is chauvinistic.
Hello Rabbi, I have a side question.
Do you think the sotah waters really existed, and really tested properly? It sounds unlikely that for centuries there were waters that could reveal the truth, and there are no external historical sources about this (unless I missed them).
I have no idea. But it is not clear how practical such a situation was in the first place.
You have missed the essence of the matter in the passage of sotah and the comparison to the laws of impurity (as have most of the later authorities).
First, it must be put in its proper place that the rule of “in a Torah-level doubt we are stringent” has no relevance at all to the laws of doubtful impurity. A Torah-level doubt concerns uncertainty in the halakhah of prohibition and permission, or obligation and exemption, where we have no clear ruling as to what the law is. By contrast, doubtful impurity treated stringently is a substantive rule within the very system of impurity law, and is not at all a matter of doubt in prohibition and permission, but rather a law of impurity that only incidentally affects prohibition and permission after the fact. Impurity as such is not a category of prohibition and permission.
And so it is with sotah: from the perspective of the prohibition of adultery, there is no halakhic doubt here at all, but suspicion. The laws of sotah deal with how halakhah relates to the husband’s suspicion of his wife, not with a factual uncertainty in the halakhic sense. Had the passage of sotah not been stated, we would not have needed the laws of doubts at all, and the woman would have remained permitted to her husband. A doubt is a situation in which there is factual uncertainty before us, such as when we do not know when a certain act occurred, and not a situation of suspicions hanging over a person.
And just as a person suspected of swearing falsely is not considered a doubtful false oath that obligates a sacrifice, but rather someone we suspect, and halakhah defines how to act in the face of that suspicion, so too with sotah. This is the basis of the comparison between sotah and impurity: just as suspicion imposes a law of impurity, so too suspicion forbids the woman to her husband.
Regarding chauvinism – it is a bit hard to understand the ridiculous insistence of modern religiosity on accepting the dogmas of Western thought without even minimal criticism. After all, every sensible person knows that the claim that there are no significant differences between men and women is a superstitious belief with no basis in reality. Anyone who still cares about reality easily sees that there are dramatic gaps between men and women, and it is also easy to see that the relationship between a man and his wife is not a relationship between two male friends. In homes that have remained sane – the wife is part of her husband’s domain, not vice versa. This does not mean she is a slave or that she must serve her husband; among the Jewish people there was never a state in which women were slaves. But the natural situation is that a woman has respect and admiration and a kind of submission toward her husband. Psychologically too – the basic need of a woman to be under a particular man is an agreed fact beyond dispute. So what is the problem with saying that the woman is acquired by her husband?
Incidentally, the meaning is not that women are acquired by their husbands in the legal sense. Anyone who knows Hazal and their cast of mind knows that “acquisition” here is not meant in its narrow legal sense. (Even a Canaanite slave is not acquired by his master in the narrow legal sense, as we find in the Gemara that he is compared to land and consecrated property, none of which are acquired by owners through actual possession in the literal sense.) But there is nevertheless a concept of acquisition here, because this is not an ordinary friendship relationship. There is a certain hierarchy here that assumes the man’s basic superiority. Just as one says “his son” and “his brother,” so too one says “his wife.” A man’s son is not his slave or his servant, but he is still “his” in a certain sense; and so too with a man’s wife. The concept of “his” has different realizations in different contexts, and therefore the wife too is not her husband’s object or slave, but they nevertheless maintain a system of relations of man and woman, which is a system in which the man brings the woman into his domain and into his home.
An interesting comment, but I do not think it is correct. It is also clear from the Rishonim that they did not understand it that way, for several of them asked why the novelty was needed that doubt in the case of a sotah is treated stringently, since we hold in every Torah-level doubt that one is stringent. And on the merits too, there is no reason to distinguish. We are stringent in a Torah-level doubt because of the concern of stumbling into a prohibition. So too with impurity, since states of impurity entail prohibitions. Moreover, impurity itself with regard to a priest is a prohibition.
By the same token you could say that doubtful mamzer status is not a doubt about a prohibition and therefore does not belong in the discussion of Torah-level doubts, but on this all the Rishonim disagree with you. The Rashba too, who asks from there against the Rambam, who holds that a Torah-level doubt is lenient, and the Rambam in a responsum, who sees there the source for his view. And likewise with doubtful pork or doubtful forbidden fat: one could say that the doubt concerns the status of the piece. The prohibition is only a derivative of that.
I, on the contrary, find it hard to understand the insistence of non-modern religiosity on adhering sweepingly and uncritically to outdated Talmudic conceptions. I also find it hard to understand your logical leap from a statement about asymmetry as reflecting chauvinism to a general outlook that adopts every liberal position indiscriminately. And I find it even harder to understand your claim that tries to explain the asymmetry between husband and wife. Here you have really reached the realm of nonsense. And I have not yet spoken about your illusions and contortions between chauvinistic statements and the excuses for why this is not chauvinism (because the woman by her very nature admires and submits to her husband, as everyone knows).
And how is all this related to the question whether a woman is acquired or not acquired by her husband? At this point I lost you completely. Who was talking about that? On the contrary, I have written several times in the past that halakhah is chauvinistic in a very troubling way, and nevertheless anyone who thinks that according to halakhah a woman is acquired by her husband is mistaken.
