The Status of Women in Jewish Tradition

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The Status of Women in Jewish Tradition Most ancient societies were patriarchal in outlook, but not all patriarchies are equally condescending toward women. Impelled by the gnawing question of whether the inferiority of women is integral to the Torah’s vision, Isaac Sassoon sets out to determine where the Bible, the Talmud, and related literature, especially the Dead Sea Scrolls, sit on this continuum of patriarchal condescension. Of course, there are Â�multiple voices in both Biblical and Talmudic literature, but more surprising is how divergent these voices are. Some points of view seem intent on the disenfranchisement and domestication of women, whereas others prove to be not far short of egalitarian. Opinions that downplay the applicability of the Biblical commandments to women and that strongly deprecate Torah study by women emerge from this study as arguably no more than the views of an especially vocal minority. Isaac Sassoon teaches Bible and Talmud at the Institute of Traditional Judaism in Teaneck, New Jersey. He received his rabbinic Â�ordination from the Chief Rabbinate of Israel and his doctorate from the University of Lisbon.

The Status of Women in Jewish Tradition

Isaac Sassoon

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title:Â€www.cambridge.org/9781107001749 © Isaac Sassoon 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Sassoon, I. S. D. â•… The status of women in Jewish tradition / Isaac S. D. Sassoon. â•…â•… p.â•… cm. â•… Includes bibliographical references and index. â•… isbn 978-1-107-00174-9 (hardback) â•… 1.â•‡ Women in Judaism.â•… 2.â•‡ Bible. O.T. – Criticism, interpretation, etc.â•… â•… 3.â•‡ Rabbinical literature – History and criticism.â•… 4.â•‡ Dead Sea scrolls.â•… I.â•‡ Title. bm729.w6s27â•… 2010 296.1082–dc22â•…â•…â•… 2010031513 isbn 978-1-107-00174-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

Preface Acknowledgements Glossary Abbreviations

page vii xix xxi xxvii

part iâ•… monogamy 1 The Sources 2 Pro-CD Arguments 3 Anti-CD Arguments 4 Indeterminate Arguments 5 Make-or-Break Argument 6 Which Way Does the Evidence Point? 7 Gen 1:27–29 Revisited

1 5 9 17 19 24 31 35

part iiâ•… commandments (miSvot) 8 Zeman Gerama 9 Derekh 10 The Scriptural Evidence 11 Deuteronomy:Â€A Pattern

39 44 60 67 70

12 The Priestly Torah 13 Two Writers on Purity Law 14 Torah Study

77 83 100 v

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Contents

part iiiâ•… intrinsic equality

119

15 The Qatlanit Law 16 ‘Rankings’ of Horayot 3:7 17 Venus and Mars 18 Covenant 19 Gauging Purity’s Weight in P 20 Body and Soul Conclusion

124 127 136 143 153 161 171

Bibliography Index of Authors (Medieval & Pre-modern) Index of Citations from Rabbinic Literature Index of Names (Hebrew Bible) Index of Names (Talmudic) General Index

179 189 190 194 196 198

Preface

The ancient Jewish texts pertaining to our subject have been visited and revisited; the juiciest pumped and squeezed, yet not desiccatedÂ€– hence the justification for this enquiry of ours. Indeed, the significance of many of the texts remains elusive. Studying them involves decoding what are often cryptic aphorisms and then assessing what they might have meant to their authors and original audiences. Historians and feministsÂ€– two groups to have grappled with the materialÂ€– know the drill. Not that historians and feminists share the same goals. To the historian’s grief, religious texts tend to dwell more upon what ought to be than upon what is. But this bane of the historian is a boon to the serious Jewish feminist. For unlike the historian, ravenous to learn what happened in the past, the latter’s goal is to discover legal and religious precedent to the end of upgrading gender equality within the contemporary Jewish community. So whereas the puristic historian is academic from start to finish, the socio-religious concerns of feminists lead them down a path outlined by several able pens: When it comes to religion, the matter of gender is more than a topic of Â�academic concern. As in many fields, the presence of feminist research in religion has been intensified because there is more at stake than simple scholarly investigation. The institutional and theological crises in Judaism and Christianity that have been provoked by feminism have involved the interpretation of biblical texts dealing with women. What is the relationship of the biblical word to the traditional stance of church and synagogue on the role of women? In its

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broadest sense that question affects many important issues, such as the validity of leadership roles for women in the formal structures of western religion, and the nature of the relationship between men and women in the informal setting of home and family. It also involves the problem of general attitudes toward women engendered by the traditional understanding of biblical texts, and it affects the way in which decisions are made for continuing or changing tradition-based patterns in both formal and informal situations.1 Were the Talmud simply an arcane body of ancient texts, we would not find ourselves troubled.â•›.â•›.â•›. But there is much more at stake here:Â€The rabbis’ literary and legal legacy rests at the foundation of Judaism as it is practiced today. We therefore have a problem:Â€How can we continue to adhere to Jewish observance today in the face of a conflict between it and our modern sense of social justice?2

Of course these citations must not be mistaken for license to cut corners, or worse still, to bow to ulterior agendas. Sociologists would never dream of pursuing their research proper with less than merciless rigour. It is only after the results come back from the laboratory, so to speak, that the process of application kicks in. Our priorities are the same. Like the sociologist, our commitment to scholarship is unwavering, even though the hoped-for prize lies beyond the findings themselves. Halakhah’s classification of people by gender for religious purposes rubs against the grain of our collective psyche. Yet despite all the champing at the bit to shed so alien a classification, there is a commensurate impulse to keep the halakhic edifice intact. This is the schizoid pinch in which many are caught. Any prospect of resolving it cannot begin until we broach the question of whether, or to what degree, women’s secondariness is set in stone or canonized by Judaism. If it is, then victory belongs to those who consider the exclusion of women from key aspects of religion to be endemic and inevitable.3 For them, the only amelioration possible consists in cosmetic revamping, substantive modification being viewed as a betrayal of authentic Discovering Eve by Carol Meyers, Oxford 1988, p. 6. Rereading the Rabbis:Â€A Woman’s Voice by Judith Hauptman, Boulder, CO 1998, p. 3. 3 Or as Cynthia Ozick asks rhetorically:Â€“If in the most fundamental text .â•›.â•›. the lesser status of women is not worthy of a great ‘Thou shalt not,’ then perhaps there is nothing inherently offensive in it .â•›.â•›. then perhaps the common status of women is not only sanctioned, but in fact, divinely ordained?” (“Forging New Identities” in On Being a Jewish Feminist:Â€A Reader edited by Susannah Heschel, New York 1983, p. 144). 1 2

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Judaism. Destiny, as they see it, having imposed on Judaism’s epigones the stewardship and curatorship of a precious heritage, adjures them not to tinker with it. Women’s script being part and parcel of that same sacrosanct legacy is no exception. We have no quarrel with such worthy sentiments, provided they do not obstruct the path of unfettered enquiry. Under the guise of conserving the heritage, myths have sometimes been allowed to befog history. A particularly lugubrious myth is that of a Judaism undifferentiated and synchronic and possessed of a monolithic set of foundational texts. But let a critical or differentiating ray beam upon them, and those same texts will be seen to shimmer and sparkle in all their rippling splendour. No adjective is wider of the mark than monolithic to describe the emergent compositeÂ€– confluence if you likeÂ€– of the sublime and mundane; of rapture alongside expediency. A tradition or custom that subjects itself to investigation is taking a gamble. It may gain or lose prestige, depending on the probity of its lineage. History is replete with examples of religious practice that, on closer scrutiny, turn out to be neither scriptural nor Talmudic. Yet by dint of long usage they became part of the ‘status quo’. A case in point is the women’s gallery in two-tier synagogues. For long centuries, synagogues that had an upper gallery relegated their women to its pews while reserving the main floor for the men. In the past, apologists sometimes pretended that this division was halakhically mandated.4 Today, it is conceded by the strictest halakhic interpretations that a physical partition of prescribed height is all the halakhah demands to separate the sexes during worship. Moreover, halakhah also mandates reverence for parents and comity towards elders.5 A son that Frequently appealing to T. Suk. 4:1 and its close analogue at Suk. 51b–52a, which describe a balcony that accommodated women during the annual water-drawing festivities in the Jerusalem Temple. But what those sources actually say is that the balcony was a last resort after an earlier arrangement (Tosefta; B.T. knows of two earlier arrangements), whereby men stood inside (the women’s court?) and women stood outside, had failed to stem lightheadedness (frivolity? hanky-panky?). Thus, far from proving the preference of the balcony, these sources make it abundantly clear that, if practicable, having both genders separate but on the same level is the first choice. What is more, in Zech 12:12–14 (the Talmud’s scriptural authority for separation) there are no onlookers. Both men and women, even as they stand apart, actively participate in the identical misvah (the women’s court of Herod’s temple is tangential to our immediate topic; but see Chapter 13, note 30). 5 See Qid. 32b–33b and cf. Lev 19:32; Dt 28:50. 4

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can watch his aged mother struggle upstairs as he ambles cosily to his ground-floor seat has lost his halakhic compass. Else he would intervene. Then, he and his fellow congregants would divide both storeys with an accredited mehisah, giving men and women the choice to stay below or climb the stairs. Such a symbiosis would meet the mehisah requirement without infringing other misvot. Nevertheless, women up–men down became the norm in synagogues built with upper balconies, at least since the Renaissance.6 But in the absence of halakhic instigation, what on earth triggered the gender-based ‘stratification’ of the available synagogue space? We suspect that deep-seated notions about the respective temperaments and capabilities of the genders, notions possibly internalized by the women themselves, may have been responsible for women assuming their spectatorial perches. But to get back to texts and the way we propose to engage them. Juridical sources are usually underpinned by Weltanschauung and credo. Specifically with regard to halakhah, R. Emanuel Rackman has observed that, “In the deepest strata of halakhic thinking, logical judgement is preceded by value judgement and intuitive insight gives impetus to the logic of argument.”7 Beliefs self-evident to the ancient writers and their society are seldom verbalized. Some lie doggo just beneath the surface whereas others may take a tug and a tease to extract. But whatever it takes, identifying a text’s active ideological ingredients will be one of our prime objectives. Thankfully, enough texts provide glimpses into the thought processes of their framers, and when they touch upon women, Shmuel Safrai (Tarbiz 32 (5723), pp. 329–338, English summary p. 11) and Hannah Safrai (“Women and the Ancient Synagogue” in Daughters of the King:Â€Women and the Synagogue edited by Susan Grossman and Rivka Haut, Philadelphia, PA, and Jerusalem 1992, pp. 39–49) found no evidence for a women’s compartment in the ancient synagogue. Neither did Bernadette J. Brooten (Women Leaders in the Ancient Synagogue:Â€Inscriptional Evidence and Background Issues, Chico, CA 1982). While the Safrais’ and Brooten’s arguments still obtain for the synagogue in antiquity, from the 11th century on, women’s segregation in the synagogue is widely attested; see S. D. Goitein’s reaction to Safrai in Tarbiz 33 (5724) p. 314; also Goitein’s A Mediterranean Society vol. 2 1971, p. 144; Richard Krautheimer’s Mittelalterliche Synagogen, Berlin 1927, pp. 132–137 (Heb. translation, Jerusalem 1994, pp. 84–89); “Women in the Synagogue” by William Horbury in The Cambridge History of Judaism vol. 3 Cambridge University Press 1999, pp. 358–401; Louis M. Epstein’s Sex Laws and Customs in Judaism New York 1948, pp. 81–83. 7 Enc. Jud. Year Book 1975–76, p. 141. 6

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those glimpses can prove invaluable. A parade example is a tannaic explanation for the different sequence in which parents are listed in diverse scriptures. The exegesis tells us nothing about the scriptures it purports to elucidate, but volumes about its author’s perspective, and by extension, perhaps also about its author’s community: Ribbi [i.e. Judah the Patriarch ca. 200] says It is revealed and known before the One who spoke and the world was, that a person (adam) honours his mother more than his father because she coaxes him with words. Therefore in the command to honour [Ex 20:12], father precedes mother. It is also revealed and known before the One who spoke and the world was, that a person (adam)8 reveres his father more than his mother because he teaches him Torah. Therefore in the command to revere [Lev 19:3], mother precedes father.9

This midrash takes a number of things for granted. a) Children receive their formal instruction from their fathers. b) Mothers cajole but do not instruct. c) Interaction between father and child is, consequently, aloof and pedagogic in comparison with the relaxed motherchild intimacy. d) These stereotypical models are acknowledged by the Creator and affirmed by Holy Writ. One cannot help feeling that but for the premise regarding the fixity of paternal and maternal roles, the Patriarch’s exposition might never have suggested itself. Another classic is the Talmud’s explanation for why women should be excluded from the misvah to procreate. That misvah is derived from the words “be fruitful and multiply” in Genesis 1:28Â€ – which verse goes on to enjoin subduing the earth. Since subduing is an exclusively male occupation, the Talmud concludes that the first part of the command is, likewise, intended for men only. But who decided that subduing was out of bounds to women? “It is a man’s derekh to subdue but not a woman’s derekh to subdue” (Yev. 65b; Qid.35a). Thus it is ultimately thanks to non-scriptural derekh that Gen 1 came to relieve its first woman, and with her all womankind, of the misvah to be Â�fruitful and multiply. The context dictates that the two occurrences of adam in this midrash be translated person, not man, because all rabbinic sources apply the filial duty of Ex 20:12 and in essence that of Lev 19:3 to both sons and daughters. If that places Ribbi in the pro Torah for daughters camp so be it. Neither would it conflict with the opinion that “merit suspends” ascribed to Ribbi in M. Sot. 3:5 (but see note 3 in the introductory text to Part 2). 9 Mekhilta, Horovitz/Rabin ed. p. 232; cf. Qid. 30b–31a. 8

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Common to the two rabbinic sources just cited is their perception of Torah as taking stock in the conventional quirks of men/fathers and women/mothers. While foisting derekh and obeisance to it onto Scripture may be rare, the tactic of explaining halakhah against a template of conventional wisdom, including conventional genderism, abounds in rabbinic literature. In due course we shall meet more sources that explicitly name alleged female proclivities as the reason for their halakhot, and a preponderance that assume certain beliefs about women without articulating them. It remains for the student to sniff out any such latent or buried beliefs. Our quest, then, is not merely the end productÂ€– in the case of the Talmud its halakhic rulings about womenÂ€– but as much and more, the tenets and preconceptions that may have determined the end result. Not that this kind of methodology is novel. Among the spate of books and articles to appear since the dawn of Jewish feminism, not a few have set themselves similar targets, notably in their handling of Â�rabbinic texts.10 But despite its credentials, even this hardbitten methodology is no calculus, and therefore not foolproof against our wayward conceits. It is merely that a rational, explorative approach is likelier to catch the bees in its bonnet and to identify them up front. Or so we like to think. As for our own ‘bees’, we accept as a given that equality is morally superior to inequality. Indeed, so self-evident does this truism appear to us, that we take the liberty of referring to increased equality for women in approbative terms such as ‘improvement’ and ‘amelioration’. In some quarters this positive evaluation of equality is seen as setting up a standard independent, and potentially subversive, of Torah. The majority of the Torah committed, however, sees fairplay and justice as bedrock Torah values.11 For them, disgruntlement with women’s status quo grows directly out of the conviction that Torah For instance, Ross Shepherd Kraemer writes:Â€“I have deliberately approached these [rabbinic] texts as evidence for the mindsets and worldviews, or cosmologies, of their compilers. I am willing to consider the kinds of social structures that would correlate with such cosmologies, but I remain fully cognizant of the tenuous status of any attempts to reconstruct the realities of rabbinic Jewish communities” (Her Share of the Blessings, Oxford 1992, p. 94). 11 E.g. Gen 18:25; Dt 32:4; Jer 12:1. Also writings such as the 14th-century Sefer Â�ha-Kanah (to be cited by and by). 10

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was given to Israel because of its inherent beneficence:Â€“You descended upon Mount Sinai and spoke with them from heaven and gave them upright judgements and true laws statutes and commandments that are good” (Neh 9:13). But heaven forbid this conviction be confused with humanism or any other philosophy that would usurp Torah’s role as arbiter. No. A believing Jew sees Torah commitment as part of her/ his submission to God’s will. It is simply that righteousness and truth rank among Torah’s chief declared goals, and as such they make a useful touchstone for checking an idea’s Torah-compatibility. Any idea that tests inimical to the furtherance of those avowed goals must raise eyebrows. And make no mistake; Torah declares for righteousness unequivocally. Unlike philosophers who ever since Plato have debated whether the worth of religious precepts is intrinsic, or whether it is a function of their provenance,12 Moses would seem to have settled the matter. “What great nation is there whose statutes and laws are righteous as is all this Torah which I am setting before you today?” (Dt 4:8).13 Call it another prejudice if you will, but we cannot discount the human dimension in the miracle that became sacred texts. What is the point of Moses and the other prophets unless their personality counts in the transmission of revelation? God has infinite ways of producing Torah and of reaching His creatures. But the fact is, God chose human agents, and that choice we see as integral to the revelation. Moses’ soul lives in his words, because a prophet is more than a secretary or “The point I should first wish to understand is whether the pious or holy is beloved by the gods because it is holy, or holy because it is beloved of the gods” (Plato, Euthyphro 3:2 [Jowett’s translation]). Nowadays moral law is often divided into two categories:Â€teleological and jural. “The former was characteristic of Greek theories; the latter became dominant in Christian times. Their essential difference is this.â•›.â•›.â•›. Under the teleological conception morality is looked upon as a matter of selfÂ�expression .â•›.â•›. and its laws are regarded as rules for the attainment of a good which every man naturally seeks. In the jural system, on the other hand, it is not the natural value of an act that renders it moral, but its value as commanded by the law. It is not commanded because it is good, but it is good because commanded.â•›.â•›.â•›. In the theological system moral law .â•›.â•›. has its ground in the nature or will of God and not in the nature of man.â•›.â•›.â•›. The rule may be for the good of man, but it is for his good because it is the divine will .â•›.â•›.” (Encyclopaedia of Religion and Ethics Vol. 8, p. 833). See also Divine Command Ethics by Michael J. Harris, Routledge Curzon 2003. 13 Cf. Dt 12:31 that treats as axiomatic the perversity of child sacrifice and, concomitantly, of religions that tolerate it. 12

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a ventriloquist’s dummy.14 However, not every student of the material subscribes to this persuasion. Its mere whiff is anathema to those who, for doctrinal or other reasons,15 deny human impulse or subjectivity any role in the formation of revealed religion, especially in the parts that dictate behaviour such as halakhah.16

The rabbis held certain attributes prerequisite for a person to receive prophecy (Shab. 92a; Ned. 38a; Yad, Yesode ha-Torah 7:1 cf. also Num. Rab. 20:1; Rashi to Ps 2:10 “the prophets of Israel are people of compassion”). 15 Among the reasons conspicuous by their absence is fear of downplaying divine omnipotenceÂ€– something the purists never bring up when insisting on a Torah revelation created, as it were, ex nihilo. But then neither does the Talmud find it blasphemous to posit God’s enlisting human instrumentality in the miraculous. Indeed, the Talmud classifies parturition as nifla’im ma‘asekhah [God’s wondrous doing]Â€– even while allowing for two subordinate contributors, namely the biological parents (Nid. 31a). The fact that Hashem grants the human parents an active role takes nothing away from the miracle; on the contrary, the endowment of such potential to men and women is part and parcel of the wonder. Evidently, then, it is not detraction from kevod shamayim (honour of Heaven) that fires the purists’ zealotry, but perhaps the threat to an apotheosized status quo (see next note and our ‘Conclusion’). 16 Fairly representative of such absolutism in a Jewish guise are the following extracts from a critique of R. Zacharias Frankel’s Darkhe Ha-mishnah authored by [Yedidiah] Gottlieb Fischer (d. 1895), rabbi of Székesfehérvár (Stuhlweissenburg), and published serially in the periodical Jeschurun by its founder and editor R. Samson Raphael Hirsch. “It does not take particularly profound scholarship to demonstrate that these pronouncements by Frankel attribute to human authorship those legal provisions which all of traditional Jewry regards as being no less of Divine origin than the Law itself. It is also not difficult to determine what the Rabbinical authorities have to say.â•›.â•›.â•›. Maimonides’ introduction to his [Mishnah] Commentary contains the following passage:Â€‘Know that all the laws God gave to Moses on Mount Sinai were given along with their explanation .â•›.â•›. for instance, God said to Moses:Â€You shall dwell in huts for seven days (Lev 23:42) and then He instructed him that this obligation applied only to men, not to women, and that the sick and those on a journey were also exempt .â•›.â•›.’. According to Frankel’s words, God did not give Moses any explanations .â•›.â•›. but it was the men of the Great Assembly who explained.â•›.â•›.â•›. With [the] notion that all the halakhot le-moshe mi-sinai in the Talmud are only of human origin, Frankel places himself into categorical opposition to everything that has always been accepted as true and authoritative in Torah Judaism. Thereby he has once again joined the ranks of those who deny the binding character of the tradition. Those who deny the binding character of the tradition do not deny that a tradition existed.â•›.â•›.â•›. What they deny is that this tradition is of Divine origin” (“An Epistle of R. Gottlieb Fischer” in Samson Raphael Hirsch:Â€The Collected Writings vol. 5 1984, pp. 216, 220, 231, translated from the German that appeared in Jeschurun 7 1860–61). Particularly telling are Fischer’s “all of traditional Jewry regards as being no less of Divine origin”; “places himself into categorical opposition to everything that has always been accepted as true and authoritative in Torah Judaism”; “he .â•›.â•›. joined the ranks of those who deny the binding character of the tradition” (cf. previous note; also Rabbinic Authority by Michael S. Berger, Oxford 1998, esp. pp. 20–25). Mutatis mutandis, not unrelated is 14

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Another bone of contentionÂ€– and there is no point glossing over itÂ€– is the tenability of acknowledging heterogeneity within the canon. Again, some dogmatists require canonical texts to agree on all major issues of theology and law. To this end, every fissure is plastered over, every cleft lashed together. Scholarship, however, has long since become aware of the irreconcilability of the elemental components that make up the sacred documents. Once the penny drops that both Bible and Talmud are veritable orchestras, we may start to hearken for the distinct chords and cadences. Then, when audible, each will be allowed its individual integrity; which brings us to another of our prime foci. In discussions of women’s status, Bible is often pitched over against Talmud. Yet on closer inspection Bible and Talmud will be seen to encompass matchingly wide panoplies of lawÂ€ – not all impacting women uniformly. This is added reason to abandon hope of discovering which of the two, Bible or Talmud, is more sympathetic to women. Not that scholars need convincing any longer of such an exercise’s futility. Tal Ilan chronicles the debate as to whether Bible or Talmud was the more propitious for women. She concludes “A decisive answer has not yet been found to the question .â•›.â•›. and probably never will be .â•›.â•›. for a hundred years men and women have investigated the same problem and, basing themselves on the same sources, have reached diametrically opposite conclusions.”17 Sometimes scholars seem to forget just how unfortunate it is, except in the loosest sense, to speak of a biblical or talmudic posture towards women. The work of scholars such as Judith Hauptman has shown the wealth of diversity in rabbinic literature. But when it comes to Scripture, even this redoubtable scholar writes as though the Torah were flatter or less textured than the Talmud:Â€“Why is it important to recognize this struggle [of the talmudic rabbis]? Because it is an advance over the Torah’s outlook on women and mitzvot:Â€ it acknowledges the engine driving the doctrinism described by George E. Mendenhall:Â€“Typical has been the dogma that the sacred rituals have derived directly from divine inspiration. The suggestion that they originally had some historical and social context seems blasphemous to most religious ‘conservatives’. What is being protected by this attitude is not the original intent or content of the form, but the authority of the socioreligious institution” (The Tenth Generation, Baltimore, MD 1973, p. xiii n.17). 17 Jewish Women in Greco-Roman Palestine, Peabody, MA 1996, pp. 5–6.

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women’s changing status.”18 Another scholar to underestimate the Â�heterogeneity within the Bible is Hannah K. Harrington. In the course of her otherwise meticulous study (to figure more extensively later on),19 Harrington mobilizes texts such as Proverbs 31, Judges 4–5, and the stories of Hannah and Huldah to argue that Levitical purity laws could not be said to denigrate woman on account of her biological difference. We shall be examining the possibility that far from sharing the Bible’s non-priestly universe (where the spirit unbridled accosts both men and women), Leviticus and related priestly texts transform that universe into a grid that effectively stymies a daughter of Israel20 from becoming a Deborah, a Hannah, or a Huldah. But this is where it gets paradoxical; of all biblical texts, it is a priestly one that comes nearest to making women the semblable of men. In the first chapter of Genesis humankind is created male and female. Thus man and woman are coeval (Gen 1:27). Immediately, both are spoken to conjointly by God who blesses them and also instructs them as to what they may use for food (vv.28–29). Genesis 5 (which is Gen 1’s sequel) adds the important detail that the name Adam was, likewise, bestowed on both conjointly.21 In short, nothing about their creation suggests any disparity between man and woman, but on the contrary, the selem of God sets the selfsame divine seal on the pair. From Genesis 2:4 until the end of chapter 4 another story of the beginnings of humans and their habitat unfolds. The differences between the two make it clear that they are distinct narrations of how it all began, including how and when God brought man and woman into existence. For instance, in chapters 1 and 5, as just noted, adam (or ha-adam) is male and female of the human species created simultaneously at the divine behest. In chapter 2 the first human (here the male of the species) is formed from the earth in verse 7, but the woman does not arrive until verse 22, and then only after the man has failed to find himself a helpmate. Moreover, Eve (so named in chapter 2) is not formed directly from the earth, but out of the man (vv. 21–23), Rereading the Rabbis: A Woman's Voice by Judith Hauptman, Boulder, CO 1998, p. 238. The Impurity Systems of Qumran and the Rabbis, Atlanta, GA 1993. 20 I.e. from Sinai onwards. As we shall see, priestly historiography allows for the first woman (and, presumably, other pre-Sinaitic women?) to receive divine communication (see Chapter 9, note 12, and Chapter 17, note 17). 21 MT and Samaritan:Â€va-yiqra et shemam adam. But note LXX’s “his name”. 18

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and subsidiary to him (v.18). Also the diet regulations are here given to the man alone (Gen 2:16–17) before Eve has so much as materialized. Thus Eve does not receive unmediated divine commandments. To be sure, the second creation story shares with the first its depiction of humanity originating with a single couple. Also, it is chapter 2 which boasts that immortal, oracular paean to monogyny: “Therefore man leaves his father and his mother and cleaves to his wife and the two become one flesh” (Gen 2:24).22 However, the oracle’s monogamy does not seem to us to permeate the second creation story proper. Others disagree, arguing that it must be the second no less than the first creation story’s ideal, seeing that Eve’s subjugation to her husband is explained as a curse brought on by sin (Gen 3:16). Sin and its fruit, so the contention, are always a deviation from the optimum.23 While granting that the presentation of Eve’s vassalage in 3:17 as chastisement implies a reversal, we are not persuaded that what is being reversed is monogamy. That is chiefly because the narrative portion of chapter 2 seems to treat marriage itself as an afterthought, in contrast to chapter 1 that with its “be fruitful and multiply” looks to institutionalize marriage and family. If that means sundering narrative from oracle so be it; the two certainly appear to be cut from very Â�different cloth. But even if monogamy were Gen 2’s ideal throughout, Eve would still lag behind Gen 1’s primordial woman. For it is not in the monogamy contest alone that she of chapter 1 outpaces Eve. Over and above monogyny, the woman of Gen 1 is graced with the same prophecy and selem as her husband. That is Gen 1’s paragon; and it shall serve as our benchmark when reviewing gender parity in the rest of the canonical documents, both biblical and rabbinic. For convenience, we shall divide the survey into three headings homologous with the three salient features of Genesis 1 just noted, viz. a) monogamy; b) joint

The translation of this verse and of all other citations from the Hebrew Bible are indebted to various versions, but primarily, to NEB (1970) and JPS (1962). Still, no translation has been followed blindly. Likewise, we are responsible for the translations of rabbinic and Qumran texts. 23 See, for example, Leonard Swidler’s Women in Judaism Metuchen, NJ 1976, pp. 25–28. 22

xviii

Preface

commandments; and c) the God-given dignity inherent in every individual human. In a word:Â€selem equality.24 24

As to the parameters of this equality, estimations differ widely. Historically, as Carol Meyers notes, “feminists have long looked to Genesis 1 for affirmation of sexual equality.â•›.â•›.â•›. Already in the nineteenth century, The Woman’s Bible [by Elizabeth Cady Stanton, New York 1895] found in these verses a ‘plain declaration of the existence of the feminine element in the Godhead, equal in power and glory with the masculine’” (Discovering Eve, p. 86). Phyllis A. Bird, on the other hand, is less sanguine:Â€“the meaning and function of the statement, ‘male and female he created them,’ is considerably more limited that [sic] is commonly assumed.â•›.â•›.â•›. It relates only to the blessing of fertility .â•›.â•›. [but] is not concerned with sexual roles, the status or relationship of the sexes to one another, or marriage” (“Male and Female He Created Them” HTR 74:2 (1981), p. 155; reprinted in Missing Persons and Mistaken Identities, Minneapolis, MN 1997). However, in her final analysis even Bird concedes that “if the divine image characterizes and defines the species as a whole, it cannot be denied to any individual of the species. To be human is to be made in the image of God. And if to be human means also to be male or female, then both male and female must be characterized equally by the image.â•›.â•›.â•›. Distinctions of roles, responsibilities or social status on the basis of sexÂ€– or other characteristicsÂ€– are not excluded by this statement. But where such distinctions have the effect of denying to an individual or group the full and essential status of humanity in the image of God, they contradict the word of creation” (p. 159). Another modest assessment of Gen 1:27 is Ilana Pardes’s:Â€“Even if God, according to P, created man and woman simultaneously, this act, as Genesis 5 makes clear, does not quite prescribe equality between the sexes. The Priestly work may be acknowledging a certain symmetry between male and female on the cosmic level, but when dealing with the social realm, procreation turns out to be the perpetuation of seed.â•›.â•›.â•›. Elizabeth Cady Stanton and Phyllis Trible, who put great emphasis on the liberating qualities of this verse [Gen 1:27] .â•›.â•›. take it out of context by neglecting to examine its reappearance and development in Genesis 5” (Countertraditions in the Bible:Â€A Feminist Approach, Cambridge, MA 1992, p. 56).

Acknowledgements

This book began life as a Ph.D. dissertation submitted in partial fulfillment of the requirements for a doctorate in Humane Letters at the Faculdade de Letras, University of Lisbon. To the dean of the Faculdade de Letras, Professor António M. Feijó, I owe more than I can say. His guidance and mentorship extended far beyond the years of graduate study. Not only the thesis, but its adaptation into the present work, benefited immeasurably from his sage counsel. I should also like to acknowledge the advice and support of Professor Miguel Tamen, Director of the Literary Theory Program at the Faculdade de Letras. The suggestions of Professor Peter Stilwell of the Catholic University, Lisbon, are gratefully acknowledged. Michael Terry’s help on all fronts was incalculable. For Rabbi Steven H. Golden no task was too onerous; he tirelessly lent his expertise at every turn. But without the encouragement and incessant badgering of Professor Herman Prins Salomon, the whole project would have fizzled out; he kept it alive through thick and thin.

xix

Glossary

agunah

amora asereth bamah

baraita bat qol bavli bayit berit

lit. an anchored wife, i.e. a woman whose husband disappears or refuses to grant her a divorce after the marriage has broken down. In either case she is legally still a married woman (pl. agunot) a talmudic sage of the post-mishnaic period (pl. amoraim) convocation, festival (exact meaning uncertain) lit. a high place (pl. bamot). After the centralization of the cult, bamot became a pejorative by which the deuteronomistic histories refer to all cult centres outside the chosen site. For the various meanings of biblical bamah see D.B.D. p. 119. The rabbis used the term also to denote legitimate pre-centralization shrines tannaic materials not included in the Mishnah (such as the Tosefta) an echo; muffled or lesser divine comÂ�munication the Babylonian Talmud (B.T.), developed in the Mesopotamian academies 3rd–6th centuries CE house, household, family covenant

xxi

xxii

Glossary

dat

enforceable law code, decree, religion (Persian loan wordÂ€– see DBD p. 206) rabbinic exegesis to a specific text way, habit incest; any forbidden union a work dating from the 3rd–6th centuries that elaborates the mishnah (q.v.) and constitutes the greater part of the Talmud analogy based on congruous wording (see Enc. Jud. 8:367) an individual rabbinic ruling (pl. halakhot); the corpus of rabbinic law a self-validating oral tradition

derashah derekh ‘ervah gemara

gezerah shavah halakhah halakhah le-moshe â•… mi-sinai hallah hallel

haqhel

Hashem hakham hakhamah heqesh hokhmah huppah karet kivyakhol

kor lulav

cake or loaf of bread; the dough-contribution (see Num 15:19–21; Ezek 44:30) song of praise, esp. the liturgical unit of Pss 113–118 as chanted in synagogue (and on Passover night at table) public reading of the Torah on Sukkot in the year of [or in the year following] shemitah (q.v.) (see Dt 31:10–13; M. Sot. 7:8) God, the Lord (see Dt 28:58) a sage, wise man feminine of hakham analogy based on congruity of subject matter (see Enc. Jud. ibid.) wisdom the bridal canopy; metonymically, the marriage ceremony cutting off, excision; esp. as punishment as if; so to speak (used to indicate the language’s inadequacy when speaking of God; see M. San. 6:5) a measure of wheat (see Ezr 7:22) unopened frond of date palm; the entire wreath of ‘four species’ prescribed at Lev 23:40

Glossary

xxiii

maqom

lit. place, location; also God (within whose grasp and embrace the world has its being) unleavened bread especially that eaten on Passover partition (today mostly with reference to separation of men and women during worship) [the priest] anointed for war (see Dt 20:2–4; M. Sot. 8:1) rabbinic exegesis; such exegesis as a literary genre a gathering of waters, a pool (see Gen 1:10; Lev 11:36); a ritual bath the compendium of rabbinic law that constitutes the oldest component of the Talmud (early 3rd century); also, a mishnaic passage (pl. Â�mishnayot). Cf. gemara commandment, benevolent act; pl. misvot season; festival esp. the intermediate days of the feasts of Unleavened Bread and of Tabernacles lamp menstruant see Lev 23:10–11 light, the sun sign, symbol; also omenÂ€ – esp. astrological; pl. ’otot scriptural passage, especially as used in homilies [today its primary meaning is:Â€ the weekly Torah reading] livelihood, alimentation, providing for (verbs: le-farnes, le-hitparnes) tainted food esp. sacrificial meat (see Lev 19:7; Isa 65:4) a minori ad majus argument lit. a killer wife; a repeatedly widowed woman believed to be the cause of her husbands’ deaths a measure of capacity (sixth of a se’ah)

massah â•… (also matzah) mehisah meshuah â•… milhamah midrash miqveh â•… [var. miqvah] mishnah

misvah mo‘ed ner niddah omer sheaf ’or ’ot parashah

parnasah piggul qal vahomer qatlanit

qav

xxiv

qorban ra’ui reshut segan selem shehi tah shema‘ shemitah sheniyyot

sheqes simha

sisit

sotah sugya taharah tanna

taqqanah targum tefillin terumah

teshuvah tiflut to‘evah

Glossary sacrifice; offering fit, eligible authority deputy, lieutenant, esp. the deputy High Priest image, likeness esp. with reference to Gen 1:26–27 ritual slaughter of sacrificial or profane animals credal or liturgical recitation of Dt 6:4ff (whose incipit, or first word, is shema‘ = hear) the year of release (see Ex 23:10–11) non-scriptural [lit. second-degree or secondclass] incest unions outlawed by the Scribes (see Yev. 21a–b) vermin; a loathsome or repulsive thing rejoicing, celebration; metonymically, a festal sacrifice and/or [participation in] the associated meals at the temple fringes or tassels esp. when attached to the corners of garments as per Num 15:38; a prayershawl a wife suspected of infidelity who is tested by drinking the bitter waters (Num 5:12–31) a talmudic discussion forming a literary unit (pl. sugyot) purity (moral or ritual) sage of the mishnaic era, esp. as contrasted with amora (pl. tannaim; adjectives:Â€ tannaic, tannaitic) (also takanah) provision; remedy; a rabbinic ordinance (pl. taqqanot) Aramaic paraphrase of Scripture (pl. targumim) phylacteries a heave offering; in rabbinic usage the firstfruits of grain, wine, and oil given to the priests (see Num 18:12 and Dt 18:4) repentance twaddle; salacity abomination

Glossary torah she-be‘al pe tosefta

tum’ah yerushalmi

yeser zav zavah

xxv

the oral torah (as distinct from the written) [var. tosifta] collection of tannaic material contemporary with, but not included in, the Mishnah impurity, defilement (moral or ritual) the Jerusalem Talmud (a.k.a. the Palestinian Talmud) developed in the Holy Land 3rd–5th centuries CE nature, inclination (see Gen 8:21; Dt 31:21) a man afflicted with a discharge (pl. zavim; see Lev 15:2–15) a woman similarly afflicted (see Lev 15:25–30)

Abbreviations

Bible Gen Ex Lev Num Dt Jos Jud 1Sam 2Sam 1Kgs 2Kgs Isa Jer Ezek Hos Mic Zech Mal Ps Prv Song Est

Genesis Exodus Leviticus Numbers Deuteronomy Joshua Judges 1 Samuel 2 Samuel 1 Kings 2 Kings Isaiah Jeremiah Ezekiel Hosea Micah Zechariah Malachi Psalms Proverbs Song of Songs Esther xxvii

xxviii

Neh 1Chr 2Chr

Abbreviations Nehemiah 1 Chronicles 2 Chronicles

Rabbinic Texts Tosefta T. Ber. T. Shab. T. Yom. T. Suk. T. Hag. T. Yev. T. Kelim

Tosefta Berakhot Tosefta Shabbat Tosefta Yoma Tosefta Sukkah Tosefta Hagigah Tosefta Yevamot Tosefta Kelim

Babylonian Talmud Ber. Berakhot Shab. Shabbat Eruv. Eruvin Pes. Pesahim Yom. Yoma Suk. Sukkah Bez. Bezah R.H. Rosh Hashanah Meg. Megillah M.Q. Mo‘ed Qatan Hag. Hagigah Yev. Yevamot Ket. Ketubot Ned. Nedarim Naz. Nazir Sot. Sotah Git. Gittin Qid. Qiddushin B.Q. Bava Qama B.M. Bava Mesi‘a B.B. Bava Batra San. Sanhedrin

xxix

Abbreviations Mak. Shevu A.Z. Hor. Zev. Men. Hul Bekh. Ker. Nid.

Makkot Shevuot Avodah Zarah Horayot Zevahim Menahot Hullin Bekhorot Keritot Niddah

Palestinian Talmud Y. Ber. Yerushalmi Berakhot Y. Pe’ah Yerushalmi Pe’ah Y. Bik. Yerushalmi Bikkurim Y. Shab. Yerushalmi Shabbat Y. Pes. Yerushalmi Pesahim Y. Ta‘an. Yerushalmi Ta‘anit Y. Yev. Yerushalmi Yevamot Y. Sot. Yerushalmi Sotah Y. Qid. Yerushalmi Qiddushin Y. San. Yerushalmi Sanhedrin Y. Hor. Yerushalmi Horayot Midrash Aggadah Ex. Rab. Exodus Rabbah Gen. Rab. Genesis Rabbah Num. Rab. Numbers Rabbah Ruth Rab. Ruth Rabbah

part i MONOGAMY

Introduction As feminist studies began ransacking the Hebrew Bible and the related documents (e.g. rabbinic literature, New Testament, Dead Sea Scrolls), it soon became clear just how misleading it is to speak of aÂ€– much less of theÂ€– place of women in Israelite tradition. Yet most scholars concur that Israelite society was essentially patriarchal.1 Now patriarchy is thought to be intolerant of polyandry but compatible with both polygyny and monogamy. Theoretically, then, being pro-monogamy does not make a text uxorious or matriarchal. However, it is not merely monogamy that Genesis 1 projects, but a playing field for spouses that is as level as any in the Bible. How influential was the Genesis 1 configuration, or did it begin and end with the first idyllic union? Put another way:Â€off paper, can the paradisiac model hold up under patriarchy? It is easy to be sceptical. But even if the hope of finding equality is a lost cause, might there not be shades of inequality? 1

Designating Israelite society patriarchal is not meant to imply that Israel was exceptional or that her neighbours are known to have been matriarchal. Indeed, some writers pooh-pooh the historicity of what were once touted as vestiges of matriarchies:Â€“Patriarchy is universal .â•›.â•›. theories that hypothesized a matriarchal form of society at ‘an earlier stage of history’ made a certain, if tortuous, sense until the findings of the past fifty years failed to include a single shred of evidence that such matriarchies ever existed, and demonstrated the inability of all such theories to deal with reality” (Why Men Rule:Â€A Theory of Male Dominance by Steven Goldberg, Chicago and La Salle 1993, pp. 15, 18).

1

2

Monogamy

Étan Levine has this to say in his article “Biblical Women’s Marital Rights”:2 In general terms, biblical families are indeed identical to those most characteristic of the ancient Near East. They are:Â€(1) Endogamous (with preference for marriage with relatives); (2) Patrilineal (with descent according to the father’s lineage); (3) Patriarchal (with the father as family master); (4) Patrilocal (with the bride brought to the place and family of the groom); (5) Extended (not Â�limited to one generation or one pair-unit; (6) Polygynous (a man may have more than one wife). Nevertheless, despite the pervasive male supremacy in biblical society, cultural anthropologists have clearly documented how the a priori dismissal of all polygamous societies as equally and identically exploitative of women is both near-sighted and culture-bound. And some Biblical laws do attempt to ameliorate the precarious and subservient status of women.

