09 Sivan 5764
With our rabbis’ permission:
This week’s Torah portion, parashat Naso (Numbers 4:21 – 7:89), provides a wonderful example of halakhic development that I would like to share.
Tradition teaches that the Torah contains 613 mitzvot. Not merely good deeds, but laws; not suggestions, but the obligations we call The Commandments. Many of these laws regulate the ceremonies of the tabernacle and Temple, and therefore are no longer observed. Others apply only in the land of Israel, such as agricultural tithes called ma’aser, or resting the land in the seventh year, called shmita.
Still others speak to us today as Jews and equally as Americans, as modern men and women. These ancient laws direct our behavior. They operate across the full range of our experience, calling on us to achieve the purpose of Torah — Tiqun `Olam, the perfection of the here and now.
With my mom’s help [as the reader of the sources], I would like to share some examples of these mitzvot. Although they don’t “look Jewish” they are all pure Torah. So here goes!
The democratic principle of Torah law: It is a mitzva to vote. Deuteronomy 16:18:
You shall appoint for yourselves judges and officers for your tribes, in all the jurisdiction which the Lord your God has given you, and they shall govern the people with due justice.
The mitzva of civil rights. Leviticus 24:22:
You shall have one standard of law for the alien and the citizen alike: for I am the Lord your God.
The Torah’s “Fifth Amendment:” Confessions are not admissible in criminal cases. Numbers 35:30:
If anyone kills a person, the manslayer may be executed only on the evidence of witnesses: the testimony of a single witness shall not suffice for a death sentence.
The accuser is libel for the truth of the accusation. Exodus 23:1.
You shall not come forth with slander, an unfounded testimony to cause a legal proceeding.
The mitzva of providing a fair trial; the right to confront an adversary; guilt to be proven by testimony only. Deuteronomy 19:15 and 19:17-18:
A single witness can not prove an accusation against a person in the mater of any guilt or blame for any offense that they may have committed; a case can be proved only on the testimony of two or more witnesses. … And the two parties to the dispute shall appear before the Lord before the priests and the magistrates in authority at that time, and the magistrates shall make a thorough investigation.
During this morning’s Torah reading, the rabbi asked us to pay special attention to the portion of the parasha in which the law of the alleged adulteress is presented. Known as the mitzva of the sota, “the wife who has strayed,” it can be found in the first aliya of our parasha beginning with verse 11 and continuing through verse 31.
More often than not, this portion of the Torah reading is known as “the ordeal of jealousy.” It is the only reference to trial by ordeal in all of Jewish legal material, and it makes us most uncomfortable. As modern men and women, we see the ordeal of the sota as primitive. As Americans we are distressed by its lack of due process. As Jews we are embarrassed by the treatment of women the Torah seems to be commanding.
However, this uneasiness could easily be resolved by pointing out that with the Temple now gone, the ceremony of the sota is no longer relevant! But what does this really solve? How does this strategy end our embarrassment or make us feel better about the Torah or about ourselves as Jews?
In fact, it doesn’t! The same Torah that requires of us due process, probable cause, the testimony of witnesses, and above all, equal justice for all, seems to have abandoned these standards in the case of the accused sota. For the Torah, the sota seems to create a conflict between the purpose of the mitzvot and the need to punish adultery in a society controlled by men … or so we think!
To resolve our unease, we must first understand the view of adultery in the Biblical world. The first reference to adultery in the Torah is in the story of Avraham and Sara’s meeting with Pharoah. There, Avraham directs Sara to claim to be his sister: Beautiful, available, and “from a good family.” Pharoah takes Sara as his wife, causing Divine punishment.
The Torah at Genesis 12:11-19 records as follows:
And Abram said to his wife Sarai, I know what a beautiful woman you are. Please say you are my sister that I may remain alive. Pharaoh’s courtiers saw her and took her to Pharaoh’s palace. But the Lord afflicted Pharaoh. And Pharaoh said to Abram, “Why did you say she is my sister so that I took her as a wife! Take her and be gone!”