In the end, it seems that you are disqualifying others by your own defect. You adopt implausible a priori views indiscriminately, while accusing liberals of that very same thing.
I hope I have been very helpful to you in understanding what was so difficult for you to understand.
All right, there are many claims here, and I will try to address them in an orderly way.
First, there is no sweeping attachment here to outdated views of Hazal. There is a sober assessment of reality here, though it is true that there is some motivation to understand Hazal’s view better, among other things because this is not some private opinion of a particular amora, but the general outlook that flows through the veins of the Oral Torah. That certainly does not mean one cannot think it is mistaken, but one who accepts the Oral Torah definitely has motivation to try to explain it.
Incidentally, modern religiosity strikes me דווקא as inconsistent. One cannot analyze and quibble over every jot in the words of Hazal while totally relying on them, and at the same time treat their views on matters like chauvinism as utter nonsense. The attempt to “dance at two weddings” and separate halakhah from thought is ridiculous and has nothing to stand on.
(One can say that Hazal simply “went along” with the conception accepted in their period, and there is certainly some truth in that. But that argument could be made about 99% of the things that appear in the Talmud. Perhaps the concept of “holiness” too was influenced by the spirit of the age? Perhaps if Hazal lived today they would retract the metaphysical claims underlying the halakhot? Besides, this outlook is not only that of Hazal but an inseparable part of the Oral Torah. In fact, in the Oral Torah the attitude toward women was essentially different from the attitude in the wider world. Among Israel there were female judges and prophetesses very near the giving of the Torah, so on this subject specifically the people of Israel did not adopt the conceptions prevalent in the world. So why should we assume that partially they did? Perhaps they simply thought about this issue and that was their conclusion? One who gives Hazal such great credit in halakhic matters ought to give them a bit of credit in intellectual and value-laden matters as well.)
I did not claim that from the argument that asymmetry between husband and wife is chauvinism one can logically deduce that the claimant accepts all liberal views indiscriminately. My claim was that this is a reasonable connection: someone who makes such a absurd claim is probably making it because he adopts liberal views indiscriminately. (Do I need to show a logical connection every time I argue against a certain position? It seems to me enough to point to a reasonable connection.)
Regarding the asymmetry between husband and wife – it seems to me that a categorical declaration that a certain fact is “nonsense” is not enough to reject it. Do you dispute that within the framework of relations between husband and wife the husband has a certain superiority? Is it not true that a woman by nature admires her husband and submits to him (as a generalization, of course)? (Again, this does not mean tyrannical domination of the wife by the husband; it is simply the natural condition between man and woman, and what is palpable cannot be denied.)
I saw no contortion in my remarks about chauvinism. I wrote that the man is superior to the woman, but of course the woman is not the man’s slave and no one has ever claimed such a thing. (In truth there are a few such descriptions, like Rashi on Menahot 43b, but these are factual descriptions and not normative claims.) And nevertheless it is true and just that the man acquires the woman.
You are right that the issue of the man betrothing the woman is not relevant to you, but since it came up here in connection with the fact that a man may marry several women and not vice versa (which is of course a derivative of the fact that the man betroths the woman) – I brought it up here.
(Incidentally, I do not agree with you that the term “acquisition” with regard to kiddushin is merely a label for an act that yields legal effect. In my view, the word has meaning even with regard to kiddushin: the man acquires the woman and brings her into his domain, and not vice versa. But it is true that the acquisition is not in the legal sense, just as a person’s acquisition of his children is not in the legal sense, even though it is clear that they are his in some more abstract sense.)
I do not know who those Rishonim are whom you mentioned as raising an objection against the Rambam from the law of sotah. On the contrary, from the words of the Rashba and the Ramban, my point seems evident, for they objected from orlah, from the suspended guilt offering, and from the laws of majority and presumption, and refrained from objecting from the laws of impurity and from sotah. I would be glad if you could specify which Rishonim you mean.
As for your objection from mamzer, it is no objection at all. I am not distinguishing between the definition of a state or status and a practical prohibition; I am distinguishing between suspicion and doubt.
In a doubt, one can say that a person must act stringently because of lack of knowledge. But in a suspicion, if we come to forbid, the halakhic definition is that the suspicion itself is what forbids, not the lack of knowledge. This is what is meant by “there are grounds for the matter”: the grounds, that is, the suspicion itself, are precisely what forbids.
In sotah there is no doubt before us at all, but a woman who has come under suspicion, and therefore the prohibition stems from her very being suspected, not from stringency arising from lack of knowledge. And likewise in the laws of impurity: since this is not a doubt of prohibition, because the laws of purity and impurity stand as a separate system from prohibition and permission (and this does not contradict the fact that there is also a prohibition for a priest to become impure, as you objected, for the root of the doubt is not in prohibition and permission), there is no halakhic basis to treat impurity stringently under the rule of stringency, because there is no such stringency in itself. Rather, one must apply a law of impurity to the very suspicion of impurity, and therefore the halakhic authorities wrote that its status is like certainty. And this is the similarity between sotah and impurity: suspicion forbids a woman and suspicion applies impurity.