Just so. One might simply add that polygyny itself, though pervasive, need not have been ubiquitous. Undeniably the sacred texts under consideration, in the main, condone polygyny. In the mainÂ€ – but not downright. Malachi almost certainly conceives of wedlock as an infrangible covenant between husband and wife.3 Then there is the primordial couple, monogamous to the hilt, as already noted in both creation stories. True, these desultory avowals of monogamy do not exactly yell at us from the pages of the Bible. But even if they whisper, no polygynous roar can drown them. Moreover, some ancient Jews were attuned to an additional text that, to their ears, bellowed forth monogamy. The Jews in question are the authors of the Dead Sea Scrolls, and the text Leviticus 18:18. That Proceedings of the American Academy for Jewish Research, vol. LXlll, 1997–2001, pp. 88–89. 3 As argued most persuasively by Gordon Paul Hugenberger (Marriage as a Covenant:Â€A Study of Biblical Law and Ethics Governing Marriage Developed from the Perspective of Malachi, Leiden & New York 1994). Responding to the objection that biblical marriage could not possibly be a covenant because it is only the wife’s exclusive loyalty that the Bible demands, not the husband’s, Hugenberger makes the following critical observation:Â€“After examination of the alleged examples of indifference, it was determined that there are, in fact, no texts which condone a husband’s sexual infidelity. On the contrary, several texts including Job 31:1; Hos 4:14; and especially Prv 5:15–23 make clear that whether or not there was a legal obligation, there was definitely a moral obligation for exclusive sexual fidelity on the part of a husband” (p. 343). One might also consider Hos 3:3, assuming ve-gam ani elayikh to have reciprocal fidelity in mind. Cf. the treatment of both the Hosea and Malachi verses by Edward Geoffrey Parrinder in his 1950 pamphlet, The Bible and Polygamy:Â€A Study of the Hebrew and Christian Teaching, pp. 29–35. 2

Monogamy

3

both Genesis 1 and the Book of Leviticus are assigned by scholarship to the priestly source of the Pentateuch (hereafter P)4 is no fluke. If anything, the monogamous bent of these two scriptures dovetails rather neatly with other teachings of P, notably those relating to leviratemarriage, to which justice will be done shortly. Meanwhile, by way of appetizer, one may munch on the Talmud’s periodic reservations about levirate-marriage.5 Could they be a throwback to P’s distaste for that institution? Not all contemporary writers on Jewish feminism dwell on the history of monogamy. Some seem content to dismiss the subject with the statement that Rabbenu Gershom (d. around 1028)6 banned polygyny a thousand years ago.7 Today, in light of the Dead Sea Scrolls, The nomenclature is somewhat confusing. The ancient name of the third book of Moses was TORAT KOHANIM (the Torah of the Priests or the Priestly Torah). The siglum P of Bible criticism is used to designate texts throughout the Pentateuch that conform to the distinctive characteristics of the Priestly Torah. Most critics recognize Leviticus 17–26 as a component differing enough from the rest of P to merit its own designation:Â€the Holiness Code or H. For our purposes, however, we use P comprehensively to include H. 5 E.g. “Abba Saul says whoever performs the levirate act [with his widowed sister-inlaw] for the sake of [her] beauty or for the sake of conjugal relations [var. or for any other ulterior motive] it is as if he violated the incest law [of Lev 18:16] and the child [born from such a union] is in my eyes close to being illegitimate” (Yev. 39b; cf. T. Yev. 6:10 which has “[her] property” in place of “conjugal relations”); also M. Bekh. 1:7; Tos. Shab. 118b s.v. ema; Gen. Rab. 85:6. 6 The ascription of the taqqanah prohibiting polygyny to the historical Rabbenu Gershom has been questioned. Peretz Tishby (Tarbiz 34 [1965] pp. 49–55 [English summary pp. IV–V]) favours a 12th-century date for the taqqanah’s formal promulgation. 7 For some writers, Jewish Law means rabbinic law. This may explain how come a work as thorough as Women and Jewish Law can claim:Â€“Though it seems that polygyny was not practiced in the postbiblical period it remains very significant that it was halakhically acceptable. This changed in the middle ages for those Jews living in Christian countries.â•›.â•›.â•›. By the ninth and tenth centuries the aversion to polygyny began to take the form of prohibitions set in community practice and rules (takanot). Traditionally, the definitive order against polygyny is attributed to Rabbenu Gershom Me’or Ha-Golah .â•›.â•›.” (Women and Jewish Law:Â€The Essential Texts, Their History, & Their Relevance for Today by Rachel Biale, New York 1995, p. 50). A similarly myopic view of ‘Jewish law’ mars another otherwise excellent study. Commenting on the saying of Jesus (Mark 10:11; Luke 16:18) that “Whoever divorces his wife and marries another commits adultery”, Gordon J. Wenham writes:Â€“There are three very striking novelties about this remark of Jesus to the husband who divorces. First, he says a man can commit adultery against his own wife. Under Jewish law a man was guilty of adultery if he took someone else’s wife.â•›.â•›.â•›. Second, this statement effectively forbids polygamy, also practised by Jews until 1948 (Western Jews stopped in 1030). This is because if a second union after divorce constitutes adultery, then a fortiori second 4

4

Monogamy

R. Gershom’s ban pales, for his ban was neither absolute nor did it invoke the Law of Moses, and its success has been correspondingly patchy and inconclusive (witness the husbands of agunot who abscond and remarry). In Qumran halakhah, on the other hand, having two wives was considered fornication (see further). Qumran thus shoves monogamy under the nose of every student of gender relations. A society where polygyny is abnegatedÂ€– if only by one sect among manyÂ€– is not the same as the one where polygyny goes unquestioned. The Qumran community, even if it lived sequestered, did not hide its ideas under a bushel. Still, the Scrolls’ insistence on monogamy has no counterpart in rabbinic literature.8 This means that the rabbis were not reading the relevant Scriptures in the same way as the authors of the Scrolls. So how were they each reading those Scriptures? And what are the prospects of sizing up the twoÂ€– rabbinic and QumranicÂ€– Â�traditions? Let us find out. unions before divorce .â•›.â•›. must be adulterous too.” (Jesus and Divorce, London 2002, p. 48). Both authors fail to mention a non-rabbinic halakhah that banned polygyny a millenium earlier (see Chapter 5, note 7). 8 At least nothing overt. On the other hand, a saying attributed to R. Aqiva seems to imply disavowal of polygyny:Â€“R. Aqiva says [he may divorce his wife] even if his reason is that he has found a woman more beautiful than she” (M. Git. 9:10). Now in a polygynous society, the newly discovered belle might just as easily join the harem as break up the existing partnership. In proposing divorce as the remedy, R. Aqiva all but discounts the polygynous option. Cf. “A man who was married for ten years and his wife bore no children they [the authorities] compel him to divorce” (Ket. 77a and Rashi s.v. litne nasa ishah ve-shahah); also the aggadah that depicts Moses as a magistrate taking seriously a wife’s charge of unfaithfulness against her husband (Yom. 75a). For additional examples, see Adiel Schremer’s Male and Female He Created Them [Heb.], Jerusalem 2003, pp. 210–218.

1 The Sources

The Damascus Covenant (hereafter CD)1 may be thought of as the constitution of the community which embraced it. CD outlaws polygyny on Pentateuchal authority and blasts those who permit it: The builders of the partition (bone ha-hayis)2 who go after savÂ€– the sav is the preacher of whom it is said [Mic 2:6] Assuredly they shall preachÂ€– they are CD (or, more formally:Â€ CDC) stands for Cairo Damascus Document, the designation given the medieval Cairo Genizah exemplars discovered and then published by Solomon Schechter as Documents of Jewish Sectaries, vol. 1:Â€Fragments of a Zadokite Work, Cambridge 1910 (New York 1970). Ten ancient copies of basically the same text (ranging from partial to fragmentary) have turned up in caves 4, 5 and 6 at Qumran. The eight from cave 4 were published, with English translation by Joseph M. Baumgarten, in Discoveries in the Judaean Desert XVIII The Damascus Document (4Q 266–273) Oxford 1996; also with English translation by James H. Charlesworth, editor, and Henry W. M. Rietz, assistant editor, in volume 3 of the series The Dead Sea Scrolls Hebrew, Aramaic and Greek Texts Tübingen 2006. The remaining two (5Q 12 and 6Q 15) appeared in volume 2 of the same series, Tübingen 1995. Except for the smidgen in 4Q266, none preserves any portion of text paralleling 4:19–5:2. 2 As to the identity of bone ha-hayis (often rendered ‘builders of the wall’), we cite Adiel Schremer’s synopsis:Â€“While some scholars have identified the ‘builders of the wall’ with the Pharisees, others viewed this appellation as referring to the Jewish society of the author’s time in general. On the first possibility, see:Â€S. Schechter .â•›.â•›. 1910; R. H. Charles .â•›.â•›. 1913; J. Grintz .â•›.â•›. 1953; A. S. van der Woude .â•›.â•›. 1957; J. Tomson .â•›.â•›. 1990. The other view is held by J. Murphy-O’Connor .â•›.â•›. 1970; P. R. Davies 1983; M. A. Knibb .â•›.â•›. 1987; J. G. Campbell .â•›.â•›. 1995.” (“Qumran Polemic on Marital Law:Â€CD 4:20–5:11 and its Social Background” in The Damascus Document A Centennial of Discovery:Â€Proceedings of the Third International Symposium of the Orion Center for the Study of the DSS and Associated Literature, Leiden 2000, p. 147 note 1). Recently, Ben Zion Wacholder has declared himself in the Schechter-Charles camp:Â€“Drawing on these biblical prophecies, MTA [Midrash Torah of the Apocalypse; alias CD or, 1

5

6

Monogamy

caught twice in fornication by taking two wives in their lives; also the principle of creation is [Gen 1:27] Male and female He created them, and those who entered the ark [Gen 7:9] Two by two did they enter the ark. And regarding the prince it is written [Dt 17:17] He shall not multiply wives to himself (CD 4:19–5:2)

Now the phrase ‘by taking two wives in their lives’ (laqahat shete nashim be-hayyehem)3 unmistakably echoes Lev 18:18:Â€“ve-ishah el ahotah lo tiqah lisror legallot ‘ervatah ‘alehah be-hayyehah” (literally: And a wife [or a woman] to her sister you shall not take [in marriage] to cause rivalry to uncover her nakedness upon her in her lifetime). It also seems clear that of the four scriptural texts adduced, it is Lev 18:18 that CD treats as the clincher, with the Genesis and Deuteronomy verses serving as back-up. In other words, it all hinges on the Leviticus verse, or rather on the way that verse is decoded. For Lev 18:18 is cryptic. Hence, the dispute as to whether it means to ban polygyny (CD) or else to prohibit the marriage of a man to a woman and her biological sister (the builders of the partition who permit polygyny). To be sure, CD’s understanding of Lev 18:18 languished for umpteen centuries, but that has not prevented scholars, Angelo Tosato amongst them, from re-opening the case. In 1984, Tosato published his article, “The Law of Leviticus 18:18:Â€A Reexamination”.4 By paying close attention to semantic and contextual niceties, Tosato concluded that “the interpretation of Lev 18:18 given at Qumran has conserved faithfully .â•›.â•›. the original sense and value of the biblical law”. However, Tosato went on to shoot himself in the foot by cluttering his case with dud arguments: a law which forbids the marrying of two sisters (Lev 18:18 according to the traditional interpretation) seems to find collocation.â•›.â•›.â•›. But on closer examination .â•›.â•›. things turn out to be different. One cannot forget that Jacob-Israel more precisely, QumranÂ€ – as distinct from GenizahÂ€ – copies of CD] builds a case against the current so-called builders of the wall who, pursuing their own measuring standard in their edifications, spew false legislation. These are the Pharisees .â•›.â•›.” (The New Damascus Document The Midrash on the Eschatological Torah of the DSS:Â€Reconstruction, Translation and Commentary, Leiden 2007, p. 189). 3 The possessive pronominal suffix of be-hayyehem is masculine. This masculine suffix, as Geza Vermes noted, “has given rise to the greatest amount of controversy”. He also succeeded in demonstrating that the masculine form notwithstanding, the referents of be-hayyehem are women, not men. (“Sectarian Matrimonial Halakhah in the Damascus Rule” JJS 25:1, pp. 197–202). 4 CBQ 46:2, pp. 199–214.

The Sources

7

had at the same time two sisters as wives; that David probably married two daughters of Saul5.â•›.â•›.â•›. It is hard to believe that such personages were made into breakers of the Law on account of incest .â•›.â•›. (pp. 211–212)

Such paralogism provided fodder even for the most equitable of critics, such as Calum M. Carmichael: I do not accept the view of Angelo Tosato that this rule has been properly interpreted by the Dead Sea Community.â•›.â•›.â•›. I agree with Tosato that we should not introduce the notion of incest into this ruleÂ€– a major part of his argumentÂ€– but his interpretation that the rule is a general prohibition of bigamy still does not follow. He finds himself in considerable difficulty when he argues against the usual view that the rule is about two sisters. Thus he comments “One cannot forget that Jacob-Israel had at the same time two sisters as wives [.â•›.â•›.]”. One wonders what Tosato would have to say about Abraham’s marriage to Sarah in light of the Levitical prohibition against that incestuous union, and also about Moses’ rule in Lev 18:12, 13 legislating against the union his parents contracted. 6

While agreeing with Carmichael as to the ineptitude of the patriarchal marriages, one still wants to beware of throwing out the baby with the bathwater. In this instance, we must confess to a vested interest in the ‘baby’. Long fascinated by the ancient Lev 18:18 dispute, we set out to investigate. The philological voyage was bumpy, the literary road circuitous;7 but in the end the odyssey brought us close to Tosato’s basic position. What follows next may be described as a distillation of our travelogue. Analysis of Lev 18:18 The first five words of the verse ve-ishah el ahotah lo tiqah constitute a formidable crux. Literally, of course, ishah means woman (or wife) and ahot sister. Going with those literal meanings, what the verse See 1Sam 18:17–21. For the rabbis who understood Lev 18:18 to prohibit a man marrying two sisters, David’s case did indeed pose a quandary. “His students asked R. Yose ‘How could David marry his wife’s sister?’ He replied ‘Only after Merab’s death did he marry her sister’” (T. Sot. 11:9; cf. San. 19b). Modern scholarship, on the other hand, tends to skirt the issue by positing not two sisters but a double recension of a single story that knew simply of David’s marriage to a daughter of Saul (see Henry Preserved Smith, ICC on The Books of Samuel, Edinburgh 1899 [1969], p. 172). 6 Law, Legend and Incest in the Bible:Â€Leviticus18–20 Ithaca, NY 1997, pp. 46–47. 7 And all without the benefit of belatedly discovered Tosato! 5

8

Monogamy

forbids is the taking of two biological sisters as wives. CD, however, takes the phrase ishah el ahotah in its only attested sense:Â€metaphorically. The phrase occurs another eight times: 1) Five of the strips of cloth shall be joined ishah el ahotah (flush with one another; Ex 26:3) 2) and the [other] five strips of cloth shall be joined ishah el ahotah (flush with one another; Ex 26:3) 3) the loops shall line up each ishah el ahotah (opposite its counterpart; Ex 26:5) 4) you shall join the cloths ishah el ahotah(flush with one another) by means of the clasps (Ex 26:6) 5) Two tenons for each plank in alignment8 ishah el ahotah (with each other; Ex 26:17) 6) Each one’s wings touched tip to tip9 isha el ahotah (those of the other; Ezek 1:9) 7) Under the vault their wings were spread straight out ishah el ahotah (touching one another; Ezek 1:23) 8) the sound [or noise] of the living creatures’ wings brushing ishah el ahotah (against one another; Ezek 3:13). In all eight examples, the phrase is used idiomatically to signify a relationship of symmetry or congruity between two objects or sets of objects. Neither the ishah nor her ahot are ever people. For conformity’s sake, Lev 18’s ishah el ahotah ought therefore to mean something like ‘both in tandem’. With that in mind, let us try to reconstruct a plausible sense that CD might have extracted from our verse. The key word would probably have been lisror, qualified by the ishah idiom. Such a reading might, in turn, yield an overall construction like this:Â€Do not take rival wives either together or even successively as long as the first wife is alive. At this juncture, it will be useful to tabulate the ramifications of a metaphorical reading of ishah el ahotah in Lev 18:18. Although we cannot speak for the authors of CD, there can be no doubt as to the relevance of the following considerations to any monogamist reading of the verse. Heb. meshullavot. This hapax legomenon is most likely a carpentry term describing the tenons’ compatibility with their answering mortises (see Jastrow’s Dictionary, p. 1577). JPS notes “meaning of Heb. meshullavot uncertain”. 9 ‘Tip to tip’ is speculative but gives the general drift which seems to be this:Â€ Each angel’s right-hand wing meets with the left wing of its neighbour to the right in regimented formation. 8

2 Pro-CD Arguments

1) Besides its basic meanings (bind, constrict, show hostility, vex), Hebrew srr can also denote the act of ‘rivalling’ or being a rival. Thus srr’s derivative noun srh (pl. srt), like its Akkadian cognate serretu,1 stands for ‘rival’Â€– particularly a rival-wife (see 1Sam 1:6; M. Yev. 1.1 and passim). Accordingly, lisror comes into its own if the focus of Lev 18:18 is rival wives. But if the focus is sisters, lisror would seem otiose. Nor does it help that it is absent from the ‘woman and her daughter’ prohibition (18:17). 2) Verse 18 ends with the qualifying phrase be-hayyehah (in her lifetime), implying that with the wife’s death, the union ceases to be unlawful. This provision is extraordinary; nowhere does Torah teach that affinity to one’s spouse’s kin dissolves with the spouse’s death. As noted, the Talmud sided with the ‘builders’, taking the subject of Lev 18:18 to be biological sisters. Hence, rabbinic texts allow marriage to a deceased wife’s sister. This exceptional leniency stands out like a sore thumb, as Maimonides’s code will illustrate: Once a person enters into matrimony with a woman six of her relatives become forbidden to him and each of the six remains in the category of ‘ervah for everÂ€– whether or not the marriage is consummated; even after it ends in divorce; during his wife’s lifetime and after her death. These are the six. Her mother, her maternal grandmother, her paternal grandmother, her daughter, 1

See An Akkadian Lexicon Companion for Biblical Hebrew by Hayim ben Yoseph Tawil, Jersey City, NJ 2009, p. 328.

9

10

Monogamy

her daughter’s daughter and her son’s daughter.â•›.â•›.â•›. In addition, his wife’s sister becomes ‘ervah to him until his wife dies. (Yad, Issure Bi’ah 2:7, 9)

For CD, on the other hand, Lev 18:18 does not deal with incest and therefore cannot be accused of breaking rank. If you like, it is already the odd man out insofar as polygyny is not a kinship issue. Thus on the congruity score, CD can be said to manage be-hayyehah better than its opponents. But the acid test will come further in this book, when CD’s own understanding of be-hayyehah faces the music. 2a) As just noted, v. 18’s be-hayyehah proviso is unparalleled throughout the incest laws. Its singularity stands out sharpest when juxtaposed with v. 16 which prohibits a union between a man and his brother’s wife. That prohibition is not said to lapse at the brother’s death. So if a woman is barred from marrying her husband’s brotherÂ€– even after her husband’s deathÂ€ – why should a man be at liberty to marry his wife’s sister after his wife’s death? This question simply underscores the previous pro-CD argument (2 above); and like that argument, CD’s opponents cannot permit it to go unanswered. Some of them attribute the leniency to the fact that, seen from the text’s androcentric perspective, a wife’s sister is outside the man’s paternal family, whereas Lev 18 allegedly considers a man closest to his father and, by extension, to his father’s kin. In defence of this theory, they cite two lopsided categories of incest, namely aunts by marriage and parents-in-law. Union between a man and the wife of his father’s brother is prohibited (v. 14) but not between a man and the wife of his Â�mother’s brother. Similarly, union between a father-in-law and his daughter-in-law is prohibited (v. 15) but not between a mother-inlaw and her son-in-law. What could account for so glaring a discrepancy, they argue, except the non-agnate affinity of mother-in-law and Â�maternal aunt-in-law? Needless to say, the induction of a general principle from this laconicism would be speculative, especially in view of the reciprocity of Lev 18’s other laws. For instance, Lev 18 equates the maternal aunt (v. 13) with the paternal one (v. 14). It also equates a half-sister by the father with a half-sister by the mother (v. 9). Admittedly, the Scribes are credited by some late sources to have judged siblings born of the same father closer to one another than siblings born to the same mother, for the second-degree-incest unions (sheniyyot) outlawed by the Scribes

Pro-CD Arguments

11

include a union between a man and the wife of his mother’s brother. According to some traditions, the Scribes limited their decree to wives of the mother’s full brother and of the mother’s half-brother from the same father. But if the Scribes (or rather their tardy interpreters) are going to be retrojected onto P, it seems at least as logical to look to the Patriarchs. In an earlier morality, a man’s half-sister by the mother was the only half-sister forbidden him. Marriage to a half-sister by the father was tolerated in the days of Abraham (Gen 20:12) and David (2Sam 13:13; cf. Dt 13:7). So sure enough, incest law had once upon a time distinguished between distaff and spear consanguinities. However, it was consanguinity on the distaff side, rather than on the spear, that had then been treated as the closer. Lev 18’s double-barrelled and expansive stepsister law (vv. 9, 11; cf. 20:17, Dt 27:22) is read by many as polemicizing against that erstwhile asymmetry between agnate and distaff kinships. But in redressing an imbalance, it is not necessary to swing to the opposite extreme. Therefore, in rejecting the standard of Abraham and David, Lev 18 should not automatically be assumed to invert it. The silences regarding the wife of a maternal uncle and a mother-in-law do not add up to proof positive that Lev 18 has swapped the motherbinds-more-than-father paradigm for its antithesis. Down the road we shall be considering P’s promotion of patrilineality. Here we need only to express our doubt that P would allow patrilineality (as indeed any other extraneous value) to dent its incest laws. And even supposing it did, how to explain anomalous be-hayyehah? Let us now try and put the anomaly of be-hayyehah into perspective. As noted, some latter-day opponents of CD (or rather defenders of the rabbinic tradition) cite the omission of the aunt-by-marriage and mother-in-law to argue the weakness of kinships contracted through the distaff side. That ‘weakness’ allegedly permits a man to marry either of the affines in question once they are divorced (needless to say, not while still married, for that would constitute adultery; v. 20). In plain words, Lev 18 does not deem incestuous a union between a man and the wife of his maternal uncle or between a man and his mother-in-law. But if these unions are not branded incest, surely they must be presumed unconditionally licitÂ€– without the bridging relative

12

Monogamy

having to die. This is not the paradigm of v. 18. There it is the demise of one woman that lifts the ban from the surviving woman. To recapitulate:Â€ Lev 18 classifies unions between certain relatives as incestÂ€– no ifs or buts. It omits from the list unions between other relativesÂ€– no ifs or buts. Union with his maternal aunt is not permitted a man after his mother’s death any more than union with a paternal aunt; nor does union with his stepdaughter become lawful after his wife’s death, because the expiration of the relative who forged the link does not lift the incest ban. Not so the case legislated in v. 18. There it is the link’s death that lifts it. Hence the be-hayyehah provision remains peerless in all the length and breadth of Lev 18. 3) V. 18 begins with the letter vav, indicating a break with the preceding. If incest was the theme hitherto, what follows promises to be something other than incest. CD will not have been oblivious of this tell-tale vav. 4) If a man dies leaving no issue, the law of levirate-marriage (Dt 25:5–10) directs the surviving brother to marry the childless widow of his deceased brother. This law makes no exception for a surviving brother who is already married and must therefore be assumed to sanction polygyny. There can be little doubt that this Deuteronomic law has, down the ages, influenced the understanding of Lev 18:18. For as long as the Pentateuch’s discrete law codes were being ‘telescoped’, Leviticus and Deuteronomy had to fit in with one another. A ban on polygyny anywhere in the Torah was unthinkable because of its potential to sabotage levirate-marriageÂ€ – an institution Deuteronomy not merely condones, but by which it sets great store. That it makes clear with the warning “lest his [the dead brother’s] name be blotted out from Israel” (v. 6) and with the contumely hurled at the recusant levir (vv. 9–10). In short, Deuteronomy’s levirate-marriage could not coexist with monogyny. Later we shall confront the question of how CD (which understood Lev 18:18 to outlaw polygyny) got around levirate-marriage;2 the Priestly Torah, however, hardly beats about the bush. 2

Column 66 of the Temple Scroll (11QT) is where its ‘arayot laws are located. It is also the scroll’s last [legible] column. Even though it breaks off abruptly, scholars do not believe that any incest laws are lost. Thus Gershon Brin is able to assert that “the author of the Temple Scroll does not include all of the laws in the book of Deuteronomy.â•›.â•›. for example, he does not copy the law of the levirate marriage because this conflicted with his own view concerning the prohibition of marriage with a brother’s wife.” (“Divorce at Qumran” in Legal Texts and Legal Issues, Leiden 1997, p. 239).

Pro-CD Arguments

13

“If a man takes his brother’s wife it is impurity3 he has uncovered the nakedness of his brother they shall be childless” (‘aririm yihyu; Lev 20:21). There are three other occurrences of the adjective ‘ariri (plural ‘aririm)4Â€ – the first at Gen 15:2:Â€“Abram said, Hashem God what can you give me seeing that I shall die ‘ariri and the one in charge of my house is Eliezer of Damascus”. The context leaves little leeway as to the meaning of ‘ariri, and any residual doubt is dispelled by v. 3 which stands in apposition to v. 2:Â€“Abram said you have given me no offspring so my steward will be my heir”. The next time we meet the word it is in the plural ‘aririm:Â€“If a man lies with his aunt he has uncovered the nakedness of his uncle they shall bear their guilt they shall die ‘aririm” (Lev 20:20). The last is at Jer. 22:30:Â€“Write down this man [Coniah] as ‘ariri a fellow who will have no success in his days for no offspring of his shall succeed in sitting on David’s throne or ruling again in Judah”.5 Supposing our only ‘ariri were this Jeremiah verse, would we still have arrived at the meaning ‘childless’? For if ‘ariri describes Coniah as childless, what business has he leaving offspring, kingly or otherwise? Moreover, the phrase “a fellow who will have no success” has led some to posit a meaning of ‘unsuccessful’ for ‘ariri. But in reality, the whole point about Coniah’s fate is predicated on the idea of childlessnessÂ€– which status will define Coniah once his line is illegitimated and his children’s names are dumped from the records. As for the ‘failure’ clause, it is widely thought to be a gloss. The following gobbet from John Bright’s commentary touches upon all these questions: Write down this man as childless. The meaning is not that Jehoiachin would have no sons. He actually had seven (1 Chron III 17 f), the oldest of whom had almost certainly been born when this prophecy was uttered. The figure Heb. niddah. The noun niddah means, of course, a menstruant. Here, however, niddah hi marches in epistrophic step with zimmah hi (v.14) hesed hu (v. 17) and, like them, means to stigmatize. At Ezra 9:11 and 2Chr 29:5, niddah seems to convey ‘defilement’. Hence:Â€impurity. 4 That is to say, in the Hebrew Bible. In the Apocrypha, Ben Sira moralizes:Â€“better to die childless (‘ariri) than to have godless children” (Ecclesiasticus 16:3). As for Jubilees, until Qumran yields the original Hebrew of Jubilees in 3:34, 13:18 or 17:2, it is at best a calculated guess to posit a Vorlage of ‘ariri at those loci. Meanwhile, Qumran has yielded 4Q179 (4Q Apocryphal Lamentations A) with its “[ke-] ishah ‘ar[i]riah” (fragment 2, line 6). 5 LXX diverges considerably from MT:Â€“Write ye this man an outcast for there shall none of his seed at all grow up to sit on the throne of David or as a prince yet in Judah”. 3

14

Monogamy

is that of a census list. Jehoiachin is to be entered as childless since, as far as throne succession was concerned, he was as good as that. One who’ll have no success in his lifetime. Literally, “will not succeed in his days.” It is doubtful that these words are original. They are not appropriate as an entry in a census list, and they interrupt the close connection between “childless” and the remainder of the verse, which explains it. LXX, which misunderstood “childless,” seems not to have read, “who will not succeed in his days.” Perhaps the colon is a gloss by one who, knowing that Jehoiachin had sons, like LXX misunderstood the point.6

Rabbis of old were already intrigued by the Jeremiah prophecy, insofar as it predicts childlessness for a man who turns up in Chronicles with six or seven sons:Â€“R. Johanan said exile atones for everything for it says Write down this man as ‘ariri a fellow who will have no success in his days for no offspring of his shall succeed in sitting on David’s throne or ruling again in Judah. Yet after he [Jehoiachin, a.k.a. Coniah, Jeconiah] went into exile it is written The sons of Jeconiah, a prisoner (or Assir)7 Shealtiel his son. [Also] Malchiram, Pedaiah, Shenazzar, Jekamiah, Hoshama, and Nedabiah” (San. 38b). Mark how Coniah’s unbargained for brood is the thing that knuckles underÂ€– not the word ‘ariri! The denotation of ‘ariri must have been secure enough in the eyes of the Talmud (as it is for most moderns) to withstand Chronicles 3:17. R. Johanan dates the children’s birth after their father’s sentence had been overturned in compensation for the suffering of his (unforeseen?) exile. For John Bright, the prediction had referred not to Coniah’s actual childlessness, but to his going down in the records as such. Linking these two very different approaches is their shared confidence in the meaning of ‘ariri. Our own confidence in ‘ariri thus fortified, we are ready to appreciate the polemical force of Lev 20:21. YouÂ€– it says to its readersÂ€– hope through levirate-marriage to raise surrogate children for a deceased kinsman. Your efforts are doomed, because marriage to a brother’s wife will be sterile. The man and his uncle’s wife may yet sire childrenÂ€ – albeit any such children will predecease their sinful The Anchor Bible, Jeremiah:Â€Introduction, Translation and Notes, New York 1965, p. 143. 7 In Isa (10:4, 24:22, 42:7), assir means a prisoner; asir (without dagesh) has the same meaning at Ps 79:11, 102:21. Assir as a proper noun is borne by two descendants of Korah (Ex 6:24; 1Chr 6:7, 22). 6

Pro-CD Arguments

15

parents who then die childless (‘aririm yamutu; Lev 20:20). But marriage between a man and his brother’s wife will be denied progeny altogether. This is a transparent repudiation of all levirate-marriage.8 Hardly less perspicuous is Lev 18:16. “The nakedness of your brother’s wife you shall not uncover it is the nakedness of your brother”.9 Barren or fecund, the widowed sister-in-law comes under the strictures of the motive clause “it is the nakedness of your brother”. That translates into a blanket ban. Irrespective of whether or not the dead brother left issue, Lev 18:16 outlaws a union between his widow and his surviving brother. Another scriptural verse not to be overlooked is Lev 22:13. “If a priest’s daughter is widowed or divorced and has no children and she returns to her father’s house as in her youth, of her father’s food shall she eat”. How come a childless widow makes for her father’s, rather than her brother-in-law’s, home? Captiously one could retort that not every husband is outlived by a brother. But that truism did not hinder the formulation of the levirate law as we have it. “When brothers live together and one of them dies leaving no son [or no offspring10] the wife of the deceased shall not be married to an outsider. Her husband’s brother shall go in unto her and take her unto wife and discharge his levirate duty by her” (Dt 25:5). Like any law, it deals with a situation which is statistically feasible; childless widows are often survived by one or more of their brothers-in-law. Lev 22:13’s scenario of childless widows going home to their fathers totally ignores levirate-marriage that, again statistically, would leave a minority of widows free to

See Athalya Brenner’s pertinent comment:Â€“‘And a man who takes his brother’s wife .â•›.â•›. they shall be childless’.â•›.â•›. ‘take’ a woman, often signifies ‘in marriage’; hence, this verse [Lev 20:22] looks like a polemic against the levirate law” (“On Incest” in A Feminist Companion to Exodus to Deuteronomy, Sheffield 1994, p. 123). 9 Heb. ‘ervat ahikha hi. Rendered by some:Â€she is the nakedness of your brother, so as to chime with “they are your nakedness” (v. 10) and sh’er of verses 12, 13, and so on. The doubt is engendered by the indeterminate feminine pronoun hi which can be either she or it, and by the elusiveness of ‘ervah in these motive clauses. 10 Heb. benÂ€ – a word whose primary meaning is ‘son’ (as per M. Naz. 2:7) but that can also signify ‘child’ or ‘offspring’. It is evident that the rabbis read this instance of ben inclusively as did LXX which gives ‘seed’ for ben. However, Tosafot (ad loc. s.v. kevan) demur as to whether the word ben was the Talmud’s scriptural authority for including a daughter. Instead, they propose “lest his name be blotted out from Israel” (Dt 25:6). A daughter, in Tosafot’s reckoning, is just as capable as a son to perpetuate a father’s name (cf. Chapter 14, note 30). 8

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Monogamy

return to the parental nest.11 The cumulative evidence is rather compelling:Â€the Priestly Torah disallows levirate-marriage. As for a reason, we would wager on that institution’s repugnance to monogamy. But whatever the reason, P’s demonstrable scuppering of levirate-marriage must surely deter one from loading Lev 18:18 with Deuteronomy’s levirate-marriage law. Lastly, to proof from silence for P’s abrogatory stance towards levirate-marriage. The Priestly Torah’s inheritance law (Num 27:8–11) names legatees in order of precedence:Â€“If a man dies leaving no son you shall transfer his property to his daughter. If he has no Â�daughter you shall give his property to his brothers” (vv. 8–9). In levirate-Â�marriage, the dead brother’s property passes to his surviving brother along with the deceased’s childless widow. Though not stated explicitly in Dt 25, it is attested not only by a firm rabbinic tradition (Yeb 24a et al.), but also in the biblical story of Ruth (Ruth 4:5–10). Yet Num 27:9 entirely overlooks levirate-marriage when legislating the transfer of a childless man’s property. More than that, it is the brothers (plural) who inherit, not a single brother as is the case with levirate-marriage. And it is that multiplicity of surviving brothers who, free of matrimonial strings, inherit from the dead man. So if you stop to ask what happens to the widow when the brothers-in-law bag her husband’s estate, turn to Lev 22:13. There we find the childless widow reinstalled under her parents’ roof. 11

Notwithstanding, hackneyed harmonizing between the Torah’s levirate and antiÂ�levirate texts is still going the rounds, according to Dvora E. Weisberg:Â€“Commentators are aware of the contradiction between the incest laws of Leviticus and the injunction to perform levirate marriage in Deuteronomy 25. One solution is to assign these laws to different circumstances:Â€the laws of levirate would apply when a man died childless, whereas the prohibition against a union between a man and his brother’s wife would apply in cases of divorce or when the brother died leaving children” (Levirate Marriage and the Family in Ancient Judaism, Brandeis University Press 2009 pp. 30–31). Contrast this with the Yerushalmi’s mettlesome approach! The Yerushalmi (Ned. 3:2 [37d]) lists pairs of mutually exclusive scriptures whose reconciliation is a feat so intangible “that the mouth is unable to utter and the ear unable to hear”. Included in the list is the pair “the nakedness of your brother’s wife you shall not uncover” (Lev 18:16) and “her brother-in-law shall go in unto her” (Dt 25:5).

3 Anti-CD Arguments

1) The fact that ishah el ahotah is found only as a metaphor does not preclude its concrete use. Besides, the individual words ishah and ahot occur repeatedly in Lev 18 always in their primary sense. In the Â�context of incest regulations, ishah and ahot surely demand to be taken literally. 2) Lev 18 employs four distinct terms to express cohabitation: qrb el (draw near to); galleh ‘ervah (uncover nakedness); lqh (take [in marriage], acquire); ntn shekhovto le-/be- (give one’s lying to). There is much debate as to whether some or all of these terms are interchangeable or if each is meant to convey a distinct nuance. The introductory verse uses two of the terms:Â€“men one and all none of you shall draw near to any she’r besaro (close relative; literally, flesh of his flesh) to uncover nakedness .â•›.â•›.” (v. 6). Starting at v. 7, the text proceeds to elaborate. This it does not merely by specifying which close relatives fall under the prohibition of v. 6, but also by repeating the prohibition for each individual union along the line. From v. 7 through 17a, having sexual union is referred to stereotypically as galleh ‘ervah, with qrb el appearing once in v. 14. Thus, from the literary standpoint, Lev 18:6–17a can be said to form a unit; v. 6 laying down the general rule which is then applied to specific cases (vv. 7–17a). By introducing the new term lqh, vv. 17b and 18 assert their independence from the cohesive galleh ‘ervah-she’r besaro unit of 6–17a. The question is whether that independence is merely literary or substantive. The style of the Priestly 17

18

Monogamy

Torah is decidedly anaphoric, and at times Â�declamatory.1 Therefore, legal significance cannot automatically be attached to a proliferation of synonyms. Neither is context alone decisive;2 hence, not even the pragmatism of its subject matter suffices to pin down Lev 18 as Â�legalese sooner than oratory. Where does all this leave CD? Had lqh occurred in verse 18 and nowhere else in the pericope, it would be a feather in CD’s cap. For that would have set v. 18 linguistically apart from the incest laws, which would be seen as eschewing lqh. As it is, lqh appears already in v. 17:Â€“The nakedness of a woman and her daughter you shall not uncover the daughter of her son and the daughter of her daughter you shall not take [lo tiqah] to uncover her nakedness3 they are close relatives [sha’rah]4 it is depravity”. The presence of lqh outside v. 18 militates against CD. 3) According to Hittite law, “If a man’s wife dies (and) he Â�marries his wife’s sister, there shall be no punishment”.5 If ancient Middle Eastern legal codes were all interrelated, should not this Hittite law influence our reading of Lev 18:18? See Meir Paran’s Darkhe ha-signon ha-kohani ba-torah, Jerusalem 1989, esp. p. 110. Tosafot find parallelismus membrorum in a passage as seemingly prosaic as Lev 25:37 (B.M. 60b s.v. lamma). 3 Targum Neophyti 1 (vol. 3 Madrid-Barcelona 1971, p. 123) has ‘eryatehon. Likewise LXX:Â€their nakedness. 4 LXX:Â€your kinswomen. 5 ANET, p. 196. 1 2

4 Indeterminate Arguments

1) Lev 20:10 deals with adultery:Â€“A man who commits adultery with a married woman, who commits adultery with his neighbour’s wife, the adulterer and the adulteress shall be put to death”. There is no Â�parallel verse outlawing relations between a woman and a married man. But if the Priestly Torah meant to ban polygynyÂ€– so the objectionÂ€– would Lev 20 not have included precisely such a parallel prohibition? Perhaps. But one must ask oneself whether in banning polygyny P is likely to have made it a capital crime or even to have tarred it with the opprobrium of adultery.1 Had P’s anti-polygyny legislation been more fervent, Jewish marriage might have taken a very different course. Moreover, those who read Lev 18:18 as banning not polygyny but the marriage of a man to his wife’s biological sister are every bit as flummoxed by the omission of that incestuous union from chapter 20. Lev 18:18 simply has no counterpart in Lev 20. If anything, it is easier to explain the absence of a polygyny ban than an incomplete register of incestuous relations. After all, polygyny had not been frowned upon in early Israel as far as we know; and Lev 20 may represent a less radical position than Lev 18 (see further). We have therefore classified this argument as indeterminate. 2) Union between a man and his wife’s sister could be inferred by analogy from verse 16 that prohibits union between a woman and 1

See note 3 in the introductory text to Part I.

19

20

Monogamy

her husband’s brother. If a woman may not marry two brothers, why should a man be allowed two sisters? Of course one can object that, as a rule, it is rash to propagate laws by means of such extrapolation. However, CD extrapolates in precisely this way. As noted, the laws of Lev 18 are addressed to the Israelite male. For instance, prohibiting union between a man and his aunt is not expressed in the third person but rather in the second person masculine. It is the male who is told “The nakedness of your mother’s sister you shall not uncover” (v. 13; cf. vv. 12, 14). But what of the Israelite womanÂ€– is it lawful for her to marry her uncle? CD could not be clearer:Â€“Moses said Do not approach your mother’s sister she is a blood relation of your mother. And the law of prohibited marriages written for males equally applies to females and therefore to the daughter of a brother who Â�uncovers the nakedness of her father’s brother being also a blood relation” (CD 5:8–11). The hermeneutical principle operative in this passage will have enabled CD to derive the prohibition of marriage between a man and his wife’s sister from v. 16. Once the prohibition was thus illatively derived from its ‘mirror-image’ law in v. 16, CD would have had no use for an explicit prohibition of marriage to a wife’s sister. Of course we will not take CD’s word as to whether Lev 18 means its incest laws to extend to unions in which the affinity between the man and woman is reversed. After all, the ‘builders’ who were marrying their nieces (CD 5:7–8) and the rabbis who applauded uncle-niece alliances (Yev. 62b end; San. 76b) could not have subscribed to this principle of mutuality. Both CD and the ‘builders’ will have appealed to Scripture; but as we are about to see, Scripture can go either way. Besides the aunt/nephew example, Lev 18 lists other instances of forbidden unions that lend themselves to mutualityÂ€– such as: a) b) c) d)

a union between a man and his stepmother (v. 8) a union between a man and the wife of his father’s brother (v. 14) a union between a man and his daughter-in-law (v. 15) a union between a man and his mother (v. 7)

the converse of which are not explicitly prohibited but would be, respectively:

Indeterminate Arguments a) b) c) d)

21

a union between a woman and her stepfather a union between a woman and the husband of her father’s sister a union between a woman and her son-in-law a union between a woman and her father.

a) V. 17 says, “The nakedness of a woman and her daughter you shall not uncover”. On the surface, it seems to forbid a man to be married simultaneously to a woman and her daughter. Qumran, however, could not countenance such an understanding because it implies that if the two wives are not mother and daughter, such ménages à trois are unobjectionable. The implication would wreck CD’s cornerstone, namely that Lev 18 bans all polygyny outright. Nor would the rabbinic reading of v. 17 work for CD. As the rabbis read it, what v. 17 forbids is marriage between a man and his stepdaughter (after the divorce or death of the stepdaughter’s mother). But according to CD’s enunciated principle, woman/stepfather should be deducible from man/Â�stepmother of v. 8. The fact that the Torah nevertheless saw fit to specify woman/stepfather (v. 17) suggests that it did not rely upon analogies being drawn from the stated law to its ‘mirror image’. b) V. 14 prohibits a union between a man and the wife of his father’s brother. Scripture does not prohibit a union between a woman and the husband of her father’s sister. However, being the converse of v. 14’s stated example, CD logic would presumably find this latter union unlawful by analogy. Unfortunately, no additional scripture comes to our aid in interpreting Lev 18’s silence regarding the husband of a father’s sister. According to the rabbis, the silence means the union is permitted.2 c) A union between a man and his daughter-in-law is prohibited in Lev 18 (v. 15), but not between a woman and her son-in-law. Again, CD hermeneutics is able to elicit the unstated case of woman/son-Â�inlaw from the stated case of man/daughter-in-law. The rabbis also forbid a union between a woman and her son-in-law. Unlike CD, however, their scriptural authority is not Lev 18:15. According to the Mishnah 2

However, as noted earlier, a union between a man and the wife of his mother’s brother was among the so-called sheniyyot declared illicit by the Scribes (Yev. 21a–b). According to some of the sources, the Scribes limited their decree to wives of the mother’s full brother and of the mother’s half-brother from the same father.

22

Monogamy

(San. 9:1), “‘a woman and her daughter’ [Lev 18:17] subsumes the man’s own daughter, the daughter of his own daughter, the daughter of his own son .â•›.â•›. his mother-in-law, his mother-in-law’s mother and his father-in-law’s mother”.3 Thus a union between a woman and her son-in-law (man and his mother-in-law from the Mishnah’s androcentric angle) is extracted out of the man/stepdaughter prohibition; Â�(incidentally, in deriving mother-in-law from 18:17, the Mishnah equates the progenitor and offspring generationsÂ€– an aberration noted by the Gemara at San. 75a–b). d) And the most egregious omission of all:Â€ incest between father and daughter. We have just seen how the Mishnah rectifies matters by extracting father-daughter from ‘a woman and her daughter’ (Lev 18:17Â€– reasoning that a man’s own daughter is ipso facto his spouse’s daughter).4 True to form, CD would presumably derive father-Â�daughter from son-mother (v. 7). Having surveyed these four instances of ellipsis, we are no closer to discovering a pattern. To complicate matters, the brachylogy alternates with seeming pleonasm. For instance, incest with a father’s wife (v. 8) and with a son’s wife (v. 15) are each explicitly outlawedÂ€– not leaving the one to be fetched from the other by means of analogy. To compensate for such inscrutability, all Torah devotees will have felt called upon to practice some form of extrapolation. That Qumran and Talmud diverge in their methods is far less of a surprise than their tranquil resourcefulness. Neither party seems perturbed that sporadically, but not consistently, Scripture spells out laws it might have left to logic to infer. Indeed, this reality that the Torah at times spoon-feeds its readers and at other times trusts their heuristic skills the Talmud takes in its stride:Â€ mashma‘ mosi miyyad mashma‘ u-mashma‘ mimmela

R. Ishmael holds that even after his wife’s death, relations between a man and his wife’s mother constitute a capital offence, whereas for R. Aqiva, relations between a man and his mother-in-law are no longer a capital offence after the wife/daughter’s death (San. 76b). 4 Elsewhere the Gemara supplies another derivation for father-daughter incest (Yev. 3a; Ker. 5a et al.). Rashi maintains that the additional derivation was necessary to cover incest with a ‘natural’ daughter (some editions actually read “his daughter born from rape” at Ker. 5a). The Mishnah (San. 9:1), however, seems satisfied that its own derivation from Lev 18:17’s ‘a woman and her daughter’ is adequate (for Rambam’s very different unravelling of the two derivations, see his Sefer ha-Misvot negative Â�commandment 336). 3

Indeterminate Arguments

23

(Yoma 42b with reference to Num 19). Similarly, it recognizes milta de’atya beqal va-homer tarah Â�ve-katab lah qera ([even] things inferable a minori ad majus Scripture is wont to spell out).5 5

Pes. 18b, Yom. 43a, Qid. 4a etc. See Enc. Talmudit 1961 vol. 10 col. 568, especially its quotation from R. Nissim (RAN) to the effect that what is said of qal vahomer most probably applies equally to heqesh and gezerah shavah; also Sede hemed Hashalem, Kelalim section mem 22–27 (New York 1962 edition, pp. 64–68).