Having failed to learn from Avraham’s encounter with Pharoah, Yitshaq repeats the same failed “subterfuge of sisterhood” in the Land of Gerar as did Sara in Egypt. This is the second reference to adultery in the Torah, and it ends similarly. The Torah at Genesis 26:7-11 relates as follows:
When the men of Gerar asked Yitshaq about his wife Rivqa he said “she is my sister.” When Abimelech the King of Gerar saw Yitshaq fondling his wife, he sent for Yitshaq and said, “Why then did you say ‘she is my sister’? One of the people might have lain with your wife, and you would have brought guilt upon us!”
As my sister Danielle discussed in her bat mitzva Devar Torah, Yosef, contemplating the offer of Potifar’s wife thinks out loud about adultery, in a scene recorded at Genesis 39:7-9.
His master’s wife cast eyes upon Yosef and said, “Lie with me.” And Yosef said, “Since you are his wife how then could I do this wicked thing and sin before God!”
All of these references are in agreement. They are all stated by men questioning their own behavior and not the behavior of women!
Adultery, even in a polygamous world, is a crime. It happens when a man has relations with a married woman. The man may or may not be married. But since it takes “two to Tango,” it’s as wrong for the man as it is for the woman. Leviticus 20:11 provides as follows.
If a man commits adultery with a married woman, committing adultery with an other man’s wife, the adulterer and the adulteress shall be put to death.
What the language of Leviticus — the stories of Yosef, Rivqa at Gerar, and Sara before them — seem to suggest is that adultery is not a crime of women, but rather a crime of men with a married woman!
If our description is correct, the Torah’s idea of justice would have to be in conflict with the idea of a test for women only. Thus the sota ceremony should have been a problem for the sages as well as us.
And so it was! So much so that it was abolished, around the year 50 C.E. by Rabbi Yohanan ben Zakai before the destruction of the Temple, at a time when the mitzva was still operational!
More surprising still is Rabbi Yohanan’s reason for abolishing the sota ceremony. Mishna Sota (9:9) records that Rabbi Yohanan was forced to abolish the sota ceremony. Jewish men — not women — had begun to behave like Romans, abandoning Torah values for public orgies and other lewd public activities. Rabbi Yohanan, based on the prophecy of Hosea taught that the bad behavior of men would cause HaShem to refuse to judge the actions of women in cases where courts could not act without the testimony of witnesses, as is the case with the sota in our Torah reading.
There, at verses 23 and 24, the power source for the ceremony’s “bitter waters” is detailed as follows.
Then the kohen shall write these curses — which are the penalty for her perjure in God’s name — on a scroll and the kohen shall blot them out in the water. And the kohen shall offer the drink of bitter waters to the woman.
Thus reasoned Rabbi Yohanan, since the preparation of the bitter waters requires erasing God’s name, and since erasing God’s name is forbidden by Torah law, changes in the moral culture of his time required the sota ceremony to be abolished, if, as Hosea predicted, it would no longer work! The Mishna states Rabbi Yohanan’s position as follows.
When adulterers (male) increased in their numbers, the sota’s bitter waters ceased. Rabbi Yohanan ben Zakai had abolished them.
Rabbi Yohanan’s position is surprising! Why should social conditions be allowed to decide which of the mitzvot are to be applied? What right did Rabbi Yohanan have to abolish one of the 613 mitzvot based on the prophecy of a 7th century B.C.E. minor prophet?
Starting with the last question, the answer is none! Rabbi Yohanan could not abolish the sota ceremony on an asmakhta, a mere hint or indication of what the law might be, from the prophecy of Hosea.
Abolishing the sota ceremony needed the authority of Torah law, and that took 300 years to develop. The Gemara was gathered and signed by Ravina and Rav Ashi 300 years after the completion of the Mishna by Rabbi Judah “The Prince” in the year 200 C.E. This gathered teaching, when combined with the Mishna is called the Talmud. There in tractate Sota (47b) Rabbi Yohanan’s position is reviewed and accepted.
However his use of Hosea as an asmakhta to justify the abolition of the sota ceremony was rejected. In its place, the Talmud substituted verse 31, the last verse in the Torah’s statement of the mitzva of the sota, found in our parasha on page 799. The sages of the Talmud read verse 31 as follows.
Tanu Rabbanan — the sages of the Mishna taught: The meaning of the phrase “and the man shall be free of guilt….” At a time when a man is clean of sin, the water tests his wife. At a time when a man is not free of sin, the water does not test his wife. Therefore, when adulterers increased in their numbers, the sota’s bitter waters ceased.