From this it follows that your objection from mamzer is also incorrect, for the law of mamzer status has no independent standing; it is entirely a matter of the prohibition of marriage, and therefore it is treated like any other Torah-level doubt.
Maybe I can help you, because it seems you are getting a bit tangled in your confusion, and Michi only added to your embarrassment.
You mention the Oral Torah a lot, so it is important to understand what the Oral Torah actually is. Its whole point is that halakhah is alive and applied in accordance with reality, and therefore it was not written as a closed book but transmitted orally, to allow interpretation, development, and adaptation.
You can see that in biblical times there were many death penalties, the law of an eye for an eye in its literal sense, male and female slaves, a person sold for his theft, the stubborn and rebellious son, and harsh corporal punishments. All this reflected a particular reality of that period.
With Hazal we see a clear change. They effectively abolished the death penalty and said that a court that executes once in seventy years is called destructive. An eye for an eye became monetary payment. They instituted the ketubbah to protect the woman, instituted the prosbul so that the economic system could continue to function, drastically narrowed laws like the stubborn and rebellious son and the idolatrous city, and set many barriers around punishments.
And with the Geonim and the Rishonim this continued in the same line. It became forbidden to marry more than one wife, one cannot divorce a woman without her consent, the heter iska was devised to deal with the prohibition of interest in a new economic reality, and communal enactments binding on everyone were established according to the needs of the time.
The whole essence of the Oral Torah is the adaptation of halakhah to reality and its development through the generations. Whoever does not understand this misses the main point and gets confused about everything else.
Incidentally, I would improve your name from “Man of Truth” to “Man Seeking the Truth and Has Not Yet Found It”
The attempt to present the Oral Torah as a Torah that develops and changes over the generations as something self-evident is a ridiculous attempt. One may argue this as a scholarly claim against the Oral Torah, but from the perspective of the Oral Torah itself this is certainly not so. None of the sages of the generations, nor Hazal, saw it that way.
On the substance: it is indeed true that the essence of the Oral Torah is its vitality, the fact that it is a living and tangible Torah, but it is absolutely not true that it develops over the generations, for two reasons: a) as stated, the sages throughout the generations did not understand it that way; b) there is no explanation for why at the time of the giving of the Torah the moral principles were different from those of Hazal’s period. That claim assumes ethical relativism, as though in the period of the giving of the Torah one thing was right, and afterwards moral norms changed, an assumption which is of course incorrect.
Likewise, Hazal did not abolish the death penalties; rather, they enacted an external enactment for the sake of social order, מתוך understanding that there are situations in which the law cannot be implemented literally. That enactment is a legitimate mechanism and not a change in halakhah. So too prosbul is a temporary enactment that was necessary, not a change in the core law. And likewise an eye for an eye did not turn into monetary payment, because that is what it always was.
(Hazal explain this at length in Bava Kamma 83b. Briefly, the explanation is that the law of the death penalty for a murderer and of an eye for an eye are claims of the injured party, and therefore in principle ransom is relevant to them; only with regard to death there is a prohibition against taking ransom for the life of a murderer.)
You are right.
We live by the halakhah of the Mishnah and the Gemara without changing a single detail.
We stone a girl who committed adultery, pay a fine to the father of a raped girl and marry her off to the rapist, sell our daughters as maidservants, fathers betroth their minor daughters, sell slaves in the market, administer disciplinary lashes to anyone who violates a rabbinic law, refrain from lending with interest, exempt deaf people from monetary damages, do not accept women’s testimony, send down and do not raise up any secular Jew, and do not leave inheritances to daughters.
Nothing at all has changed.
First, I did not claim that nothing has changed. My claim is simple: the position of Hazal and of rabbinic Judaism throughout the generations does not accept the conception that the Oral Torah makes changes in the Torah. These are facts every religious child knows; there is no scholar in the world who would claim that Hazal thought they were making reforms in Judaism.
As for the list you brought – we do not stone a girl who committed adultery because we do not have a court that can do so.
We do not marry the girl to the rapist simply because she does not want it.
We do not sell our daughters as maidservants because there is no obligation to do so. (The Torah only determines that from a legal standpoint there is no impediment to doing so. Obviously, even in the past this was an immoral act in most cases, but it matters that there is no legal impediment to it. If it is an extreme case where it is clear that the daughter herself will suffer greatly if she is not sold, then it is permitted to sell her; whereas if I think that another free person would suffer if we do not sell him, it is obviously forbidden, since the impediment is legal and not only moral.)
For the same reason fathers do not betroth their minor daughters, simply because there is no obligation to do so, even though the Torah recognizes the father’s legal authority to do so. (In the past this was indeed more common for technical reasons, but the Torah’s principled statement is only that in essence the father has the authority to do so, not that it is morally proper, and therefore there is no essential change here.)
This is also why we do not sell slaves in the market. The principled determination is only that slavery is legally valid; there is some model in which a person is owned by another person. The moral issue is separate and depends on the circumstances.
We do not administer disciplinary lashes because there is no authoritative court to do so.