5 Make-or-Break Argument

A little way back, we considered the be-hayyehah anomaly and its awkwardness for CD’s opponents. CD eludes this particular awkwardness but, in its lieu, has to face a be-hayyehah ordeal of its own. That make-or-break ordeal is divorce. How so? The be-hayyehah stipulation (or be-hayyehem as paraphrased by CD) would prohibit a man from remarrying as long as his ex-wife is alive. Such a prohibition is tantamount to an abrogation of Torah divorce inasmuch as that institution severs the matrimonial knot, allowing the former partners to go their separate ways and form new alliances (Dt 24:1–4). To be sure, CD rejects levirate-marriage which is also a Pentateuchal ordinance. But, as we saw, for that rejection it found an ally in the Priestly Torah. Divorce, on the other hand, is alluded to uncensoriously in that very Priestly Torah no fewer than four times (strictly speaking, divorcees, not divorce per se: Lev 21:7,14; 22:13; Num 30:10). Even P’s ban on priests marrying divorcees (Lev 21) hardly countermands the institution. In fact, limiting the ban to priests alone leaves the impression that remarriage after divorce is not intrinsically wrong. These uncritical references have disposed some scholars to doubt that any Jewish group, let alone P itself, would oppugn divorce. Accordingly, those scholars fight shy of CD’s understanding of be-hayyehah, insofar as that understanding seems to void divorceÂ€– at least prima facie. While granting that the references to divorcees attest to their existence, we are not persuaded that recognition of existence amounts to approbation. To ignore divorce would have been difficult even for its 24

Make-or-Break Argument

25

antagonists while Israelite couples were divorcing, as seems to have been the case. Moreover, divorce had the law behind it (Dt 24:1–4), which divorce’s opposition did not. What the opposition did have was Malachi. Whether he sowed the anti-divorce seed, we cannot say; but the prophet whose call for monogamy we saw earlier is also the prophet to tear into divorce:Â€For I detest divorce says the Lord God of Israel .â•›.â•›. (Mal 2:16a). Malachi’s message must have generated tension. After all, Dt had sanctioned divorce and Jews went along (see Isa 50:1; Jer 3:1). Now they are told God detests it; and divorce is rendered problematic.1 1

Tg. reproduces Mal 2:16a-b as:Â€“If you hate her divorce her says Hashem God of Israel and do not conceal the sin in your garment .â•›.â•›.” (cf. Git. 90b). Printed editions of LXX approximate Tg in that they construe ‘divorce’ as an imperative (e.g. “If you hate divorce! .â•›.â•›. then iniquity will cover his garments”; but see David Clyde Jones, JBL 109, pp. 683–685, who argues for the following construction of the Greek:Â€“If having hated you divorce .â•›.â•›. then iniquity will cover his garment .â•›.â•›.”). As for the DS Scrolls, enough of the Twelve Minor Prophets (4QXII) survives to declare it closer to Targum than to MT. However, the choppiness and incoherence of the versions bespeak a corrupt text. The only question is whether the corruption came about accidentally or by design. Various lines of argument lead one to prefer MT. As for the versions, it is understandable how desperately Mal 2:16’s denunciation of divorceÂ€– seemingly at variance with Dt and with prevailing practiceÂ€– must have been wished away. At some point, an audacious scribe stopped wishing and, under the kind of pious compulsion that conspired to suppress the Book of Ezekiel “because its words contradicted Torah” (Shab. 13b), doctored Malachi. Among scholars who have minutely analysed the versions, most are inclined in the same direction. “I propose,” writes Russell Fuller, “that the text of MT, although obviously not the clearest text, is nevertheless closest to the original in form.â•›.â•›.â•›. The variation in person and number of the verbs in the versions may be suggestive of attempts to change the text.â•›.â•›.â•›. The fact that three witnesses, two quite old, preserve texts that promote divorce probably indicates that this question was of interest to the communities that copied and transmitted these texts.” (“Text-Critical Problems in Malachi 2:10–16” JBL 110:1, p. 56). Similarly, Andrew E. Hill:Â€“MT sane makes excellent sense if one presumes that the subject ha’ehad of the verb has been gapped from verse 15. This reading preserves the integrity of the MT, rendering “cosmetic surgery” of the text unnecessary. (The ancient versions clearly represent “interpretive corrections” of a harsh prohibition.) (The Anchor Bible Malachi, New York 1998, p. 250). On p. 249, Hill cites Lars Kruse-Blinkenberg (“The Pesitta of the Book of Malachi” ST 20 [1966], p. 104) to the effect that the ancient versions were “corrected in order to avoid inconsistency with Deuteronomy”. Needless to say, 4QXII tells us nothing about Qumran attitudes to divorce. If the pro-divorce slant of the versions was indeed the handywork of busybodies, they are unlikely to have been members of the sect. Most probably, 4QXII inherited the ‘improved’ reading from the same testator that bequeathed it to Targum. Moreover, as Philip R. Davies reminds us “[T]he majority of Qumran texts may not have originated at Qumran itself .â•›.â•›.” (“The Judaisms in the Damascus Document” in The Damascus Document A Centennial of Discovery:Â€Proceedings of

26

Monogamy

But once thus rendered, it is no surprise to find other prophetic voices, close in date to Malachi, unfriendly to divorce in varying degrees. In forbidding priests to marry divorcees, Ezekiel (44:22) and Leviticus, while not rescinding it, certainly taint divorce. This is especially true of Lev 21:7 which concatenates divorcees with profane harlots, as if to say divorcees and harlots are out there in the population but are to be shunned by the elect. This is how we construe P’s allusions to divorce:Â€as something tolerable for the hoi polloi but not for the loftiest echelons. It is this kind of ‘compromise’ that we see as prevalent in P, with one possible exception:Â€Lev 18:18. That verse’s ‘alehah be-hayyehah looks very much like a flat negation of divorce. If there had once been other such radical negations, they have not survived. Its obscurity may have helped spare our ‘alehah be-hayyehah. In any case, if Lev 18:18 means to thwart divorce, it should not be steamrollered for the sake of conformity with other biblical provisionsÂ€– even when those provisions cast a longer shadow; even when they occur within the priestly canon. By now we should have learnt that P incorporates variations on a theme.2 We should also have learnt to respect the Â�modest, quavering voice. Whether Qumran would have allowed for a multifarious Torah may be doubted. Their egress from contradictions is thought to have been via the route of harmonization.3 It was arguably by that route that they circumvented Dt’s levirate-marriage, for in rejecting leviratemarriage, it would not have sufficed to cite the Priestly Torah unless Dt 25 could be satisfied.

the Third International Symposium of the Orion Center for the Study of the DSS and Associated Literature, Leiden 2000, p. 28). 2 At Lev 19:27–28, the entire congregation of Israel is forbidden to round off the edge of the beard and gash over the dead; 21:5 seems to limit the same two prohibitions to priests. Corpse-defiled persons are rusticated according to Num 5:2, 31:19 but not according to Num 9:6–8 (Num 19 is silent). A single tamid is offered daily (Lev 9:17; Num 28:23 et al.) versus two daily tamids (Ex 29:Â€38–39, 41; Num 28:3–4, 8); Num 4:2 versus 8:24; Lev 23:18 v. Num 28:27; Ex 27:21 v. Lev 24:3 [MT] and Num 8:3. See Chapter 18, note 5. 3 At which their adeptness is manifest in tours de force such as the following. King David is never upbraided in the Bible for marrying multiple wives (see 2Sam 12:8), although in doing so he appears to transgress Dt 17:17. Resourceful CD has the explanation pat:Â€“David had not read the sealed book of the law which was in the ark for it had not been opened in Israel from the day of the death of Eleazar and Joshua .â•›.â•›. remaining hidden until Zadok arose” (CD 5:2–5).

Make-or-Break Argument

27

Harmonization was, of course, being deployed long before Qumran (e.g. 2 Chr 35:13Â€– see the concluding chapter of this book). It goes on to find its classic expression in rabbinic midrash, achieving formulaic status with R. Ishmael’s thirteenth hermeneutic rule:Â€“Two scriptures that contradict one another, a third scripture comes along and arbitrates between them”. But sometimes the friction was due not to contradictory texts but rather to the significance of a particular Torah law evanescing from view. Take, for instance, the ‘comely captive’ law (Dt 21:11–14). The rabbis, palpably mortified by that law, drastically circumscribe its applicability as befitting a law they interpret as a sop to the warrior’s profligacy (Qid. 21b–22a and parallels). Thus the law stands but is relegated to the status of an indulgence reluctantly dispensed.4 This device of relegating abstruse or jarring Torah law to Â�concessionary status seems to have been a mainstay of late Second Commonwealth midrash. A case in point is Jesus’ explanation of Torah divorce as no more than a sorry concession (Matthew 19:7–8; Mark 10:4–5). Indeed, some wonder whether the midrashic accommodation attributed to Jesus might not have served other opponents of divorce who had, willy-nilly, to contend with divorce’s sanction in Dt. Prominent among those groups would have been the Qumran community, whose antipathy to divorce is seen not only in CD and its reading of Lev 18:18, but again in the Temple Scroll (11QT). The Temple Scroll lays down that a king “shall not marry a wife from among the daughters of any gentiles but rather from his father’s house and his father’s family shall he take him a wife. He shall not take besides her (‘alehah) another wife, for she alone shall be with him all the days of her life. But should she die then may he take unto himself another” (11QT 57:15–19). This king law, taken in conjunction with be-hayyehem of CD, disposes Qumran scholars, by and large, to conclude that the community had fallen foul of divorce.5 Once Not unrelated is the Mekhilta’s comment on the word ‘slave’ at Ex 21:2:Â€“against its will [be‘al korhah] the Torah calls such a person a slave” (Mekh. Neziqin 1 [p. 247 end]). 5 A vocal dissenter is Gershon Brin. In his 1997 article “Divorce at Qumran” (cited Â�earlier), Brin marshalls references to divorce and divorcees found in Qumran texts. On their basis, he opines that “a reexamination of old and new sources on this Â�subject will confirm that divorce was recognized as a legitimate phenomenon in Qumran, a conclusion that contradicts earlier conclusions about this subject” (p. 231). “The 4

28

Monogamy

Qumran’s distaste for divorce (and polygamy) is realized, inevitably one has to enquire “how such restrictions would have been reconciled by the Qumran exegetes with Pentateuchal law which explicitly condones both polygamy and divorce”. This particular formulation of the question is Joseph M. Baumgarten’s, the scholar who goes on to resolve Qumran’s ostensible disparities by means not averse to our own unravelling of the perceived dissonance in P. The only logical way to account for this discrepancy is to assume that the king as a role model for moral behaviour was subject to supererogatory restrictions limiting him to one wife during her lifetime; divorcing would not free him as it would a commoner. This two-tiered approach to halakhah is manifested elsewhere in the Temple Scroll .â•›.â•›. in the Damascus Document .â•›.â•›. the ban of polygamy and by extension the prohibition of remarriage after divorce applicable to the king is held up as a model of the higher moral standard in marriage. According to this standard, marriage is an exclusive covenant between one man and one woman ‘in their lifetime’. It is called ‘the foundation of creation’, derived from the words in Gen. 1:27, ‘male and female He created them’. The further consequence drawn in the Gospels that what God has joined together cannot by man be put asunder is not explicitly stated .â•›.â•›. but we may infer that conclusion to be drawn from the evidence .â•›.â•›. proves beyond all doubt that divorce existed and had a legitimate place within the life framework of the members of the Judaean Desert sect. Hence one needs to reexamine the various texts, such as CD 4:20–21 .â•›.â•›. reinterpreting them in a manner which accounts for the overall picture of the sources discussed .â•›.â•›.” (p. 244). In other words, the uncritical references to divorce in Qumran writings suggest to Brin a level of comfort with divorce incompatible not only with outright repudiation, but even with the accommodation of Baumgarten (whom he cites). Hence Brin’s call to reinterpret Qumran’s hostility to divorce in a way that still leaves divorce wiggle room. Of course the reinterpretation would have to meet the criterion of Qumranic verisimilitude. One reinterpretation that fits that bill endows be-hayyehah/ be-hayyehem with a meaning other than the literal. A few paragraphs ago, we pondered Lev 18’s plethora of terms for cohabitation:Â€ qrb el; galleh ‘ervah; lqh; ntn shekhovto le-/be-. There may be debate as to the exact significance of these terms, but there is little doubt that every one of them is being used figuratively. Like those conjugal tropes, the etymology of such a putative be-hayyehah trope eludes us. Notwithstanding, a figurative be-hayyehahÂ€– or better a figurative compound ‘alehah be-hayyehahÂ€– would be entirely in keeping. Moreover, we have seen the incongruity of literal be-hayyehah even for the ‘builders’ who have no logical explanation as to why a wife’s sister should be singled out for the be-hayyehah stipulation. Thus both CD and their opponents might sleep better with an idiomatic ‘alehah be-hayyehah. So much for a solution that meets Brin’s specifications. See also “Nomological Exegesis in Qumran ‘Divorce’ Texts” by David Instone-Brewer, Revue de Qumran 18:4 (1998), pp. 561–578; Cecilia Wassen’s Women in the Damascus Document, Leiden 2005, pp. 114–118; The Damascus Texts by Charlotte Hempel, Sheffield 2000, pp. 82–83.

Make-or-Break Argument

29

the king as well as any morally scrupulous adherent of the sect would not remarry while his first spouse was still living.6

In comparing the Qumran and Gospel traditions on divorce, Baumgarten quite properly acknowledges differences in their respective levels of tolerance. If Qumran relaxes the law for its ‘lower-tier’ adherents, Jesus brooks divorce for no class of followers. But that should not shut our eyes to a nexus between the two traditions. In the words of John Kampen:Â€“Amply attested in the New Testament materials is a viewpoint which the author surely inherited, that divorce is not permitted”.7 But whatever form it took, the resort of demoting perplexing laws from the rank of advisable to that of grudgingly tolerated will not have escaped the Qumranites. To sum up, the Scrolls now hough divorce, now flirt with it. How exactly the Qumranites bestraddled two such incongruent attitudes to divorce may be debated, as we have seen. Yet we must assume them to “Qumran-Essene Restraints on Marriage” in Archaeology and History in the Dead Sea Scrolls; the NYU Conference in Memory of Yigael Yadin, Sheffield 1990, pp. 13–24. 7 “The Matthean Divorce Texts Reexamined” in New Qumran Texts and Studies ed. by George J. Brooke with F. G. Martinez, Brill 1994, p. 166. And indeed Mark 10:11 and Luke 16:18 both imply that polygyny was tantamount to polyandry within the community being addressed. For what these texts present as Jesus’ innovation is the abrogation of divorce. Once divorce is disallowed, they seem to say, going through the motions of divorce will be null and void. Consequently, “[w]hoever divorces his wife and marries another commits adultery against her; so too if she divorces her husband and marries another she commits adultery” (Mark 10:11). “A man who divorces his wife and marries another commits adultery; and anyone who marries a woman divorced from her husband commits adultery” (Luke 16:18). What these texts seem to take for granted is that a man committing polygyny is no less an adulterer than a woman committing polyandry is an adultress. The change brought about through Jesus invalidating the institution of divorce means that a couple once wed remain husband and wife, come rain or shine. Should they remarry [while the former spouse is still living], they would, henceforth, both be committing adultery. Prior to the abolition of divorce, though there would presumably have been no question of adultery, it looks as though the community was already monogamousÂ€– that is, following a halakhah analogous to CD’s. Scholars have rightly contrasted the Mark/Luke tradition with the Matthean that omits all reference to a divorced man remarrying:Â€“Anyone who marries a divorced woman commits adultery” (Matthew 5:32 cf. 1Corinthians 7:10–11). Perhaps we should think of Matthew’s community, in contrast to Mark and Luke’s, as following Pharisaic, rather than CD, halakhah (see To Advance the Gospel by Joseph A. Fitzmyer, New York 1981, pp. 97–99; “Qumran Ve-haissiyim” [Heb.] by Magen Broshi in Megillot:Â€Studies in the Dead Sea Scrolls II, Haifa 2004, p. 13; James R. Mueller’s “The Temple Scroll and the Gospel Divorce Texts” Revue de Qumran 10:2 [1980], pp. 247–256; also see note 7 in the introductory text to Part I). 6

30

Monogamy

have made sense of it all by one strategy or another. It also seems likely they would have applied the same strategy to the Priestly Torah where they encountered Lev 21:7 alongside be-hayyehah. The ‘builders’, for their part, would no doubt accuse Qumran of perverting the Priestly Torah. There is no impartial argument, however, why the Qumranite accommodation could not go back to a priestly tradition that had, in turn, explained an apparent bifurcation in P’s treatment of divorce. If so, then just as divorce’s presence in the Scrolls would not have stumped be-hayyehem, neither should P’s divorce references sway our judgement as to the feasibility of Lev 18:18’s be-hayyehah spurning divorce.

6 Which Way Does the Evidence Point?

Having thus cleared the be-hayyehah hurdle, we submit that CD’s understanding of Lev 18:18 wins on balance, if by a whisker. Even so, the wrangle rages on, as documented by Jacob Milgrom: a woman .â•›.â•›. to her sister we’iššâ ‘el-’aho
If the dialectic hitherto has been all tree, here comes the forest. Averting our microscopic lens from Lev 18:18, we need to stand back and consider the overall plausibility of P banning polygyny. P makes no bones about the weight it attaches to human propagation 1

The Anchor Bible Leviticus 17–22:Â€ A New Translation with Introduction and Commentary, New York 2000, p. 1548.

31

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Monogamy

(see Gen 1:28; 8:1, 7; 35:11; Lev 26:9). Moreover, commentators both Â�traditional and modern have interpreted some of P’s specific laws as expediting fecundity.2 It is thus sometimes mooted that polygyny would be more agreeable to P’s program than monogamy. Of course this reasoning would be valid were P after sheer numbers. But in fact, P’s Â�legislation demonstrates a matching vigilance for the scions’ Â�quality. It is in this quality’s name that priests’ marriage options are curtailed:Â€“A woman who is a harlot and profaned they shall not marry and a woman divorced from her husband they shall not marry” (Lev 21:7). The high priest is still more restricted:Â€“He shall marry a woman in her virginity. A widow and a divorcee and a profaned harlot none of these shall he marry but only a virgin from among his kin shall he take as wife. So that he profane not his seed among his kin .â•›.â•›.” (Lev 21:13–15). Furthermore, the Talmud preserves a tradition that explicitly outlaws polygyny for officiating high priests (Yom. 13a; Y. Yom. 1:1 end [38d]). Thus whereas reproduction is imperative, it matters also that the product be holy and flawless. Once we see that it is not proliferation at any cost that P is advocating, monogamy ceases to be incompatible. A single spouse, respectable and thoroughbred, reduces the risk of profaning one’s seed. A Sideshow It would be a sorry thing to bid adieu to Lev 18:18 without recalling an exegesis that came uncannily close to CD’s, 40 years before Solomon Schechter acquainted the world with the Cairo Genizah text of CD. On 12, 13 and 14 August 1870, a public exchange took place in the New Tabernacle, Salt Lake City, between Professor Orson Pratt, an apostle of the Mormon Church, and The Rev. Dr. J. P. Newman, chaplain of the United States Senate. The topic:Â€The Bible and Polygamy. The proceedings were published in book form at the Desert News Steam Printing Establishment, Salt Lake City, in 1877. The book’s title is The Bible and Polygamy and its subtitle:Â€ Does the Bible Sanction 2

E.g. Lev 18:19, 20:18; also Lev 18:22 and 20:13 as understood by commentators such as R. Jonah ben Abraham Gerondi (Derashot u-Perushe Rabbenu Jonah Gerondi, Jerusalem 1980, p. 119) and R. Judah ha-Hasid (Perushe ha-Torah l’Rabbi Judah Â�ha-Hasid, Lange ed. Jerusalem 1975, pp. 147–148).

Which Way Does the Evidence Point?

33

Polygamy? Dr. Newman’s thesis is that despite the practice of Â�polygamy by biblical characters, no biblical law sanctioned it. Now I propose to produce a law this afternoon, simple, direct and positive, that polygamy is forbidden in God’s holy word. In Leviticus xviii and 18th it is written:Â€“Neither shalt thou take one wife to another, to vex her, to uncover her nakedness, besides the other in her lifetime.” There is a law in condemnation of polygamy. It may be said that what I have read is as it reads in the margin, but that in the body of the text it reads:Â€“Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness besides the other in her lifetime”.â•›.â•›. it may be proper for me to say that this interpretation, as given in the margin, is sustained by the most eminent biblical and classical scholars in the history of ChristendomÂ€ – by Bishop Jewell, by the learned Cookson, by the eminent Dwight, and other distinguished biblical scholars. It is an accepted canon of interpretation that the scope of the law must be considered in determining the sense of any portion of the law, and it is equally binding upon us to ascertain the mind of the legislator, from the preface of the law, when such preface is given. The first few verses of the xviii chapter of Leviticus are prefatory. In the 3rd verse it is stated thatÂ€– After the doings of the land of Egypt, wherein ye dwelt, shall ye not do:Â€and after the doings of the land of Canaan, whither I bring you shall ye not do:Â€neither shall ye walk in their ordinances. Both the Egyptians and the Canaanites practised incest, idolatry, sodomy, adultery and polygamy. From verse 6 to verse 17, inclusive, the law of consanguinity is laid down, and the blood relationship defined. Then the limits within which persons are forbidden to marry, and in verse 18 the law against polygamy is givenÂ€– “neither shalt thou take a wife to her sister,” but as we have given it, “neither shalt thou take one wife to another,” etc. According to Dr. Edwards, the words which are translated a “wife” or “sister,” are found in the Hebrew but eight times, and in each passage they refer to inanimate objects, such as the wings of the cherubim, tenons, mortises, etc., and signify the coupling together one to another, the same as thou shalt not take one wife to another. Such then is the law. Such were the ordinances forbidden, which the Egyptians and the Canaanites practised. Now we propose to push this argument a little further. If it is said that this passage does not prohibit a man marrying two sisters at the same time, then such a marriage is nowhere in the Bible pronounced incestuous. That is the objection of my friend. To which I reply that such a marriage is forbidden by sequence and analogy. As for example, where the son, in the 7th verse, is prohibited from marrying his mother, it follows that the daughter shall not marry her father; yet it is not so given or precisely stated. In verse 14 it is saidÂ€– “thou shalt not uncover the nakedness of thy father’s brother;” so I infer that it would be equally criminal to uncover the nakedness of a mother’s brother, though it is not so stated. In verse 16 it is

34

Monogamy

saidÂ€– “thou shalt not uncover the nakedness of thy brother’s wife”, so I infer that a man shall not uncover the nakedness of his wife’s sister, that is, if two brothers shall not take the same woman, then two women shall not take the same man, for between one man and two sisters, and one woman and two brothers, is the same degree of proximity, and therefore both are forbidden by the law of God (pp. 39–40).

7 Gen 1:27–29 Revisited

We have seen how the rabbis understood the phrase ishah el ahotah at Lev 18:18 and the prohibition intended by that verse. But how did they cope with the other monogamy-friendly scriptures, and above all with Gen 1:27–29Â€– verses that affirm not merely monogamy but also the prophetic and selem equality of the first couple? It is easier to answer this question in the negative by saying that the rabbis do not cite these verses in support of monogyny. Nor do they appear to take notice of these verses’ message of a broader gender equalityÂ€– with the possible exception of R. Johanan ben Beroqa who, going out on a limb, rules (at M. Yev. 6:6) that the duty to marry devolves upon men and women “because to both [man and woman] were spoken the words [Gen 1:28] .â•›.â•›. be fruitful and Â�multiply”. Thus for R. Johanan ben Beroqa (and his acolytes; see Chapter 9, note 1) two individuals, a man and a woman, were spoken to by God. But his formulation “because to both [man and woman] were spoken the words” implies that R. Johanan ben Beroqa’s opponents, who exempted the woman from the duty to marry, did not acknowledge the woman’s presence. Perhaps they shared the mishnaic view (San. 4:5) of the human species created as a single individual or the comparable views of the following two sources. In the first of these sources, the woman of Gen 1 still flashes before our eyes, but only to Â�dissolve, helter-skelter, into a figment. In the second, she has vanished altogether. 35

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1) R. Judah noted a contradiction:Â€It says ‘God created the human (ha-adam) in His image’. It also says ‘Male and female did He create them’. How so? The initial plan was to create two [a male and a female] but in the end one Â�[ha-adam] was created (Ket. 8a). 2) It is written ‘The priest shall say to the woman’ [Num 5:21] .â•›.â•›. which teaches that she must not hear it through an interpreter [meturgeman]. R. Johanan in the name of R. Lazar b. R. Simeon [said] we do not find that maqom spoke to any woman except to Sarah only. But is it not written ‘To the woman He said greatly will I increase’ etc. [Gen 3:16]? R. Jacob of Kefar Hanen answered:Â€that was through an interpreter [meturgeman]. But is it not also written ‘Hashem said to her [Rebecca] two nations are in your womb’ [Gen 25:23]? R. Ba b. Kahana answered:Â€The prophetic word fell to [or for] her (ha-dibbur naflah lahÂ€– Y. Sot. 7:1[21b]; cf. Gen. Rab. 20:12, 45:14, 63:8).

The Bavli names seven prophetesses (Meg. 14a) to which the Yerushalmi adds at least one (Y. Ber. 9:3 [14b top]) and Seder Olam chapter 21 several more. Nevertheless, some rabbis (as evidenced by this aggadah), tried to minimize the number of women to whom God spoke directly. Various motives have been proposed for this thrusting of intermediaries between the divine word and its female recipients. Some see it as part of the policy to exclude women from religious leadership. Others hazard that the idea was perhaps to discourage chit-chat between the genders. The sources that posit meturgemans are assumed to conceive of the Deity as masculine, in which case He would not allow Himself, kivyakhol, to set a bad example by talking much to women.1 But the tally of women prophets is not our present 1

Many authors have tried to ascertain the extent of corporeal conceptions of the Deity in the rabbinic world. The opening paragraph of the Guide to the Perplexed suggests that such concepts were rife in Maimonides’ day. But what of earlier eras? Besides the biblical prohibition to make idols, the Talmud forbids all three-dimensional representations of the human figure. This latter prohibition it derives from Ex 20:20 where Hashem says ‘You shall not make with Me gods of silver and gods of gold’ (lo t‘asun itti elohe kesef ve-lohe zahav). By revocalizing Hebrew itti to read oti, the sense of the phrase becomes:Â€Do not make MeÂ€– i.e. do not make My likeness (R.H. 24b, A.Z. 43b cf. Mekhilta, Horovitz/Rabin ed. p. 239). Discomfited by the corporeal potential of the talmudic statement, R. Hananel (11th century) explains “by ‘My likeness’ is meant the human form that I show the prophets in visions such as Ezekiel’s [Ezek 1:26]”. Despite R. Hananel’s valiant intervention, there are those who wonder whether ‘My likeness’ might not bespeak the kind of corporeal speculation found in Hekhalot literature. However, the talmudic prohibition derived from Ex 20:20 covers sculpture of all human forms whether male or female, whereas regarding Hekhalot literature, Peter Schäfer has noted:Â€“If there are at all hints of a divine body, this body is definitely male.” (Mirror of His Beauty:Â€Feminine Images of God from the Bible to

Gen 1:27–29 Revisited

37

concernÂ€– which is rather to note the absence of Gen 1:27–29 from our meturgeman aggadah. The aggadah combs the Pentateuch for reports of God speaking to women, beginning with Eve. Yes, Eve of Genesis chapter two, skipping the woman of chapter one! Arguing that Gen 1 is different, since there the divine word is not communicated to the woman alone but conjointly to her and to a male, smacks of a cop-out. R. Lazar b. R. Simeon does not confine his statement to one-on-one communications. Moreover, “except to Sarah only” is emphatic. The likelier explanation for the omission is that she of Gen 1:27–29 had already been obliterated from public consciousness. But why was she obliterated? Of course the urge to reconcile the two creation narratives would have been a contributing, if not a major, factor, as Judith Baskin reminds us: The Hebrew Bible contains two separate accounts of the creation of human beings.â•›.â•›.â•›. These two accounts presented problems to rabbinic exegetes for whom revelation could not be contradictory. In Genesis Rabbah .â•›.â•›. we find the rabbis trying to respond to the contrast of the two creation stories .â•›.â•›. Genesis Rabbah 8:1 presents the notion of an adrogynous primordial being, sharing male and female physical characteristics, which was only later split into male and female entities. But .â•›.â•›. the text of Genesis Rabbah 8:1 immediately counters this midrash with .â•›.â•›. a prooftext from Genesis 2:21 “And He took one of his ribs” to show that woman was not created by God in the divine image but was formed later from the body of the already-created man. The notion of the simultaneous creation of man and woman becomes a minority position, supported by no other passages in Genesis Rabbah .â•›.â•›. The view of woman as a secondary and subordinate conception is upheld throughout rabbinic literature.2 the Early Kabbalah, Princeton 2002, p. 91). Much has also been made of the following aggadot:Â€“Miriam too died by a kiss. Why then does it not say Miriam died ‘By the mouth of God’ [as it says of the deaths of Moses and Aaron]? Because it would be indecorous” (B.B. 17a); “The first man also came out [of the earth? womb?] ready circumcised as it says God created man (ha-adam) in his image” (Avot of R. Nathan A, chapter 2). 2 “Rabbinic Judaism and the Creation of Woman” in Judaism since Gender, 1997, pp. 125 et seq.; cf. the same author’s Midrashic Women:Â€Formations of the Feminine in Rabbinic Literature, Hanover, NH 2002, esp. pp. 62–64. For a pre-rabbinic hermeneutic that transmogrifies the woman of Genesis 1 into a rib, see Jubilees 3:8:Â€“In the first week Adam and his wifeÂ€– the ribÂ€– were created, and in the second week he showed her to him.” (The Book of Jubilees, translated by James C. Vanderkam, Louvain 1989, p. 17; cf. The Empowerment of Women in the Book of Jubilees by Betsy Halpern-Amaru, Leiden 1999, p. 9). Whether or not the author of Jubilees was

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Monogamy

So fair enough:Â€ In the name of reconciling, texts have to give. Accordingly, in the case of the two creation narratives, one would expect concessions on the part of each. However, what the sources exhibit is nothing so even-handed. Instead, the overwhelming tendency is to sacrifice the female human created in the divine image to the rib-woman of Gen 2. That tendency is not explained by the urge to reconcile. Something else is going on, as Baskin recognizes. “[T]he predominance of rabbinic voices that support a vision of female creation as subsequent and secondary to the creation of man makes clear that most rabbinic writers were concerned to construct a social policy in which women were separate from and subservient to men in a number of ways” (ibid.).3 This tableau of separation and subservience might plunge the hardiest into despondencyÂ€ – if it were the entire picture. But it is not, enabling Baskin to sign off on an upbeat note:Â€“And yet, rabbinic literature preserves the minority view of an androgynous being, created in the divine image and split by God into separate male and female entities.â•›.â•›.â•›. Genesis Rabbah 8:1 and its talmudic echoes are reminders that rabbinic literature is complicated, multivocal, and occasionally surprising” (ibid.). also impelled by a need to iron out inconsistencies, the fact is, he trades the woman of Genesis 1 for the rib of Genesis 2. 3 The post-talmudic era is beyond our purviewÂ€ – which is lucky because not much could one add to Avraham Grossman’s comprehensive review of Gen 1:27–29’s posttalmudic fortunes. “To the best of my knowledge”, he writes, “there is not even one medieval Jewish biblical commentator or thinker who speaks of full equality between man and woman in the context of the [Genesis 1] account of the Creation.” (Hasidot u-Mordot, Jerusalem 2003, p. 30; English edition Pious and Rebellious translated from the Hebrew by Jonathan Chipman, Waltham, MA 2004, p. 12). Grossman also notes that in the Quran, the creation of the human species seems at times to approximate the story as told in the second chapter of Genesis “O men, fear your Lord, who hath created you out of one person, and out of him created his wife .â•›.â•›.” (Sura 4:1; cf. Sura 7:189 “It is he who hath created you from one person and out of him produced his wife”). Another ancient text to side with Gen 2 is 1 Timothy 2:13:Â€“For Adam was created first, and Eve afterwards”.

part ii COMMANDMENTS (MISVOT)

Introduction R. Hananiah son of Aqashia said the Holy One blessed be He wanted to let Israel gain merit therefore He gave them Torah and misvot in abundance as it says [Isa 42:21] Hashem is pleased for the sake of his righteousness1 to Â�magnify Torah and make it glorious (Mishnah end of Makkot).

Advisedly do we open this discussion of women’s misvot2 with R. Hananiah’s pan-Israelite homily, whose latent egalitarianism can so easily slip by without notice. Two postulates seem to be axiomatic for R. Hananiah:Â€ 1) merit is something desirable; 2) studying Torah and fulfilling misvot are the means through which merit is earned. Proceeding from these postulates, R. Hananiah discerns munificence in God’s showering Israel with opportunities to gain merit. No, not merely to Israel’s menfolk were Torah and misvot galore made available, but indiscriminately to all Israel. At the opposite pole to R. Hananiah we find a sprinkling of texts that appear to strip women of all misvot. Representative of this exiguous yet distinct group of texts is the one occurring at Bava Qama 15a. The Mishnah had ruled that “women are included in the laws of Â�damages”. The Gemara enquires as to the scriptural source for this mishnaic ruling. What it discovers is that no fewer than three The referent of Heb. sidqo (his righteousness) is understood by this Mishnah to be Israel. Targum to Isaiah 42:21 actually inserts yisrael. 2 Our present focus is misvot. Women’s share in Torah study will be treated separately. 1

39

40

Commandments

scriptures (Num 5:6, Ex 21:1; Ex 21:29) had been adduced by earlier rabbis. Initially, a threefold proof seems excessive to the GemaraÂ€ – until it resolves that: All three [scriptural derivations] are necessary. If we had only the first [Num 5:6 which deals with hattot ha-adam] we might have said it is there that out of pity the Merciful One provides her the means of atonement, but civil law in general would apply to a man who is involved in (lit. who is a son of) monetary matters but not to a woman. And if we had only the civil law scripture [Ex 21:1] we might reason that it was there that women were equal in order to ensure their livelihood but atonement that is something for a man because he has misvot (lit. he is a son of misvah) but not for a woman who does not have misvot (lit. who is not a daughter of misvah).

Another text that ousts women clean from misvot is found in the Tosefta: R. Judah says three blessings adam3 should say daily:Â€Thank you (barukh; literally, blessed) for not making me a gentile. Thank you for not making me a woman. Thank you for not making me a boor. Not a gentileÂ€– the gentiles are nothing as it says [Isa 40:17] all the nations are as nought before Him.4 Not a womanÂ€– a woman is not obligated to do [the] misvot (en ishah hayyebet be- [or ba-] misvot)5 Not a boorÂ€– because a boor is not a fearer of sin (T. Ber. 6:23; cf. Y. Ber. 9:1 [13b]; also Men. 43b for a variant of this saying, which in printed editions is attributed to R. Meir).6 Although adam is officially generic, it is difficult to see how a woman keeping a straight face could be expected to say ‘thank you for not making me a woman’. Tal Ilan opines that, when used in connection with commandments, adam stands for adult Jewish male (see Jewish Women in Greco-Roman Palestine, p. 177). 4 Whether as a genteelism or a vulgarism, Heb. goy (=nation) was adopted to denote ‘non-Jew’ when the Jew/non-Jew antithesis became something of a fixation, calling for its own vocabulary. We can only speculate as to why deuteronomic nokhri (=stranger, foreigner) might not have filled the bill. Howbeit, once jargon goy catches on, biblical occurrences of goy (pl. goyim) fall prey to pun and quibble (for a classic example, see Sifre Dt 175 cited by Rashi to Jer 1:5). 5 Instead of the Tosefta’s en ishah hayyevet be- [or ba-] misvot the Yerushalmi has haishah enah mesuvah ‘al ha-misvot (alternatively:Â€ ve-en ishah mesuvah ‘al ha-misvot Y. Suk. 1:1 [51d]). The phrase ‘al ha-misvot is related to a formulation familiar from blessings recited before misvah that typically run:Â€“Who sanctified us with His commandments and commanded us ‘al misvat .â•›.â•›. (= to do such and such a misvah)”. 6 For commentaries that try to mitigate the Tosefta’s apparently total exclusion of women from misvot, see the informative note in Expanding the Palace of Torah by Tamar Ross, Waltham, MA 2004, p. 15 n. 40. Indeed, in post-Talmudic literature, the idea of women’s exemption from all misvot is rare but not defunct. In the Zohar (vol. 1 126b) we read “the Torah was given only to males as it says [Dt 4:Â€44] this is the Torah 3

Commandments

41

The bulk of rabbinic texts, however, occupy the middle ground, neither awarding misvah parity to all nor divesting women entirely of misvot. As to a rationale, none is verbalized by the rabbis for their bipartite misvah construct. But not to despair:Â€Analysis of the talmudic sources that deal with men and women’s misvah disparity yield clues as to the kinesis at play behind their often placid facade. Even a peremptory text such as M. Qiddushin 1:7 is not impenetrable. And let the assault begin with that MishnahÂ€– if only because of its pride of place in women’s halakhah: Every positive misvah that is time-bound men are obligated [to perform] and women are exempt. Every positive misvah that is not time-bound both men and women are obligated [to perform]. All negative misvot, time-bound or not, apply to both men and women except for the prohibitions against destroying [the beard; Lev 19:27], [tonsorial] rounding off [Lev ibid] and becoming defiled through contact with the dead.7

Often this Mishnah gets refracted through the prism of its attendant Gemara. However, it should be borne in mind that the five columns of Gemara (Qid 33b bottomÂ€– 36a) that analyze the Mishnah all but vitiate its rules-of-thumb, as will be demonstrated in due course. Hence, to see the Mishnah in anything like its pristine hue, we must confront it directly and unmediated. The Mishnah’s first rule excludes women, quite categorically, from all time-bound misvot. Being comprehensive, the rule must be understood to cover even misvot such as eating unleavened bread (massah) that Moses placed before bene yisrael [sons of Israel]; for behold women are exempt from the Torah’s commandments”. 7 Priests are told to avoid contact with a corpse (Lev 21:1–4) and so are nazarites (Num 6:6–9). The Mishnah is assumed to have priests in mind, and therefore to be exempting daughters of Aaron, not female nazarites. At this point, some may be scratching their heads and wondering what happened to the third category of prohibitions peculiar to the priestly clan, namely those pertaining to marriageÂ€– for example, marriage to a divorced person (Lev 21:7). Now the incest laws of Lev 18 which, though couched in masculine language, the rabbis applied equally to women (see supra). The laws of Lev 21:7, on the other hand, the Talmud quite explicitly limits to the males of the clan (lo huzharu kesherot le-hinnase lifsulim Yev. 84b; Qid. 73a etc.). Thus one would have expected that additional distinction between Aaronide men and Aaronide women to appear in our Mishnah alongside the other two prohibitions that devolve exclusively on Aaronide males. The likeliest explanation for this glaring omission is that lo huzharu kesherot became halakhah only in post-mishnaic times. This seems to be borne out by the dating of the lo huzharu ruling no further back than Rav (d. ca. 250).

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on Passover, attending the septennial reading of the Torah (haqhel) and participating in the festal meals at the temple (simha), inasmuch as these are time-bound misvot. Tannaic traditions cited by the Gemara include women in several time-bound misvot (the previously mentioned three among them). But for the nonce, those traditions need not interpose between us and the Mishnah. Hence, when the Mishnah continues “every positive misvah that is not time-bound both men and women are obligated [to perform]” we take it at its word, with one possible exception. There is a group of timeless misvot from which the Mishnah excludes women elsewhere in its own corpusÂ€– misvot such as matrimony, tearing and ruffling,8 reciting the first-fruits doxology (or liturgyÂ€– miqra bikkurim), and testifying in court.9 For those who view the Mishnah as a cohesive, self-referential unit, its omission of tearing, testifying, marriage and so forth in Qid 1:7 might signify nothing more than a reluctance to repeat itself. Women are exempted from miqra bikkurim at Bik. 1:5;10 from tearing and ruffling at Sotah 3:8;11 Shevuot 4:1 seems to divest women of the misvah of testifying;12 and The obligation for lepers to tear their clothes and ruffle their heads is based on Lev 13:45 and listed as positive commandment 112 in Maimonides’ Sefer ha-Misvot. 9 The obligation for a witness to come forward and testify in court (see Sefer ha-Misvot, positive commandment 178) is reckoned by most halakhists to be a timeless misvah. Otherwise surely women would be already excluded without the customized scriptural authority that the Talmud in fact evinces in order to exclude women from the twin misvot of ‘edut and shevu‘at ha-‘edut (Shev. 30a; Y. Shev. 4:1 [35b]; see Chapter 17, note 9). However, even if it is the prevailing opinion, there are those who deem testimony a time-bound misvah, because trials cannot be heard at night (see M. San. 4:1; Tos. B.B. 114a s.v. aval; Responsa of R. Moses Alashkar (d.Â€1542) responsum 15). 10 We assume bikkurim to be a timeless misvah like tithing, pe’ah, terumah and so forth. Although the Mishnah fixes the season for first fruits as starting at Pentecost (Bik. 1:3; Hal. 4:10) and running until autumn (Bik. 1:6), commentators doubt that this time frame is restrictive enough to push bikkurim into the time-bound category (see Tos. Pes. 38b s.v. ne’khalim). Moreover, M. Men. 10 [6]:6 rules that bikkurim brought before Pentecost are valid ex post facto (see Ture Even by R. Aryeh Leib Gunzburg of Metz (d. 1785) on Meg. 20a; Enc. Tal. (Heb. vol. 2 p. 246). In any case, women are obligated by the Mishnah to offer their first fruits while exempted from reciting the accompanying doxology (Bik. 1:5). 11 Scholars who perceive the Mishnah as an anthology of halakhic material rather than a system have no difficulty reading Sot. 3:8 and Qid. 1:7 as alternative traditions. Indeed, to some the relationship between these two mishnayot is that of ships passing in the night. And it is not merely that Sot. 3:8 exempts women from ruffling and tearing. If that were all, we have seen how it could be explained as complementing Qid.1:7. 12 Cf. R. H. 1:8. 8

Commandments

43

women’s exemption from the misvah of being fruitful and multiplying is the majority opinion at Yev. 6:6. Any doubts as to the correctness of taking the rules at face value are laid to rest by the exclusionary clause of the Mishnah’s last paragraph:Â€“All negative misvot, time-bound or not, apply to both men and women except for the prohibitions against destroying [the beard] (cf. Lev 19:27), [tonsorial] rounding off (Lev ibid), and becoming defiled through contact with the dead”. This proviso qualifying the Mishnah’s last rule impliesÂ€ – nay, necessitatesÂ€ – the comprehensiveness of the Â�preceding two rules. Which brings us to the Mishnah’s taxonomy.