This reading by the Gemara has answered both our questions while demonstrating for us the evolutionary nature of the halakha, the laws by which the mitzvot are applied.
Verse 31 refers to the sota and her male partner assuming the ceremony had found her to be an adulteress. It affirms what we already know about the Torah’s rules of criminal procedure. No witnesses, no conviction. Magic is not a substitute for law. Indeed she is not even called an adulteress but a sota, “a woman who strayed.” Since this principle of Torah law is already known to us, the Gemara was free to read the law of verse 31 as a limit on the sota ceremony dependent on the social conditions of the day: In this case, on the morality of men.
Although Rabbi Yohanan was right about the social conditions of his time, he abolished nothing. The bitter waters of the sota ceremony had already lost their effectiveness due to changing social conditions. According to the mitzva of the sota applied by the halakha as read by the Talmud to be the law of verse 31.
And why was it so important for Rabbi Yohanan to abolish the mitzva of the sota ceremony? Because of the invention of the ketuba! The ketuba was a revolutionary document. It fundamentally changed the relationship between Jewish men and women. Marriage would now become an agreement between equals and no longer a purchase. Invented by Shimon ben Shetah, the ketuba was a contract which guaranteed women the right to own property, the enforceable right to financial support, and most of all, the right to a payment agreed to before marriage in case of divorce.
The ketuba was a contract. But it was also an I.O.U. It was collectable from the husband’s estate; it was a mortgage on all he owned. If the ketuba was to change the relationship between men and women, then it would have to be enforceable. When you choose divorce, you choose to pay. There could be no ifs, no ands or buts!
However, due to the moral climate of Rabbi Yohanan’s time, some men chose to play but not to pay! Rabbi Yohanan understood that this attitude would undermine the ketuba’s purpose. It would allow men to claim that their wives had committed adultery, breached the ketuba contract, and therefore they should be free of the ketuba obligation. Such men could shift the burden of proof to their wives, demanding a sota ceremony to avoid the certainty of payment intended by Rabbi Shimon ben Shetah’s ketuba.
Rabbi Yohanan’s defense of the legal rights of women expressed by the ketuba is made clear from his choice of Hosea (4:14) as an asmakhta to support the retirement of the sota ceremony. The verse reads as follows.
I will not punish your daughters nor your daughters-in-law when they commit adultery; for their men had gone astray sacrificing with harlots.
Unable to rely on the changing moral order, the halakha chose the rights of women.
Was the halakha hostile to the mitzva of the sota ceremony? Never! However, the sages of the Mishna, the inventors of the ketuba, saw the sota ceremony very differently than we do today. As recorded in Sifra BaMidbar, the view of the sages is clearly stated by Rabbi Ishmael as follows.
Rabbi Ishmael said: Great is peace, for the Holy One allowed his name to be erased in the “bitter waters” in order to bring shalom bayit — reconciliation — to husbands and wives.
Fearing the use of an asmakhta to justify the rejection of one of the Torah’s mitzvot, the Gemara read verse 31 as a sunset provision that preserved the mitzva but limited its application. Indeed, the sages of the Mishna saw the sota ceremony in a very different light. At a time when family values — shalom bayit — could no longer be counted on to guide men’s behavior, the higher priority became the protection of the rights of women. And a developing halakha made the adjustment!
What we have shared is only a partial history of the halakhic application of the mitzva of the sota. The request for a sota ceremony had ceased to be the privilege of the husband. Administered by the Temple, it could only be ordered by the Sanhedrin. The halakha required the husband to show cause. Mere jealousy had become insufficient grounds. These and many other changes had been instituted by the halakha before Rabbi Yohanan retired the sota ceremony to secure the due process demanded by the Torah. These and other changes are detailed in Mishna Sota and provide a clear evolutionary record of the halakha’s development.
Over the last year, in preparation for my bat mitzva, my father has studied Torah with me. As you might have guessed this too is debated in Mishna Sota. In chapter 3 mishna 4 the Mishna suggests that the merit of Torah study neutralizes the “bitter waters” of the sota ceremony. As expected, there are two opinions!
Ben Azzai says, “A man is obliged to teach his daughter Torah.” Rabbi Elazar says, “If a man teaches his daughter Torah, he encourages lewdness.”
I’d like to thank my father publicly for trusting me and for following the halakha of Ben Azzai!