And we certainly do refrain from lending with interest. The circumvention through heter iska is fully permitted from the outset without any hesitation. (One must understand the definition of the prohibition of interest in order to understand the matter. It is not merely a moral prohibition, in which case heter iska could be seen as a trick. Rather, when a person takes an additional amount on a loan he subjugates the borrower to himself, and when this is not done in the form of interest, the main prohibition does not apply.)
We indeed exempt deaf people from monetary damages; only today there is no such person as the deaf person of old. The exemption of the deaf person stems from his being cut off from society and having no acquaintance with the world, but today the situation is simply not so. (This is not a change in halakhah but in the condition of the deaf person; today even deaf people are not the deaf people of Hazal’s time.)
The law of “send them down and do not raise them up” does not apply to secular Jews because they are like children taken captive among the gentiles.
And indeed we do not leave inheritances to daughters, but rather give them gifts. The Torah’s law that a woman does not inherit establishes only a legal fact, that the woman is not part of her husband’s family and therefore does not continue his property domain. If someone wishes to give gifts, he may. (Today it is indeed more common to give gifts than in the past, but for technical reasons, because of changes in the structure of the household. The essential principle is that the woman is not the continuation of her father because she is attached to her husband, and that principle is certainly true today as well.)
(As for the disqualification of women for testimony – there the situation is more complex, but it is enough to say that if women today are valid for testimony, that is only because the reason for disqualifying them no longer applies. So again there is no change in halakhah; rather, in the past there was a reason to disqualify women and now there is not.)
Incidentally, I still have not understood what your alternative is. That moral norms changed over the years? That moral norms change according to different societies? This is relativism of the most simplistic and childish kind. I find it somewhat astonishing that anyone holds such a view.
The alternative is that halakhah does not determine social and moral norms in advance, but rather serves as a constitutional framework operating within those norms. When the norms change and there arises a need for halakhic change, halakhah itself is built so that it can be expanded and adapted to the new reality. As long as the change is made through the rules of halakhah and is not the abolition of halakhah itself, this is precisely the principle of the Oral Torah.
We derive exegetical interpretations, enact decrees, and institute ordinances according to changing needs and circumstances. A change in values is itself a change in reality, and halakhah responds to it using the halakhic tools at its disposal.
Rabbeinu Gershom’s ban on multiple wives stemmed directly from a change in values, and from the recognition that halakhah must be adapted to social reality so that it does not become irrelevant or ridiculous.
Everything you describe is nothing but the legal terminology of the tools through which halakhah changes in practice.
Defining secular Jews as “children taken captive” is a conscious extension of a halakhic concept in accordance with a reality in which most of the nation is not observant.
Heter iska would not have been conceivable in the time of Hazal, because the economic system then was not based on credit and loans in the way it is today.
Likewise, the Mishnah that states, “Anyone who leaves his estate to his daughters, or does not give a double portion to the firstborn, the spirit of the Sages is not pleased with him,” was said within a completely different family and social reality. Clearly, the spirit of the Sages was not directed at the family and economic structure familiar to us today, and when the Rambam writes that a woman who goes out to the marketplace more than once a month loses her ketubbah, he did not mean a woman studying law at the Hebrew University.
First, I did not understand the alternative at all. You claim that halakhah “serves as a constitutional framework operating within those norms.” These are words that sound as though they have some distinct meaning, but when we try to illustrate them with a concrete example they turn out to be empty words. Is gouging out the eye of someone who gouged out his fellow’s eye an immoral act? If not, why did the Torah not uproot this disgraceful practice? And what kind of “constitutional framework operating within norms” is there here? The Torah obligates this practice, so there are no laws existing within problematic norms here, but rather the creation of those problematic norms themselves. So I do not see here any real alternative to the traditional and accepted claim.
In general, it seems you are evading the essential question here: do you believe in ethical relativism? Sentences like “a change in values is also a change in reality” point to very simplistic relativism.
As for your explanations – I truly do not understand what you want. Rabbeinu Gershom’s ban “stemmed directly from the recognition that halakhah must be adapted to social reality”? Do you really think Rabbeinu Gershom would agree to that formulation? There is no adaptation of halakhah to social reality here. Rabbeinu Gershom probably saw that marriage to two women led to problems and therefore forbade it. By your reasoning, one could prove this from every rabbinic prohibition: why did the Sages decree that it is forbidden to cook in a secondary vessel on Shabbat even though the Torah did not forbid it? Apparently this too stemmed directly from the recognition that halakhah must be adapted to social reality.
The claim that defining secular Jews as “children taken captive” is a “conscious extension of a halakhic concept in accordance with reality” is ridiculous. It is obvious that all secular Jews meet the criteria of children taken captive. Do you have any children taken captive greater than these? In my opinion, secular Jews are even less culpable than children taken captive. They do not even recognize that they are commanded by the Torah; it is not at all clear to what extent the very concept of “command” is defined with respect to them.
And likewise, “heter iska would not have been conceivable in Hazal’s time” – who says so? Apparently a law given to Moses at Sinai? Do you have any basis for that claim? And in any case, even if it is true, it may be that there were external reasons then that made heter iska a problematic legal fiction, but from the standpoint of the pure prohibition of interest itself there would have been no problem with it then either.