8 Zeman Gerama

In the Mishnah’s taxonomy, the commandments are bisected into zeman gerama and en ha-zeman gerama. The first of these terms is understood by the Talmud as time-bound or intermittent, and the second as applicable at all times or perennial. What is the origin of this classification? Scripture is never invoked; nor, for that matter, is halakhah le-moshe mi-sinai. Moreover, according to Maimonides, traditions of Moses from Sinai are immune to dispute.1 This Maimonidean litmus test, though inadequate to identify Sinaitic material, helps eliminate non-Sinaitic. If Sifre Numbers is to be believed, classifying misvot into zeman gerama and en ha-zeman gerama was not the consensus. Rather was it a classification peculiar to the tanna R. Simeon. Speak unto the children of Israel and tell them to make sisit [Num 15:38]Â€– Holy Writ includes women. R. Simeon absolves women from sisit because being a positive misvah that is time-bound (zeman gerama) women are excluded. For this was a general rule propounded by R. Simeon:Â€every positive misvah that is time-bound applies to men and not to women .â•›.â•›. (Sifre Num 115; cf. Men. 43a).2

But whether broadly or narrowly subscribed to, the zeman gerama taxonomy seems totally arbitrary, and not even Sifre dispels the sense of 1 2

Yad, Mamrim 1:3. If R. Simeon was zeman gerama’s patron, he certainly appears to have taken that classification seriously. For R. Simeon is the tanna who was understood by his colleagues to include women in the timeless (i.e. non-zeman gerama) misvah of Torah study (Shab. 33b).

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Zeman Gerama

45

arbitrariness. Why should so improbable a yardstick distinguish men’s misvot from all-Israelite ones? Amazingly, only a handful of Â�writers volunteer solutions to this conundrum. Among the handful, four approaches are discernible. These may be dubbed:Â€the Maimonidean, the Abudrahamian, the apologetic and the dogmatic. The last is neatly represented by R. Moshe Meiselman: Most of the [halakhic] authorities offer no explanation for the exemption [of women from most time-bound positive commandments] but regard it as part of the basic fabric of Jewish law to which the question “why?” is inapplicable.3

Despite his own declared mistrust of apologetics,4 R. Meiselman discusses two leading proponents of the apologetic school:Â€R. Judah Loewe of Prague (MHRL d.Â€ 1609) and R. Samson Raphael Hirsch (d.Â€1888). The latter he cites in English translation: The Torah did not impose those mitzvot on women because it did not consider them necessary to be demanded from women. All positive mitzvot she-hazman gerama, are meant, by symbolic procedures, to bring certain facts, principles, ideas and resolutions, afresh to our minds from time to time to spur us on afresh and to fortify us to realize them to keep them. God’s Torah takes it for granted that our women have greater fervor and more faithful enthusiasm for their God-serving calling and that their calling runs less danger in their case than in that of men from the temptations which occur in the course of business and professional life. Accordingly, it does not find it necessary to give women those repeated spurring reminders to remain true to their calling, and warnings against weaknesses in their business lives.5

In the mid-14th century, R. David Abudraham urged that: The reason women were excused from time-bound misvot, was because a woman is subject to her husband to attend to his needs. Were she under obligation to carry out the time-bound positive misvot, it might happen that while in the process of performing one of them her husband orders her to do Jewish Woman in Jewish Law, New York 1978, p. 43. “We must therefore be careful to avoid the twin temptations of apologetics and Â�‘disinterested’ scholarship. The apologist tries to show the consistency of Judaism with another value structure, generally that of his audience.â•›.â•›.â•›. The apologist’s characteristic approachÂ€– ‘Anything you can do, Judaism can do better’Â€– never works because it is essentially dishonest.” (ibid., p. 1). 5 Hirsch’s Torah Commentary to Lev 23:43 quoted by Meiselman ibid., p. 44 (emphasis his). 3 4

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his bidding. Were she then to persist in doing the misvah of the Creator and neglect her husband, woe is she on account of her husband. Were she, on the other hand, to do his bidding and drop the misvah of the Creator, woe is she on account of her Maker. Therefore the Creator excused her from His commandments in order that she will have peace with her husband.6 And we find an even more extreme instance [of concern for marital harmony]. The ineffable name written in holiness and purity is washed away and erased in the [bitter] waters in order to make peace between husband and wife7 (Abudraham, Laws of Birkat ha-Misvot).8

All the above citations treat zeman gerama as an a priori principle that governs misvah allocation among the genders. Not so Maimonides. Taking his cue from the Gemara, Maimonides denies the zeman gerama classification its primacy:Â€“Verily, which positive commandments obligate women and which do not, is a matter determined not by any general rule but rather is it transmitted orally belonging to those things handed down by tradition” (comment to Qid. 1:7). Maimonides’ evaluationÂ€ – or rather devaluationÂ€ – of the rules is, when you get down to it, a perfectly logical corollary of the Gemara and especially the comment of R. Johanan (Nappaha d. 279) to the effect that nothing can be learnt from general rules (Qid. 34a). The overt aim of the Gemara is certainly not to undermine the Mishnah. However, alongside the Mishnah, the amoraim had inherited traditions that defied the Mishnah. To be sure, the Gemara props up the rules by means of ingenious tours de force. But, as noted in passing, these hardly disguise the sugya’s refractory undercurrentÂ€– picked up by commentators. For example, Tosafot express astonishment at the Talmud’s need for special scriptural authority in order to exclude women from the two cultic misvot of ‘laying-on-of-hands’ and Â�‘waving’. Since sacrificing is restricted to daytime (being impermissible at nightÂ€– Shab. 132a, Men. 83a et al.), cultic misvot fall into the time-bound category. As Cf. Sifra’s comment to Lev 19:3 that we shall cite further along. That the sotah ordeal of Numbers chapter 5 was meant to vindicate the wife of a jealous husband, thereby repairing the marriage, is a talmudic concept (Shab. 116a; Mak. 11a; Hul. 141a etc.). 8 Abudraham was foreshadowed by the Meiri (d. 1306) in his commentary to Eruvin and even further back by the 13th-century R. Jacob Anatoli (Malmad ha-Talmidim, Lyck 1866 pp. 15b–16a). Their apologetic continues to strike a chord with some latterday writersÂ€– including Menachem Elon (The Status of Women:Â€Law and Judgment, Tradition and Transition [Heb.] Tel Aviv 2005, pp. 40–41). 6 7

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such, their applicability is already constringed to men, and the ‘sons but not daughters of Israel’ derashah (inferred from Lev 1:2 and 7:29’s bene yisrael) becomes superfluous (Tos. Qid. 36a s.v. ha-qabbalot). Indeed, no assiduous student of this most mercurial of sugyot (Qid. 33b-36a) has ever been content with its eristic and ad hoc patching up. Maimonides, on the other hand, eludes the whole sticky wicket by depriving the Mishnah’s rules of prescriptive force, thereby demoting them to little more than mnemonics.9 An additional configuration presents itself to those weaned away from compulsive harmonizing. They are able to see the Mishnah as standing alone in its endeavour to exclude women from all time-bound misvot. Once weaned, they discern other talmudic traditions regarding women’s misvah-sodality. It is this discernment that allows for the momentum exemplified by the following five authors: (1) Indeed, the Talmudic sages made not a single attempt to formulate a general principle governing the status of women. The closest they come is in the attempt to define under a single heading the affirmative precepts from which women are exempt. Thus the Mishnah states:Â€All affirmative precepts limited as to time, men are liable and women are exempt. But all affirmative precepts not limited as to time, are binding upon both men and women. Even this principle, so extensively cited by subsequent Jewish jurists, is found by the Gemara to be inadequate as a general principle. The Gemara rather found that there were affirmative precepts limited as to time which were yet incumbent upon women, and on the other hand affirmative precepts not limited as to time from which women were exempt. Thus, the statement that, “women are exempt from affirmative precepts limited as to time,” is found to be descriptive of some of the laws regulating the status of women, but is inaccurate as a general description, and is certainly not a useful predictive principle. Having 9

Some find confirmation of Rambam’s Qid. 1:7 view in the introduction to his Mishnah Commentary (cited in note 16 in the Preface):Â€“Know that all the laws God gave to Moses on Mount Sinai were given along with their explanation .â•›.â•›. for instance, God said to Moses:Â€You shall dwell in huts for seven days (Lev 23:42) and then He instructed him that this obligation applied only to men, not to women .â•›.â•›.”. However, women’s exemption from sukkah was already formally classified as hilketa by the Talmud (Suk. 28a–b). On the other hand, Maimonides’ elevation of that exemption to the rank of an explicit divine communication to Moses seems to go beyond the Talmud and is startling enough to have elicited incessant comment. See, for example, Talya Fishman’s article “A Kabbalistic Perspective on Gender-Specific Commandments:Â€on the Interplay of Symbols and Society” (AJS Review 17:2, p. 209). For this reference I am indebted to Rabbi Steven H. Golden.

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thus entered into the question of women’s exemptions from obligations, let us pursue this matter further. Maimonides lists a total of fourteen positive commandments from which women are exempt. Of those, only eight are affirmative precepts limited as to time, while the other six are not so limited. But beyond these, the Talmud identifies at least six more affirmative precepts, equally limited as to time, from which women are not exempted; to which may be added four affirmative precepts of rabbinic origin, also limited as to time, as to which women are also equally obligated with men.â•›.â•›.â•›. These facts make it impossible to explain women’s exemptions exclusively in terms of the absence of need for time-conditional commandments. Women are obligated to fulfil as many positive precepts limited as to time, as the number from which they are exempted. Some other principle or principles must have been operative in determining the specific set of obligations and exemptions which constitute the legal status of women.10 (2) Enumerating the exceptions to the rule that women are exempt from all timebound positive mitzvot raises serious doubts that historically this principle governed which mitzvot women fulfilled and which they did not. Rather than an a priori rule about exemptions of women from certain mitzvot, what probably occurred historically was a gradual evolution of daily practice and communal customs which allowed women not to perform certain mitzvot. Eventually the customs acquired the force of law and the halakhic justification probably emerged initially on a case-by-case basis. The principle that women are exempt from all time-bound positive mitzvot and obligated in all others was probably an after-the-fact attempt to explain and systematize the reality that women did not perform all the mitzvot equally with men. Therefore it is not surprising at all that there are a good many exceptions to the rule and that the exceptions encompass some very central mitzvot. It also seems that another common denominator does exist among all the mitzvot from which women are exempt:Â€it is not a legal-logical principle but a social-Â�cultural one. As we shall see by analyzing the major mitzvot from which women are exemptÂ€ – prayer [sic], Torah reading, and the study of TorahÂ€– the common thread uniting them is that they are all obligations outside the realm of women’s domestic role. They are the central duties of public religious life, a life which is focused on men.11 (3) It seems to me that the issue of who is obligated and who is exempt, and whether it depends on biology, sociology, physical or mental capacity, are all “The Status of Women in Halakhic Judaism” by Saul Berman in The Jewish Woman edited by Elizabeth Koltun, New York 1976, pp. 118–119. 11 Women and Jewish Law by Rachel Biale, New York 1984, p. 17. 10

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issues that the Talmudic rabbis were struggling with. For this reason, in many tractates we find competing statements as to which segments of the population are obligated and which exempt from fulfilling the particular act under discussion. Two things become clear from surveying rabbinic literature. There were no generally accepted rules of ritual obligation that one could turn to for answers; there was a wide variety of opinion on these matters. In most cases, only one opinion was included in the Mishnah so that the rules of obligation and exemption were set accordingly for generations to come. It was left for the Bavli and Yerushalmi to fill in the wider range of opinions, occasionally changing what the Mishnah had to say, either by citing a baraita that disagreed with the Mishnah or by giving a rationale.12 (4) According to the rabbis, God’s commandments could be divided into two categories:Â€the positive preceptsÂ€– things that one had to doÂ€– and the negative commandmentsÂ€– things that one should not do. The positive precepts were further divided into two categories:Â€those that had to be performed at a specified time .â•›.â•›. and those that were not linked to a specific time.â•›.â•›.â•›. The rabbis believed that women were in theory exempt from affirmative precepts limited to time.â•›.â•›.â•›. Yet the rabbis recognized that such a general principle did not apply across the board; women were in fact obligated for certain affirmative precepts limited to time, and exempt from others not limited to time. Rabbinic discussions that attempt to explain these apparent violations of the general principle are exceedingly convoluted and suggest that other explanations underlie rabbinic assignments of religious responsibilities and obligations. Judith Wegner astutely proposes that “the likeliest explanation for [rabbinic exemption of women from some religious duties] lies in the pervasive androcentrism of the sages. Viewing woman primarily as man’s enabler, they wish to avoid situations that may impede that function.” So while adult males were responsible for all the positive commandments of the Law, with the exception of the three precepts assigned to women as penance for Eve’s error, women were only responsible for certain affirmative commandments.13 (5) The principle of women’s exemption from time specified mitzvoth, perhaps more than any other, has over the centuries determined the status of women in halakhah and the sociocultural locus of women in Jewish society. It is this principle that establishes and/or confirms women as outside the public domain and on the periphery of the religious, intellectual, and ritualistic aspects governing that domain. [We] will analyze the structure of the proof for this rule 12 13

Rereading the Rabbis, p. 238. Her Share of the Blessings, p. 96. On ‘the three precepts assigned to women’, see Chapter 14, note 9.

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in light of several underlying questions:Â€ is the proof, which is constructed according to the hermeneutical rules of Talmudic derivation, compelling; does it have weaknesses and fallacies? It obviously was sufficient to establish a fundamental and far reaching category in mishnaic law. Was it sufficient on logical-legal grounds, on a sociostructural basis or a combination, in some proportion, of both? 14

Millen concludes: That four different derivations are required to maintain the universality of the exemption principle, even with its many and diverse exceptions, indicates the strength of unarticulated assumptions within the hermeneutical scheme the Gemara presents. Rabbi Yochanan responded that “we cannot learn from general principles, even where exceptions are stated,” which allows the exemption principle to stand valid, its integrity not threatened by the many exceptions made on an ad hoc basis. Why was it so important to maintain this principle when the issue could have come to very different conclusions? What lies behind it? Is the text based on accepted differences between male and female legal status, spiritual-religious status, or social and cultural roles? The categories of exception to the general exemption rule imply that, historically, this principle probably did not determine the religious practices of women. It seems unlikelyÂ€– and this is of course speculationÂ€– that this was an a priori rule governing female behaviour. Rather, it is more feasible to hypothesize a gradual development within the culture as to what women did and did not do. The existence of the principle in the Mishnah may in fact be a corroboration of the cultural status quo. Certainly within a patriarchal society the needs of both individual and community were thus met. It is therefore understandable that many exceptions to the general principle existed, for the texts were perhaps written into the law books of an accepted social reality. The far-reaching power of the text, as we know, is not to be underestimated. If this hypothesis is accurate, the descriptive, one might say, became the prescriptive.15

All the above excerpts recognize formal temporizing for what it is. Once texts have been liberated from the stranglehold of harmonizations, the chances of approximating their original intent,16 though not “Analysis of Rabbinic Hermeneutics” by Rochelle L. Millen in Gender and Judaism, edited by T. M. Rudavsky, New York 1995, p. 26. 15 Ibid., pp. 33–34. For a more recent treatment of zeman gerama, see the introductory remarks of Marjorie Lehman’s “The Gendered Rhetoric of Sukkah Observance” (JQR 96:3). 16 Unabashedly, we posit such a thing as an author’s ‘original intent’ and, moreover, the feasibility of homing in on it. This is not to minimize the insidiousness of human subjectivity. 14

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assured, improve drastically. But a healthy scepticism towards harmonizing must not turn into unwarranted fragmentation of demonstrably integrated works. The Talmud, for instance, makes no pretence at homogeneity. It lives up to its sobriquet yam ha-talmud (the talmudic sea)Â€ – broad, teeming and restless. The Mishnah is far more structured, bearing hallmarks of editing and an overarching plan. Scholars disagree as to what exactly the Mishnah’s compilers were trying to achieve. Going on the evidence, their goal seems to have been an authoritative legal code.17 To that end, they sift and synthesize the welter of competing oral traditions, streamlining it all into this manageable digest. The only question is:Â€Why the sudden demand for such a digest at the beginning of the third century? Corpus Juris In colonial India, the British sought a native corpus juris to which the Hindu population could be held answerable. It was then that the ancient book, known as Manavadharmasastra, was made the law of the land.18 Sacrilegious as it sounds, the historian has to ask whether the Persian emperors might not have had a similar objective in seeing the Pentateuch made the operative law for Yehud. Scholars are willing to entertain the possibility: At the very least, the Pentateuch, with its diverse legal corpora, reflects a great historical compromise among competing religious groups.â•›.â•›.â•›. The coexistence within one document of such diverse and contradictory materials is thus a de facto indication that an exegetical modus vivendi was worked out; that, to use a later rabbinic formula, all the Pentateuchal teachings, both ‘these’ and ‘those’ (their origins and redacted nature notwithstanding) are the words of the living God. In the volatile furnace in which these diverse and contradictory teachings were smelted, two other factors cannot be overlooked. The first is the issuance of the Persian firman to Ezra. Because of its authoritative character, requiring the returning Judaeans to restore their native traditions, the decree provided a For a summary of the various theories as to the purpose of the Mishnah’s framers, see David Kraemer’s “The Mishnah” in The Cambridge History of Judaism vol. IV Cambridge University Press 2006, pp. 211–213. 18 “The most common translation of the title [Manavadharmasastra], ‘laws’, skews it towards what the British hoped to make of it:Â€a tool with which to rule the Hindoo.” (The Laws of Manu, translated by Wendy Doniger with Brian K. Smith, Penguin Books 1991, pp. xvii–xviii). 17

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built-in social and political imperative stimulating the teachers and interpreters of the Return to supplement the received traditum of the exileÂ€– with all its diversity and limitationsÂ€– and to produce a national consensus of written and oral traditions. (Biblical Interpretation in Ancient Israel by Michael Fishbane, Oxford 1985, pp. 264–265) The Persian Empire also used the construction and promulgation of law codes to unify its entire imperial administrative structure. Although apparently there was no attempt to produce one law for the whole empire .â•›.â•›. under his [Darius I’s] reign, the Babylonians and the Egyptians, presumably as well as other Persian-ruled colonies, codified their earlier religious and legal traditions and produced single, unified statements of their own native law.â•›.â•›.â•›. With the presence of imperially produced legal codes in other parts of the Persian Empire, one wonders whether Darius combined earlier Israelite and Yehudite traditions and promulgated them in Yehud as new law. Certainly the presence of “the King’s Law” in Yehud argues in favor of this. Darius and subsequent Persian emperors considered one form of Yehud’s legal legacy to be normative and thus enforceable by the imperial bureaucracy. (Judaism in Persia’s Shadow:Â€A Social and Historical Approach by Jon Berquist, Minneapolis, MN 1995, p. 138)19

Artaxerxes’ commission of Ezra can be understood along such lines. Artaxerxes’ plan was evidently to transform the five Books of Moses into dat to which the Jews of the province called Beyond-Euphrates were to be subject. At least this is how we read Artaxerxes’ brevet: This is a copy of the royal letter which King Artaxerxes gave to Ezra the priest and scribe, a scribe learned in the commandments of Hashem and his statutes [laid] upon Israel. “Artaxerxes, king of kings, to Ezra the priest and scribe learned in the law of the God of heaven. This is my decision. I hereby issue a decree that anyone in my kingdom of the people of Israel and its priests and Levites who volunteers to go up to Jerusalem may go with you. You are sent by the king and his seven councillors to regulate Judah and Jerusalem according to the law of your God with which you are entrusted.â•›.â•›.â•›. And you Ezra in accordance with the wisdom of your God with which you are entrusted, are to appoint arbitrators and judges to judge all your people in the province of Beyond-Euphrates, all who know the laws of your God; and you and they are to instruct those who do not know them. Anyone who does not obey the law of your God and the law of the king let judgement be rigorously executed 19

See also The Torah’s Vision of Worship by Samuel E. Balentine, Minneapolis, MN 1999, pp. 50–52; “Persian Imperial Authorization:Â€ A Summary” by Peter Frei in Persia and Torah:Â€The Theory of Imperial Authorization of the Pentateuch edited by James W. Watts, SBL 17 Atlanta, GA 2001, pp. 5–40.

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upon him be it death banishment confiscation of property or imprisonment”. (Ezra 7:11–14, 25–26)20

Judah the Patriarch, who is credited with editing the Mishnah, and more eminently with its publication, enjoyed the patronage of Rome.21 It should therefore not strain the imagination to visualize Antonine officials breathing down the Patriarch’s neck to promulgate a Jewish law code.22 Be that as it may, the Mishnah is certainly no haphazard document. Hence it is realistic to speak of a mishnaic ambience. For the same reason it will pay to go through the Six Orders, stopping to meet the Mishnah’s women in action. That is to say, we shall register passages where ishah, ha-ishah or nashim appear, not as objects, but as functional beings. Some scholars question the authenticity of the letter for reasons of the kind enunciated by David Janzen:Â€“In general, we simply do not have good enough parallels to show beyond a reasonable doubt that the letter of Artaxerxes is historically reliable .â•›.â•›. there is no hard evidence that the Persian administration was in the habit of sending people, scribes or otherwise, on missions to reform local legal practices. This is not to suggest that the types of things mentioned in the letter could not have happened, simply that we have no evidence that they were likely to happen. We know of no historical background that would explain the type of mission upon which Ezra is supposedly sent, and so we must conclude that Ezra’s ‘mission’ as such is suspect. We simply cannot say with certainty that Artaxerxes sent him to Jerusalem, whether for the purposes expressed in the letter or for any matter at all” (“The ‘Mission’ of Ezra” JBL 119:4 [2000], p. 638). See also the cautious approach of Lester L. Grabbe (A History of the Jews and Judaism in the Second Temple Period vol. 1, London and New York 2004, pp. 209–216). However, less sceptical assessments are very much alive, too:Â€“In view of the Passover papyrus issued by Darius II, in 419 BC (a letter sent by Darius II to the Jews of Elephantine regarding the date and method for celebrating the Passover; see ANET p. 491) the concern of Artaxerxes for the Temple cultus is quite Â�understandable” (Jacob M. Myers, The Anchor Bible vol. 14, 1965, p. 62). 21 “Qesuse (= constables, eunuchs) stood guard [at the behest of Antoninus] over Ribbi” (Ber. end of 16b and Rashi ibid s.v. ve-af al gav). “Roman backing helped him [Judah] enforce decisions of his courts and authorized him to conduct Jewish communal affairs” (The Rabbinic Class of Roman Palestine in Late Antiquity by Lee I. Levine, New York 1989, p. 34). “Patriarchal prominence was inextricably bound with the power and backing of Imperial Rome” (ibid., p. 134). 22 A tannaic source cited at B. Q. 38a tells of Roman sardiotot (=officials) dispatched by their government to the sages in order to ‘study the Jewish law’Â€– which law, as the story unfolds, turns out to be the Mishnah (or a draft thereof). The purpose of their study, furthermore, appears to have been not so much to imbibe the law as to vet it for legislation inimical to Roman interests and then report back to their bosses. Might not this meddling on the part of the Roman bureaucracy in the tannaic era (i.e. before the Mishnah’s publication) suggest a Roman finger in the pie and certainly more than academic curiosity? But compare the very different tenor of the other versions of this sardiotot story (Y. B.Q. 4:3 [4b]; Sifre Dt 344 et al.). 20

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Mishnaic Women 1) a woman may lend a colander, sieve, millstone or oven to her fellow woman who is suspected of breaking the laws of the sabbatical year; but she may not sift or grind with her (Shevi. 5:9; Git. 5:9) 2) women who gave [dough] to a baker to make them leaven .â•›.â•›. (Hal. 1:7) 3) a woman in the sitting position may set apart her dough contribution naked (Hal. 2:3) 4) two women who made two qav measures [of dough] and they touched one another.â•›.â•›. (Hal. 4:1) 5) with what [adornments] may a woman go out [on the sabbath] and with what may she not go out? (Shab. 6:1) 6) a woman may walk her child.â•›.â•›.â•›. (Shab. 18:2) 7) a person may ask his fellow for jars of wine or jars of oil .â•›.â•›. likewise, a woman may ask her fellow woman for loaves (Shab. 23:1) 8) [on Passover] bran for chickenfeed must not be soaked nor must a woman soak bran to carry in her hand to the bathhouse but she may coat it on her body dry (Pes. 2:7) 9) R. Gam[a]liel says three women may knead simultaneously and bake in the oven one after another (Pes. 3:4) 10) somebody for whom a slave or a woman or a minor recite [the hallel etc.] repeats what they sayÂ€– and shame upon him (Suk. 3:10) 11) a woman takes it [the lulav] from the hand of her son and from the hand of her husband and puts it back in the water (Suk. 3:15) 12) spices, water or salt that a woman asks from her fellow woman [on a festival] are treated as pertaining to both (Bez. 5:4) 13) a woman may apply her cosmetics during the mo‘ed. R. Judah disallows lime [as a depilatory] because it is disfiguring (M. Q. 1:7) 14) during the mo‘ed women may wail but not beat the breast. R. Ishmael says the women closest to the bier may beat (M. Q. 3:8) 15) the following tasks a woman performs for her husband:Â€ she grinds, bakes, launders, cooks, nurses her child, makes his bed and works at [i. e. spins] wool (Ket. 5:5)

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16) wool, milk and kids must not be bought from shepherds nor from watchmen .â•›.â•›. but from women woolen wares may be bought in Judaea, linen wares in Galilee and calves in Sharon (B.Q. 10:9) 17) Hillel would say:Â€a woman shall not lend her fellow woman a loaf before she ascertains its market price; lest grain get dearer and they [unwittingly] wind up being guilty of usury (B.M. 5:9) 18) these may be asked to take an oath even on a slight suspicion:Â€ partners, tenant-farmers, guardians and a woman who trades at home (Shevu. 7:8) 19) a woman .â•›.â•›. sweeping out the oven is pricked by a thorn or burns her finger and sticks it into her mouth .â•›.â•›. (Kel. 8:11) 20) a woman who was kneading in a trough .â•›.â•›. (Ohal. 5:4) 21) if a woman pickling greens in a pot touches a protruding leaf .â•›.â•›. (Tah. 2:1) 22) a woman goes indoors to fetch bread for a mendicant and on coming back outdoors finds him standing beside terumah loaves or a woman goes out [into the courtyard] and finds her fellow woman stoking the embers under an earthenware pot23 containing terumah food .â•›.â•›. (Tah. 7:9) 23) a woman whose hands are clean stirs a pot that is unclean; if her hands sweat .â•›.â•›. (Makh. 5:11) The ladies of example 5 sally forth bedecked in sabbath finery, and the employment of the shepherdesses of Sharon (16), like the professional keeners (14), presumably takes them out of doors. But the common denominator of most of the above 23 scenes is their proximity to the kitchen sink. Even the trade of example 18 is plied at home. One is left with the impression that the Mishnah’s woman has little business outside her four walls. Why this should be is a chicken-and-egg question. Some scholars, notably Eliezer Berkovits, opine that women’s place in society was fixed by ironclad convention. Berkovits seems to portray Judaism as heir to a social order whose Torah-repugnant dross 23

Earthenware vessels become defiled only if impurity enters their inside space, but not by the mere touch of impurity to their outside shell (M. Kel. 2:1; Sifra to Lev 11:33).

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it was too effete to purge and thus had to grin and bear it. These are his most incisive observations: In view of the similarities between the ancient Jewish and ancient Greek Â�societies, there is no need for us to enter into detailed historical research as to dates and possible contacts. It is quite clear that we are here confronted with a general, purely human phenomenon. Obviously, this is how women were evaluated in the original male-established social structure. Their status was determined in accordance with the functions they were able to perform in such societies. These were matters completely time-conditioned and subject to the values entertained and understood by the men and women of the period. The original forms of social and economic life upon which the status of women were [sic] based were not introduced and established by the Torah. The social, economic and even religious practices of early Jewish society were sometimes contrary to principles of the Torah. But how could Judaism make peace with them? This question introduces us to one of the major problems of halakhah.24 Undoubtedly, the basic views and values that originally determined the Â�status of women in Jewish society were not derived from the Torah, even though many of them were later given midrashic justification. They were Torah tolerated because they could not be abolished with an act of Torah legislation. They had to be tolerated, but certain changes and differences were present which indicated that an entirely different system of values and teachings also existed.25

Needless to say, not all elements of Berkovits’s construction are equally compelling. As far as the biblical era is concerned, women’s position was anything but static. Pre-exilic patriarchy, though real enough in Israel, comes across as less defensiveÂ€– less uptight if you willÂ€– than some of its post-exilic manifestations, as we hope to show by and by. At this stage, however, our focus is the Mishnah, and when applied to the Mishnah, Berkovits’s exposition is hard to sustain. Particularly controversial is his allegation that the alien mores that had stolen a march on Torah “were tolerated because they could not be abolished with an act of Torah legislation”. To conclude that something could not be abolished, one would like evidence of the abortive attempts at abolition. Bible and Talmud testify to persistent backsliding. However, prophets and sages in Israel never connived at situations they deemed sinful. Where they found idolatry, they denounced it. When widow and orphan were exploited, they railed and thundered, 24 25

Jewish Women in Time and Torah, Hoboken, NJ 1990, p. 28. Ibid., p. 33.

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because in the face of wrong there is no keeping mum. Ezekiel defines the prophet’s duty to speak out:Â€“If you do not warn him to give up his wicked ways and to save his life the guilt is his; because of his wickedness he shall die but I will hold you answerable for his death. But if you have warned him and he still continues in his wicked and evil ways he shall die because of his wickedness but you will have saved yourself” (Ezek 3:18–19). Hence, one expects verbal expostulation from teachers in Israel who judge the treatment of a group within their society to be at odds with TorahÂ€ – even if they lack the muscle to enforce reform. In the case of the Mishnah,26 not only are clamour and outcry absent, but the bulk of our twenty-three examples consolidate woman’s meniality. Berkovits would argue the Mishnah did not put women in the scullery but simply found them there27 and could do nothing to uncage them. Others descry a movement afoot, coeval with the Mishnah’s formation, to shut women out of communal life. Unlike Berkovits, this school sees some of the rabbis as actively contributing to the curtailment process. In other words, far from accepting under duress a situation it resented, the Mishnah’s own preference can be seen inclining towards woman’s domestication. Into most of the twenty-three citations women have been dragged quite gratuitously. The gender of the baker, cook, pickler, kneader and the like has no bearing on the halakhot in which these protagonists star. The fact that their gender is thrown in must therefore serve something other than halakhah. In Spinning Fantasies, Miriam Peskowitz comes to grips with what that something might be. Her conclusions concur with our own, as to a discrete purpose or agenda28 having dictated this halakhically expendable ladies subtext. Because of the theme’s importance and Peskowitz’ cogency, we beg leave to quote her in extenso: m Negaim 2.4 sketches the procedure for examining leprous spots (nega‘im) in places on male and female bodies.â•›.â•›.â•›. In this exam, both women and men In contradistinction to the Gemara, as we shall see. As allegedly attested by Lev 26:26, 1Sam 8:13; Isa 27:11; Ps 128:3. See also “Burnished Pottery and Gender Hierarchy in Iron Age Israelite Society” by Avraham Faust, Journal of Mediterranean Archaeology 15:1, pp. 53–73. My thanks to Professor Jonathan M. Golden for this reference. 28 In other contexts, the Talmud recognizes the existence of ‘incidental agendas’ for which it actually has a term:Â€milta agab orha (Ber. 2a; Eruv. 104a; Suk. 21b; Bez. 40a; Qid. 69a; B.B. 98b; San. 28a; A.Z. 53b). 26 27

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are asked to position their bodies as if they were doing common work tasks. Men’s poses are related to outdoor agricultural production. A man should stand as if hoeing, with his legs spread somewhat apart.â•›.â•›.â•›. And, so that the examiner may view his underarm, a man should stand as if harvesting olives, with both arms raised and extended.â•›.â•›.â•›. A woman is inspected .â•›.â•›. as if she were kneading dough.â•›.â•›.â•›. Positioned as if she were nursing a child, her breasts are lifted so that the inspector can see their underneath sides. To look for leprous spots in her armpits, she is positioned as if she were weaving at a loom.â•›.â•›.â•›. To look for spots in her left armpit, she is to mime spinning flax. She poses with her left arm held high, as if holding the distaff, from which fibres are pulled as the spindle drops to the floor.â•›.â•›.â•›. These work positions provide the vantage point for access to parts of the body that are not usually seen.â•›.â•›.â•›. Different positions are assigned to men and to women. Specific tasks are associated exclusively with one of two gendered bodies:Â€agricultural hoeing and olive gathering for men; and bread making, nursing, weaving and spinning for women. Although they may seem like natural divisions of work done by women and men, the gendering of these tasks is actually quite peculiar. The peculiarity becomes evident by considering other possible ways that rabbinic writers could have described this inspection.â•›.â•›.â•›. These tasks and their gender associations may seem familiar and natural to some. But they are understood better as rabbinic fantasies of what Jewish men and women should be.â•›.â•›.â•›. Despite their knowledge of a variety of overlapping tasks done by women and men, the passage marks out a clear distinction of tasks and their location.â•›.â•›.â•›. Writing about the leprosy exam became another site at which to make notions of gender and work seem ordinary and natural. The passage could have listed a single set of common positions for both women and men.â•›.â•›.â•›. Furthermore, rabbinic writers did not need to describe the exam through the language of labor. That they did should be our primary curiosity. Gender divisions of labor are exacted in a passage that seemingly has nothing to do with labor. The inspection is precisely a time when a worker has stopped working in order to be examined. Instead description of this exam became an opportunity to make distinctions of gender and to represent them as part of daily life and its labors.29

If the purpose was to habituate and inure readers to its gender stereotyping, it certainly seems to have done the trick. Because what is not in doubt is the effect of this literary stratagem that promenades men, and especially women, in their statutory roles. Like any recurring image, that of the Mishnah’s aproned housewife imprints itself 29

Spinning Fantasies:Â€Rabbis, Gender and History, Berkeley, CA 1997, pp. 84–86.

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subliminally on the reader’s psyche. A ship’s rightful domain is the sea, an eagle’s the sky, and a woman’s her hearth.30 But while doubting whether societal norms single-handedly fashioned the Mishnah’s model of woman, all agree with Berkovits’s main thesis as to the sway of conventional wisdom and mores within the talmudic discourse. In fact, the Mishnah itself, not to mention the Gemara, makes no secret of its allegiance to derekh in almost every branch of halakhah. In conformity to what has become the wont of this screed, we shall tabulate examples; first from the Mishnah, then from the Gemara. 30

To what extent women complied with the ‘ideal’ mapped out for them in these texts is a question that must be put to the archaeologist (see Rebuilding the House of Israel:Â€Architectures of Gender in Jewish Antiquity by Cynthia M. Baker, Stanford University Press 2002, esp. pp. 22 ff.)

9 Derekh

Derekh in the Mishnah a) R. Joshua says it [the morning shema‘] may be recited until the third hour for it is the way of princes to get up at the third hour (Ber. 1:2) b) they [the poor] are to be trusted regarding raw vegetables but not cooked [vegetables] unless the quantity was small for it is the way of a householder to take from his pan [and give to the poor] (Peah 8:4) c) a vessel is found which is inscribed qorban. R. Judah says if the vessel is earthenware it is profane but its contents is qorban; if metal it is qorban but its contents is profane because it is not the way of people to store profane [food] in a qorban [vessel] (Ma‘aser Sheni 4:10) d) it is the way of impurity to exit but not its way to enter (Ohal. 3:7, 4:1, 2, 3; 9:9) e) a child is found beside the dough holding a piece of it. R. Meir declares [the dough] clean; the sages declare it unclean because it is a child’s way to touch (Tah. 3:8) f) [a dog’s toothmarks in the dough] and there was unclean water in the house .â•›.â•›. the dough is clean because dogs are intelligent and it is not their way to pass up food and go after water (Tah. 3:8)

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g) R. Yose declares unclean everything bar the path because Â�people’s way is to walk but it is not their way to touch things [as they walk] (Tah. 5:2) h) a person who is pure but has decided to cease eating [in purity] R. Judah declares [that person] clean because it is the way of unclean people to keep their distance [from a person known to observe purity] (Tah. 7:8) All these mishnaic rulings are founded on what the legislator believes to be predictable behaviour. None, however, impinges directly on women’s misvot as do 4 of the ensuing 5 examples of derekh selected from the Gemara. Derekh (or its Aramaic Counterpart, orha) in the Gemara 1) The first example comes from tractate Ketubot where derekh is responsible for the halakhah that gives priority to a female orphan: If a male and female orphan come seeking to be provided for (le-Â� hitparnes) [from communal funds] the female orphan shall be provided for first and afterwards the male orphan because it is the derekh of a man to beg but it is not a woman’s derekh to beg. If both come seeking [help] to get married the female orphan shall be married first and afterwards the male orphan because the shame of a woman is greater than a man’s shame (Ket. 67a–b).