The same applies to “anyone who leaves his estate to his daughters, the spirit of the Sages is not pleased with him.” Such a person did not transgress a Torah prohibition, because the Torah’s determination is only the basic legal principle that the daughter does not automatically inherit her father. There may have been certain circumstances in which circumventing that law created an external problem, but the principle itself never changed.
Likewise, it is simply not true that I am only finding legal tools in order to bring about a change in the substance of halakhah. In most cases I argue that the substance is the legal principle, and therefore when the legal principle does not apply, there is no substantive problem either. (For example, the Torah does not regard there as being some value in selling the daughter as a maidservant; it merely notes the legal fact that the daughter is under her father’s authority and that her father has the legal entitlement to do so. The substantive point is not the moral permission – which in most cases did not exist even at the time of the giving of the Torah – but the essential legal permission, which is true even today.) But I absolutely do not agree that there is any possibility of changing the substance of halakhah. I maintain that if the meaning of the verse “an eye for an eye” is literal, one is obligated to fulfill it literally; there is no possibility of interpreting it differently according to the spirit of the times.
(And as stated, Hazal likewise argued this, explaining their strange interpretation by saying that the verses regarding “an eye for an eye” are indeed to be interpreted literally, as is plainly seen in the verses there, “as he has done, so shall be done to him,” and likewise it says there, “life for life, eye for eye,” and even Hazal agree that “life for life” is literal. Only there is an additional law of ransom that stands in place of death, such that since the law to gouge out the eye is among the rights of the injured party, who is entitled to gouge out his fellow’s eye in place of his own, one may take ransom instead of the eye that was gouged out, as explained in Numbers ch. 35, where there is a prohibition against taking ransom for the life of a murderer. This implies that in principle such a mechanism of taking ransom instead of death exists, and only with regard to a murderer is it forbidden to do so. Moreover, the verse implies that if one violated the prohibition and took ransom, there really would no longer be an obligation to execute the murderer, because the ransom would indeed stand in place of death; it is only that it is forbidden to do so and thereby bring about a situation in which the murderer does not die. From here Hazal inferred: “For the life of a murderer you may not take ransom, but you may take ransom for extremities that do not regenerate.”)
Even the very name “Ish HaEmet” is a bit problematic, because it claims that the truth is always with him, as if this were beyond dispute. More than that: after we have understood from his holy words the essence of the woman in relation to her husband, that she submits to him and admires him (editor’s note: well said indeed), then presumably the truth too submits to his words and admires them, even though they are not always true.
Perhaps “A Real Man” would be better, meaning that he seeks after the truth, and he himself tries to be truthful, but certainly not “The Man of Truth.”
I thought of an idea for distinguishing between the sugya of “an open entrance” and the sugya of sotah: in the sugya of “an open entrance,” the adultery occurred before the marital bond took effect (and after the bond of kiddushin took effect). Perhaps only a trespass against the marital bond causes impurity, and a trespass against the kiddushin bond alone is not enough. What do you think?
On Sotah 24 they include a betrothed woman as well, so that warning and seclusion also apply to her. A betrothed woman does not drink, but according to most opinions she can be made to drink after marriage. So it seems there is also a trespass in the case of a betrothed woman, as long as there were warning and seclusion.
It is told of the Hida that he recited the passage of the sotah to a woman suspected of harlotry, and her belly swelled up and she died.
All the words of the Torah are truth and justice.
We do not live by external sources.
“The highest level of proof is required: two witnesses.”
Seemingly it would be more correct to say, “proof is required.”
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“With warning and seclusion, which create grounds for suspicion and arouses.”
It should apparently read: “and arouse.”
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“(For this reason the Rishonim really debate why we needed a novelty at all to be stringent in the case of doubtful sotah. Above I suggested the common explanation for this: the woman’s presumption of fitness and permissibility. However, one must also take into account the warning and seclusion, which create grounds for suspicion and arouse a more significant doubt (and perhaps this itself is the Torah’s novelty in the passage of sotah, that these two undermine the presumption.”
Since there are parentheses within parentheses (and the first parenthesis is not closed), the correct thing is to add square brackets (and a closing parenthesis), like this:
‘((For this reason the Rishonim really debate why we needed a novelty at all to be stringent in the case of doubtful sotah. Above I suggested the common explanation for this: the woman’s presumption of fitness and permissibility. However, one must also take into account the warning and seclusion, which create grounds for suspicion and arouse a more significant doubt [and perhaps this itself is the Torah’s novelty in the passage of sotah, that these two undermine the presumption]))’
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“that these two undermine”. It should apparently read: “that these two things undermine.”
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“that is, it is”. There is a double space here.
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“This is not at most”. It seems the word “not” is unnecessary.
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“with her husband of she will be secluded.” It should read: “that she will not.”
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“Hint, and behold, mainly the law of sotah.” It would be good to put a period after “hint” (because on first reading it sounds like a noun). And similarly after “Ramah” and “Rana.”
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“from the law of shavya). Therefore”. The parenthesis here is unnecessary, unless one needs to add an opening parenthesis before it (and delete the period I did not quote here).
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“the law of shavya”. It should read “shavya” (that is how it appears in the Gemara you quoted, and that is how the rabbi wrote it in the next two instances). “shavya helps”. Same here. (Unless one should distinguish that the rabbi writes “the law of shavya” with two vavs, while “shavya” alone is with only one.)
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“in a case really”. There is an unnecessary space before “in a case” (editor’s note: “mikreh” can also be rearranged as “rak me’Hashem”).
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“I am not obligated to the chauvinism expressed in these laws,” indeed the rabbi is not at all obligated to think like it (incidentally, it should read “obligated”). “and I will try to minimize it as much as possible.” Why? But I thought the rabbi was moral, and after all the Torah (the Merciful One!) speaks of warning and seclusion, and it is not likely that it would command something so immoral. And if morality is from God (as the rabbi claims), what is the need to minimize this “chauvinism”? On the contrary, these “chauvinistic” notions did not begin with the Gemara but already with the Holy Torah itself. This is not a real clash between morality and halakhah (=Torah).
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The rabbi used the term “histarerut” (hiding oneself), but the accepted term is “hastarah” (seclusion).
Why is it not clear, Rabbi? What is impractical about it?
Well said indeed.
Well said indeed.
“Anyone who thinks that according to halakhah a woman is acquired by her husband.”
Rabbi, why is he mistaken? We learned: “A woman is acquired.”
That a woman whose husband warned her then secluded herself with that man in the presence of two witnesses, and all the conditions for making her drink were fulfilled (including the consent of the parties).
This is a misunderstanding of the language of the Sages. See my response to Rivka Lubitch in Akdamot.
Many thanks for the corrections. It is certainly plausible that the Torah would command something immoral. Both because there is no connection between halakhah and morality, and because in the morality of the Torah too changes over time are possible. Especially since what the Torah says is usually mediated by the Sages who interpreted it.
Incidentally, to whom is the rabbi closer in the heated argument conducted here between Netanel C Havlin and “Ish HaEmet”?
In the Gemara’s question in Ketubot, “Did Rabbi Elazar really say this? But Rabbi Elazar said: A woman becomes forbidden to her husband only on account of warning and seclusion,” it seems that you interpret “Did Rabbi Elazar really say this?” as meaning that in certain adultery, such as witnesses and ‘an open entrance,’ she is forbidden even without warning. And you proceed from there. But Rashi correctly explained: “Did Rabbi Elazar really say this?” meaning that a woman who commits adultery becomes forbidden on the basis of her husband alone.
According to his interpretation, it never entered anyone’s mind that even with witnesses she would not become forbidden. That is, it never entered anyone’s mind that warning and seclusion have some stricter aspect than witnesses. And from now on, the fact that Rashi brought direct proof for prohibition through witnesses without warning and seclusion, and did not rely on an a fortiori inference from warning and seclusion without witnesses, is because that is simply the truth, so why should he involve himself in pilpul.
Therefore I also think your answer regarding “an open entrance”—that this is prohibition and not impurity because there is no warning and seclusion—is weakened. “An open entrance” is equivalent to two witnesses, and two witnesses are stricter in every respect than warning and seclusion. As for Beit HaLevi’s explanation according to the Rambam regarding a yevamah awaiting levirate marriage, it must be said that specifically with a yevamah awaiting levirate marriage, without warning and seclusion, the husband—that is, the yavam—is not particular, or is not considered particular. But with his wife he certainly is particular, or is considered particular, even without warning and seclusion.
How beautiful is the Sha’arei Yosher’s answer—blessed is the Omnipresent Who created him!—and I did not understand your two objections to it. You objected very briefly: “From the Gemara it emerges that sotah is indeed impurity and not prohibition,” and referred to lectures, but you did not tell us how this emerges (in the Gemara in Niddah and Sotah). And you also objected: if it is just a formal comparison, why does the Gemara compare impurity to sotah with regard to private domain and capacity to be asked about? I did not understand what the issue is according to your own view. For the Sha’arei Yosher, these are requirements relevant to turning a doubt into certainty (both in impurity and in the prohibition of sotah), and according to your view these are requirements relevant to turning a doubt into certainty in impurity (ordinary impurity and the impurity of sotah).
I also did not understand the case. In the Tur the issue discussed is warning and seclusion plus a mistake of identity, where she thought he was her husband, and doubt about intercourse—whether the law of sotah applies to her. But clearly this is a sotah in unintentional circumstances who is not a sotah, and even in certain intercourse (with or without warning and seclusion) she is permitted even according to the Maharik. Seemingly, the case that leaves room for discussion according to the Maharik is warning and seclusion plus a mistake about the prohibition: she knew it was not her husband but thought it was permitted, and there is doubt about intercourse. Does the entire law of sotah apply to her, since in the case of certain intercourse she becomes forbidden, or can one say that the passage of sotah was innovated only for full intentional transgression?
“I am not obligated to the chauvinism expressed in these laws, and I will try to minimize it as much as possible”—how will you minimize it?? One must interpret Hazal fairly according to Hazal’s own views!
For example, if there are two possible interpretations, I will choose the one that is less chauvinistic. Sometimes there are indirect ways to circumvent the halakhah even when there is no such interpretation on the merits (extenuating circumstances, etc.).