2) Our next example is from Y. Horayot. The Mishnah rules that “woman takes precedence over man to clothe and to take out from captivity. If both are in peril of being used for immorality then the man takes precedence” (M. Hor. 3:7). Commenting on the Mishnah’s last clause, the Yerushalmi has this to say:Â€“Why if both are in danger of being used for immorality does the man take precedence? because for a woman it is her way (darkah) but for a man it is not his way (darko)”. 3) It is the derekh of a man to make war but it is not the derekh of a woman to make war (Qid. 2b). 4) Derekh in Aramaic is orha. “It was taught in a baraita [when spoils of war are divided] royal treasure is the king’s; the rest

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Commandments of the booty is split in twain half for the king and half for the people. Abayye said to R. Dimi (some say to R. Aha) That royal treasure is the king’s I understand [because] it is the way things are done (orha de-milta); but what is the authority for splitting the rest of the booty half for the king and half for the people? [He replied] it is written [1Chr 29:22] And they anointed him [Solomon] as prince for Hashem and Zadok as priest. Scripture makes the prince analogous with Zadok. Just as Zadok goes fifty-fifty with his priestly brothers so does the prince with his brothers. And what is the authority for Zadok himself? It was taught in a baraita:Â€Ribbi explains the verse It shall be for Aaron and for his sons [Lev 24:9] to mean half for Aaron half for his sons” (San. 20b–21a). 5) Finally there is the matrimonial derekh (noticed cursorily in our preface). The duty to marry and raise a family is reckoned a misvah incumbent upon men and women by R. Johanan b. Beroqa “because to both [man and woman] were spoken the words [Gen 1:28] .â•›.â•›. be fruitful and multiply”. According to R. Johanan b. Beroqa’s colleagues, the duty behoves men only (see M. Yev. 6:6). The Mishnah leaves us in pitch darkness as to the colleagues’ authority for exempting women, which darkness R. Il‘a tries to pierce:Â€“R. Il‘a said in the name of R. Eleazar son of R. Simeon1 it is written [further in Gen 1:28] Fill the earth and subdue it. It is a man’s way to subdue but not a woman’s way to subdue” (Yev. 65b).2

The Yerushalmi attributes the identical teaching to R. Lazar in the name of R. Yose b. Zimrah (Y. Yev. 6:6 [7d]). More momentously, some of the Yerushalmi’s amoraim actually side with R. Johanan b. Beroqa. The significance of these amoraim, favouring to allow the woman of Gen 1 to stand, cannot be overstated (see Chapter 7, note 3 supra). Jeremy Cohen lists additional sources, including the Tosefta, that likewise appear to endorse R. Johanan b. Beroqa (“Be Fertile and Increase, Fill the Earth and Master It”:Â€The Ancient and Medieval Career of a Biblical Text, Cornell 1989, pp. 141–144). 2 Rashi holds derekh responsible for yet other rabbinic conventions not explicitly associated with derekh by the Talmud itself:Â€“They said to R. Tarphon ‘You offer a remedy for a male’s [illegitimacy] but not for a female’s’” (Qid. 69a). Rashi explains, “For females it is no remedy because it is not the derekh of a woman to take off to distant parts and clandestinely arrange for her own marriage etc.” (Rashi ibid. s.v. ve-et ha-neqevot). A further example occurs in Rashi at Yom. 49a s.v. shama‘ minna. 1

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Two Supplementary Examples Before quitting the Talmud’s shores, we note two further instances of women’s halakhot that rest upon social convention. It must be stressed, however, that neither derekh nor orha is used in connection with these halakhot, which is the reason we are keeping them separate. The first relates to the commandment to revere parents. Scripture says:Â€“You shall every man revere his mother and father” (Lev 19:3), on which Sifra elaborates: ‘Every man’ limits [the commandment] to men. How do we know women [are obligated]? tira’u [second person plural] must be addressing two Â�individuals [son and daughter]. Why then does it say ‘man’? A man has it within his power but a woman does not have it within her power because the authority of another (reshut aherim) is over her3 (Sifra to Lev 19:3).4

The startling thing about this Sifra passage is its portrayal of Torah as if in retreat; as if ducking and dodging to avoid a clash with some prior claimant. It has Torah say:Â€Men must always revere their parents but women only as long as that rival hegemony is not encroached upon. Now rabbinic law invalidates treaties or contracts whose stipulations contravene Torah (Ket. 56a; Qid. 19b etc). How then to ensure a Â�woman’s total subservience to her husband without her parents vying for their daughter’s solicitude? Were a man to say to a prospective bride, marry me on condition that you flout the commandment to revere mother and father, even if the woman agreed that condition would be null and voidÂ€– unless a loophole could be found in the Torah itself. Sifra discovers that loophole in Lev 19:3. So far, so good. But where is the scripture that surrenders a wife to her husband’s reshut?5 Some medieval scholiasts latch on to Eve’s curse at Gen 3:16 “and he shall have dominion over you”. Indeed, Avraham Grossman contends that: Gen 3:16 was central to medieval discussions of the whole subject and served as justification for woman’s lower status.â•›.â•›.â•›. For instance, according to Maimonides [Guide 3:8], it [Gen 3:16] is not merely descriptive but prescriptive. The man [or husband] is obliged to have dominion over the woman Reshut aherim can also be construed as ‘another authority’ because the word rashut (constr. reshut) is sometimes treated as a plural (cf. Avot 2:3 she’n meqarvin etc.). 4 Cf. Qid. 30b, 35a. 5 Though Sifra is terse, commentators have no doubt as to the identity of aherim. 3

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[or wife] because that is the Creator’s will after the sin in the Garden of Eden; Isaiah 3:12 bemoans the situation where women have dominion (mashlu) in a reversal of what was ordained at the beginning:Â€‘and he shall have dominion (yimshol) over you’. R. David Qimhi says [on Gen 3:16] ‘And he shall have dominion over you’ [grants the husband authority] to order her as he pleases like a master his servant.6

But the scholiasts do not draw on the Talmud, in whose halakhic deliberations Gen 3:16 has no function. It is also doubtful that the rabbis would have made a connection between Isa 3:12 and Eve’s curse. The semi-consonantal Hebrew word NSIM (3:12b) can be vocalized to read nashim (women) or noshim (creditors, extortioners). That the ancients pronounced the word noshim is attested by the Targum that renders Isa 3:12b ukh-mare hova shalitu beh and by LXX, Aquila and Theodotion (1QIsa.a simply replicates MT’s NSIM). Reading noshim at Isa 3:12, as did these ancient witnesses, means that one’s Bible never ‘bemoans the situation where women have dominion’. On the other hand, the rabbis do not deny the hereditary encumbrance of Adam and Eve’s peccancy. How closely the rabbis’ idea of the fall tallies with Original Sin is immaterial. They clearly believed humanity was besmirched and bedevilled by the fiasco in Eden and its resultant curses.7 Even so, the curses were not understood as irreversible,8 and certainly not as prescriptive.9 This last point is taken up by Rachel Adler: The rabbinic tradition does not use the story [of Genesis 3] as a source of legal proof-texts, nor is there any prohibition on alleviating its conditions.â•›.â•›.â•›.When (Hasidot u-Mordot p. 32). E.g. A.Z. 5a; B.B. 17a esp. Rashi s.v. be‘etyo shel nahash. 8 This is amply demonstrated by midrash such as the following:Â€“When God said to Adam ‘Accursed shall be the ground because of you with toil shall you eat [of] it all the days of your life’ [Gen 3:17], Adam asked ‘until when, God?’ He answered ‘until a boy is born circumcised’.â•›.â•›.â•›.When Noah was born Lemech .â•›.â•›. declared ‘This is the one to bring us relief from our labour and from the toil of our hands’.â•›.â•›.” (Tanhuma to Gen 5:29; cf. Rashi’s comment to the same verse). 9 The closest Eve’s curse gets to halakhah within the Talmud is where it serves to explain why polyandry is forbidden but not polygyny. That a woman, unlike a man, should be restricted to a single spouse is viewed, surprisingly, not as the original plan but as an upset due to Eve’s sin (Eruv. 100b; Rashi ibid.). Eve’s sin crops up again apropos halvayat ha-met (escorting a funeral):Â€“One amora holds that [at funerals] women precede men the other that men precede and women bring up the rear. The amora who says women first:Â€because they caused death to come into the world. The one who says men first means to spare the honour of the daughters of Israel from the gaze of men” (Y. San. 2:3 [20b]). 6 7

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childbirth anesthesia was invented, some Victorian clergymen saw it as a rebellion against the decree “In pain shall you bear children,” but Jewish law never forbade the alleviation of childbirth pain. A consistent reading of the passage would not allow singling out “Your desire shall be for your husband and he shall rule over you” and endowing it alone with prescriptive force.10

Adler could have added that the rabbis do not tilt towards vegetarianism either, despite Adam’s malediction:Â€“you shall eat the grass of the field” (Gen 3:18)! In short, precative pronouncements are not used by the rabbis to shape their halakhah. Jews are not required to worship idols while in exile from their land in fulfillment of what the Talmud refers to as the deuteronomic imprecations,11 in which Israel is told “Hashem will scatter you among the peoples from one end of the earth to the other and there you shall worship other gods wood and stone” (Dt 28:64). Furthermore, many rabbis held pre-Sinaitic revelation not to be automatically binding on post-Sinai Israel.12 And Eve is pre-Â�Sinai. That dashes the husband’s last hope of deriving reshut over his wife from the Torah.13 Nevertheless, both Genesis 3:Â€14–19 and Sifra’s reshut aherim bear witness to realities that, at the time, would have seemed to some as inexorable as earth and sky. The Berkovits school might add:Â€ Like earth and sky, reshut aherim was non-negotiable. The second text is a protocol-setting Mishnah (analogous to Horayot 3:7 examined earlier). It too verges on filial duty: R. Simeon says sheep come before goats everywhere. Is it perchance because they are superior? Surely [after the goat option at Lev 4:28] it says [Lev 4:32] “or if he offers a sheep” which shows they are equal. Turtledoves come before pigeons everywhere .â•›.â•›. father comes before mother everywhere. Is it perchance because the father’s honour is greater than the mother’s honour? It says [Lev 19:3] “You shall every man revere his mother and father” which shows that they are equal. Nevertheless, the sages have said the father takes precedence over the mother everywhere because he and his mother are both obligated to honour his father (Ker. 6:9). Engendering Judaism, Boston, MA 1998, p. 124. See Meg. 31b et al. 12 Synonyms for pre-Sinaitic are qodem le-mattan torah (e.g. Y. M.Q. 3:5 [82c]) and lifne ha-dibbur (e.g. Neg. 7:1; Sifra to Lev 13:2; Yev. 5b). Cf. Maimonides’ comments to M. Hul. 7:6; Yad, Evel 1:1; Igrot Ha-Rambam (Yitzhak Shailat edition, Jerusalem 1987 vol. 1, pp. 410–411). 13 The jurisdiction afforded a husband (and father) by Num 30 will be considered momentarily. 10 11

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In practice, it means that “[i]f both thirsty parents ask their child for water the father shall be given to drink first because both the child as well as the wife are obligated (hayyavim) to honour him” (Qid. 31a). Significantly, Ker. 6:9 insists that it was not Scripture that prioritized the father, but rather the sages because of the respect mamma, as wife, owes papa. But where is the commandment, paralleling the Decalogue’s fifth, that bids a wife bend the knee to her man? Some urge Num 30:11–16 as epitomizing all deference wives owe their husbands: If in her husband’s house she makes a vow or imposes an obligation upon herself by oath. And her husband hearing of it keeps silentÂ€– thus failing to restrain herÂ€– then every vow and every sworn obligation she imposed upon herself shall stand. But if her husband annuls them on the day he hears of them then nothing she has uttered whether vow or obligation shall stand; her husband has annulled them and Hashem will forgive her.â•›.â•›.â•›. But if he annuls them [some time] after he hears of them then he bears her sin.

To be sure, these provisions vest a husband with veto power over his wife’s voluntary commitments. But by singling out vows and oaths which are supererogatory misvot, the implication of Num 30 is that over his wife’s observance of misvot in general, a husband has no jurisdiction. And if Num 30 did not award a husband custody of his wife as parents have of their juvenile children, then neither did it enjoin a wife to honour her husband as a child its parents. Thus in default of Torah prompting, conventionalism emerges as the likeliest impetus for Ker. 6:9’s non-scriptural obligation (hiyyuv). This is not to underrate Num 30’s depiction of women (except widows and divorcees) as wards of male guardians. But because Scripture itself comprises such varied permutations of interfamilial relationships, we must exercise caution when calibrating the fallout for women of any particular model. That said, it is time to turn our attention to the Written Torah.

10 The Scriptural Evidence

In Judaism, to receive commandments from God is the highest favourÂ€– or to paraphrase Proverbs 3:12, Whom God loves he exhorts as a father does who cares for his children. Mostly for this reason, Israel came to reckon itself chosen, having been vouchsafed many misvot. But who were the recipients of the commandmentsÂ€ – all Israel or merely the menfolk? We have not forgotten that according to Genesis1, the first humans are spoken to conjointly by God who blesses them (v. 28) and instructs them (v. 29),1 thereby affirming their capacity to understand divine instructions and carry them out. How easy, if not superfluous, would our task be were all voices within Scripture as inclusive in their misvah bestowal as Genesis 1! But the TorahÂ€– as we do not tire of Â�repeatingÂ€– is multivocal, and our task is to unmuffle any willing voice. Of rabbinic polyphony we have already sampled the buzz in R. Hananiah ben Aqashia and his counterpoint, as well as the ding-dong of the Qiddushin sugya. There the Mishnah decreed:Â€ “all positive misvot bound by time apply to men not to women. Misvot not bound by time apply to men and women” (Qid. 1:7). However, as we saw, other tannaic sourcesÂ€– some more generous, some more frugalÂ€– could ill adjust to the Mishnah. Within the Torah, the range is commensurately 1

The communication in v. 28 is traditionally also construed as a command to be fruitful, to multiply and to take control. However, some commentators (taking their cue from v. 23), read it as a blessingÂ€– that is, May you be fruitful, multiply .â•›.â•›. and have control.

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broad, running the gamut from texts that maximize religious distinctions between the genders to those that seem impervious, if not antithetical, to such barriers. Many texts of the latter type are clustered in the fifth book of the Torah. Not that Deuteronomy jettisons patriarchy. Even its misvah distribution stops well short of gender blindness. That said, Dt is still the revelation that comes closest to misvah proportionality for all, as attested by Dt 31:12:Â€“Gather the people the men and the women and the children and your stranger who is within your gates that they may hear and that they may learn and they shall revere Hashem your God and take care to do all the words of this Torah”.2 The Hebrew underlying ‘all’ (in “take care to do all the words of this Torah”) is kol. Now kol’s primary meaning is, of course, ‘all’. However, biblical kol can also connote ‘a majority’ or ‘an abundance’Â€– a nicety that puts a damper on kol. And the semantic damper is hardly palliated by the following logomachy. Misvot, by their very modality, do not engage all members of society uniformly. Agrarian misvot, for example, devolve solely on landowners; cultic misvot on priests (see Y. Peah 1:1 [15d]). Moreover, the same stranger in the gate called “to do all the words of this Torah” at Dt 31:12 is exempted from the prohibition to eat carrion at Dt 14:2, just as women are exempted from the pilgrimage at 16:16. Therefore, shy of concocting discrepancies between those exemptions and 31:12, it will be prudent to regard our kol (at 31:12)Â€ – and with it the misvah quotas of strangers and of womenÂ€– as less than total. But caveats notwithstanding, “to do all the words of this Torah” demonstrably gives all parties to the covenant (including women) an unstinting stake in Torah observance. A text only slightly less egalitarian than Dt 31:12 is the summons to the second of Deuteronomy’s covenants, often called the covenant of the Plains of Moab: Moses summoned all Israel and said to them .â•›.â•›. You stand today all of you before Hashem your God your tribal chiefs your elders and your officers all the men of Israel. Your children your wives (or your womenfolk) and the stranger in the midst of your camp from woodchopper to waterdrawer. Ready to enter into the covenant of Hashem your God and into his oath which Hashem your 2

Later we are going to examine the midrashic mechanism employed to neutralize Dt 31:12 and bring it into line with the Mishnah’s policy on women.

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God is making with you this day .â•›.â•›. To the end that he may constitute you today as his people and he become your God .â•›.â•›.The concealed [things] belong to Hashem our God; but the revealed to us and our children for ever to do all the words of this Torah (29:1, 10–13, 28).

In this text, every group named is coordinate vis-à-vis the covenant, a covenant whose human promisees commit “to do all the words of this Torah”. However, since tappekhem (your little ones) neshekhem (your wives or womenfolk) end in the possessive pronoun masculine, the addressees of the summons presumably were male heads of families.3 In 31, on the other hand, Moses is briefing priests and elders. The laityÂ€– men, women and childrenÂ€– are all third person and minus the possessive pronoun. Another scripture that places sons and daughters of Israel on an equal covenantal footing is Dt 17:2–3. “If there be found among you .â•›.â•›. a man or a woman who does what is wrong in the eyes of Hashem your God by breaking His covenant and going to worship other gods.”4 Another minor difference is the order; 31:12 lists women before children, 29:10 reverses the orderÂ€– in MT, at any rate. LXX has women first in both places. 4 The covenant Moses alludes to in the main body of Deuteronomy is presumably the covenant of Horeb. The Plains of Moab covenant lies still in the future. If so, it would mean that Deuteronomy includes women in both its covenants. Nor was this fact gainsaid by the rabbisÂ€ – whatever ultra-literalists may strain to torture out of the words of R. Simeon at Sot. 37a-b (parallel T. Sot. 8:7):Â€“[The covenant at] Gerizzim and Ebal consisted of 16 [sub-] covenants. Likewise [the covenants] at Sinai and in the Plains of Moab .â•›.â•›. thus totalling 48 covenants in all .â•›.â•›. R. Simeon b. Judah of Kefar Akko said in the name of R. Simeon ‘For every commandment written in the Torah there were 48 covenants of 603,550’ [lit. There is no commandment written in the Torah over which were not made 48 covenants etc.]”. Now, according to Ex 38:26, the half-shekel-contributing Israelites numbered 603,550 during the first year in the wilderness when the sanctuary was constructed. Since only lay [i.e. non-Levitical] males above twenty years of age were counted in the censuses (Ex 31:12–14; Num 1:2–3, 45–46; cf. Ex 12:37), the figure of 603,550, if taken literally, would exclude priests, Levites, women and minors. But the number as employed by R. Simeon is demonstrably figurative because otherwise it would have had to be modified for the Plains of Moab where, according to Num 26:51, the Israelites totalled only 601,730 (but see Rosh’s surprising comment to Ber. 20b isha ’enah bikhlal ha-‘arbut). 3

11 Deuteronomy:Â€A Pattern

In Deuteronomy, the dots connect to reveal a coherent vision. Law, prophecy, theology, poetry, hyperbole, rage, bellicosity and love are all harnessed to a way of life under the One God when idols and angels and hobgoblins are disowned.1 This is the uniqueness of Deuteronomy, and because of it, Dt must be understood within its own frame of Â�reference and not as complementary to any other sacred text. To be sure, many of Dt’s individual laws and narratives have their counterparts elsewhere in the Pentateuch. But to compare these counterparts is to accentuate Dt’s distinctiveness. The relationship between Dt and other parts of the Torah, notably the priestly element, was conveniently delineated by S. R. Driver in the introduction to his monumental commentary: 1

At least in MT. Other versions find angelic beings lurking in the clause ve-ata meribebot qodesh at Dt 33:2. Though one cannot be certain, the likeliest meaning of the clause is:Â€‘and He came from Ribebot Qodesh’, as understood by several midrashim. However, the once important site called Ribebot Qodesh (or Me-meribat Qadesh) said nothing to later generations. Moreover, QDS in second Temple usage conjured up precisely the kind of supernal creatures that were coming [back?] into Judaism with a vengeance. Once angels were in the air, it is no wonder they suggested themselves at the drop of a hat. Thus the Septuagint, evidently fumbling for meaning, scoops up the verse’s next phrase mi-mino eshdat [qeri:Â€ esh dat] lamo and renders the whole sequence “with the ten thousands of Cades; on his right hand were his angels with him”. To be fair, LXX may have read ve-itto where MT has ve-ataÂ€– a reading attested by the Samaritan and implied by Tg’s ‘ve-immeh’. But when all is said and done, the more difficult reading preserved by MT looks to be the original. Moreover, it is only MT that is able to account for the prefix me (of me-ribebot).

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[T]he laws of Dt and H [Holiness Code] are frequently parallel in substance, they must therefore be derived ultimately from some common source, but they are formulated without reference to each other. With the other parts of Ex-Num, the “Priests’ Code” properly so called, the parallelism of Dt is both much less frequent, and (where it is present) much less complete, even than with the “Law of Holiness.” There are no verbal parallels between Dt and P; much that is of central significance in the system of P is ignored in Dt, while in the laws which touch common ground, great, and indeed irreconcilable, discrepancies often display themselves:Â€ hence the legislation of P cannot be considered in any degree to have been one of the sources employed by the author of Dt.â•›.â•›.â•›. As it is, he moves on, without displaying the smallest concern or regard for the system of P:Â€such institutions of P as he refers to are mentioned almost incidentally, without any sense of the significance attaching to them in the system of which they form part; and many of P’s most characteristic and fundamental institutions, if they are not contradicted in Dt, are simply ignored in it. There can be no doubt that the author of Dt was acquainted with priestly laws and institutions; but the nature of his allusions shows that his knowledge of them was derived, not from the systematic exposition of them contained in P, but from his practical acquaintance with the form in which they were operative in Israel in his own day.â•›.â•›.â•›. The dependence of Dt upon JE, on the one hand, and its independence of P on the other, which is established for the legislative sections of the book, is maintained, in exactly the same manner, through the historical sections (A Critical and Exegetical Commentary on Deuteronomy, 1895, pp. XI–XIV).

Of course, in the intervening century since Driver, Biblical scholarship has not been stagnating. Still, in broad outline, this schema of Driver’s has aged well, and it is only right that we state our essential agreement with it. That agreement extends to the dating of Deutoronomy relative to other strands of the Torah, particularly to the Priestly. This is not the forum to argue higher criticism, yet it would be disingenuous not to come clean as regards our position:Â€Dt predates P. In some circles, the antiquity of P is still espoused as though it had been proved by scholarship. We have examined the stock proofsÂ€– from Hoffmann2 and Kaufmann3 R. David Z. Hoffmann (d. 1921) first made his case in Die Wichtigsten Instanzen gegen die Graf-Wellhausensche Hypothese, (Heft 1, Berlin 1904). But see also his commentary to Leviticus Das Buch Leviticus:Â€ übersetzt und erklärt (2 vols. Berlin 1905–1906), where he systematically leans over backwards to refute the critics’ dating of the Priestly Torah. 3 Yehezkel Kaufmann (d. 1963). The fifth chapter in the first volume of his opus magnum Toldot ha-Emunah ha-Yisre’elit (Tel Aviv 1937) is entitled The Antiquity of the Priestly Code. In that chapter, Kaufmann endeavours to dislodge the authorship of the 2

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down to Milgrom4 – and found them wanting. For some, it is a point of honour to push P as far back as possible. We have no wish to trample on anyone’s honour or beliefs. Bible criticism has undeniably been exploited for their own ends by enemies of the Faith and must consequently put up with the caginess of the faithful. For our part, we happen to think that to faith, the age of a bookÂ€– however sacredÂ€– is analogous to the age of the world. God creates the world, but the rabbis dispute whether it was created in Tishri or Nisan.5 God gives the Torah, and the rabbis cannot decide if it was given on the sixth or seventh of Sivan.6 It would seem dates matter less than the avouchment of everything that happens as happening in God’s good time, whether or not we know that time or like it. The Priestly and Deuteronomic writings each has the critical mass necessary for a literary work to divulge its distinguishing characteristics. When it comes to women, Dt and P can be seen to display quite distinctive attitudes. Nevertheless, it is futile to ask under which dispensation the daughter of Israel fares better. Earlier on, the possibility of P’s advocating monogamy was discussedÂ€– as will be, in due course, its choice of circumcision as a covenantal sign. Neither monogamy (presumably congenial to the individual woman) nor circumcision (exclusionary of women) is part of Dt’s program. Thus, it is best to suspend such evaluations for the time being while the floor is given over to the texts. Ritual Purity A yawning gulf divides Dt’s ritual purity from P’s. Now, at first blush, ritual purity may seem peripheral to women’s weal. Yet an inverse Â�correlation has long been intuited to exist between concern with ritual defilement and gender equality (and vice versa). Comparison of the third book of the Torah with the fifth tends to substantiate the intuition. Priestly Code from the niche in time assigned it by the Wellhausen school of critics and to push it back to a pre-Deuteronomic date. For Kaufmann’s arguments in English, consult Moshe Greenberg’s abridgement The Religion of Israel:Â€From Its Beginnings to the Babylonian Exile (University of Chicago Press, 1960). 4 See pp. 3–13 of The Anchor Bible, Leviticus 1–16:Â€A New Translation with Introduction and Commentary by Jacob Milgrom, 1991. 5 See R. H. 10b–11a. 6 See Shab. 86b; also Sifra beginning of Behar; Hag. 6a–b; Git. 60a etc.

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We submit that: 1) the inclusiveness of Dt 31:12 (cited above) is broadly reflected throughout the bookÂ€– with exceptions.7 2) Deuteronomy is only marginally interested in purity and holiness of the ritual variety. 3) These two characteristics of Deuteronomy are linked. 4) P’s zeal for ritual purity8 has repercussions for women. In Dt, tuma’ah appears ten times9 and taharah six.10 Of the total, two refer to moral pollution (21:23; 24:4), six to animals and birds11 and seven have to do with the cult and tithes (to be taken up anon under the heading ‘sacred meals’) and no doubt allude to physical impurity. There is no elaboration, however, as to the pollution’s incidence or entelechy. This leaves Dt 23:10–12:Â€“When you are encamped against your enemies guard yourself against anything untoward. If anyone The most glaring exception has to be the one noted in passing viz. zakhur at Dt 16:16:Â€“Three times a year shall all your zakhur appear before Hashem”. Echoing the Talmud (Hag. 4a), most philologists define zakhur as a collective noun derived from the common noun zakhar (=male). Accordingly, Dt 16:16 would be directing male pilgrims to leave their womenfolk at home. Furthermore, if zakhur are the men, then, by implication, laws that omit their mention may be presumed to have all the people in mind. But whatever the precise identity of zakhur, it must be thought of as a detachment within the larger group to whom the bulk of the laws are being addressed. Up to this point in the chapter, the festival directives have been couched in the second person, implying that they pertain to the audience in toto. Here at v. 16, when issuing a command for zakhur alone, the third person is employed. What still remains to be explained is this:Â€If zakhur are indeed the men, then the law of 16:16 would jar with Dt 16:Â€11 that envisages the entire household assembling at the chosen site. 8 Not that statistics tell the whole story, but for what it is worth, here is the breakdown of TMH/THR as presented in Jacob Neusner’s pioneering study of Hebraic purity:Â€“[T]hat the common ideology [of purity] is cultic and is characteristic chiefly of the priests, may now be shown statistically. Pure and impure (TM’/THR)â•›.â•›.â•›.â•›are primarily found in priestly literature.â•›.â•›.â•›. As to unclean (TM’), the root occurs approximately 283 times, as follows:Â€Leviticus and Numbers:Â€182, Ezekiel:Â€44, other:Â€57. As to clean (THR), the root occurs approximately 212 timesâ•›.â•›.â•›.â•›Leviticus and Numbers:Â€93, Ezekiel:Â€16, Chronicles:Â€15, Exodus (pure gold for cult):Â€33, other:Â€55.” (The Idea of Purity in Ancient Judaism, Leiden 1973, p. 26). 9 Dt 12:15, 22; 14:7, 8, 10, 19; 15:22:Â€21:23; 24:4; 26:14. 10 Dt 12:15, 22:Â€14:11, 20; 15:22:Â€23:11. 11 The dietary legislation of Dt 14 is thought by many scholars to comprise nonÂ�deuteronomic material. For Driver this meant “Dt 14:Â€3–20 is not, as a whole, the composition of D, but borrowedâ•›.â•›.â•›.â•›from some independent source .â•›.â•›.” (ICC Dt. p. 163). Others, however, wonder whether Driver did not go too far in including verses 3–6 which clearly form a distinct unit. 7

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among you becomes unclean through a nocturnal mishap he must go outside the camp he must not come within the camp. Towards evening he shall wash in water and at sunset come back into the camp.” Dt 23:10–12 is as explicatory as the others are terse. Not only does it name the source of the impurity (albeit obliquely) and its effect (sequestering), but also the antidote (washing and waiting for sunset). Moreover, it circumscribes the impurity’s sphere of influence:Â€a military camp when going to war against the enemy. From this it may be inferred that the law was not applicable in civilian life, but only when out on military expeditions that were regarded as holy affairs.12 So although Dt 23:9–14 can certainly be said to linger over a particular kind of bodily defilement, by the same token it limits the defilement’s scope. By the by, none of Deuteronomy’s impurity texts has anything to say about impurity secreted by women. Sacrificial Meals As noted, seven of Deuteronomy’s purity referencesÂ€– confined to four scripturesÂ€– deal with cult and tithe: 1) Only if you badly desire it, you may slaughter and eat meatâ•›.â•›.â•›.â•›in any of your settlements the clean and the unclean may eat it like gazelle and deer (12:15). 2) Yet, as gazelle and deer are eaten so shall you eat it the unclean and the clean may eat it together (12:22). 3) In your settlements shall you eat it the unclean and the clean together like gazelle and deer (15:22). 4) When you have finished tithing all your produce in the third year, the tithe year, and have given it to the Levite to the stranger to the orphan and to the widow that they may eat in your settlements and be satisfied. Then you shall proclaim before Hashem your God I have cleared out the qodesh from the house and have also given it to the Levite and to the stranger to the orphan and to the widow according to all the commandments you laid upon meâ•›.â•›.â•›.â•›I have not eaten of it in my mourning and I have not 12

See 1Sam 21:6; Jer 6:4; Joel 4:9; Mic 3:5; Gerhard von Rad’s Holy War in Ancient Israel translated and edited by Marva J. Dawn, Grand Rapids, MI 1991, esp. pp. 42, 116–117.

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75

cleared out any of it in impurity (be-tame) and I have not given of it to the deadâ•›.â•›.â•›.â•›(26:12–14). Despite these references, impurity receives short shrift in Dt’s code and never appears as a religious impetus. Such reticence suggests that the rudiments of purity will have been so well established they did not need articulating, and that whatever those rudiments were, Dt had no interest in modifying them.13 This perfunctoriness of Dt towards purity laws may be seen as paralleling its apathy towards the whole pollution spectre. So although it never dwells on it, Dt does uphold the nonchalant purity such as existed, not to be confused with the urgent purity of the Priestly Torah. This impression crystallizes when we ponder the distribution of the tithe as envisaged by Dt 26:12–13 (cited at 4 above). The tithe, though classified as qodesh, goes to the poor and dispossessed whose observance of ritual purity can hardly be banked on. Yet no purity test is imposed on the recipients. The widow, the orphan – none of them is cross-examined as to the state of their biorhythms, even though they eat the tithes they are given (v. 12). Moreover, according to a parallel formulation of the tithe law (Dt 14:28–29), the landowner does not give the tithe to anybody. Instead the tithe is left for the indigent to come and help themselves. Indeed, Dt’s entire calendar of cultic repasts celebrated with household, servants, aliens, waifs and strays (as further reflected by the following laws) is incompatible with Levitical purity: 1) There you shall bring your whole-offerings and your [peace-] offerings your tithes and contributions your vows and freewill offerings and the first-born of your herds and flocks. You shall eat there before Hashem your God and rejoice in all the undertakings you and your families which Hashem your God has blessed you [with] (12:6) 2) And you shall rejoice before Hashem your God you and your sons and your daughters and your male and female slaves and the Levites in your settlements for they have no share or inheritance among you (12:11–12). 13

An illustration of Driver’s remark cited above:Â€“such institutions of P as he refers to are mentioned almost incidentally, without any sense of the significance attaching to them .â•›.â•›.”.

76

Commandments 3) You shall rejoice before Hashem your God you and your son and your daughter and your male and female slave and the Levite in your settlements and the stranger and the orphan and the widow who are in your midst in the place Hashem your God will choose as a dwelling for his name (16:11).

It will now be instructive to see who partakes of sacred foodstuffs according to P. But not before one last word on the Dt verses just surveyed. And who better qualified to pronounce that appraisal than Moshe Weinfeld? The attitude of the author of Deuteronomy towards man and woman finds its clearest expression in the passages which enumerate the participants in the covenant ceremonies.â•›.â•›.â•›. Deuteronomy makes a particular point of mentioning that women, as well as men, participate (29:10 and 17; cf. 31:12). The same is true of the festivals and the festal repasts. On such occasions we meet with the Israelite’s daughter as well as his son, and his maidservant as well as the manservant (12:12 and 18; 16:11 and 14). The wife, it is true, is not mentioned in these passages, but the very absence of all reference to the wife is indicative here of Deuteronomy’s view regarding the equality of the sexes. The author of Deuteronomy certainly did not mean to imply that all the members of the Israelite household were expected to make the festal pilgrimage and that the wife alone was to remain at home.â•›.â•›.â•›. She is not explicitly referred to in the list of festal participants because the word ‘you’ which opens the list refers equally to the husband and the wife, who in Deuteronomy’s view both enjoy the same prerogatives.14 14

Deuteronomy and the Deuteronomic School, Oxford 1972, p. 291.

12 The Priestly Torah

Sacred Meals The Passover we meet in Ex 12:1–20, 43–51 (attributed to P) is never called a sacrifice, nor are the participants instructed to purify themselves in preparation. Furthermore, roasting is the method of cooking the meat of this Passover victim (Ex 12:9), whereas the meat for sacrificial meals is invariably boiled (Ex 29:31; Lev 6:21, 8:31; Num 6:19; Dt 16:7; Ezek 46:20; Zech 14:21; and esp. 1Sam 2:15). Some scholars classify this Passover ritual of Exodus 12 as a quasi-sacrifice because, to name another peculiarity, it is done without an altar. Hence one cannot extrapolate from anything that is said about the eating of the Passover meal in these verses.1 Besides, who precisely partakes of this Passover? All family members, as would appear from the word bayit in vv. 3–4, or men only, as per vv. 11, 44, 48? The probable reason P withholds sacrificial status from the Egyptian Passover is that it predates Sinai. In P, Israel’s entire sacrificial system is revealed at Sinai (Lev 7:37–38). Prior to that revelation, there were no sacrifices. Not Noah, not even the patriarchs offer any in P’s histories. But even when

1

“What are the differences between the Passover of Egypt and the Passover of [subsequent] generations? In the case of the former, the animal was taken on the tenth of the month [Ex 12:3], its blood was dashed (the verb used is HZH not NTN as in Ex 12:7 nor NGA‘ as in Ex 12:22) with a bunch of hyssop on the lintel and doorposts [Ex 12:7], it was eaten in haste [Ex 12:11] .â•›.â•›. but the Passover of [subsequent] generations .â•›.â•›.” (Pes. 9:5; cf. the Tosefta’s parallel and Pes. 96a).

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we get to P’s first post-Sinai Passover at Num 9,2 the gender of the participants is uncertain. Thus we leave the Passover and move on to cultic meals whose participants P identifies with perfect clarity: 1) [the grain offering] is holy of holies like the sin-offering and the guilt-offering. Every male of Aaron’s descendants may eat it .â•›.â•›. (Lev 6:10–11). 2) The priest who offers it as a sin-offering shall eat it; in a holy place shall it be eaten in the court of the Tent of Meeting (6:18–19). 3) Any male among the priests may eat it [the sin-offering] it is holy of holies (6:22). 4) Every male among the priests may eat it [the guilt-offering] in a holy place it shall be eaten it is holy of holies (7:6). 5) Take the grain-offering left over from the offerings-by-fire of Hashem and eat it unleavened beside the altar for it is holy of holies. You shall eat it in a holy place inasmuch as it is your due and the due of your sons out of the offerings-by-fire of Hashem for so was I commanded. But the breast of waving and the thigh of heaving you shall eat in a clean place you and your sons and your daughters with you .â•›.â•›. (10:12–14). 6) No man of Aaron’s offspring who has an eruption or a discharge shall eat of the holy things until he is cleansed also he who touches anyone (or anything) made unclean by a corpse or a man out of whom an emission goes forth or a man who touches any swarming thing such as renders one unclean or a human being such as renders one unclean whatever his uncleanness. The person who touches such shall be unclean until evening and shall not eat of the holy things until he has washed his flesh in water. When the sun sets he shall be clean and after that he may eat of the holy things because it is his food (22:4–7). 7) No lay person shall eat holy nor may a stranger lodging with a priest or a hireling eat holy. But a person bought by a priest for silver and those born in his household they may eat of his food. A priest’s daughter if she marries a layman she shall not eat of the holy gifts (or contributions). If a priest’s daughter is 2

There cultic vocabulary abounds (qorban, hiqriv, ‘asa).

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widowed or divorced and has no children and she returns to her father’s house as in her youth of her father’s food shall she eat but no lay person shall eat of it (22:10–13). 8) It [the show-bread] shall be for Aaron and for his sons and they shall eat it in a holy place for it is holy of holies that has been given him from the offerings-by-fire of Hashem a due for all time (24:9). 9) This shall be yours from the holy of holies from [what is left out of] the fire all their sacrifices and all their grain-offerings and all their sin-offerings and all their guilt-offerings whereby they compensate me [all these things] holy of holies shall be yours and your sons. In the holy of holies you shall eat it every male may eat it holy shall it be unto you. This also shall be yours their contributed gifts (terumat mattanam) and all the wave offerings of the children of Israel I give them to you and to your sons and to your daughters with you as a due for all time every clean person in your house may eat it (Num 18:9–11). 10)â•‡First fruits of everything in their land which they bring to Hashem shall be yours every clean person in your house may eat it (18:13). Thus the conditions laid down by P for partaking of hallowed foodstuffs fall into a duplex hierarchy:Â€a) To eat of the HOLY OF HOLIES, one must have a priestly pedigree, also be male and ritually clean. b) To eat of things that are merely HOLY, the stipulations are fewer. One must be a member (male or female) of a sacerdotal household, which membership is gained either by the accident of birth or else by marrying a priest or being sold to him as a slave. Ritual cleanness is mandated.3 The above purity tests are hardly conducive to casual guests, let alone urchins, floating in off the street. Indeed, these restrictions of P seem more like the disendowment of Deutoronomy’s indigent. In Dt, it is the social aspect of the cultic feasts, not their ritual, that occupies centre stage. For instance, Dt devotes incomparably more space 3

P’s tithe has been left out of this survey because the only tithe in P is given to the Levites (Num 18:21, 24) who are told “You may eat it anywhere” (v. 31)Â€ – which Sifre takes to mean even in a cemetery. Indeed, never is this tithe classified as ‘holy’, but instead is contrasted with the ‘tithe from the tithe’ (v. 26) called ‘holy’ (v. 29), and ‘Hashem’s terumah’ (vv. 26, 28, 29).

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to its meals than to its immolation rites. The latter are encapsulated in a single sentence (Dt 12:27), quite disproportionate to the ubiquitous reminders to include the less fortunate in sacred feasts. Or in the words of the social anthropologist Mary Douglas (d. 2007):Â€“In Deuteronomy the eleemosynary aspect is prominent, the sacrifices are consumed by the sacrificer in the sanctuary, and shared with the poor, the alien, the Levite, orphans, and widows. Whereas in Leviticus the division of meat .â•›.â•›. is a continuation of the sacrificial action, under strict priestly control.”4 As noted, P excludes women (daughters of Aaron) from meals classified HOLY OF HOLIES. That taxonomy comprises all those sacrifices unique in the Pentateuch to P, namely the grain-, sin- and guilt-offerings (Num 18:9). The daughters retain a share in the merely HOLY peace offering (Lev 10:14; Num 18:11)Â€– an offering of untold antiquity.5 Scripture does not explain its exclusion of women from the atonement-effecting meals (Ex 29:33; Lev 10:17), as though that exclusion was inevitable, as if it could be no other way. In the search for an apanage peculiar to women, commentators are wont to come up with a woman’s monthly periods.6 Now it is a fact that nowhere in the Pentateuch outside P is the menstruant a problem. The only non-P allusion is in Rachel’s excuse made to her father Laban:Â€“Do not take it amiss, sir, that I cannot rise in your presence because the common lot of women is upon me” (Gen 31:35). But she speaks only of physical incapacitation. Neither her father nor any of his entourage jib at the sight of a menstruant in their midst.7 In P, the atmosphere is different. Leviticus as Literature, Oxford 1999, p. 89. See Gen 31:54, 46:1; 1 Sam 1:4–5, 20:6, 20:29; etc. 6 “Whatever its original rationale, the sequestration of the woman during her menses and after childbearing served to perpetuate her essentially private status and justify her exclusion from public office, including the cult.” (“The Family in First Temple Israel” by Joseph Blenkinsopp in Families in Ancient Israel, edited by L. Perdue, Louisville, KY 1997,p. 75). Cf. Shulamit Valler:Â€“Jewish society had been a temple society and its central ideology was one of purity. The periodic changes arising from female physiology appeared to threaten the purity and spirituality [?] of men. Men’s fears led them to want to subordinate women in everything concerned with their sexuality and reproductive powers.” (Women and Womanhood in the Talmud, Atlanta, GA 1999, p. xviii). Professor Herman P. Salomon drew my attention to Valler. 7 See, inter alia, Menstruation and Childbirth in the Bible:Â€ Fertility and Impurity by Tarja S. Philip, New York 2006, pp. 22–25. 4 5

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By the time Leviticus chapter 12 is given to Israel, menstruant law was already current. “When a woman has offspring and bears a male she shall be unclean for seven days as in the days of her menstrual infirmity shall she be unclean.â•›.â•›.â•›. If it is a female she bears she shall be unclean as in her menstruation for a fortnight” (Lev 12:2, 5). Of course it can be construed as a cross-reference to the niddah pericope of Lev 15:19–24. Now the rabbis held that chronology was not the main criterion for the Torah’s ordering of its material (’en muqdam um-uhar ba-torah). Hence, traditional commentaries have no qualms reading chapter 12 to be cross-referencing 15Â€– implying withal that 12 was given after 15. However, once the sequential ordering of the material is deprived of chronological significance, the zavah’s pericope (15:25–30) can no longer be presumed to be younger than the Â�niddah’s. Yet zavah has three cross-references to niddah.8 What is more, the two pericopae, namely childbirth and niddah, do not quite overlap. For instance, were the husband to have relations with his wife after the birth of their daughter, would his own impurity last for seven days or fourteen? In other words, it is an open question whether 12 anticipates 15 or else relies on established usage within the priestly community. What is clear is that Lev 12 assumes a readership familiar with niddah law. Whence that familiarity, Lev 15 or torah she-be‘al pe, is immaterial to our purpose.9 But to revert to the meals. Any meal that P grades holy of holies is invariably barred to womenÂ€– no reason given. Dt knows no such category as holy of holies, nor any foodstuff thus designated, to compare

Admittedly, these two pericopae occur within a ‘unit’Â€– if the theory is correct that everything between one occurrence of the formula “Hashem spoke unto .â•›.â•›. saying” and the next forms a literary unit. In reality, however, the distribution of the formula is a mystery as witness its five occurrences that break up Lev 23. 9 This, of course, is not an isolated example of cross-referencing within P. Lev 14:13 says, “for just like the sin-offering so also shall the guilt-offering go to the priest”. Now the guilt-offering is fully described immediately after the sin-offering at Lev 7:1–7, including the priest’s entitlement. Why then does 14:13 enlist the sin-offering to serve as prototype for the guilt-offering? Perhaps one may infer that the sin was up and running by the time the guilt was instituted. This would also explain why even in Lev 7, the sin-offering serves as the model for the guilt-offering:Â€“The guilt-offering is like the sin-offering”. Other cross-references include:Â€Lev 4:31, 35; Num 18:18. A subsidiary class of cross-reference is the anticipatory. Ex 29:7 anticipates 30:22–25; Ex 30:10 arguably anticipates Lev 16:18–19; Lev 1:16 anticipates 6:3; and Lev 25:32–34 Num 35:1–5. 8

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with P’s. What comes closest are the offerings-by-fire which Dt 18 allocates outright to the levitical tribe:10 “The levitical priests [even] the whole tribe of Levi shall have no holding or patrimony in Israel the offerings-by-fire of Hashem and His patrimony shall they eat” (Dt 18:1–2). The text’s implication is clear:Â€The priestly tribe subsists on these allocations which are its stapleÂ€– a far cry from P’s selectively allocated holy of holies. To recapitulate:Â€It is no coincidence that Dt, the book whose theology tends to short-circuit taboos, awards the sacred emoluments to the entire tribeÂ€ – men, women and children, no strings attached. Nevertheless, we have seen how Dt embraces its own rudimentary defilement and purity. 10

In other words, the priesthood. Since Deuteronomy predates the division of the tribe into servitors called kohanim and hierodules called leviyyim (a division thought to have been first envisioned by Ezekiel), the whole tribe is still reckoned priestly in Dt.

13 Two Writers on Purity Law

The time has now come to see how others understand the Torah’s Â�systems of tuma‘ah/taharah as they relate to men and women. Two books in particular tackle the subject head on. In her book Woman, Cult, and Miracle Recital, Marla J. Selvidge charges that between them, Leviticus chapters 12 and 15 manage to give women a raw deal. Under the heading “The Inequality of the Sexes in Levitical Legislation and in the Old Testament/Hebrew Bible,” she writes: Purity laws served to separate men from women, community from state, elect from non-elect, Jew from non-Jew, and God from people.â•›.â•›.â•›. Danger resulted from normal or abnormal discharges of the body. The Levitical purity laws were designed to control the activity of persons in this condition. The following discussion will center on Leviticus chapter 15 as it compares the purity laws governing women and men. At first sight there appears to be no inequity in the purity laws. A careful comparison of the verses that apply strictly to men, and the verses that apply strictly to women, yield some surprising results.â•›.â•›.â•›. At the birth of a male the woman is unclean for seven days. Before she can return or re-enter into the cultic and social life of the community she must wait an additional thirty [sic] days (Lev12:1–4). If a female is born, the confinement is doubled (Lev12:5–8).â•›.â•›.â•›. At the end of the woman’s seclusion she must offer a sacrifice for sin (Lev12:8). If a man has a normal seminal discharge he is only unclean until evening. If a woman has a regular monthly period she is banished for seven days. She would be completely out of touch with the cult and society at large for one whole week. He is only penalized an evening.â•›.â•›.â•›. If a woman sleeps with a man she is only unclean until evening (Lev15:18). If a man sleeps 83

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with a woman, who is in her period, he will be unclean for seven days, and she also communicates her contagiousness to him (Lev15:24). A woman is not made contagious by a man.â•›.â•›.â•›. Additional inequities emerge as the lists of contagious articles are compared for man and woman. The Levitical code points out that it is the woman herself who is contagious. She is put at the top of the list of contagious articles (Lev15:19). The list for the man begins with a contagious objectÂ€– his bed (Lev15:4). The woman’s sphere of activity seems to be more limited than the man’s. Leviticus is only concerned about her “bed, seat or anything on her bed or chair” (Lev15:21–27). Most of these objects would be confined to the home. The list of objects for the man includes “earthenware, wood, a saddle, and other objects” (Lev15:10). Apparently, men even traveled when they were considered to be unclean. At times the antidote for uncleanness was a bath. Curiously enough, the text never admonishes a woman to go wash her clothes after being made unclean by the touch of a man who has had a discharge. After sleeping together, both the man and woman are told to wash (Lev15:18). When comparing the laws concerning who must take a bath or wash his clothes because of coming in contact with someone or something contagious, it appears that the woman is omitted. Leviticus specifically speaks of washing clothes in masculine terms.â•›.â•›.â•›. The chapter [Lev15] ends with a summary of the laws concerning discharges from the body. The last phrase .â•›.â•›. “Anyone who might have slept with a person being unclean .â•›.â•›.” (Lev15:33) concludes with a statement about an unclean woman.â•›.â•›.â•›. The summary does not conclude with a law about a man making a woman unclean. It is not concerned with his contagiousness in relation to her.1

In 1993, Hannah K. Harrington’s The Impurity Systems of Qumran and the Rabbis appeared. More than six pages of this book (14–21) are taken up assessing Selvidge’s claims. Harrington begins by summarizing Selvidge as follows: Selvidge’s main thesis, based on Leviticus 15, is that women are repressed in Judaism because of their biological difference. They cannot participate fully in the cult, certainly not while menstruating and never as officiants. They are only a liability to men since they can contaminate them, although the reverse is not true:Â€men cannot contaminate women. Although men are made unclean by flows .â•›.â•›. they are not repressed nearly as much as women. Baby girls contaminate the mother twice as much as baby boys. The menstruant herself is contagious but the impure man described in Lev15:1–5 only effects objects. Women are never told to launder their clothes after contact with impurity;

1

Woman, Cult and Miracle Recital:Â€ A Redactional Critical Investigation on Mark 5:24–34, Lewisburg 1990 pp. 51–55.