The a fortiori argument is not correct. In the case of a definite adulteress there is no warning and seclusion. One could say that with warning and seclusion she becomes forbidden by the very fact that she secluded herself against the husband’s command, even if the intercourse itself does not forbid her. Something like what we saw regarding a yevamah in the Rambam. True, if she thinks he is her husband and secluded herself with him, then she did not violate his command either. But one can speak of a case where she secluded herself with another man, and then when she had intercourse she thought this was no longer that man but her husband. Or she thought he had changed, or she was simply confused.
In the second case you brought, I see no room for doubt at all. After all, in the case of certain adultery she becomes forbidden in such circumstances, and now she secluded herself against the husband’s command and thereby trespassed against him. So it seems to me obvious that she would become forbidden to him because of the warning and seclusion.
It is hard for me right now to get into the sugya, and I will write off the cuff.
In truth I had not noticed that precision in Rashi. But on its face it is difficult, because even if this is based on her husband alone, she certainly becomes forbidden to him under the law of “he has made it forbidden to himself.” And the comparison to King David is also difficult here. For there she was not forbidden based on his word, but everyone saw that she had been taken into the king’s house in front of her husband. So why does the Gemara not answer that there there were witnesses to the seclusion, and instead choose to answer that there was no warning and seclusion there? And beyond that, from the conclusion there one sees even according to your approach that even when there are witnesses (as with King David), only in a case of warning and seclusion does she become forbidden.
As for the comparison of sotah to impurity, this is proven for example from the sugya in Bava Kamma 11. In my opinion, “capable of being asked about” and “private domain” are indeed requirements relevant to doubtful impurity (I explained this further on in my sotah lectures). And what R. Shimon Shkop wrote, that Hazal received by a law to Moses at Sinai that these two are to be compared despite not really being alike—we find no hint of this in the Talmud. On the contrary, in the Talmud we see that Hazal understood this on the basis of reasoning, for the formulation in Sotah and Niddah is that since we learned creeping impurity from sotah, we must also apply there “capable of being asked about” and “private domain.” That is, Hazal infer this; it is not a law to Moses at Sinai. Furthermore, R. Shimon builds his words on a Tosafot that is itself disputed. His whole basis there is very puzzling, since he creates a scriptural decree where the Talmud itself assumes that this is a substantive comparison made by the Sages.
And regarding a yevamah awaiting levirate marriage, I did not understand the explanation you proposed.
A yevamah who secluded herself and is suspected of adultery becomes forbidden to him. And in the previous halakhah it says that if she certainly committed adultery she does not become forbidden to him. So we see that the warning and seclusion are what forbid her, not the concern about intercourse.
Now I understand that in your case you separate the seclusion from the intercourse. It is known that a sotah in unintentional circumstances is permitted, meaning where both the seclusion and the intercourse were under a mistake of identity. And you are discussing a case where the seclusion was intentional and the intercourse was under a mistake of identity. However, that does not seem to be the discussion in the Tur. In any case, if so, one first has to discuss what the law is in the case of certain intercourse. It is not at all clear that she is forbidden; on the contrary, it seems likely that she is permitted, just as in intentional seclusion without any intercourse at all. And if we are to say that in the case of certain intercourse she becomes forbidden by the force of the warning and seclusion alone (that is, warning and seclusion that led to intercourse, even though that intercourse itself does not forbid), then in a case of doubtful intercourse why should she not be forbidden, with the entire law of sotah applying to her?
I suggested that even according to this view (the Rambam and Beit HaLevi according to him), this is specifically in the case of a yevamah awaiting levirate marriage, where perhaps the yavam has no real interest in her. She is indeed forbidden to the world forever, but the yavam himself has done nothing on his side that binds her to him, so even if she committed adultery this does not affect her prohibition to him. But if he warned her, that already binds her to him, something like ma’amar, and from then on if she committed adultery she becomes forbidden. But with his own wife, from kiddushin onward they are already bound. One can look at this from the side of strengthening the bond with the yevamah (in which case if he warned her against one man and she committed adultery with another, she is forbidden), or from the side of mere objection (in which case perhaps if he warned her against one man and she secluded herself with another, she is permitted).
We still see from here that warning and seclusion do not merely create grounds for suspicion of intercourse, but themselves cause a prohibition. And that is my main claim. Now one must discuss an ordinary wife, but there is no longer any reason to insist even there. If warning and seclusion forbid a yevamah awaiting levirate marriage, there is no reason to think they would not forbid an ordinary married woman. The whole reason was when we thought warning and seclusion had only one role: to create grounds for suspicion.
In the Tur I wrote in general terms. I have now corrected it in light of your correct comment and in light of the assumption that seclusion under a mistake of identity is certainly not a trespass against the husband.
I will repeat a necessary sharpening that was already written in the original post itself: intentional seclusion without intercourse at all does not forbid her. After all, that is the case when there was warning and seclusion and the waters tested her and showed that she had not committed adultery. In such a case she does not become forbidden. My claim is that the warning and seclusion are what forbid, and the intercourse is a condition for the prohibition.
And one must discuss with regard to a yevamah awaiting levirate marriage whether intercourse would be a condition for the prohibition, since even certain intercourse does not forbid her. Still, it is possible that warning and seclusion would forbid her only on the possibility that intercourse also took place.
I wrote that in my opinion she is likely permitted in the case of certain intercourse under a mistake of identity, just as in seclusion without intercourse. But even if she is forbidden, because intercourse is a condition for the prohibition (in my wording, warning and seclusion that led to intercourse), then what is there to discuss in the doubtful case? On what side would she be permitted? And on what side would this be a doubt of impurity rather than a doubt of prohibition?
Regarding the difficulty on Rashi that she should become forbidden under the law of shavya, Tosafot explained that the questioner here held that even if he saw with his own eyes that she committed adultery, she would not become forbidden, because no matter of sexual prohibition is established by fewer than two witnesses. As for David, I do not understand the difficulty about the Gemara’s answer or the proof from the conclusion.
By the sotah lectures, I understand that you mean the video lectures and not a text. I see there are 11. If you know, could you please indicate in which one? After that I will return to the rest of the Sha’arei Yosher’s remarks.
Typo: I meant to write, what is the reason this would be a doubt of prohibition rather than a doubt of impurity? [If the seclusion was intentional, and in the case of certain intercourse she is forbidden even though the intercourse was under a mistake of identity because the intercourse is only a condition, and there is doubtful intercourse, then it seems clear that this is exactly like sotah in every respect, and there is a doubt of impurity here.]
I lost you.
You are discussing doubtful intercourse. Let us assume, as you say, that intentional seclusion with certain intercourse under a mistake of identity, where she thought he was her husband, is forbidden. Then in the case of intentional seclusion with doubtful intercourse under a mistake of identity, you discuss something. If this description is correct, then please explain what the two sides are (and what your intuitive conclusion is).
Lecture 11. Through my sins, I do not have time right now to get into the sugya and all the details of the discussion.
Even if the intercourse is a condition, there is no reason the condition could not be prohibited intercourse. She must violate his warning and arrive at the point of prohibited intercourse.
And that is the doubt: is there impurity here (a trespass against the husband), or only prohibition (as in ordinary adultery without warning and seclusion)?
The question is whether her prohibition in the case of certain intercourse (under a mistake of identity) is a prohibition or impurity. It may be that the condition is that there was intercourse; since the intercourse itself does not forbid her (because of the mistake of identity), it is the warning that forbids her and the intercourse merely fulfills the condition, and this still would not count as a trespass against the husband but like adultery without warning and seclusion, which forbids her under the law of prohibition and not under the law of impurity.
Intuitively it seems to me that this is impurity and not prohibition, because the warning is what forbids her and what turns this into impurity (the intercourse is only a condition). So if such intercourse (under a mistake of identity) does not fulfill the condition, then the woman is not forbidden at all. And if such intercourse does fulfill the condition, then the woman is forbidden, and it is reasonable that this is impurity and not prohibition. It does not seem that the intercourse would fulfill the condition but not turn it into impurity, leaving it merely as prohibition.
Now it is clear, thank you. I still find it hard to accept the novelty that she is forbidden at all, but if she is forbidden then the doubt is understandable and the intuitive resolution is understandable.
“It seems that the Gemara assumes that the warning is not only for the sake of creating grounds for suspicion, but also to create a situation ‘that she harms’ the marital bond.”
Perhaps one could say “that it harms,” i.e., the warning?
Yossi, as a reader from the side, I am not sure that such meticulous corrections are of great importance. Incidentally, specifically here the intention is probably that the woman harms the marital bond בכך that she secluded herself after the warning.
Indeed. Though it is true that the wording is not precise.
Tzofeh U’Mabit, I also do not think they are of great importance; so what? It is not as though I read the article only in order to correct it. The corrections, almost all of them, arise incidentally, so why not improve the article (even if only slightly) by doing so?
I did not understand the modern comment about chauvinism. The passage of sotah is explicitly set apart in the Torah; it is not a rabbinic enactment.
You wrote:
“An interesting question is in a case where uncertainty arose regarding a suspected sotah, after a warning and seclusion with another man. Suppose it is clear to us that she thought the stranger was her husband, but we are uncertain whether she had sexual relations with him there. Note that according to the Maharik, if it is clear that she committed adultery, then in such a case she becomes forbidden to her husband. But here we have a doubt whether she committed adultery or not.”
According to the Maharik it is the opposite: even if it is certain, she is permitted, no?
You also wrote:
“The Yerushalmi, which is stringent even about a double doubt in the case of a sotah, compares sotah to impurity. The rule that we are stringent in a private domain even with several doubts was not said only about impurity, as R. Shimon Shkop suggests, but also about sotah, and from it impurity is learned. So it is clear that the Yerushalmi understood that in sotah too this is a doubt of impurity and not a doubt of prohibition. The discussion in the sugya in Ketubot is only about the claim of ‘an open entrance,’ and there the Gemara assumes its law is not like the doubt of sotah, and this is because there was no warning there.”
This is not emphasized enough, but the Yerushalmi itself also spoke about a case of an “open entrance,” so it is not a source for your distinction.