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only the contamination of men is of any concern. Women were secluded at least 80 days a year if pregnant and up to 91 days a year if not.

Then Harrington responds to Selvidge blow-by-blow: By contrast [to her Greek counterpart], the Israelite woman, although a definite danger to the cult during menstruation, is never denigrated because of her biological difference. She commands the utmost respect. Proverbs 31 extols the virtuous woman. Abraham listens to Sarah. Deborah leads the Israelite army in a holy war as well as functions as judge. Huldah, the prophetess, is consulted by the king.â•›.â•›.â•›. Esther valiantly saves the Jewish nation from destruction. Naomi buys and sells land. The daughters of Zelophehad inherit land. Even in cultic matters women do participate when pure. Hannah prays and sacrifices at the sanctuary (1Sam1:24–26). Every woman after childbirth comes to the Temple to offer a sacrifice. Her exclusion from the sanctuary implies that normally she is allowed to participate in public worship there.â•›.â•›.â•›. It is not the intent of this dissertation to defend Jewish attitudes of purity as superior to Greek attitudes, but rather it is to show the value of a thorough understanding of Leviticus 11–15 before any scholar ventures to make conclusions about Jewish purity in any era. If Selvidge had read Leviticus 15 in Hebrew systematically, she would not only have avoided several linguistic mistakes but would have become aware immediately that many of her conclusions are unfounded. Below are a few suggested corrections. A parturient must offer an offering, but not, as Selvidge states, for sin. What sin is committed in bearing a child? A better translation is “purification offering”. Selvidge points out that a man who has a seminal discharge is only unclean until evening; a menstruant is banished for seven days. This is not as discriminating as Selvidge presents:Â€the menstruant continues to exude blood during her week of uncleanness. The man is no longer producing uncleanness; if he does have a flow of longer duration, he is unclean for the whole time he is in this condition and does not undergo a week of purification until after he is healed (Lev15:13). Selvidge points out that the woman is put at the top of the list of contagious items in Lev15:19–30, whereas the impure man’s list begins with impure objects. Rather the man’s list begins with the statement of his own categorical impurity (15:2). Furthermore, Selvidge says the woman who contacts impurity does not need to bathe or launder.â•›.â•›.â•›. This is contradicted explicitly by Leviticus 15:18 which stipulates that the woman must bathe.â•›.â•›.â•›. Laundering too appears to be necessary, and a whole verse is devoted to explaining it in detail (Lev15:17). If this is the case for a light impurity, a fortiori, for a more lengthy impurity. To say that a woman does not contract impurity from an impure man is controverted by the text’s repeated reference to kol, “all”:Â€all whom the man with an abnormal discharge, who has not washed his hands, touches are made impure (Lev15:11, 21–22). To say that

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laundering appears only with the male pronominal suffix and hence women were not required to launder is a misunderstanding of Hebrew syntax. The male term is often inclusive of the female .â•›.â•›. [e.g. Lev 15:33 where] the writer is clearly using the term generically.

So much for Harrington. It is immediately obvious that these two authors, looking at the same texts (discounting Harrington’s red herring invocation of nonpriestly ones) arrive at very different critiques. Where Selvidge detects bias, Harrington finds equipoise. Now the blunders Harrington points out in Selvidge certainly detract from the latter’s credibility. However, prudence directs us to isolate what Harrington politely calls the “unfounded conclusions” and then see where the chips fall. 1) The impure man’s list does in fact begin with the man himself and not with objects. 2) Languages that have distinct masculine and feminine inflections (such as Hebrew) conventionally adopt the masculine when speaking of a group that comprises both. Of course one could argue that this convention itself reeks of patriarchy.2 Still, it is surely precipitate to conclude on the basis of a masculine suffix alone that the referent is exclusively male (more on Hebrew’s putative bias coming up). 3) To equate a momentary emission with one of longer duration, such as a woman’s period, is to shrug off physiological data. The other objections raised by Harrington seem less open-and-shut. For instance, she faults Selvidge for translating hattat as ‘sin offering’ instead of ‘purification offering’. We daresay in this Selvidge errs in excellent company!3 How maximal the Hebrew word kol might be in a given context is not always clear-cut (as noted above in connection with Dt 31:12). Consider Lev 15:12. That verse says:Â€“[A]n earthenware vessel that the zav touches shall be broken and kol wooden vessel shall be rinsed in water”. Which clay vessels can be spared and which must be smashed?

For theories explaining the convention, see Grammar and Gender by Dennis Baron, Yale University Press 1986, especially pp. 90–100. But note va-tedabber miriam Â�ve-aharon (Num 12:1); va-tashar deborah u-baraq (Jud 5:1); also Est 9:29. 3 Scripture itself seems to side with that company, notably at Num 15:25–26. 2

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Why might all wooden, but only some earthenware, vessels contract defilement from the zav’s touch? Or, perchance, does Lev 15:12a avoid kol for the sake of euphony while nevertheless intending clay vessels to be uniformly susceptible to defilement? Again, verse 7 says:Â€“The one who touches the basar (flesh, body) of the zav shall launder his clothes and wash in water and be unclean until evening”. Why not kol who touches? Even when expansive, kol need not be unconditional. Often it means something like:Â€everybody who (or everything that) is eligible.4 If Harrington believes kol in Lev 15:11, 21–22 to be Â�all-embracing, then are, for instance, non-Israelites included? In a nutshell:Â€ It is fine getting the most out of a word as long as there is nothing counterindicative in the surrounding text. Three women Leviticus encumbers with ‘severe’ defilement as a consequence of secretions from within their bodies:Â€the parturient, the niddah and the zavah. Washing of their persons or their clothes is not prescribed for any of them, and the non-academic, leisure reader is entitled to take this taciturnity as intentional. A fortiori arguments cannot make up for such deafening silences. Moreover, the logic underlying these laws (assuming it exists) is notoriously recalcitrant to neat systemization. An illustration of this last contention is provided by Lev 15:10:Â€“All who touch anything that is under him [the zav] shall be unclean until the evening and the person who carries them shall launder his clothes and bathe in water and be unclean until the evening”. So the person who carries, launders; but not the one who touches. In Harrington’s estimation, carrying is more intense.5 Of course such an estimation is at loggerheads with the rabbis for whom carrying things that had been under the zav defiles even without contact, for example, if the unclean object is borne on a tray. Hence, as far as the rabbis are concerned, it is not in deference to logic that carrying, but not touching, should affect the carrier’s garments. In the realm of ritual purity, then, a fortiori arguments are best used gingerly. Harrington’s a fortiori argumentÂ€– that since Lev 15:18 requires wife no less than husband to bathe after a ‘light’ defilement, how much more so for a lengthier impurityÂ€ – is Cf. the Talmud’s ha-ra’ui qualifier applied to the kol of Ex 29:37 (San. 34a-b; Zev. 83b). 5 The comment is made apropos animal carcasses:Â€“Since carrying a carcass brings one into more intense contact with the impure item than merely touching it .â•›.â•›.” (The Impurity Systems, p. 119). 4

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no exception.6 Moreover, 15:18 deals with impurity conferred on the woman rather than her own autonomous impurity. And the hard fact is, nowhere does Scripture mandate bathing for women after an autonomous impurity.7 Further in her book Harrington makes her position even clearer:Â€“I disagree”, she writes, “with those scholars who suggest that, according to Scripture, only men require immersion for sexual discharges.â•›.â•›.â•›. The foundation of the argument, that Scripture requires the zava, the parturient and the menstruant to bathe, rests on contamination effects and purification rituals explicit in the Torah. From this given data, it is apparent that these persons are much more potent impurity bearers than some others who are explicitly told to bathe.â•›.â•›.â•›. Another proof that these impure women must bathe is the fact that those who touch their beds or seats must bathe (15:21, 27). If the one who is contaminated secondarily by touching the bed or seat of the unclean woman must bathe, a fortiori the woman herself .â•›.â•›.” (pp. 123–125). This last ‘proof’ Tosafot attribute to Judah GaonÂ€– even though they themselves seem not to buy it (see Tos. Yom. 78a s.v. mikkan, Hag. 11a s.v. lo and next note. An exhaustive review of proof-texts for a niddah’s immersion may be found in the Responsa of Hatam Sofer, Yore De‘ah section 194). No more convincing is Martha Himmelfarb’s attempt to deflate the significance of Scripture’s silence regarding bathing for women. “Leviticus 15 decrees laundering and bathing for the man.â•›.â•›.â•›. Yet it mentions neither .â•›.â•›. for the menstruant and the woman with abnormal discharge. Its failure to specify surely reflects its confidence that the analogy with the man .â•›.â•›. would be obvious.” (A Kingdom of Priests:Â€Ancestry and Merit in Ancient Judaism, Philadelphia PA 2006, p. 89). 7 At some stage, ablutions in a miqveh became standard for menstruants prior to the resumption of married life (not to be confused with readmission into the sacral realm). But it is doubtful whether it was treated as a requirement before R. Aqiva propped it up with scriptural authority. “It was taught ‘the infirm woman in her menstruation’ [Lev 15:33] the elders of yore said she may not paint the eyes, she may not use rouge [or dress her hair; see Rashi ibid. and Rashi to Shab. 94b], she may not adorn herself in colourful clothes. That was until R. Aqiva came and taught:Â€If [you rule] so you make her repulsive to her husband who is liable to divorce her. What then is the meaning of ‘the infirm woman in her menstruation’? It means she remains in her menstruant state until she goes into the water” (Shab. 64b; cf. Sifra on Lev 15:33; Y. end of Git.). Whether ‘the elders of yore’ required immersion before the couple resume marital life is unclear. Possibly, even before R. Aqiva immersion for menstruants was catching on but not yet considered scriptural. Harrington refers to Shaye J. D. Cohen’s observation that for menstruants, the requirement to immerse is nowhere in the Mishnah stated explicitly (“Menstruants and the Sacred” by Shaye J. D. Cohen in Women’s History and Ancient History edited by S. B. Pomeroy 1991, p. 277). M. Miq. 8:5 mentions the immersion of a niddah, but can be read descriptively. Moreover, even if taken as prescriptive, it would not necessarily indicate scriptural mandate any more than does Kallah. For the minor tractate Kallah ordains that prior to the recital of the blessings, a bride is forbidden to her husband as a menstruant before immersion is forbidden to her husband (Kal. 1:1). Thus tractate Kallah, while insisting upon immersion for the menstruant, equates it with the rabbinically ordained blessings under the huppah. Lastly, the Talmud asks why Lev 20:Â€21 uses the word niddah to vilify incest between a man and his brother’s wife:Â€“Is a brother’s wife a niddah? No, but she is like a niddah. What happens in the case of niddah? A husband and wife who have relations while she is niddah both incur karet even though afterwards [le-ahar mikkan] relations 6

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Selvidge’s final allegation is ignored by Harrington. Twice Selvidge spotlights the disparity between the man who has relations with an unclean woman whose fate detains the lawgiver (Lev 15:24, 33), and the case where the roles are reversed concerning which the lawgiver is silent. Again we must assume, along with the rabbis, that a zav imparts nothing of his ‘severe’ defilement should he have relations with his wife (M. Kel. 1:4; Sifra end of Mesora‘). Thus it would seem, thumping as they are, Selvidge’s solecisms need not invalidate her overall contention that a double standard obtains, leastways in P.8 between them become licit. Likewise, a brother’s wife. As long as her husband is alive, should relations take place between her and her husband’s brother, both incur karet even though afterwards [le-ahar mikkan] relations between them [may] become licit” (Yev. 54b - conflating Lev 20:21 with Dt’s levirate law). Once her husband is dead, there is no action the sister-in-law has to take in order for marriage to her late Â�husband’s brother to become lawful. By equating niddah, this talmudic passage may be interpreted to require no action on the part of the erstwhile niddah either, once her period and days of counting are over. For good measure, the Qumran Scrolls should be referenced. Though the texts relating to our specific topic are few and fragmentary, enough text of 4Q266 and of 4Q284 survives to suggest that Qumran simply follows Leviticus in having men mark the end of a bodily defilement by sluicing, but women by the mere passage of time. Thus in its niddah law 4Q266 frag. 6b enjoins:Â€[.â•›.â•›.] .â•›.â•›. [and a] m[an] w[ho] draws near [her the s]in of niddah is upon him and if she sees furth[er] and she is not .â•›.â•›. she shall not eat anything holy or e[nter] the temple until sun sets on the eighth day [vacat]. In 4Q284 the contrast between man and woman emerges quite starkly:Â€[.â•›.â•›. and when] he has completed seven .â•›.â•›. and he shall bathe his fl[esh.â•›.â•›.] (frag. 2 col.1). [.â•›.â•›.al]l the periods of her times [.â•›.â•›.] [.â•›.â•›.] when the sun sets on the [.â•›.â•›.] day [.â•›.â•›.] niddah. And he shall declare .â•›.â•›. (frag. 3; cf. 4Q274 and esp. 4Q512 frags. 10–11 that, like Leviticus, mandate washing for women who touch defilement external to themselves). As for the Qumran text that, according to Lawrence H. Schiffman “goes on to explain how [niddah] women could be purified by waiting seven days and immersing in the ritual bath” (Reclaiming the Dead Sea Scrolls, Doubleday 1995, p. 131), we are unable to locate it. 8 Judith Romney Wegner sums it up as follows. “In general, priestly interest in a woman’s state of cultic purity or impurity stems from fear that a menstruant or zavah may transmit cultic pollution to any man who touches her .â•›.â•›.. Yet we note P (unlike later rabbinic law) never states explicitly that a menstruant or zavah must ritually immerse herself .â•›.â•›. but only.â•›.â•›. the man .â•›.â•›.. The asymmetry here [at Lev 15] is blatant:Â€ after speaking of the uncleanness of both males and females who suffer from discharges, v. 33 concludes the list with the case of ‘a man who lies with an unclean woman’ but ignores its contextual mirror-image .â•›.â•›.. Why is this woman missing? The simple answer is that contamination of a clean woman by an unclean man is irrelevant to a system in which women do not perform cultic rituals requiring them to be in a state of cultic purity”. (“Coming before the Lord” in The Book of Leviticus:Â€Composition and Response, Leiden 2003 pp. 458–459). Another aspect of the gender-based asymmetry in P’s purity system is noted by Saul Olyan:Â€“Aside from persons with particular diseases, women experienced a number of the most burdensome impurities. The contrast between the effects of unavoidable pollution produced by men without disease and

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More of the Two Writers:Â€Ritual Holiness Having delivered judgement on the purity laws of Leviticus, Selvidge turns her critical eye to Exodus: Although Exodus does not mention menstruation, as such, it does preserve an ancient attitude about woman and her relation to cultic events. “So Moses came down from the mountain to the people and bade them prepare themselves; and they washed their clothing. Then he said to the people. Be ready for the third day; do not go near any woman”. Implied in this statement is the idea that somehow a woman could negate a proper or clean state of being needed in order for a cultic happening to take place .â•›.â•›. 9

Again, Harrington’s command of Hebrew enables her to recognize the phrase al tiggeshu el ishah (rendered by Selvidge:Â€do not go near any woman) as a euphemism for marital relations. True, QRB is the standard verb used to refer to such relations10 not NGSH as here in al tiggeshu. But the two roots are interchangeable:Â€Offering sacrifice is HQRB11 or HGSH.12 Moreover, NGSH EL is not synonymous with bare NGSH, and it is only the composite NGSH EL that euphemizes.13 All this makes Selvidge’s inference that Ex 19:15 is referring to the mere touch of a woman rather remote. But even those who accept the phrase to be a euphemism, see it as gender-biased inasmuch as it addresses husbands directly, not wives, who are both invisible and mere objects.14 If idioms are windows into those produced by comparable women is quite striking.â•›.â•›.â•›. If these rules reflect actual practice at some time in some Israelite communities, women subject to them would have spent a substantial amount of time cut off from cultic and quasi-cultic settings in comparison to men.â•›.â•›.â•›. And then there are the negative cultural associations of menstruation and menstrual blood evident in biblical texts.â•›.â•›.â•›. Thus, the opposition of clean and unclean in biblical texts differentiates men from women, and it disadvantages women in a number of respects .â•›.â•›. Gender alone, however, does not determine the extent to which feminine impurities marginalize women .â•›.â•›. Life-stage, as much as gender, determines who will be excluded .â•›.â•›. since the pollution of menstruation and parturition is restricted to women of childbearing age.” (Rites and Rank:Â€Hierarchy in Biblical Presentations of Cult, Princeton, NJ 2000, pp. 57–58). 9 Ibid., p. 56. 10 E.g. Gen 20:4; Lev 18:14; Dt 22:14; Isa 8:3 etc. 11 The hiph‘il of QRB; it is the usual term, especially in P. 12 Ex 32:6; Lev 2:8, 8:14; Mal 1:7 and passim; 2Chr 29:23. 13 For ng‘a el in this sense see Gen 20:6. 14 See, for example, Judith Plaskow’s huffiness:Â€“[T]here can be no verse in the Torah more disturbing to the feminist than Moses’ warning to his people in Exodus 19:15, ‘Be ready for the third day; do not go near a woman.’ For here, at the very moment that the Jewish people stands at Sinai ready to receive the covenant .â•›.â•›. Moses addresses

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their begetters’ mentality, they are also indicative of their perpetuators’ ethos.15 Accordingly, al tiggeshu el ishah, while no doubt symptomatic in the first instance of those who minted it, also tells us something about the society that continued to give it currency. And what it tells us is that the society in question could not have been too sorely nettled by the idiom’s androcentricity. Biblical writers had their thresholds of tolerance which shifted according to such variables as time, place and ideology. The language of the books of Samuel and Kings does not always pass theological muster with the Chronicler. This is shown by the ‘revisions’ the Chronicler makes to material found in his presumed source (e.g. 1Chr 17:21 versus 2Sam 7:23). Forsooth, in the linguistic scrupling of the prophets lurk entire philosophical treatises; and when handled with due discretion, their idiomatic preferences can shed light on the ebb and flow of Israel’s faith. Take, for instance, plural inflections used with reference to the Deity. Deuteronomy is monotheistic at core.16 Besides its articulated creed and (to our ears) monotonous epistrophe of “Hashem your God”, its monotheism is conveyed by a studied avoidance of plural suffixes when speaking of God. Scripture’s sprinkling of such plural endings17 remind us that monotheism was not built into Israel’s ancestral tongue, which had to wait for the deuteronomic revelation to trim it. For a foil, compare the language of the Mishnah:Â€ less rigorously monotheistic or indifferently so.18 Bearing all this in mind, we should the community only as men. The specific issue at stake is ritual purity.â•›.â•›.â•›. But Moses does not say ‘Men and women do not go near each other’. At the central moment of Jewish history, women are invisible.” (Standing Again at Sinai, San Francisco 1991, p. 25). With comparable chagrin Tikva Frymer-Kensky writes “A now classic example is the part of Exodus 19 where Moses tells the people to get prepared for the coming of God, to purify themselves and ‘do not go near a woman.’ In this one statement, Moses looks out at the people of Israel and addresses himself to the men. And the women become the occasion for temptation” (Studies in Bible and Feminist Critcism, JPS 2006, p. 273). 15 “A Metaphor is not value-neutral. It informs us on the perception of reality by those who used the conceptual system of the metaphor .â•›.â•›.” (Women in Ugarit and Israel:Â€Their Social and Religious Position in the Context of the Ancient Near East by Hennie J. Marsman, Leiden 2003, p. 468). 16 This is not to deny the phantom of monolatry that reports for polemical duty in orations such as Dt 3:24, 10:17, 32:12. 17 E.g. Gen 1:26, 11:7, 20:13, 35:7; 2Sam 7:23. 18 For example, “[w]hoever does one misvah they will be good to him and they will lengthen his days” (Qid. 1:9); “One who says ‘I can sin and repent, sin and repent’ they will not give that person a chance to repent” (Yom. 8:9); “In the measure that a person measures they measure for him” (Sot. 1:7) cf. R. H. 2:7; Avot 2:16, 3:5. et al.

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probably conclude that al tiggeshu el ishah did not rasp on the ears of the society that used it. Even so, Selvidge’s grievance with Exodus is misdirected. Instead of going after a wonky idiom, she thinks to impugn Exodus for chasing women away from the scene of the Sinaitic theophany!19 Selvidge’s intuition served her better in brandishing Ex 19 to illustrate ritual holiness outside the Book of Leviticus proper. QDSH lemmata occur five times in the chapter: 1) You shall be unto me a kingdom of priests and a holy people (Ex 19:6). 2) Hashem said to Moses go to the people and sanctify them today and tomorrow and let them launder their clothes (Ex 19:10). 3) Moses went down from the mountain to the people and he sanctified the people and they laundered their clothes. And he said to the people be ready for the third day do not go near a woman (vv. 14–15). 4) Also the priests who go near to (haniggashim el) Hashem shall sanctify themselves lest Hashem break forth against them (v. 22). 5) Moses said to Hashem the people will not be able to go up to Mount Sinai because you yourself warned us saying set boundaries to the mountain and sanctify it (v. 23). The Decalogue appears twice in the Torah:Â€at Ex 20 and Dt 5. The wording of the two is not identical, and much attention has been paid to the discrepancies. Equally signal are the differences between their surrounding narratives (Ex 19; Dt 4–5). Let us consider features that stand out in Ex but are absent from Dt. As just noted, holiness crams Ex 19. Both people and mountain are sanctified by way of preparation. The people are told to wash their clothes and avoid marital Â�relations. Critical analysis of the pericope shows the extent of the priestly tradition in Ex 19. A good example of such analysis is Thomas B. Dozeman’s in his book God on the Mountain. In a chapter entitled “The Priestly Redaction of Exodus 19–24,” Dozeman writes: An interpretation of the imagery in Exod 19:5bb–6a .â•›.â•›. has demonstrated the close relationship between the promise of holiness in Exod 19:6a and 19

Ironically, for the Talmud, Ex 19:15’s purpose in keeping couples apart was to ensure the women’s ritual fitness to attend the theophany (because, if she conceives, a Â�woman’s impurity lasts for up to three days; see Shab. 86a–b). For other rabbinic sources that avow women’s presence at Sinai, see note 32.

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the call to holiness within the priestly legislation. Thus it would appear that priestly redactors have introduced their own interpretation of promise in Exod 19:5bb–6a, which emphasizes the holiness of the people as a reward for covenant loyalty.â•›.â•›.â•›. In contrast to deuteronomistic redactors, whose method was to frame the Mountain of God tradition (e.g., Exod 19:8b–9a .â•›.â•›. Exod 19:19) with new material, priestly redactors engage the Mountain of God tradition more directly at three points (Exod 19:11b, 12ab–13, 15b).â•›.â•›.â•›. First, the addition of Exod 19:11b builds on the location of the wilderness of Sinai from the opening itinerary notice.â•›.â•›.â•›. Furthermore, Exod 19:11b changes the twoday chronology for preparation in the Mountain of God tradition to three days and emphasizes it through repetition.â•›.â•›.â•›. The second addition by priestly redactors in Exod 19:12ab–13a, underscores the danger of Mount Sinai as a cosmic Mountain, for it expands the succinct command of Exod 19:12aa in the Mountain of God tradition with an elaborate command concerning the need for proper boundaries. In fact the need for boundaries has become so important to priestly redactors that [God]20 is presented as even providing Moses with the exact words that must be communicated to the people.â•›.â•›.â•›. The third addition by priestly redactors in Exod 19:15b underscores the need for the people to be ritually pure in light of the extreme danger of the divine presence. Thus priestly redactors provide further interpretation of what Moses meant when he commanded the people “to be ready” in Exod 19:15a. With the addition of Exod 19:15b the readers learns [sic] that cultic purity requires abstaining from sexual intercourse.21

In Dt, neither people nor mountain is sanctified, and what is more, the only restraint holding the crowds back from the mountain is their own instinctive fear of fire.22 There is no ‘holy danger’. These are the relevant Dt scriptures: You must never forget .â•›.â•›. that day when you stood before Hashem your God at Horeb, and Hashem said to me Assemble the people before me and I will make them hear my words that they shall learn to fear me all their lives on earth, and their children they shall teach. Then you drew near and stood at the foot of the mountain. The mountain was ablaze with fire to the very skies:Â€darkness cloud and thick mist (4:9–12).

Dozeman has the Tetragrammaton in transliteration. God on the Mountain:Â€A Study of Redaction, Theology and Canon in Exodus 19–24, Atlanta, GA 1989, pp. 98–101. 22 Exactly as in Exodus’ non-priestly tradition, where “All the people saw how it thundered and the lightning flashed and the horn sounded and the mountain smoked; seeing all this the people fell back (or trembled; see Ramban’s last comment to Ex 20:15) and stood far off” (Ex 20:15) “And the people stood far off .â•›.â•›.” (Ex 20:18). 20 21

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Hashem our God made a covenant with us at Horeb. Not with our forefathers did Hashem make this covenant but with us all of us who are alive and are here present this day. Face to face Hashem spoke to you on the mountain out of the fire. I stood between Hashem and you at that time to tell you Hashem’s word for you were afraid of the fire and did not go up the mountain. (5:2–5).

In his study Holiness in Israel,23 John G. Gammie observes:Â€ “[T]he Deuteronomic authors do not use the term [holy] of God .â•›.â•›. the Deuteronomic authors themselves do not use the term “holy name.”24 He continues: The separation required of Israel in the theology of Deuteronomy does not derive from a doctrine that explicitly affirms the holiness of God (as is the case in Israelite priestly traditions), nor does it derive directly from a doctrine that links the divine holiness with righteousness (as is the case in the prophetic traditions), nor does the requirement of separation derive from an overpowering sense of the divine omnipresence (as is frequently the case in the Israelite sapiential traditions):Â€rather, the call for separation is derived from the notion of the oneness of God and of the divine election of a people and of a particular place for worship.25

One might add that in Dt, the place for worship is not called holy either, nor are vestments, furnishings or similar appurtenances. In short, physical holiness fares much like physical purity. When applied at all to inanimate objects, it is confined to actual offerings and tithes and even then appears as something vestigial.26 Holiness in Israel, Minneapolis, MN 1989. Ibid., pp. 108–109. 25 Ibid., p. 110. 26 Without putting too fine a point on it, in Dt, it is people who by an act of consecration make things holy. P too up to a point allows holiness to be conferred by humans (as just seen with Mount Sinai; cf. Ex 29:36–37, Lev 16:19). However, more often than not, P seems to envision holiness as innate in hallowed entities. For example, Dt’s 4th Commandment begins:Â€“Keep the sabbath day to make it holy” (Dt 5:12). Exodus’ sabbath opens much the same (Ex 20:8). But its motive clause (Ex 20:11) diverges entirely from Dt’s. Ex declares holiness to inhere in the sabbath because God made it holy from the outset (cf. Gen 2:3). This tension between opening and motive clauses in Ex’s sabbath commandment is dispelled once P is recognized as the prophetic agency responsible for substituting its own priestly motive for Dt’s. Again, Dt commands the farmer to consecrate the first-born of his cattle (Dt 15:19). Contrast this with Lev 27:26:Â€a man shall not consecrate the first-born of cattle (cf. Num 18:17). For a harmonization, see M. Arak. 8:6. 23 24

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QDSH occurs twice to denote consecrated viands: But such holy-gifts as you may have (raq qadashekha) and the gifts you have vowed you shall take up and come to the place Hashem will choose. You shall offer the whole-offerings both the flesh and the blood on the altar of Hashem your God but of your [peace-]offerings the blood shall be poured out on the altar of Hashem your God and the flesh you shall eat (Dt 12:26–27) When you have finished tithing all your produce in the third year, the tithe year, and have given it to the Levite to the stranger to the orphan and to the widow that they may eat in your settlements and be satisfied. Then you shall proclaim before Hashem your God:Â€“I have cleared out the consecrated Â�(ha-qodesh) from the house .â•›.â•›.” (26:12–13).

In keeping with what we have seen throughout Deuteronomy, these verses both affirm the cult and maintain a modicum of QDSH lexis. On the other hand, when compared with Leviticus, Dt can be seen to set scant store by the twin priestly pillars:Â€ritual purity and ritual holiness. Internalized monism, let alone monotheism, outgrows the pure/impure noumenon. But formal monotheism is another matter. Alongside the formal, ghosts of occultism may still find refuge. A writer on Levitical purity to have grasped this truth is Mary Douglas. Indeed, she hits the nail on the head: One of the peculiarities of biblical defilement is the logical clarity with which the concept is developed. It is a highly cerebral philosophy of existence, much more systematically expressed than most taboo ideas. The biblical idea of purity is simple and coherent. The nature of the living God is in opposition to dead bodies. Total incompatibility holds between God’s presence and bodily corruption. God is living, life is his. Other gods belong to death and the contagion of decay. Blood is the very locus of opposition:Â€living blood is his poured out for atonement; dead blood, torn bleeding bodies, cadavers with blood in them, are the sign of the false gods. The other gods are not only dead, but their worship is conducted in graveyards and tombs, by necromancy, consultation with ghosts, magic performed upon the bodies of necrophagous animals, bats, bugs and worms.27

Douglas’s dichotomy is redolent of the dualism that impelled the Roman Emperor Julian (d. 363) to abolish daytime funerals. In the hours of darkness, the chthonic forces held sway, and on their watch was when burials were appropriate, not on the gods’ “since the 27

In the Wilderness:Â€Numbers in the Context of Comparative Religion, 1993, p. 24.

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gods are the authors of life and of all things farthest removed from decay”.28 Deuteronomy says:Â€“Know this day and take to heart that Hashem is God in heaven above and in the earth below; there is no other” (Dt 4:39). This means the god mwt is vanquished by Hashem. With or without belief in resurrection and an afterlife, death is not incompatible with the God who is its creator; the One that both takes life and gives it (cf. Dt 32:39). The busting of mwt and his chthonic cohorts robs death of its otherness. Because Hashem encompasses all, blood alive or dead, above ground or underneathÂ€– menstrual blood includedÂ€– loses its whilom menace. Needless to say, none of this means to imply that the Priestly Torah is dualistic. After all, who says that demonism is a precondition for acting out the pure/impure construct? All it would involve is a compartmentalization of practice and belief for a person to heed tum’ah/ taharah even while consciously repudiating all taboo notions. Rabban Johanan b. Zakkai is the spokesperson par excellence for that kind of demythologized tum’ah/taharah, as his deconstruction of the red heifer ritual makes abundantly plain:Â€“It is not the corpse that causes defilement nor the lustrations that cleanse. It is a divine decree that must not be questioned” (Pesiqta of R. Kahana, p. 40).29 But if it is a decree, why introduce pure/impure terminology? It is not as if that terminology helps to clarify the laws. The person who has had contact with a corpse or sepulchre is enjoined to undergo spraying (on the third and seventh days) with a potion of vegetable and animal ash mixed in water (Num 19:14–19). These directives are no less intelligible than, say, the civil or sabbath laws, and in any case, describing things or states as pure and impure contributes nothing to these laws’ perspicuity. Moreover, the identical ‘pure/impure’ antonyms that stamp the corpse-defilement legislation recur in laws as diverse as the eventualities they targetÂ€– from new motherhood (Lev 12:2–8), to leprosy (Lev 13–14) to eating carrion (Lev 17:15). Hence, generic ‘impure’ is unlikely to be of practical aid to those wishing to abide by the rules. To On Funerals, The Writings of Julian translated by W.C. Wright, LCL 1913–1923 vol. 3, pp. 190–196. 29 Another, if less overt, example of such demythologizing occurs at M. Kel. 1:6. “The land of Israel is holier than all lands. And what is [or wherein resides] its holiness? From it[s soil] the Omer sheaf, the first fruits and the two loaves are brought; offerings that can be brought from no other land”. 28

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them it might even seem baffling. Rabban Johanan’s exegesis thus falls short of accounting for such epithets, at least on the halakhic level. Appeal is occasionally made to another tanna’s rationalization of a parenetic scripture at Lev 19:25. Lev 19:23–24 exhorts the orchardman to forgo the fruit his trees produce during their first four years. “The fifth year,” verse 25 continues, “you shall eat its fruit to increase its yield for you”. But if it is all about conforming to the divine decree as R. Johanan postulates, why dangle “to increase its yield for you”Â€– as though pandering to baser instincts? R. Aqiva responds that the Torah does indeed deign to dangle a carrot, and that for the benefit of the evil inclination. The Torah-committed inclination when it hears the commandments cheerfully consents. For that ‘good’ inclination, commendation of commandments or vilification of prohibited acts cuts no ice. But the Torah caters also to the wretched yeser that hives in every mortal (Sifra to Lev 19:25). Some apologists extend R. Aqiva’s hermeneutic to other Torah vocabulary, notably piggul (Lev 7:18,19:7), sheqes (Lev 11:10–13, 23 etc.) and to‘evah (Lev 18:22, 20:13; Dt 14:3 etc.), all of which might otherwise seem extraneous to the high-minded idea of submission as a sufficient motive. It is enticing to add pure/impure to this league of refrains, allegedly co-opted by Torah to win over ‘evil inclinations’ that beat to bogus rhythms. On reflection, however, it becomes difficult to dismiss P’s portentous ritual purity as no more than a grudging nod to the dry bones of discarded cosmologies. Later we shall rehearse P’s comminations against those who violate holiness and purity. For now, suffice it to say that those comminations clearly demarcate P’s tum’ah, like its qedushah, a danger zone. Less straightforward is the nexus between P’s purity program and women getting the thumbs down. After all, men too are liable to spontaneous impurity such as leprosy or fluxes, and according to Num 5:2–3, lepers and zavim of both genders are ostracized alike. Moreover, had a woman’s metabolic fitfulness been fraught with anxiety for P (as it was later to be fraught), one would expect P’s sanctuary to be off limits to women. But, as Harrington reminded us, the ritually pure woman is welcome in the sanctuary court (Lev 12:4, 6; Num 5:16, 18).30 This respect for women is characteristic of P that, provided 30

The welcome is cancelled by the Temple Scroll (col. 39 line 7) that ousts women from the middle court of its Temple. If only we could get inside the minds of the Scroll’s authorsÂ€– as indeed of Herod’s architects when planning a women’s court! The latter,

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it entails no downside for holiness, looks out for women and their well-being.31 Indeed, nowhere are a woman’s rights and dignity, such as they are, more secure than under P’s aegis. Nevertheless, Â�concern for ritual holiness and ritual pollution pervades P’s entire outlook. Scriptures such as Lev 10:3–7, 27:29 and Num 16:35–17:3 may even suggest that when the demands of holiness and compassion Â�conflict, P would plump for holiness. Thus women’s aggravated potential for generating ‘pollution’ cannot be ruled out as a factor in P’s denying them holy-of-holy emoluments. At our next rendezvous with purity, we shall try to plot it along the priestly continuum of body, propagation and lineage. Meanwhile, unfinished business presses. As intimated at the outset of this section, Torah study, though reckoned one of the commandments, warrants Josephus insinuates, had impurity in mind if not on the brain:Â€“There was also on the other sides one southern and one northern gate through which was a passage into the court of the women; for as to the other gates, the women were not allowed to pass through them; nor when they went through their own gate could they go beyond their own wall” (Wars 5:5, 2) Four paragraphs later he adds:Â€“The whole city was closed to those suffering from a flux or leprosy, and the Temple was closed to women who even when free of impurity were not allowed beyond the limit before-mentioned” (ibid. 5:5, 6). These notices demonstrate the extent to which Herod’s temple deviated from the Torah’s sanctuary which sets aside no separate space for women (any more than do King Solomon and Ezekiel’s blueprints). Nor for that matter does talmudic halakhah. But whatever their own priorities, the rabbis were well aware of the layout of Herod’s Temple as attested by the following:Â€1) “How could there be a woman in the inner courts!” (Qid. 52b; Tos. ad loc. s.v. ve-ki). 2) “Abba Eleazar recounted:Â€Once we had a calf which was a peace-offering and we brought it to the women’s court and women laid their hands on it” (Hag. 6b, cf. Sifra Nedaba 2:2). 3) “She [the sotah] is then taken up to the portal of Nicanor’s gate for that is where sotahs are given to drink, and mothers after childbirth and lepers are purified” (Sot. 1:5, cf. Jos. Ant. 3:11, 6). None of this degradation of women gets its oxygen from P, but rather contravenes P, that as noted, welcomes all clean persons to its sanctuary forecourt. In default of Torah mandate, one is tempted to attribute this near paranoid fear of women’s presence to an obsessive anxiety about defilement. Josephus’ “women .â•›.â•›. even when free of impurity” is especially telling. He seems to say, even if temporarily pure, their persons are tinderboxes of impurity. The Talmud confirms that the sight of a (pre-menopausal?) woman at the gate brought on the jitters:Â€“‘Away with her, away with her’ they cried ‘ere she defile the court’” (M. Sot. 3:4; Sot. 20b). Though the rabbis did not allow it free rein, niddah-anxiety certainly had a halakhic role in placing women on a different footing from men:Â€“If burglars enter a house, only the area trodden by the burglars’ feet is defiled. What [else] do they defile? food and liquids and open earthenware vessels; but beds and seats and sealed earthenware vessels are clean. If, however, they [the burglars] were accompanied by a non-Jew or by a woman then everything is unclean.” (Tah. 7:6). 31 Ex 35:22, 26, 29, 36:6; Lev 19:3, 20, 29; Num 5:6–7, 27:6, 36:6 etc.

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discrete treatment. Brisk as may have been our interaction with Â�women’s misvotÂ€– darting in and out among them, circumambulating them and turning them inside outÂ€– the product of those efforts remains an acephalous torso until capped by that acme of misvot:Â€ Talmud Torah. Hence the repository of traditions regarding Talmud Torah for women will be our next port of call. The rabbis conceded that the paradise story of Genesis 2–3 had ended in disaster. But those who stood upon Mount Sinai (‘al har sinai) were alleviated of its worst depredations, or in the aggadah’s trope pasqah zohamatan (their scum was syphoned off). Not merely Israelite men, but all Israel shed the venomous scum implanted by the serpent because all stood upon Sinai together (see Shab. 146a, Yev. 103b, A.Z. 22b).32 Mounting Sinai is a metaphor for receiving the Torah.33 Cf. Ex. Rab. 5:9 and Pirqe R. Eliezer chapter 41’s descriptions of all-gender Sinai throngs. See also Women OutÂ€– Women In:Â€The Place of Women in Midrash (Heb.) by Chana Safrai and Avital Campbell Hochstein, Tel Aviv 2008, pp. 140–141. 33 Physically, if anybody stood upon the mountain, it was none but Moses (and possibly Aaron see Ex 19:12, 24). That is the glorious irony of this aggadah. 32

14 Torah Study

It was taught in a baraita a father is obligated to circumcise his son; to ransom him, to teach him Torah, to get him married and to teach him a trade .â•›.â•›. (Qid. 29a) [A father is obligated] to teach him TorahÂ€– whence do we know that? It is written [Dt 11:19] You shall teach them [these words] to your sons. If his father failed to instruct him he is obligated to instruct himself as it is written [Dt 5:1] You shall learn. How do we know that she is not obligated? It is written [Dt 11:19] You shall teach [Dt 5:1] You shall learn; all who are obligated to learn are obligated to teach but all who are not obligated to learn are not obligated to teach. And how do we know she is not obligated to teach herself? It is written [Dt 11:19] You shall teach [Dt 5:1] You shall learn; all whom others are commanded to teach are commanded to teach themselves but all whom others are not commanded to teach are not commanded to teach themselves. How do we know that others are not obligated to teach her? Scripture says [Dt 11:19] You shall teach them [the commandments] to your sons. Your sons not your daughters. (Qid. 29b)

Maimonides disposes of a woman’s share in Torah study in a single paragraph: A woman who studies Torah has her reward but it is not the same as the reward of a man because she was not commanded and the reward for doing something that one was not commanded to do is never the same as, but rather less than, the reward for doing something one was commanded. However, even though she has her reward, the sages commanded that a man not teach his daughter Torah because the minds of most women are not geared to learning 100

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and will turn the words of Torah into words of foolishness according to the poverty of their understanding [or intellect]. The sages said whoever teaches his daughter Torah is as if he taught her tiflut. That applies to the Oral Torah. But the Written Torah, though he may not teach her in the first place, if he did it is not like teaching her tiflut. (Yad, Talmud Torah 1:13)

Maimonides codifies talmudic law. His assertion that women were not commanded to study Torah finds ready authority in the Talmud, not least in tractate Qiddushin (as we have seen). Another pertinent source is Sot. 21a: [when the Mishnah says that merit can suspend the effects of the bitter waters for up to three years] what merit was it referring to? Could it be the merit of Torah?Â€ – but surely she does it as one not commanded! So it must refer to the merit of misvah. But does misvah merit afford that much protection? .â•›.â•›. Ravina said it absolutely refers to Torah merit [and not to misvah merit]. And as for the objection that she does it as one not being commanded, even though she is not under orders [to study], the reward for taking their sons to their Scripture and Mishnah lessons and waiting patiently for their husbands until they return from the bet midrash, do they not plg (=divide, share, split) that reward?

On the other hand, “whoever teaches his daughter Torah is as if he taught her tiflut” that Maimonides attributes to the sages, is anything but the talmudic consensus. In fact, it is a toned-down version of an admonition ascribed to one solitary tanna, namely R. Eliezer. “R. Eliezer says whoever teaches his daughter Torah teaches her tiflut”.1 Evidently, R. Eliezer’s gnome gave umbrage to amoraim who refused to believe that anybody would dare refer to Torah as tiflut. Hence they inserted the words “as if”Â€– which ‘as if’ version is then adopted by Rambam. But presenting the lone voice of R. Eliezer (sanitized or not) as though it were the sages’ unanimous verdict is not the only surprise in this Maimonidean text. According to other sources, R. Eliezer opposed not merely fathers teaching their daughters Torah, but even adult women studying on their own initiative (Yom. 66b; and see further). By allowing women to study (if for lower ‘wages’), Maimonides distances himself from Yoma’s R. Eliezer. Yet he adopts the selfsame tanna’s dire 1

Strictly speaking, the Torah=tiflut equation is R. Eliezer’s and his alone. However, bang after his utterance the Mishnah records R. Joshua’s comment:Â€“a woman prefers one qav and tiflut to nine qav and abstinence.” Shortly we shall see how R. Joshua could be read as endorsing R. Eliezer.

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warning to fathers who contemplate teaching their daughters, albeit converting the warning into a decree “commanded by the sages”. All the same, Rambam’s formulation was perpetuated by later codes down to the influential 16th-century Shulhan Arukh (Yore De‘ah, 246:6), with the result that rabbinic leadership tended to discourage Torah for women. Meiselman is an eloquent spokesman for that leadership: [T]he learning of Torah is not obligatory for women as it is for men. A man’s ultimate task is an all-engrossing involvement in the study of Torah. A woman’s ultimate task is in another area and another direction. She is obligated to study and be proficient in order to perform her mandatory tasks. All Â�knowledge necessary for the performance of her tasks is obligatory. At times when only technical knowledge is necessary only technical knowledge is required. Other areas of knowledge are optional. The sages were cautious about permitting women to venture into areas irrelevant to performance. Some scholars say that they forbade it. Most say that they urged caution and prudence out of fear of the dangers of superficial knowledge.2

Meiselman seems coy about the dangers that he only dimly alludes to. But whatever those dangers, one cannot help reflecting whether the prophylactic employed to avert them might not have wrought greater mischief in the process. Could it have been a case of “The one who flees the scare falls into the pit”?3 If it was, then the casualties were not merely Jewish women. Women’s estrangement from Torah study was decisive in moulding Judaism, both pragmatically and ideologically. The phrase ‘Torah study’ sounds rather academic and scarcely captures the spiritual dimensions of the experience or its dynamism. Perhaps prose is altogether inadequate. At any rate, it is poets who have come closest to celebrating what Torah meant to them, preeminently the prophet who gave us Psalm 119. Less overtly autobiographical is Proverbs 8’s elegy to wisdom; wisdom the rabbis identified with Torah.4 When we get to rabbinic literature, panegyrics to Torah burgeon: R. Meir says Everyone occupied in Torah for its own sake merits many things. Furthermore, the entire world is worthy of him. He is called re‘a;5 he Jewish Women in Jewish Law, p. 40. Isa 24:18. 4 As did Ben Sira before them (Ecclesiasticus 24:1–23); see Mirror of His Beauty pp. 29–33, 79–80. 5 The Hebrew word re‘a denotes friend or fellow, depending on context. Here it might be an allusion to Lev 19:18 “You shall love re‘akha (=your neighbour, fellow) as 2 3

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is beloved, he loves God, he loves humanity. He gladdens God he gladdens his fellow humans. It [Torah studied for its own sake] clothes him in humility and reverence and it enables him to be righteous pious upright and trustworthy; it keeps him away from sin and brings him close to virtue. People benefit by his advice counsel insight and strength as it says [Prv 8:14] Mine are counsel and resourcefulness I am understanding courage is mine .â•›.â•›. Torah’s secrets are revealed to him and he becomes like a bubbling spring, an endlessly flowing river; he is modest, long suffering and he forgives insults; it enhances and elevates him above all works (baraita de Qinyan Torah; appearing as 6th chapter of Avot in some editions of the Mishnah). It was taught in a baraita R. Menahem son of Yose expounded the verse [Prv 6:23] Misvah is ner and Torah ’or. Scripture likens a misvah to a lamp and the Torah to the sun in order to tell you that just as a lamp’s light is temporary so is the protection afforded by a misvah. Torah to the sun to tell you that just as the sun’s light is for ever so is the protection afforded by Torah. And it also says [Prv 6:22] Wherever you turn she will guide you when you lie down she will watch over you and when you wake she will converse with you. (Sot. 21a)

The life enhancement of the sincere Torah student as limned in these encomia far exceeds the gratification of intellectual stimulation. It also surpasses the recompense envisioned by the sources for observing other misvot. It is possible that when R. Meir said, “[e]veryone occupied in Torah for its own sake”, he meant quite literally everyone and not just Israelite men. After all, R. Meir’s wife Beruriah was remembered as being engrossed in Torah as deeply as any tanna,6 and he himself (at least by some) as a stalwart torch-bearer for universal Torah: It was taught in a baraita R. Meir7 said how do we know that even a non-Jew who studies Torah is like a high priest? It says [Lev 18:5] “A person shall do and live by them”. Priests Levites and Israelites is not what it says but rather “a person”. Thus you learn that even a non-Jew who studies Torah is like a high priest. (B.Q. 38a, San. 59a, A.Z. 3a)

yourself”. Who one’s re‘a was had more than theoretical ramifications, and this might be R. Meir’s definition of re‘a. 6 See Pes. 62b; T. Kelim, Bava Qama 4:9 etc. Also “The Beruriah Traditions” by David Goodblatt in Journal of Jewish Studies 26 (1975) pp. 68–86; Beruria the Tannait:Â€a Theological Reading of a Female Mishnaic Scholar by Dalia Hoshen, University Press of America 2007. 7 Var. R. Jeremiah (see Tos. San. 59a s.v. ella).

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This tanna8 seems to conceive of Torah as an elixir that vivifies all who imbibe of it. While it is comforting that some may have been so magnanimous, what of those who believe Torah Study not to be intended for women? Apologists respond that blessing is a reflex of obedience, not an index of a misvah’s glamour. The person commanded to perform a misvah can be said to submit to the divine will in carrying out the misvah. Those not commanded are pleasing themselves if they happen to perform a good deed; but it is essentially self-will, not obedience. ThereforeÂ€– so the apologists claimÂ€ – women are no worse off than men insofar as they can reach their plenary misvah potential so long as they discharge the set of duties assigned to them. Men’s package may lack niddah (and to a degree hallah and the sabbath lamp)9 whereas women’s lacks Torah study. But, the apologists continue, Torah study like the performance of any other misvah works its full felicity only in those responding to a divine imperative. Since women were not commanded to study Torah, should they do so they cannot look to reap the harvest destined for those under orders, namely male students. This rationale tallies, of course, with Maimonides’ scheme. But if it all boils down to obedience, as the apologists allege, what is the import of those texts that put Torah study on a pedestal? To be sure, Ribbi (Judah the Patriarch) recommended being as meticulous with a light misvah as with a weighty one “because you do not know the reward of misvot” (Avot 2:1). If Ribbi meant to lump Talmud Torah under the umbrella of misvot, then he must have taken with a pinch of salt the first Mishnah of Pe’ah:Â€“Study of Torah outweighs them [the misvot previously enumerated] all”. He will also be presumed to have rejected the Yerushalmi’s understanding of the Pe’ah Mishnah “Study of Torah outweighs them all; R. Berakhia and R. Hiyya of Kefar Tahmin one said even the whole world in its entirety is not worth a single word of Torah. The other said even all the misvot of the Torah are not worth a single word of Torah” (Y. Pe’ah 1:1 [15c]). What is certain is that these latter texts, like the one we saw in Sotah 8 9

Whether R. Meir or R. Jeremiah. “Why was the misvah of niddah given to woman and not to man? .â•›.â•›. why was the misvah of hallah given to woman and not to man? .â•›.â•›. why was the misvah of the lamp given to woman and not to man? .â•›.â•›.” (Avot of R. Nathan B, chapter 8); see also Shab. 31b–32a and Rashi ad loc.

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that compares a misvah to a lamp but Torah to the sun, are not talking about obedience. Neither were the rabbis who thanked God “for Â�giving us a Torah of Truth and planting eternal life in our midst”;10 nor were those who defined ‘afflictions of love’ as afflictions that do not prevent the sufferer from praying and studying Torah (Ber. 5a). Were it simply a matter of humble submission, all the poor devil would have to do is resignedly accept the visitation.11 The evidence is irrefutable:Â€ Normatively, rabbis did not consider Torah an obfuscatory Â�regimen crafted to instil discipline.12 We must also remember that in rabbinic eschatology, the rewards of Torah were not only a question of enlightenment and life enhancement. Reward had come to be thought of as recompense to be enjoyed by the individual’s disembodied soul after death. A soul’s bliss in the next world was contingent mainly upon the conduct of the human that hosted the particular soul. Individuals who failed to score either quantitatively or qualitatively during their stint on earth were in trouble. Indeed, the fate of one’s soul after death was frequently the gravamen of rabbinic discourse about reward and punishment. In that environment, it was inevitable that the word ‘reward’ used in connection with Torah and misvah conjured up thoughts of the afterlife. Hence, if Torah study and its concomitant reward were the prerogative of men, what would a woman’s ledger look like on the day of reckoning? Some such musings on a woman’s handicap must have disquieted the amoraim. Their question nashim bemai zakhyan (by what means do women [gain] merit?) is no mere enquiry. It bespeaks indignation at women’s meagre opportunity for garnering merit. “By what means do women [gain] merit? By letting their sons learn Scripture at the synagogue and their husbands learn Mishnah at the study house and by waiting patiently for their husbands to return from the study house” (Ber. 17a). We do well to catch the twinge of compunction behind the outburst nashim bemai zakhyan. Unless we listen to the anguish of that cry, emitted incidentally by men, we will miss the very quiddity of what the rabbis called living Torah.13 Yad, Tefillah 12:5; cf. [Minor Tractate] Sofrim 13:6 (Higger ed. p. 244). See M. Ber. 9:5. 12 For a dissident view of all misvot as fiats, see Rashi Ber. 33b s.v. middotav; also Rashi San. 76b s.v. ve-hamahazeer avedah le-kuthi. 13 See Daniel Boyarin’s groundbreaking analyses of “the resistant rabbinic voice”. In Carnal Israel:Â€Reading Sex in Talmudic Culture, 1993 (a work we shall revisit) he 10 11

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Having cited Berakhot 17a, we will digress for a moment to compare Berakhot 17a with its twin in tractate Sotah (cited near the start of this section):Â€“[T]hough not under orders [to study], the reward for taking their sons to their Scripture and Mishnah lessons and waiting patiently for their husbands until they return from the bet midrash do they not plg (divide, share, split) that reward?” (Sot. 21a).14 Despite verbal propinquity, Sotah’s idea of mothers and wives sharing the net reward that accrues to their studious menfolk differentiates it from Berakhot. Sotah’s set-up seems to be of the Wall Street variety; Â�investors gleaning their due of the profits. A variant of this entrepreneurial partnership has one partner fund the other on the understanding that the stipendiary devote his time and energy to Torah and go halves with his sponsor on the spiritual ‘dividends’. The Talmud indicates that the idea was controversial: What is the meaning of the verse [(Song 8:7) if a man were to offer for love the whole wealth of his house] it would be utterly scorned? Ulla explained:Â€not like Simeon the brother of Azariah [who struck a deal; one pays the other studies] nor like R. Johanan and the patriarchal household [the latter having supported R. Johanan] but rather like Hillel and Shebna in the story brought by R. Dimi when he came [to Babylon from Galilee]. Hillel and Shebna were brothers. Hillel occupied himself with Torah, Shebna with commerce. Eventually he [Shebna] said to him [Hillel] let’s pool the gains and split [plg] them. But a bat qol called out:Â€if a man were to offer for love the whole wealth of his house it would be utterly scorned. (Sot. 21a)

Needless to say, the involvement of the mothers and wives in their kinsmen’s education is not venal like Shebna’s. Hence the contrasting reactions, of approbation and disdain respectively, that the chalk-andcheese plgs evince on the page that, hardly fortuitously, they share in the Bavli (Sot. 21a). writes:Â€“The interests of masculist hegemony were not served by preserving records of female autonomy. Discovery of such female autonomy, or rather its re-construction [within the Talmud], constitutes a point of resistance to the dominant .â•›.â•›. segments of rabbinic orthodoxy (not all) that still wish to exclude women from full cultural participation .â•›.â•›. the very discordant or antithetical [materials] were produced and preserved in the androcentric, male-authored texts. They represent, therefore, a voice of male struggle (however nascent and inadequate from our perspective) against the ideology of gender asymmetry .â•›.â•›.” (p. 241). 14 As to the Sitz im Leben of this portrayal of schooling arrangements, see Appendix 1 (p. 135) of Eliyahou Ahdut’s [unpublished] Ph. D. thesis Jewish Women in Babylonia in the Talmudic Era [Hebrew with English summary] Hebrew University 1999.

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Nevertheless, the two plg arrangements are comparable in essence. They operate by the same mechanism which is a parasitic, or rather vicarious, feeding on another’s good deeds. Now vicarious merit is not unrelated to vicarious expiation, a principle deeply entrenched in rabbinic religiosity. For instance, a child when referring to a deceased parent within the first twelve months after the parent’s death adds the invocation hareni kapparath mishkavo/mishkavah (= I offer myself to be his/her expiation). It is a last chance to fulfil the Fifth Commandment (Qid. 31b; cf. Suk. 20a; also Sifre’s comment to “and he shall bear her sin” [Num 30:16]). So much for the plg scenario of Sot. 21a, where a portion of the Torah reward earned by husbands and sons rubs off on the women who advance them. That is Ravina’s novelty:Â€The merit that accrues to the women’s credit is not the lesser reward of a misvah but rather the prestigious merit of Torah study. In Berakhot, by contrast, all that the women can hope for is the pittance of remuneration for enabling others in their worthy endeavours. Thus at the end of the day, the Berakhot passage is the more condescending to women. Being an accessory to another’s misvah, however noble, is second-best to actual performance, according to the yardstick of the rabbis who laid it down misvah bo yoter mi-bishluho (a misvah is greater done by self than by proxy).15 Whereas paterfamilias engages Torah directly, she must content herself with the kind of contribution rendered by the mule that carries the schoolchildren on its back. Both mule and woman can relish a patronizing pat on the rump, provided there are children for them to transport. Barren wives, spinsters and mothers whose children have graduated school are all left high and dry. The same goes for widows who have no husbands for whom to keep vigil. Patently, then, the Talmud’s half-hearted attempt to mollify the nashim bemai zakhyan grumble fails to convince, as the rabbis very likely intended. The initiated were expected to see through formal conciliations. Time and again we meet students remonstrating with their masters who have been evasive with inquisitive outsiders:Â€“[S]o and so you’ve fobbed off with a broken reed but to us what are you going to say?” (Pesiqta of R. Kahana p. 40; Y. Ber. 9:1 [12d–13a]; cf. Hul. 27b). 15

Shab. 119a; Qid. 41a and especially Rashi’s comment “one performing misvot in person receives more [or greater] reward”.

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Thus the challenge posed by nashim bemai zakhyan remains as daunting as ever. The obedience theory we saw above may lull dogmatists and fideists, but it flies in the face of the ancient rabbis. The Torah they taught and lived was grounded in equity and its lodestar was righteousness. When they asked nashim bemai zakhyan, they were wrestling with theodicy:Â€Could it be that Providence saw fit to bestow the means to superlative bliss on men only, while leaving women out in the cold? But the nashim bemai zakhyan reaction of the amoraim betrays also a bleak side. It attests to a state of affairs where Torah for women was so unthinkable, that one had to go scrounging for succedanea and booby prizes. One is left wondering what winds drove sentiment withershins, in the direction of R. Eliezer and away from Ben Azzai who favoured Torah for women (Sot. 3:4). Palaeopsychology, if it may be so called, tries to identify instincts that are likely to have actuated bygone societies. Given the circumstances of 2nd-century Yavnean and Galilean Jewry, our palaeopsychological whimsy might go something like this. The genders were, of course, already lopsided under patriarchyÂ€– one dominating, the other submitting. To pile on the platitudes:Â€Nothing emblazoned machismo like a scabbard or, if you will, arms made the bloke. Sword and buckler were so much de rigueur, that R. Eliezer allowed a man to go out with them on sabbath (M. Shab. 6:4). And since it formed part of his manhood, the male’s monopoly on arms was inviolate. Thus we are not surprised that for women to bear arms at any time was to transgress the law. Deuteronomy 22:5 says:Â€“The keli of a man shall not be on a woman neither shall a man wear a woman’s garment for whoever does these things is an abomination of Hashem your God”. At Genesis 27:3, keli signifies weapons, and that was the meaning rabbinic tradition accorded Deuteronomy 22:5’s keli.16 Thus synagogue-goers would have learnt that weaponry on a woman was an abomination (see Onqelos and Neophyti 1 to Dt 22:5; also Sifre Dt 226; Naz.59a).17 The lesson would have been buttressed Driver describes keli as:Â€“a very general term, applicable to almost any article used or worn, e.g. weapons (Gen 27:3), jewels (Gen 24:58), ornaments .â•›.â•›. it is thus a much wider term than ‘garment’; and hence the indefinite rendering of AV that which Â�pertaineth unto.” (ICC on Dt, p. 251). 17 On the other hand, the vaguely Pharisaic, but pre-rabbinic, Book of JudithÂ€– without a trace of queasinessÂ€– depicts its scrupulous heroine as a sword-wielding decapitator (Jud. 13:6–8). 16

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by the Targum’s paraphrase of Judges 5:26 that divulges the reason Jael used a tent peg and a hammer to bludgeon Sisera. “Commendable Jael wife of Heber the Shalmaite18 fulfilled that which is written in the book of the Torah of Moses, Weaponry of a man shall not be on a woman neither shall a man wear a woman’s garment. Therefore she reached for the peg”. History intimates that after the tragic failure of the revolt against Rome in the year 70, the Jewish warrior lost something of his leverage. Moreover, rabbis such as Johanan b. Zakkai, were perceived as opponents of the revolution. Some scholars believe that R. Johanan’s Â�quietistic realism continued to guide mainstream Yavneans, holding them back from abetting the revolutionary agitations which were to culminate in the Bar Kokhba debacle. This theory regarding Yavnean policy finds support in the numerous depictions of R. Aqiva as a Yavnean tanna who broke rank in cheering on the uprising of 132–135. Indeed, in his championship of Bar Kokhba, R. Aqiva stands out as something of a maverick (see San. 97b; Y. Ta‘an. 4:6 [68d]). Thus Rome and the rabbis, however involuntarily, conspired to quash active, insurrectionary dreamsÂ€– with the result that military and political careers were no longer available outlets for a Jew to show his mettle. Stripped of his virility’s insignia, the Jewish male was a roebuck bereft of its antlers, a rooster of its coxcomb. To restore self-esteem, there had to be a new outlet for manly prowess. The rabbis’ own battleground had long been the bet midrash, where the sparring was called milhamta shel Torah.19 The Targums regularly render the patronymic qeni (=Kenite) shalma’a or shalmayya (see Jastrow’s Dictionary to the Targumim, the Talmud etc., p. 1587). 19 Warrior and soldier of Isa 3:2 metamorphose, respectively, into “repository of oral traditions” and “one skilled in Torah combat” (Hag. 14a). An analogous transformation awaits the bodyguards of Song 3:7–8 in Tg. to those verses (also Yev. 109b, San. 7b). Cf. San. 93b and Shab. 63a, where soldierly images occurring at 1Sam 16:18 and Ps. 45:4 are similarly tamed. See also Moses and David Aberbach’s “Humiliation and Literary Defiance”. Whatever one thinks of the slogan ‘cultural nationalism’, their following remarks are both pertinent and valuable. “Rome’s humiliations of the Jews were not, for the most part, gratuitous inflictions of blind hatred. Still, they have no parallel in Rome’s treatment of its rebellious subjects. These humiliations led to the Jewish retreat to cultural nationalism.â•›.â•›.â•›. Even before the Bar-Kokhba war, some rabbis came to regard weapons at best as ornaments and at worst .â•›.â•›. as an affront to the pacifist ideals of Judaism.â•›.â•›.â•›. The Jews were left to guard the ‘four cubits of the Law’ (Berakhot 8a).â•›.â•›.â•›. Their political powerlessness sought compensatory empowerment in cultural nationalism.â•›.â•›.â•›. Rome allowed the rabbis to represent the Jews as the rabbis were mostly moderates” (Chapter 7 of The Roman-Jewish Wars and Hebrew Cultural Nationalism, New York 2000, pp. 86–88). 18

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This territory was now opening up to the wider public.20 But if Torah is to substitute for military action, women must be decommissioned. Hence the skittishness about women’s participation in Torah and ritual around the time of this transition. The exact date of the Pentateuchal Targum called Pseudo Jonathan (or PJÂ€– to be distinguished from Tg. Jonathan to the Prophets) remains unresolved. Chronology is not crucial, although it would be handy if the following snatch could be dated to the same transitional era. “Sisit-fringed cloaks which are a man’s gear shall not be on a woman .â•›.â•›.” (PJ to Dt 22:5). When a man’s swagger was his sword, Dt 22:5a spoke about arms, not sisith-fringes. But then sisith replaces the sword and Torah-study the battlefield. Before it became the major definer of masculinity, men could afford to be happy-go-lucky about Torah study for women. But once Torah and misvot evolved into male-defining pursuits, all that was bound to change. Consciously or subliminally, men will have been driven to defend their last bastion against what they sensed to be female competition. Tg. Jonathan to the Prophets is ascribed by the Talmud (Meg. 3a) to the pre-destruction sage Jonathan ben Uzziel. It would certainly not hurt our hypothesis if this Targum’s aggadic image of Huldah at 2 Kgs 22:14 could be assigned an early date!21 In the biblical narrative, King Josiah sends a delegation to seek prophetic council. The delegation decides to consult Huldah, and has no difficulty finding her in a location Scripture designates ha-mishneh. Now the literal meaning of ha-mishneh is the second wall and denotes the Jerusalem neighbourhood that had, in Josiah’s day, been newly enclosed. Targum, Â�however, will not settle for anything as humdrum as bricks and Â�mortar, but instead transfigures the mishneh into a bet ulfanaÂ€– that is, a Â�yeshivah or Torah academy.22 So here we have a source whose author and The Talmud reports that when R. Eleazar ben Azariah supplanted R. Gam[a]liel, the latter’s elitist admissions policy to the bet midrash was scrapped. As a result, the student body is said to have grown by leaps and bounds (Ber. 28a). 21 For a history of the literary Targums see The Targum and the Hebrew Bible, vol. 4 B of Alexander Sperber’s The Bible in Aramaic:Â€Based on Manuscripts and Printed Texts, Leiden 1973; also The Targums and Rabbinic Literature:Â€an Introduction to Jewish Interpretation of Scripture by John Bowker, Cambridge 1969. 22 Lest we misunderstand Huldah’s function in the academy, an anonymous medieval glossator spells it out “She taught the Oral Torah to the scholars”. These words are absent from the Venice miqraot gedolot (1524–26) but appear in later editions of Rashi’s commentary as an appendage followed by an editorial note:Â€“a gloss R. A.” 20

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readers could contemplate a woman sitting at her post within the walls of a yeshivah. Whether our psychological reconstruction is near target or way off, its basic data can hardly be ignored. That data suggests that Torah for women had once been a take-it-or-leave-it affair. Then around the time of Yavneh’s heyday, it becomes a very hot potato, attaining calorific intensity both unprecedented and never again to be matched. From the same era come anecdotes that flesh out the picture: A matron asked R. Lazar23 How come that for one and the same sin of doing the golden calf they [its worshippers] died by three different kinds of death? He said to her a woman has no hokhmah except with her distaff as it is written [Ex 35:25] And every wise-hearted woman spun with her hands. Said to him his son Hyrqanos:Â€ In order not to answer her a single word from the Torah you have gone and lost an annual tithe of three hundred kor. He said to him let the words of Torah be burnt rather than handed over to women. (Y. Sot. 3:4 [19a])

R. Eliezer’s ripostes can be taken either as quips or as deadpan halakhic pronouncements. The citation of Scripture disposes some to take his response to the matron at face valueÂ€– it being incredible that a rabbi would put Scripture to a flippant use. To burn Torah is a grievous sin, and if God is named in the text, the sin is compounded (see Mak. 22a; Yad, Yesode ha-Torah 6:1, 8). For a rabbi to counsel his son (not the matron this time) to let Torah burn rather than fall into the hands of women implies that women getting hold of Torah is somehow more culpable than consigning it to the flames. Such a statement can easily be construed as halakhic. The quip faction, on the other hand, draws attention to a pattern that emerges when lining up R. Eliezer’s overkill. Heading the list would have to be R. Eliezer’s other misogynistic apophthegm: a) Whoever teaches his daughter Torah teaches her tiflut (see above). b) As for the children of Rokhel, let their mother bury them (B. B. 9:7). c) Using the hand to urinate is like bringing a flood to the world (Nid. 13a). Because these initials resh ‘ayin (R. A.) remain an enigma, we can only speak of an ‘anonymous glossator’. 23 In the Land of Israel, Eleazar and Eliezer were commonly contracted to Lazar; whence the Latinized form Lazarus.

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d) A man having warned his wife [not to associate with her alleged paramour], if she then associates even if he hears about it from a bird flying overhead .â•›.â•›. (Sot. 3:1). Nor did age obtund his hyperbole: e) I would be surprised if any of you dies a natural death (San. 68a). But his shrillest volley he saves for the sages, whom he likens to beasts, feral and noxious: f) Warm yourself at the sages’ fire but beware lest their glowing embers scorch you. For their bite is a fox’s bite, their sting a scorpion’s sting, their hiss a serpent’s hiss and all their words like fiery embers (Avot 2:10).24 We have pondered the possibility that dislodging women from Torah study might have restored equilibrium to some ruffled male egos. But whatever its therapeutic value, we must not imagine such a move to have been a walkover. Those who approved of Torah for women had their advocates too, notably Ben Azzai who obligated fathers to teach their daughters Torah (M. Sot. 3:4). As scholars have realized,25 Ben Azzai could not have subscribed to the punch-line of Qiddushin 29b’s derasha:Â€“How do we know that others are not obligated to teach her? Scripture says [Dt 11:19] You shall teach them [the commandments] to your sons. Your sons not your daughters”. There is no way a rabbi can tell a father he is under obligation (hayyab) to teach his daughter if he believes the Torah to have said the opposite. And if Ben Azzai rejected the derasha that endues ambiguous benekhem of Dt 11:19 with the force of sons rather than children, he may well have won disciples. The ambiguity arises, as we saw earlier, from the fact that biblical ben (pl. banim)Â€– whose primary meaning is ‘son’Â€– also connotes ‘child’ or R. Eliezer’s caricature of the sages is more than offset by kindlier portrayals, one of which appears to contest R. Eliezer head-on. “How can it say ‘Cleave to Him’ as though it were possible for a person to ascend to heaven and cleave to Him of whom it is written [Dt 4:24] ‘Hashem your God is a consuming fire’? .â•›.â•›. Rather is it telling you to cleave to the sages and to their disciples” (Sifre Dt 49). Sages, Sifre seems to be saying, are congenial; and nuzzling up to them is not incendiary, let alone deadly. 25 E.g. Shmuel Safrai in “The Mitzva Obligation of Women in Tannaitic Thought” (Heb.) Bar-Ilan 26–27 (1995), p. 232. 24

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‘offspring’. It is this amphibology that accounts for the seeming capriciousness of so much ben midrash. For instance, the Talmud rules that levirate-marriage applies only if the widow was literally childless, that is, without son or daughter (B. B. 109a). This suggests that the rabbis treated Dt 25:5’s ben as epicene, as did LXX that gives ‘seed’ for ben. Yet there is nothing more conclusively epicene about Dt 25:5’s ben than about Dt 11:19’s, or for that matter a host of other equally equivocal bens. Hence the perennial bewilderment at what must have seemed a higgledy-piggledy approach to biblical ben. That bewilderment rankles with R. Samuel ben Isaac to a pitch that he has Zelophehad’s daughters throw down the ben gauntlet. “If we are reckoned to have the legal status of ben let us inherit like a ben. Otherwise [if a daughter does not qualify as ben], our mother [as a widow without a ben] must be liable for levirate marriage” (B.B. 119b). In exposing the Achilles’ heel of interpreting ben inconsistently, R. Samuel indirectly challenges the ‘your sons not your daughters’ derasha to Dt 11:19. A more direct onslaught on that specific derasha we shall savour shortly. Beyond the debate over the duty to educate daughters, however, is the broader issue of women studying Torah off their own bat. R. Eliezer opposed both, yet his stance must have wracked many a devout conscience, for, as we saw earlier, there is a Pentateuchal text that spells out women’s title to Torah. Hence, before women could be denied their constitutional Torah right, it would be necessary to contend with that text: [Y]ou are to read this Torah publicly in the hearing of all Israel. Gather the people the men and the women and the children and your stranger who is within your gates that they may hear and that they may learn and they shall revere Hashem your God and observe to do all the words of this Torah. (Dt 31:11–12)

It fell to R. Eleazar ben Azariah to tackle Dt 31:12’s explicit Â� invitation to men and women alike to come and learn Torah. That invitation is a thorn in the side of any who would attenuate women’s Torah and misvah. The generation of R. Eleazar ben Azariah was no exception, and here comes the story of how that generation sought its defeasance. Ben Azzai does not concur with R. Lazar ben Azariah, as shown by the Â�following:Â€ It was taught in a baraita R. Johanan b. Beroqa and R. Eleazar

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Hisma were on their way from Yabneh to Lud and they paid their respects to R. Joshua in Beqi‘in [Peqi‘in]. R. Joshua asked them:Â€What was new for you in the bet midrash today? They replied We are all your disciples and it is your water we drink. He said to them, Even so there has to be something new in the bet midrash every day. Whose sabbath was it? They replied, [It was the sabbath of] R. Lazar ben Azariah. And what was his parashah? Gather the people the men and the women and the children [Dt 31:12]. And what did he say on it? [He said] the men come to learn and the women come to hear and the childrenÂ€– why do they come? In order to provide reward for those who bring them. He [R. Joshua] exclaimed:Â€The generation is not an orphan as long as R. Eleazar ben Azariah is in its midst! (Y. Sot. 3:4 [18d–19a])26

The introduction to the story spills the beans. “Ben Azzai does not concur with R. Lazar ben Azariah” tells us that Ben Azzai favoured Torah for women across the board (although in the Mishnah, he Â�pronounces only on a father’s duty to teach his daughter) and, conversely, that R. Lazar ben Azariah opposed all Torah learning for women. Indeed, the Yerushalmi’s compilers clearly understood R. Lazar’s master stroke to be his fragmentation of the references to learning and hearing in Dt 31:12. The verse’s first requirement, namely to hear, is correlated with womenÂ€– the group listed secondÂ€– whereas the learning is paired off, chiastically, with men. The upshot:Â€Learning is a man’s vocation. The baraita ends with R. Joshua’s adulation of R. Eleazar ben Azariah as a father to his generation. To earn such fulsome praise, R. Eleazar’s hermeneutical feat must have been perceived as a godsend. If it struck the desired coup de grâce for men’s monopoly on Torah, no wonder it went down a treat with the tanna who believed women were concupiscent (tiflut; Sot. 3:4). For although R. Joshua and R. Eliezer are generally depicted as quintessential disputants, many see them as exceptionally joining forces against Torah for women. R. Eliezer’s dictum “Whoever teaches his daughter Torah teaches her tiflut” segues into R. Joshua’s sarcasm “a woman prefers one qav and tiflut to nine qav and abstinence”. As noted earlier, this juxtaposition may signify that women’s ineducability united the two perennial antagonistsÂ€– or 26

Cf. Hag. 3a; PJ to Dt 31:12 “gabra le-melaf unshaya le-mashma‘ ulfana”. Additional recensions of this aggadah and a discussion of their import may be found in Lisa Grushcow’s Writing the Wayward Wife:Â€ Rabbinic Interpretations of Sotah, Brill 2006, pp. 208–211.

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that the Mishnah’s compilers thought as much. But would that mean the Mishnah overall leaned towards the tiflut camp rather than Ben Azzai’s? At least one other Mishnah assumes women to be strangers to Torah study: Yose son of Johanan of Jerusalem said:Â€“do not talk much with women (al tarbe siha ‘im ha-ishah).” That was said relative to one’s own wife but applies a fortiori to another’s wife. From here the sages derived their saying “as long as a person talks much with women he causes harm to himself, he idles from the words of Torah, and destines himself for Gehenna”. (Avot 1:5)

Only the words ‘do not talk much with women’ go back to Yose son of Johanan of Jerusalem. His advice pertained to ha-ishah, that is, women other than one’s spouse, for the manifest reason that such fraternization violates propriety. The rest of the pericope is an ancient gloss beginning “That was said relative to one’s own wife”. But once the gloss is assimilated and ha-ishah becomes not just other women but even a man’s own wife, the question arises why would conversation (siha; see Ps 119:97; Prv 6:22 and Qinyan Torah 9 [= Avot 6:9]) between man and wife, ipso facto, involve neglect of Torah? Or was it inconceivable that Torah might be the topic of conversation with a woman? Qid 1:7 legislates:Â€“Every positive misvah that is not time-bound both men and women are obligated [to perform]”. As noted in connection with misvot, the formulation “every positive misvah that is not time-bound”, if taken literally, would include Torah study which is, technically, a timeless misvah. Most Talmudists, however, deem such an inference unwarranted. In the rabbinic mind and parlance, Torah study was possessed, as it were, of double citizenship. Yes, it was a misvah in the community of misvot, but also the lone passport holder of a state all its own.27 Moreover, as noted earlier, study is tightly intertwined with teaching in the Gemara’s economy. Teaching Torah, in turn, was covered by the Mishnah’s first clause under the rubric of paternal duties (Qid. 29b). All in all, then, Qid. 1:7 resists being counted an ally of women’s study. We saw in the case of misvot, that despite the Mishnah’s exempting women from all time-bound misvot, other traditions persisted. If there 27

‘Torah and misvot’ is a ubiquitous usage, e.g. in R. Hananiah’s saying (M. end of Mak. cited at the beginning of our section on misvot).

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was a comparable campaign afoot to impoverish women of Torah, it did not altogether triumph either. Beruria and the unnamed wife of R. Aqiva’s son Joshua ‘who taught her husband Torah’ (T. Ket. 4:7) need not be viewed as exceptions that prove the rule. R. Eliezer’s matronly interlocutor the Bavli introduces as a wise woman (ishah hakhamah; Yom. 66b). The bestowal of that epithet upon a matron whose only demonstrated aptitude was not for twining but for Torah effectively voids R. Eliezer’s proposition that “a woman has no hokhmah except with her distaff”. Of course the distaff proposition had already been rejected by the Mishnah (R.H. 2:5) which recognized a midwife as a hakhamah (cf. Shab. 18:3). So it would seem that just as women’s exemption from time-bound misvot never entirely won out, neither did the policy on women’s study of Torah. In the preceding pages, we conjectured an early date for the Huldah midrash incorporated by Tg. at 2 Kgs 22:14. But if we are wrong, and the bet ulfana midrash turns out to be younger, it would mean the restrictive stance did not eradicate traditions friendly to women’s study. Not that we need this Targumic witness to prove the resilience of Torah-for-all. That is amply attested by amoraic and later literary marvels such as Abigail, the erudite talmudist who parries her male counterpart in pukka halakhic debate (Meg. 14b); the Shunnamite who studies Torah with a foremost teacher and, parallel to his male disciples, is expected to pay him her respects on specified Holy Days (R.H. 16b); Naomi instructing Ruth in the intricacies of halakhah (Yev. 47b; Ruth Rab. 2:23); the wise woman of Abel apprising Joab of his Torah duties (Tg. to 2Sam 20:18). Indeed, in a text as late as the ca. 9th century chronicle, known as Seder Tannaim va-Amoraim, Deborah and Huldah figure as links in the living chain of Torah transmissionÂ€– that is, they are entrusted by their teachers with the entire corpus of Oral Torah (see Mahzor Vitry, Nuremberg 1923 p. 481; S. D. Luzzatto’s critical edition, Prague 1839, p. 3). Another ‘survivor’ is Samson’s yoshevet ve-doreshet mother (Midrash Eshet Hayil in Wertheimer’s Bate Midrashot Vol. 2 Jerusalem 1955, p. 149). Last but not least, there is that potentially boundless band of womankind whose Torah learning the rabbis sought to protect against amnesia (Hor. 13b).28 28

For other examples see From Eve to Esther:Â€ Rabbinic Reconstructions of Biblical Women by Leila Leah Bronner, Louisville, KY 1994.

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Above all, the element of justice could never be expunged from halakhah, neither in antiquity nor yet in the Middle Ages, when the author of Sefer ha-Kanah29 bore such eloquent witness: Oh that the question might be submitted before the Holy One blessed be He! Why did He create this pitiful creature, who has no reward or punishment, having been deprived of misvot that are time-bound so that, as one uncommanded, she earns neither reward for observing them nor punishment for neglecting them. God obligates her to study TorahÂ€– a misvah equal to all other misvot. But the sages of blessed memory absolve her on the strength of the word benekhem written in connection with Torah-instruction [Dt 11:19]30Â€– ignoring the rule about women being obligated to keep misvot that are not time-bound.31 Nor is this all, for they then proceed to equate tefillin to Torah study, thereby extending her exemption to tefillin. Next, they make tefillin the prototype for all positive time-bound misvot, thereby exempting her from a whole category of misvot that would otherwise have applied to her. But how can women be exempted from Torah study of which it is written “So that your days and the days of benekhem may be multiplied”; [Dt 11:21] “Long life in her right hand in her left riches and honour” [Prv 3:16]Â€ – when the sages themselves asserted that every misvah rewarded by a promise of longevity must pertain also to women because women are living beings no less than men [cf. Qid.34a]? Now do you really think this argument can be countered by invoking the word benekhem [at Dt 11:19]? Surely you must acknowledge the inconsistency of treating the word benekhem once narrowly [v.19] and once broadly [v.21] in a single context. Moreover, when it says [If brothers live together and one of them dies] without leaving a ben [Dt 25:5], the sources do not interpret ben narrowly to mean son and not daughter. Rather do they conclude that male or female issue suffices to countermand levirate marriage .â•›.â•›. but most painful of all is this:Â€having degraded the poor wight down to the ground by exempting her from the King’s service, she is then classified with slaves in such rulings as “Every misvah incumbent on women is also incumbent on slaves”.32 For God’s sake, explain to me the significance of this An anonymous Kabbalistic work probably composed in Greece early in the 14th century, the full text printed for the first time at Poritsk 1786. (See Michal Kushnir-Oron’s published thesis The Sefer ha-Pli’ah and the Sefer ha-Kanah, Jerusalem 1980, Hebrew with English abstract pp. i-xv; also Talya Fishman’s “A Kabbalistic Perspective on Gender-Specific Commandments” AJS Review 17:2, pp. 199–245 [cited at Chapter 8, note 9]). 30 As we have seen, the Hebrew word ben (=son) also signifies child (e.g. ben zakhar; Jer 20:15). The plural form banim means sons or children in both Bible and Talmud (e.g. “woe unto him whose banim are female” Pes. 65a etc.) cf. Chapter 2, note 10. 31 Torah study is not time-bound. 32 “Every misvah obligatory for a woman is obligatory for a slave and every misvah that is not obligatory for a woman is not obligatory for a slave. This rule is learnt from 29

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bracketing of slave and woman .â•›.â•›. (Sefer ha-Kanah, Misvat Talmud Torah, Cracow edition 1894 pp. 11–12) Scripture by means of a gezerah shavah analogy between lah [Dt 24:1, 3] and lah [Lev 19:20]” (Hag. 4a; Naz. 61a; Ker. 7b). Whether or not deriving directly from this same gezerah shavah that equates their misvah quota, women and slaves share yet another common lot. Teaching a slave Torah is, mostly, though not unequivocally, interdictedÂ€– echoing the debate surrounding Torah education for women (seen earlier). “R. Joshua b. Levi said ‘It is forbidden for a person to teach his slave Torah’” (Ket. 28b); “R. Hama b. Uqba said in the name of R. Yose b. R. Haninah ‘It is Â�forbidden to teach one’s slave Torah’. Therefore let it [i.e. the source that speaks of Torah-savvy slaves] be explained as referring either to self-educated slaves or to such as were taught by their master as was Tabi” (Y. Meg. 4:2 [75a]; cf. Yad, Avadim 8:18).

part iii INTRINSIC EQUALITY

Introduction In the beginning was inclusiveness, and the midrash says so: Before the Land of Israel was chosen all lands were eligible for revelation; once the Land of Israel was chosen all [other] lands were disqualified. Before Jerusalem was chosen the entire Land of Israel was eligible for altars; once Jerusalem was chosen [the rest of] the Land of Israel was disqualified.â•›.â•›.â•›. Before the Temple was chosen Jerusalem was a place fit for the shekhinah; once the Temple was chosen [the rest of] Jerusalem was disqualified.â•›.â•›.â•›. Before Aaron was chosen all Israel were eligible for priesthood; once Aaron was chosen all [the rest of] Israel was disqualified.â•›.â•›.â•›. Before David was chosen all Israel were eligible for kingship; once David was chosen all [the rest] of Israel was disqualified.1

Amidst all this axing and circumscription, women go unnoticed. But to infer from this silence that the Mekhilta meant to allow for Aaronide priestesses is probably wishful thinking. More likely, women were simply ‘off the radar’. On the other hand, we must not forget those rabbinic texts such as Sifra to Lev 17:62 that quite explicitly sanction women officiating at the bamot.3 Now according to the Mekhilta, Horovitz/Rabin ed. p. 2. In Louis Finkelstein’s facsimile edition of Vatican MS Assemani 66 p. 360; cf. T. end of Qorbanot [Zevahim]. 3 After the centralization of the cult, bamot became a pejorative by which the deuteronomistic histories refer to all cult centres outside the chosen site. Additionally, in 1 2

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Mishnah (Zev. 14:4–8), bamot enjoyed intermittent legitimacy prior to the centralization of the cult in the Solomonic temple. Without using the word bamot, our Mekhilta citation says as much:Â€“[B]efore Jerusalem was chosen the entire land of Israel was eligible for altars”. Thus the tradition that has women officiating at the bamot recognizes the elimination of women from the cult as a flexure coinciding with the ascendancy of Jerusalem.4 Be that as it may, this Mekhilta passage documents a leg of the Â�journeyÂ€ – or driftÂ€ – away from airy beginnings to retraction and defensiveness. Another phase of the same migration might have been described thus:Â€At first such Torah and misvah as was revealed devolved whole on men and womenÂ€– the Noahide Laws being universal.5 That is until the menfolk were picked. Then women were dislodged. One is reminded of Max Weber’s seminal observations to the effect that a society’s initial openness to women seldom lasts: A further characteristic of the religion of the underprivileged, in contrast with the aristocratic cults of the warrior nobility, is the admission of women on an equal footing. The wide variation in the extent to which women are admitted to religious cults and participate in them, whether more or less actively or passively, or are excluded from them is in general a function of the degree of relative peacefulness or military activity (either past or present). The existence of priestesses, the veneration of prophetesses or sorceressesÂ€ – in short, the most extreme devotion paid to individual women to whom supernatural powers and charismata are attributedÂ€– does not, of course, furnish the slightest evidence of the equal status of women as such within the cult. Conversely, the acceptance of the principle of equality in relations with God in Christianity and Judaism (and less consistently in Islam and official Buddhism) can co-exist with complete monopolisation of the priestly function and the right to active participation in making decisions about the affairs of the congregation by the men, who (as is in fact the case in these religions) are alone admitted to the special vocational training or accepted as qualified. The special susceptibility of women to all prophecy which is not exclusively military or political in

rabbinic lingo, the term denotes pre-centralization shrines; and those are the bamot Sifra is talking about. 4 Which ascendancy was, in fact, slow in coming. However, the rabbis adopt the deuteronomistic schema in which the centralization law is made synchronous with the inception of Solomon’s temple. Thus both deuteronomistic and rabbinic retrospects present as errant bamot that persisted after Solomon (at least while a temple stood in Jerusalem). 5 For Noahide Laws, see San. 56a–60a.

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emphasis is clearly evident in the free relationships, quite devoid of prejudice, which almost all prophets have had with women.â•›.â•›.â•›. This situation seldom persists, however, beyond the early period of the congregation’s existence, in which esteem is accorded to the charismata of inspiration as the marks of Â�special religious elevation. Then, when the relationships within the congregation become routine and regularized, there is always a reaction against the phenomena of female inspiration, which are now felt to be disruptive and morbid .â•›.â•›. in general, wherever warriors are or have been subjected to an ascetic course of training, in which the hero is ‘reborn’, women are treated as lacking in the higher, heroic qualities of soul and so relegated to a lower religious status. This is so in most aristocratic or specifically military cult-communities. Women are totally excluded from the official Chinese cult, as from the Roman and the Brahmin. Buddhist intellectual religion is not feminist. Even as late as the Merovingian period, Christian synods could doubt whether the female soul was of equal value. On the other hand, the admission of and granting of equal status to women has given much of their propagandist impetus to the special cults of Hinduism, to some of the Chinese Buddhist-Taoist sects, and, in the West, above all, to early Christianity and the later inspirational and pacifist sects of Eastern and Western Europe alike.6

Weber hints at a correlation between a society’s theories regarding ‘the female soul’ and that society’s decision whether to admit women to its priestly ranks. Thus, in societies that debar women from their cult, “women are treated as lacking in the higher, heroic qualities of soul”, and “synods could doubt whether the female soul was of equal value”. Conversely, we learn from Weber that where leadership is charismatic, as opposed to clerical, prophetesses are no less esteemed than prophets. How does all or any of this play out in the Jewish arena? Weber’s theory seems to be corroborated insofar as women freely make their mark throughout Israel’s prophetic age. After the exile, prophecy still flourishes for a while, and we hear of a prophetess named Noadiah (Neh 6:14).7 But eventually priesthood triumphs, and the voice of prophecy is muted. Thereafter heroines such as Esther and Judith have nothing to offer but their charms.8 Priestesses there Selections in Translation, edited by W. G. Runciman, Cambridge 1978, p.181. If Joel belongs to the early post-exilic period, then Joel 3:1–2 would be germane. 8 Biblical heroines not conforming to the Esther-Judith model are made over by hook or by crook. Jael is not allowed to defeat Sisera without sacrificing her chastity (see Yev. 103a et al.). Abigail “exposes her shin and by its luminosity he [David] walks three parsangs” (and thus her mission to deter David succeeds; Meg. 14b; cf. Y. San. 2:2 [20b]). Even Bathsheba cannot secure her son’s succession before regaling the moribund king with her favours (San. 22a). 6 7

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are none. And even with the rise of Pharisaism, widely acclaimed as a democratizing force, there is no inheritrix to the prophetess of yore. Tractate Avot, for example, preserves not a single saying of a female sage. This can hardly be accidental, and one is entitled to seek an explanation.9 Weber might have us check the rating given to women’s souls within the community that produced Avot. But here we must demur. Souls in the rabbinic tradition come only in one size. In the Middle Ages, we meet some fantasizing about the stuff of souls fissuring into male and female. But such fantasies are thought to have battened on Plato,10 Aristotle11 and the Kabbalah12Â€– in default of sustainment in rabbinic literature. Even the 14th-century Ibn Shuaib, who lugs the talmudic formula ‘Thank you for not making me a woman’ into his asseveration as to the inferiority of the female soul, is actually projecting his own idiosyncracy onto the Talmud.13 Misogynous as its sentiment may be, ‘Thank you for not making me a woman’ says nothing about souls. For as noted earlier, the Gemara explains the formula’s smug gloating over woman in terms of the paucity of her misvot; not a part-time or diluted soul!14 Earlier we saw symptoms of an ‘anti-feminist’ animus in the Mishnah. In theory, then, the absence of female sages from Avot might be laid at the door of ‘censorship’ rather than an actual dearth of hakhamot. But in fact, even outside the Mishnah, there is no recollection of women sages belonging to the tannaitic period other than Beruria (in the Tosefta). 10 R. Jacob Anatoli (13th century) explicitly names Plato as his source for the idea of form being male and substance female. To be sure, it took considerable ingenuity for Anatoli to arrive at his conclusion that since Genesis’ word ‘image’ equals form (in the Platonic sense), it follows that only the male, being form, was created in the divine image (see Malmad ha-Talmidim, Lyck 1866 p. 25a–b). 11 See Avraham Grossman’s Hasidot u-Mordot (Heb.) 2nd ed. 2003, p. 30 esp. n. 24 with its references to M. C. Horowitz’s “Aristotle and Women” Journal for the History of Biology 9 (1976) and “Aristotle and the Concept of Woman in Early Jewish Philosophy” Florilegium 9 (1987), pp. 89–110. 12 “It is of the essence of Kabbalistic symbolism that woman represents not, as one might be tempted to expect, the quality of tenderness but rather that of stern judgment. This symbolism was unknown to the old mystics of the Merkabah period, and even to the Hasidim in Germany, but it dominates Kabbalistic literature from the very beginning and undoubtedly represents a constituent element of Kabbalistic theology. The demonic, according to the Kabbalists, is an off-spring [sic] of the feminine sphere.” (Gershom G. Scholem, Major Trends in Jewish Mysticism 1941, pp. 37–38). See also Sex and the Soul:Â€ The Vicissitudes of Sexual Difference in Kabbalah by Charles Mopsik, Los Angeles 2005, esp. pp. 75ff. 13 Derashot of R. Joshua Ibn Shuaib, Cracow 5333 [1573], p. 48 col.2; new ed. Jerusalem 5752 [1991 or 1992] vol. 1, p. 258. 14 More than a hundred years ago, psychologist Otto Weininger suggested that woman’s abasement presupposes the denial of a soul to a woman, and that it is such denial that 9

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Having thus rebutted the allegation of ‘pneumatic’ discrimination in the Talmud, we expose ourselves to the charge of hair splitting. For it is contended that, though the rabbis might not exalt a man’s soul above a woman’s, a man’s life they esteem to surpass a woman’s; and for all but out-and-out sophists, soul and life are much of a muchness. The talmudic sources alleged to peg human life according to gender are the so-called qatlanit law and the ‘rankings’ of Hor. 3:7. The allegation is grave, for to construe the burden of those sources as life and death is to impute to the Talmud nothing less than a cheapening of a woman’s life. On examination, however, neither source appears to be dealing with matters so fateful, whatever later expositors may have rammed into them. Actually, the concerns of these sources are quite banal, and certainly far removed from setting price tags on human lives. Indeed, we hope to lay to rest the notion that the Talmud prefers a man’s life over a woman’sÂ€– a notion that strikes us as a travesty of rabbinic thought. explains her degradation among certain populations. It is hardly necessaryÂ€– much less possibleÂ€– to argue dogmatic assertions such as Weininger’s that “on this view [that women have no soul] depends the degraded position of women in Oriental society.” On the other hand, Weininger’s own bizarre theory on gender and soul is something no student of the subject can afford to sidestep, for Weininger’s book, Geschlecht und Charakter [English title Sex and Character], was not without cachet in early-20th-century Europe, where it went through numerous editions and printings. The sweeping assertion about Oriental society climaxes one of his charming soul passages:Â€“I have shown that logical and ethical phenomena come together in the conception of truth as the ultimate good, and posit the existence of an intelligible ego or a soul, as a form of being of the highest super-empirical reality. In such a being as the absolute female there are no logical or ethical phenomena, and, therefore, the ground for the assumption of a soul is absent.â•›.â•›.â•›. The inference that she is wanting in super-sensual personality is fully justified. The absolute female has no ego.â•›.â•›.â•›. And although this conclusion, put thus concisely, seems harsh and intolerant, paradoxical and too abrupt in its novelty, it must be remembered that the author is not the first who has taken such a view; he is more in the position of one who has discovered the philosophical grounds for an opinion of long standing. The Chinese from time immemorial have denied that women possess a personal soul. If a Chinese is asked how many children he has, he counts only the boys, and will say none if he has only daughters. Mahomet excluded women from Paradise for the same reason, and on this view depends the degraded position of women in Oriental countries.” (Sex and Character, authorized translation from the sixth German edition, London and New York 1996).

15 The Qaâ•›tlanit Law

It was taught in a baraita:Â€If a woman was married to one [husband] and he died, to a second and he died, she shall not be married to a third. These are the words of Ribbi. R. Simeon son of Gam[a]liel says to a third [husband] she shall be married, to a fourth she shall not be married.â•›.â•›.â•›.What is the reason? R. Mordecai said to R. Ashi:Â€thus said Abimi of Hagronia in the name of R. Hunna ‘ma‘yan (=the fount) is the cause’. But R. Ashi said ‘mazzal (= fate) is the cause’ (Yev. 64b)1

Conspicuous by his absence is the husband who loses successive wives. What is the significance of this lacuna? Earlier we noted how the incest laws of Leviticus chapter 18 are formulated in the second person masculine. It is the brother who is told to desist from relations with his sister, but the sister is not directly addressed. Relations with his mother are forbidden a son, but the mother herself receives no parallel directive. Yet not for a moment do the rabbis exculpate the female accomplice in such incestuous crimes.2 The Mishnah carries on the same androcentric convention of formulating conjugal laws in the masculine3 which, unless indicated to the contrary, are understood to apply bilaterally. Howbeit, the above explanation is seen by many as barking up the wrong tree. They argue that women are deliberately isolated for Also T. Shab. 16:5; Nid. 64a. See Sifra’s comment on Lev 18:6 (Assemani 66 p. 370). No doubt, the rabbis were also influenced by Lev 20:11, 14, 17–18 as much as by 18:29. But even 18:18 that has no ‘both-party counterpart’ in chapter 20 the rabbis nonetheless deem applicable to both man and woman. 3 E.g. San. 7:4, Ker. 1:1. 1 2

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this qatlanit law because the belief undergirding it is inapplicable to coextensively bereaved husbands. Belief in jinxy women is certainly ancient. According to Genesis 38, Judah banished his twice-widowed daughter-in-law, Tamar, out of his third son’s reach. Commentators classical and recent understand Judah to have acted on a superstition that Tamar had hexed his sons Er and Onan.4 Not that Genesis abets Judah’s gullibility. In fact, the story’s denouement dissipates it; Tamar marries a third husbandÂ€– namely Judah himselfÂ€– who lives to father bonny twins, rise to prominence and, above all, to be disabused of his old fad. Now if the qatlanit law was reverting to Judah’s crepuscular mindset,5 it would make sense that only husbands be put on alert. Jinxiness was a feminine potency. The codes must have thought along similar lines inasmuch as they restrict the prohibition to women. “A woman who was married twice and whose husbands both died shall not marry a third [husband] because she has been confirmed as a woman whose husbands die. But if she went ahead and married [a third time] she shall not [be required to] exit [the marriage].â•›.â•›.â•›. A man whose two wives died does not [or need not] abstain from marrying [again]”.6 However, with the explicit license to remarry that they grant men who have lost successive wives, these codes go beyond the Talmud which provided neither the law nor yet the honorific qatlanit that heads paragraph 9 in Shulhan Arukh.7 In fact, 9:2’s ruling originates with ROSH (Rabbenu Asher, d. 1327): If this disposition were endemic to men as it is to women, then it is impossible that the sages would not have addressed it. For since the measure they took E.g. Rashi on Gen 38:11. John Skinner can speak for modern writers:Â€“Judah’s belief that Tamar was the cause of the deaths of ‘Er and ’Onan may spring from an older form of the legend, in which she was actually credited with death-dealing power.” (I.C.C. on Genesis, Edinburgh 1930, p. 452); see also “Tamar, a Symbol of Life:Â€the ‘Killer Wife’ Superstition in the Bible and Jewish Tradition” by Mordechai A. Friedman (AJS Review 15:1, pp. 23–61). 5 As allowed by Maimonides in a responsum (cited in Kesef Mishneh, on Yad Issure Bi’ah 21:31). 6 Tur and Shulhan Arukh, Eben ha-Ezer 9:1–2 7 In high dudgeon, Rava’s wife chases Abayye’s widow Homa out of town, crying after her:Â€“You who have killed (qatalt) three husbands now come to kill (le-miqtal) yet another!” (Ket. 65a). This incident, alluded to at Yev. 64b, is held etymologically responsible for the loaded epithet qatlanit that came to denote, in medieval writings, the female victim of multiple bereavements. 4

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was to protect life, they would have protected the life of a woman the same as the life of a man. But the talmudic sages were convinced that this disposition is endemic only to women because, as they put it, “the well is its cause” which means her inner well and fount being impaired, such a woman hastens the end of everyone who cohabits with her. Men having no internal well, this reason cannot apply to them. But even if fate is the cause, it seems to me, that it is only ill-fated women whose spouses die. For which things hang on mazzal? A person’s livelihood hangs on it8 - wealth and poverty depending on the hour one is born.9 But the woman is shut up in the house precluded from earning her own livelihood and entirely dependent on her husband for sustenance. Hence a woman foredoomed to poverty must lose any man she marries if her decreed poverty is to be realized. This reason does not apply to men because they support themselves and, in any case, do not depend on their wives for sustenance .â•›.â•›.10

We need proceed no further with the qatlanit law in order to debunk the accusation of callous insouciance towards a woman’s life. That accusation, all too often levelled against it, is refuted regardless of whether or not the law meant to encompass widowers by analogy. If it did notÂ€– and that is the prevailing opinionÂ€– then ma‘yan and Â�mazzal explain why it is restricted to women. By way of peroration, we can do no fairer than iterate ROSH’s expression of trust in the rabbis’ rectitude:Â€“it is impossible that the sages would not have addressed it. For since the measure they took was to protect life, they would have protected the life of a woman the same as the life of a man”. M. Q. 28a. See Shab. 156a-b; also Nid. 16b. 10 Teshuvot ha-Rosh, klal (=responsum) 53, Jerusalem 5754 (1993), p. 228. 8 9

16 ‘Rankings’ of Horayot 3:7

The other source habitually trotted out as proof for rabbinic hierarchizing of life by gender is the following Mishnah: Man takes precedence over woman le-hahayot and to return lost property and woman takes precedence over man to clothe and to take out from captivity. If both are in peril of being used for immorality then the man takes precedence. (M. Hor. 3:7)1

The infinitive verb le-hahayot is common enough in the Bible, especially in Genesis, where it means to keep alive either by snatching from the path of impending catastrophe or, less dramatically, through nourishing and nurturing. Noah was instructed “of all flesh you shall take two of each into the ark le-hahayot” (Gen 6:19); Lot says “you show great kindness in what you are doing for me le-hahayot my life” (Gen 19:19). In these examples, the threats of flood and brimstone, respectively, were imminent and cataclysmic so that the intervention, quite literally, saved life. On the other hand, when Joseph uses the word (Gen 45:7, 50:20) he is referring to his instrumentality in warding off the ravages of famine. Thus Joseph’s le-hahayot indeed betokens preservation of life, but it is achieved through the steady supply of victuals rather than last-minute histrionics. The same pair of connotations 1

E.g. “Halakhah asserts that ‘the lives of men take preference over those of women’ (Mishnah, Horayot 3,7)” (“.â•›.â•›. who hast not made me a woman” by Rachel Elior in Men and Women:Â€Gender Judaism and Democracy, Jerusalem 2004, p. 83).

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carry through to the Talmud,2 and as in the Bible, context determines meaning. Our mishnaic passage seems to address the question:Â€ To whose aid does one go first, the man’s or the woman’s, when both are in the same kind of pickle. Four types of help are listed; 1) le-hahayot; 2) to take out time to return lost property;3 3) to provide clothing; and 4) to ransom captives. In three of the four scenarios, a man and a woman wait to be relieved from their dire predicaments while welfare givers rack their brains how to make the pie go round. The Mishnah lays down a pecking order. There is no reason to suppose that any of the victims are at death’s door, not even the captives. Ransoming captives was certainly a high priority in the ancient Jewish community. But typically, their abduction was spurred by cupidity, as attested throughout the Talmud. For instance, captives are not to be ransomed for more than their price lest the lucrativeness induce further kidnapping (see Git. 45a). Moreover, the last scenario in Hor. 3:7 has its captives under threat of sexual exploitation. If the examples are listed, as usual, in ascending order, it would mean that the captives of the earlier clause face a milder rather than harsher threat. Going on the context, then, we assume le-hahayot of Horayot 3:7 to be of the Joseph variety. For corroboration, let us turn to the Yerushalmi: Both [man and woman] le- hahayot, both [man and woman] to be clothed are dealt with [in the Mishnah]. But one le- hahayot and the other to be clothed what then? It can be inferred from the following. R. Joshua ben Levi said in the name of R. Antignas clothing for the wife of a haber4 and the livelihood (hayye) of an am ha-ares clothing for the haber’s wife takes precedence over the livelihood (hayye) of the am ha-ares because of the haber’s honour. But

Interpreting Dt 32:39’s va-ahayye as an allusion to resurrection, supplied the Talmud with an additional meaning for the verb le-hahayot, namely ‘to resurrect the dead’ (e.g. Shab. 88b; Hag. 12b). 3 Obviously it is a case of lost property whose owner is known (cf. Dt 22:1). Otherwise the property must be kept safe until the rightful owner comes to claim it (Dt 22:2). 4 haber’s primary meaning is fellow human, and more narrowly colleague. In Pharisaic circles, haber (pl. haberim) denoted an individual fit to join sectarian commensalities by dint of his (herÂ€– as in isha habera of San. 8b) commitment to Pharisaic standards of ritual purity and tithing (see M. Dem. 2:3). Jews who did not adopt the stringencies were referred to pejoratively as amme ha-ares (literally, the people of the land; the common folk). Later, haber came to denote a person versed in, and conforming to, rabbinic lore and am ha-ares his antitype (see “Who Was the Haber” by Solomon J. Spiro, Journal for the Study of Judaism Vol. XI:1, pp. 186–216). 2

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only if the haber is alive.5 Otherwise the le- hahayot party always takes precedence. (Y. Hor. 3:4 [48b])

As expounded by R. Moses ben Simeon Margoliot (d. 1781), for hayye am ha-aresÂ€ – as for that matter anybody’s hayyimÂ€– to be set aside while others are clothed, that hayyim can be only alimentation and the like, because where life is in imminent danger, procrastination counts for homicide. Ergo, for R. Antignas to cater first to the Â�sensibilities of prudery, it goes without saying that whatever takes second place is not a life at risk (Mar’eh ha-Panim to Y. Hor. loc. cit.). Here these lucubrations might have terminated if some writers, including highly reputable commentators, had not chosen to construe our le-hahayot as intervention in extremis.6 A few embellish their comments with the morbidity of two people drowning.7 If one of them was a man and the other a woman, a lone bystander would be required by the MishnahÂ€ – according to these commentatorsÂ€ – to rescue the man first. Now every ethics, sooner or later, agonizes over its priorities. Doctors with more patients than medicine and hospitals short of transplant organs are painfully familiar with such dilemmas. One solution is to allocate the resources on a first come–first served basis. Some hesitantly theorize that age might be a legitimate consideration.8 However, the idea of gender being a factor sounds appalling and must galvanize any probe of the allegation that the Mishnah’s casual Var. lec. “But only when it’s clothing for the haber’s wife versus the livelihood of an am ha-ares. Otherwise .â•›.â•›. etc.”. 6 E.g. “a man must be saved alive sooner than a woman” (Herbert Danby, Oxford 1954, p. 466); “The man takes precedence over the woman in the matter of saving of life” (The Mishnah:Â€A New Translation by Jacob Neusner, Yale University Press 1988, p. 695); cf. Pinhas Kehati’s 1966 commentary [Heb.], Neziqin vol. 2, p. 478; (English translation of Kehati by Roy Abramowitz, Jerusalem 1987, Neziqin vol. 4). 7 Notably, R. Yomtov Lipman Heller (d. 1654) in his commentary Tosafot Yomtov, Prague 1615–1617 (New York 1953, Neziqin vol. 2, p. 264) citing Bet Yosef (see further) as his authority. 8 “If three kidney patients are dying and only one suitable organ is available, which patient should get it? How should the choice be made? On the basis of age? Intelligence? Character? On the number of children each patient has? The social usefulness of each one’s job? The ability of each to pay? Who should make the choice? So far no one has come up with satisfactory answers to such questions, but at least the questions are being debated, not ignored.” (Bioethics; Dilemmas in Modern Medicine by Ann E. Weiss, Hillside, NJ 1985, p. 23. See also The Patient as Person by Paul Ramsay, Yale University Press 1970, esp. chapter 7 entitled “Choosing How to Choose:Â€Patients and Sparse Medical Resources”). 5

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le-hahayot had in mind the gravest of exigencies. As we saw, the idea is nixed by the Yerushalmi, and as demonstrated by R. Hayim Yosef David Azulai (HYDA d. 1806),9 down to the 14th century, le-hahayot was still understood as alimentation. Take R. Solomon ben Adret (d.Â€ 1310). Adret is trying to navigate between Horayot 3:7 and the following law from tractate Ketubot (encountered earlier but bearing repetition): If a male and female orphan come seeking to be provided for (le-hitparnes) [from communal funds] the female orphan shall be provided for first and afterwards the male orphan because it is the way of a man to beg but it is not a woman’s way to beg. If both come seeking [help] to get married the female orphan shall be married first and afterwards the male orphan because the shame of a woman is greater than a man’s shame. (Ket. 67a–b)

This is R. Adret’s attempt at mediation:Â€“parnasah in this [Ketubot] text refers to clothing. For the Mishnah in Horayot rules that a woman takes precedence for clothing and ransoming. But when it comes to sustenance the male orphan takes precedence over his female counterpart in accordance with that same Mishnah that says a man takes precedence le-hahayot. And indeed it is written [Lev 25:36] ‘and your brother shall live with you’Â€– your brother comes before your sisters”.10 Like Adret, his contemporary R. Menahem Meiri (d. 1306) tried to square Horayot 3:7 with the orphan law in Ketubot:Â€“Le-hahayot means to feed (le-ha’khil).â•›.â•›.â•›. Horayot treats of a man who is unable to go a-begging. But where the man is up to begging, there the woman takes precedence also to feed (le-ha’khil) as the Gemara expounds in the sixth chapter of Ketubot”.11 Although their solutions differ, Adret and Meiri both take it for granted that le-hahayot denotes alimentation. In the 16th century, the ostensible contradiction between Horayot 3:7 and Ketubot 67b was still piquing Torah scholars. It was then that R. Joseph Karo (d. 1575) advanced the following far-fetched harmonization: At Ketubot 67 the baraita legislates that a female orphan is to be provided for first etc. Therefore when the Mishnah at the end of Horayot rules that a man Sha‘ar Yosef on Horayot, Leghorn (Livorno) 1756; reissued Jerusalem 5730 [1969 or 1970], pp. 122–s123. 10 Quoted in Shitta Mequbeset to Ket. 67. 11 Meiri on Horayot, Jerusalem 1969, p. 284. 9

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takes precedence over a woman le-hahayot, we have to say that le-hahayot refers to saving them if they are drowning in the river and such like. But feeding (akhilah) cannot be included in le-hahayot; the rules for it [feeding] are, rather, the same as for clothing. And even though clothing is what the Mishnah mentions [in its woman-first paragraph], nevertheless the law for feeding is the same because the reason for both is identical. (Bet Yosef on Tur Yore De‘ah 291:8)

In the last sentence, we sense R. Karo’s own dissatisfaction with his contrivance. He acknowledges that if Horayot 3:7 had wanted women to be fed before men, it should have said as much and definitely should not have implied the opposite. But by singling out clothing, that is precisely the implication:Â€ For clothes and clothes alone, women go first, not for subsistence. Albeit, Karo seems to be saying, on the formal plane, my temporization is no worse than the next exegete’s. In any case, R. Karo launches his interpretation of le-hahayot as his own. Yet, curiously, some claim to find it adumbrated by the Tosafists.12 In its elaboration upon the Horayot Mishnah, the Gemara cites a baraita that ranks dignitaries and officials hierarchically. That protocol gives the priest anointed for war (meshuah milhmah) precedence over the deputy high priest (segan). Another baraita is then cited which conflicts, ostensibly, with the first, for it says:Â€ “If an Â�anointed-for-war and a deputy are walking on their way and come across an abandoned corpse (met misvah) better the anointed-for-war defile himself [by attending to the corpse] and the deputy not defile himself because were the high priest [in the temple] to conk out, the deputy is the one who would have to be ready to substitute [for the high priest]”. The contradiction evaporates when Ravina declares the ranking in the protocol baraita to apply to le-hahayotÂ€ – not to defilement (Hor. 13a). Now priests are vulnerable to hunger and their boats to capsizal. Consequently, the predicament of the anointed-forwar and deputy could be due to any kind of calamity, and those who deem the Mishnah’s le-hahayot ambiguous (see earlier discussion) will 12

French 12th-13th-century school of Talmudists named for their commentary to the Babylonian Talmud known as Tosafot (abbr. Tos.). The first to print Tos. on the page alongside the talmudic text was Daniel Bomberg, who established Venice’s first Hebrew press in 1515 where he began publishing the entire Talmud in 1520. That editio princeps, which became the model for all subsequent printings, is where the rubble references are found (see note 14).

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find that ambiguity duplicated in Ravina’s le-hahayot. With variations, the Horayot 13a debate reappears in tractate Nazir. In a comment at Nazir 47b, Tosafot ascribes to ‘the Quntris’ (an alias for Rashi and/or his commentary) an odd paraphrase of the baraita that prioritizes the warrior priest: In the Quntris it is explained that the one raising the objection [in the Talmudic altercation] knew perfectly well that the Horayot baraita gives the anointed-for-war precedence for the purpose of le-hahayoto to dig him out from beneath the rubble (le-faqe’ah ‘alav et ha-gal) before the deputy; that is, in the case that an edifice collapses on them both. Still that did not stop him raising his objection:Â€If the deputy has priority with regard to defilement then he is the one we ought to pull first out of the rubble. Then Mar Zutra rebuts by saying that when it comes to le-hahayoto to pull him out from beneath the rubble, then .â•›.â•›.13

In the absence of manuscript witness,14 we are thrown on our critical facultiesÂ€– for what they are worth. And what those faculties tell us is that the rubble rings spurious on seven counts, at the very minimum: 1) The rubble amplification is not found in the so-called Rashi commentary on Nazir. We refer to this commentary as ‘so-called Rashi’ because J. N. Epstein (d. 1952) showed that it is not by the master himself but by a close contemporary. Epstein further demonstrated that this pseudo-Rashi is the commentary Tosafot knew and quoted.15 Already one begins to smell a rat. 2) The exact nature of le-hahayoto is irrelevant to the matter at hand, both in Nazir and Horayot. Ravina and Mar Zutra simply want to establish that the baraita that put the anointed-for-war ahead of the deputy had no bearing on the question of ritual defilement. It is therefore puzzling to find the rubble popping up over and over in Tosafot. To be sure, citations often incorporate tangential information without it sticking in one’s gizzard. But in those instances, the information forms an inextricable

Tos. to Nazir 47b s.v. ve-hatanya. “The Tosafist commentaries to Nazir have come down to us in a corrupt condition and have been subject to much emendation” (The Tosaphists:Â€their History, Writings and Methods [Heb.] by E. E. Urbach, fourth enlarged edition, Jerusalem 1980 vol. 2, p. 637). 15 “Perushe ha-Riban u-Perushe Wormaiza” Tarbiz 4 (1932–1933), pp. 153–178. 13 14

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3)

4)

5)

6)

16

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part of a material quote. That is not the case here. The rubble rigmarole is not attributed to the Talmud (whose elucidation is Tosafot’s sole purpose), but at best to an adventitious source, the Quntris. Thus the disproportionate emphasis on collapsed edifices Â�suggests a glossator who ‘doth protest too much’. Had Rashi and Tosafot actually contained a le-hahayot dramatization of people excavated from under ruins, Bet Yosef would have borrowed it rather than invent his own aqueous scenario. As noted, Karo offers as his own brainchild not merely the drowning scene, but the very idea of le-hahayot denoting the rescue of persons on the verge of perishing. He would never take credit for an idea cribbed from Rashi.16 The Talmud contrasts le-hahayot with le-faqe’ah et ha-gal (Yom. 84b-85a; Ket. 15b) whereas the Tosafot text as we have it treats the two as appositional. Within the Tosafist school itself, le-hahayot was understoodÂ€ – indeed definedÂ€– as feeding (Tos. Yom. 85a, s.v. le-hahazir; Tos. Ket. 15b s.v. le-hahazir; Tos. A. Z. 64b s.v. e-zehu). It is forbidden to pass a misvah by; the misvah that crosses one’s path becomes one’s responsibility (see Yom. 33a-b and Rashi ibid; Meg. 6b; Mekhilta Bo 9). It is also one of the misvot not to stand idly by when there is a life to be saved:Â€“One who sees his fellow drowning in the river or being dragged by a wild beast or [sees] armed robbers descending upon him, whence do we learn that he is obligated to save him? Scripture says [Lev 19:16] You shall not stand by over the blood of your fellow” (San 73a; cf. Sifra to Lev 19:16). In Tosafot’s scenario, a building collapses on top of two clerical gentlemen, an anointed-for-war and a deputy. According to the principle that forbids skipping misvot, a rescuer would have to extricate whichever man she/he hit upon first. But the Tosafot text as printed demands that if the

In his colophon to Bet Yosef, R. Yosef Karo writes:Â€“I began it in Andrianople in the year 282 (=1522) and completed it in Safed in the year 302 (=1542). I continued working on corrections and on a second edition until the year 314 (=1554)”. See also appendix E at end of Joseph Karo:Â€Lawyer and Mystic by R. J. Zwi Werblowsky, Oxford 1962. Although the Venice Talmud appeared in the 1520s (see note 12), Karo’s (b. 1488) mastery of the Tosafist commentaries will not have waited for Bomberg’s printing press.

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deputy is uncovered first, his rescue be put on hold while Â�digging continues for the warrior priest. Is it conceivable that the very Talmud that prohibits passing up misvot made an exception for the misvah of saving life? The rubble cameo, already suspicious on literary grounds, must now be seen to lack also halakhic cogency. 7) Lastly, when it comes to human life, male chauvinism along with all elitism is totally precluded by the amora Rava’s famous dictum:Â€“If a tyrant says to a person you are to go and murder so and so or else you yourself will be killed, that person should rather be killed than kill for who can say my blood is redder than the next person’s?” (Pes. 25b; San.74a). Redness determines the worth of blood, not the rank or gender of the arteries and veins through which it circulates, which amounts to saying that all human life is consubstantial. So much for the Talmud’s own outlook. However, the fact that the 16th century had no qualms explaining le-hahayot as plucking from the jaws of death must not be swept under the carpet. The Mishnah offers no rationale for its rankings. On the other hand, it prefaces them with a statement of principle:Â€“the one holier than its [or his] fellow takes precedence over its [or his] fellow” (Hor. 3:6). Accordingly, in his Mishnah commentary to Hor. 3:7, Maimonides annotates the man/ woman le-hahayot clause as follows:Â€“You know that the misvot are all obligatory for males but for females only some of them as set forth in Qiddushin. He being holier than she takes, therefore, precedence over her le-hahayot”. Maimonides’ understanding struck root. Now, as long as le-hahayot denotes the purveyance of victuals, prioritizing men can be rationalized, innocuously enough, as the etiquette of a patriarchal and holinesshaunted society.17 But the minute le-hahayot assumes the meaning of arbitration over life and death, the holiness rationale must surely fall by the wayside. To retain it would produce the obscenity that because his gender was richer in misvot, every individual male was generically holierÂ€– and being holier, his life was less dispensable! To cling to it while accepting at face value the Gemara’s explanation as to why women 17

Cf. the Qid. 31a law (reviewed earlier):Â€“If both thirsty parents ask their child for water the father shall be given to drink first”.

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have fewer misvot would be doubly obscene, for the Gemara imputes the abridgement of women’s misvot to Scripture.18 To then devalue a woman for heeding Scripture’s dictates can mean one of two things. Either women received fewer misvot as a consequence of some inherent inferiority orÂ€– if misvot grade a person on the ‘bioethical’ scaleÂ€– that at Sinai, the former scale (that had let Jacob deploy his imperilled menfolk and womenfolk in the file-formation recorded by Gen 33:2, 6–7)19 ended, and the allegedly uneven Sinaitic allocation of misvot led to men’s lives trumping women’s. To reiterate, no such notions can justly be ascribed to the Talmud. As for those Â�commentators who render le-hahayot ‘to rescue from drowning’, it is up to them to decide whether scraping by on her lesser misvah rations is what pushes a daughter of Israel to the rear of the queue. Is she at fault for submitting demurely to her lot instead of praying to God for full misvah fellowship? Should she emulate Zelophehad’s doughty daughters, who stepped forward, spoke up and received (Num 27:1–7)?20 But enough on Horayot 3:7. That it detained us this long is thanks to its potential to colour any discussion of the intrinsic equality of men and women, indeed of the very sanctity of human life, and to colour it falsely and perniciously. As we have tried to show, the Talmud is innocent of any assaying of life that fluctuates according to gender. Thus the chasm dividing man and woman in the rabbis’ topography, though gaping, did not reach all the way down to soul and quick. But is there any way of gauging or plumbing the depth of that chasm? Not the Mishnah but the Gemara (Qid. 33–36), as we have seen. Cf. Gen. Rab. 78:Â€11, 13. 20 “The story of Zelophehad’s daughters can be read as an inspiring narrative for women. It demonstrates that seemingly rigid social structures can be modified.” (“The Will of the Daughters” by Ankie Sterring in A Feminist Companion to Exodus to Deuteronomy edited by Athalya Brenner, Sheffield 1994, pp. 97–98). 18 19

17 Venus and Mars

Anthropology holds both nature and nurture responsible for the behavioural differences between the genders.1 Or to use an astral idiom, manliness is only half due to men’s Martian provenance and femininity only half to women’s Venusian.2 For the rest, other luminaries, celestial and terrestrial, determine what is masculine and feminine in any given society.3 The rabbis had their own aetiologies for distinctively male and female demeanours. These were based, no doubt, on a blend of empirical observation and hand-me-down wisdom. Earlier we had occasion to note how intimately halakhah in general is predicated on its understanding of what makes people tick. Thus it will “More recently, intense debates have surrounded the disciplines of sociobiology and evolutionary psychology. In brief, at the heart of some of these debates are concerns about closely related problems of determinism and reductionism. In relation to determinism, the issue is whether human behavior, including sexual behavior and gender codes, is determined by our ‘biological programming.’ In relation to reductionism, the issue is the primacy given to biological or naturalistic explanations, on the assumption that ‘levels of explanation and analysis for one level of being are adequate for other levels.’ As Elaine Graham puts it in relation to the gender question, ‘gender differences are reduced to the biological dichotomy of male and female, which is an adequate framework for understanding sexual reproduction, but resembles life less satisfactorily the further we try to extend the analysis into gender roles and characteristics.’” (“Male and Female He Created Them” by Stephen C. Barton in Reading Genesis after Darwin, Oxford 2009, pp. 183–184). 2 As in the title of John Gray’s best-seller Men Are from Mars Women Are from Venus, New York 1992. 3 See, for instance, Margaret Mead’s Male and Female:Â€The Classic Study of the Sexes, NY 1975 (1949), esp. pp. 7–8, 185–186, 298. 1

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come as no surprise to find women’s halakhah building on what might be called a rabbinic psychology of women. This psychology assumes, among other things, the proclivity of women to compassion, inquisitiveness, indolence, flightiness and ostentation. It further assumes that a woman will put up with the trashiest of husbands rather than risk spinsterhood, and that a wife will never dare falsely tell her husband (leastways to his face) ‘you divorced me’. Each of these postulates of muliebrity impacts the Talmud’s halakhic thinking and teaching. Compassion Disciples must not give instruction in the presence, or even in the Â�vicinity, of their masters.4 According to 2Kgs 22:14, King Josiah’s courtiers went to seek religious council from Huldah. The Talmud marvels at the delegation’s decision to consult Huldah rather than Jeremiah (who, like her, was also located in Jerusalem and had, moreover, received his call in Josiah’s thirteenth yearÂ€– long before Huldah’s first mentionÂ€– and must therefore be reckoned her senior and teacher). The only way out for the Gemara is to find extenuating circumstances which might have made it lawful for this particular disciple (Huldah) to be consulted within the purlieus of a superior (Jeremiah). One such extenuation (attributed to R. Shila’s school), is as follows:Â€“[the reason it was in order for Huldah to be preferred over Jeremiah] is that women are compassionate” (Meg. 14b).5 Inquisitiveness Among the Mishnah’s bevy of housewives, we met the lady who going out [into the courtyard] finds her neighbour stoking the embers under a covered earthenware pot containing terumah food. R. Aqiva declared Ber. 31b; Eruv. 63a; also Yad, Talmud Torah 5:1–2 where Maimonides explains the harm in a disciple setting up shop on his master’s turf, to reside in the risk of the disciple gainsaying his master. This immediately calls to mind the scruple Josephus attributes to the Pharisees. “They pay respect to such as are in years; nor are they so bold as to contradict them in anything which they have introduced” (Ant. 18:Â€1, 3). 5 R. Samuel Edels (MaHaRSHA d. 1631) explains that her compassion would impel her, over and above delivering an answer, to intercede for her crestfallen visitors. Thus Huldah will have been chosen not so much for her council, as for that something extra that Jeremiah, being a man, might lack. 4

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the food unclean. Why? “R. Eleazar ben Phila said I can tell you why R. Aqiva declares the food unclean [even in the case of a covered earthenware pot]6Â€– though the sages declare it clean. It is because women are inquisitive and prone to uncover other women’s pots to see what is cooking” (Tah. 7:9). Indolence On the authority of the phrase ben ha-‘arbayim (Ex 12:6), the Talmud fixes the time span for offering the Passover sacrifice on the 14th of Nisan as starting after midday (in rabbinic parlance, ‘from the onset of the seventh hour’) and lasting until dusk. Furthermore, the rabbis ruled that all leaven must be removed by the beginning of the seventh hour on that same 14th of Nisan. This latter ruling was adduced from Ex 34:25 “You shall not slaughter on leaven the blood of my sacrifice” which was interpreted to mean:Â€No leaven shall be around when it is time to offer the Passover.7 Though all rabbis agreed that there was no scriptural prescript for removing leaven before noon, nevertheless, both R. Meir and R. Judah brought forward by an hour the time for eliminating leaven. “R. Meir says [leaven] may be eaten all through the fifth hour and is to be burnt at the beginning of the sixth. R. Judah says [leaven] may be eaten [only] until the end of the fourth hour. Then it is left in limbo [lit. hanging] throughout the fifth hour and is burnt at the beginning of the sixth” (M. Pes. 1:4). The Gemara understands the hastening of the leaven deadline as a precaution lest people err in their observation of the sun’s orbit. However, an objection was raised:Â€ Surely the start of the seventh hour is readily ascertainable, because the sun has by then crossed to the Â�meridian’s west. The objection is bolstered by another Mishnah in tractate Sanhedrin that discusses the credibility of witnesses’ testimony:Â€“If one witness testifies [that the event he saw occurred] in the fifth [hour] and another witness testifies it was in the seventh hour their testimony is void since in the fifth [hour] the sun is in the east and in the seventh the sun is in the west” (San. 5:4). 6 7

See Chapter 8, note 23. Mekhilta, Horovitz/Rabin ed. top of p. 28; Pes. 5a and 63b; Y. Pes. 5:4 [32b].

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After some rather intricate deliberation, Abayye resolves the apparent inconsistency between the two Mishnayot:Â€A person coming forward to testify in court is typically someone with his wits about him. But the duty to eliminate leaven by the appointed hour on the 14th of Nisan rests with all and sundry. Hence the precaution of advancing the hour of its elimination. Abayye’s solution is accepted by the Bavli (Pes. 12b). However, the parallel sugya in the Yerushalmi comes up with its own variant solution transmitted in the name of R. Yose. “There [in Sanhedrin] the matter is in the hands of a court of law, and courts are sedulous. Here, however, the matter is in the hands of women [i.e. ladies of the house] and women are indolent” (Y. Pes. 1:4 [27c]; cf. Tos. Yom. 13b s.v. ella). Flightiness A person (adam)8 shall not meet privately with two women but a woman may meet privately with two men. (M. Qid. 1:12)

Why the double standard? “The school of Elijah taught it is because nashim da‘atan qallot ‘alehen (i.e. their gender being flighty and frivolous,9 both women will give in to a philanderer sooner than rebuff himÂ€– Rashi).10 Thus the assumption regarding women’s flightiness begot this halakhah of yihud. Ostentation The Mishnah forbids women to go out on sabbath wearing Â�specific ornaments. The Yerushalmi asks “Why are [these] ornaments forbidden? But see note 3 in the introductory text to Part II. Their alleged flightiness or levity served Josephus as pretext for the inadmittance of women’s testimony (Ant. 4:8, 15). The Talmud, while also debarring women’s testimony, never bases that debarrment on any feminine trait. Instead, Scripture is made to provide the authority for excluding women from the misvah of testifying (Shev. 30a; Y. Shev. 4:1 [35b]). As to a possible relationship between da‘atan qallot and animi laevitatem of Roman law, see Chattel or Person? by Judith Romney Wegner, 1988, p. 115 and especially Chapter 13, note 19. 10 Qid. 80b; cf. Shab. 33b. Some post-talmudic sources dredge up women’s alleged flightiness as a pretext to bar women even from activities in which the Talmud had explicitly included them. One such source (noted by Tos. at Hul. 2a, s.v. hakol) cites flightiness to disqualify women from performing shehitahÂ€– thus dissenting from the Talmud that approves women for the task. Needless to say, the dissent should not be thought of as rebellion against the Talmud, but rather, like all conscientious Torah teaching, as a response to what was perceived to be a changed reality (cf. note 13). 8 9

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R. Ba said given that women are shahsaniot (ostentatious) they are liable to take off [any of these easily removable ornaments] in order to show to a friend. Then she might inadvertently carry it along the distance of four cubits” (Y. Shab. 6:1 [7d]). Pipsqueak Rather than Old-Maidenhood A number of women’s halakhot are premissed on the belief that the prospect of being left on the shelf is a woman’s worst nightmare. Hence she is not fussy about her mate, and unless he is a leper or a comparably repulsive creature, a woman is assumed to be satisfied with kol de-hu (=the merest anything) when it comes to a husband.11 For the same reason she is not taken seriously should she request a divorce on the grounds of incompatibility. Wives Do Not Dare “R. Huna said if a woman, known to have been married, stretches out her hand and receives qiddushin12 from another man she is betrothed to him. This follows from R. Hamnuna’s ruling. For R. Hamnuna ruled:Â€a woman who says to her husband ‘you divorced me’ is believed [by the court] since it is as good as guaranteed that a woman (or a wife) lacks the audacity [to lie about her divorce] in her husband’s presence” (Git. 89b). The Talmud also records opinions that reject R. Huna’s extrapolation, alleging that it was only face-to-face with her husband that a wife’s timorousness could be counted on, and that R. Hamnuna’s words “in her husband’s presence” should be taken literally. But even while limiting its application to couples confronting one another, this party concurs in principle that the law shall presume women incapable of fibbing about their divorce.13 See Ket. 75a; B.Q. 111a et al. The abstract noun qiddushin denotes betrothal or even marriage. In this context, however, qiddushin is obviously something tangible such as a wedding ring or silver and the like that a man gives a woman to effect or to transact legal betrothal. 13 Codified as law in Shulhan Arukh, Eben Ha-‘ezer 17:2. However, R Moses Isserles (RMA d.1573) in his gloss cites rabbis who modified the law on the grounds that “in these times when impudence and licentiousness abound she is not believed .â•›.â•›. because the hazaqah (=assurance, presumption) of a wife’s diffidence has been eroded”. This view, recorded by RMA, that assumptions about women are liable to alter over 11 12

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The foregoing assumptions regarding female traits all interface with halakhah, which is why we have selected them for consideration. The fact that halakhah takes cognizance of a particular psychological insight sets that insight apart from its aggadic analogue. For aggadah can be volatile, irreducible, not always sure of its own genre. When is it hyperbole? When is it tongue-in-cheek? When polemics? As we saw with R. Eliezer’s riposte to his son “let the words of Torah be burnt rather than handed over to women” (Y. Sot. 3:4 [19a]), it could pass for banter just as soon as a dour edict. This kind of ambiguity deters one from using aggadic assessments of womanhood, including the flagship examples at Eruvin 100b14 and Genesis Rabbah 18:3. Moreover, even if it could be shown that a particular aggadic voice was not speaking figuratively, it would still be only of marginal help to our quest, for unless an assessment of this kind is explicitly employed in the shaping of halakhah, its historical influence on women’s status remains indeterminate. By contrast, the effect of beliefs about women that made it into the halakhic chain has been prodigious. Nor was the effect confined to occasions when the laws forged by those beliefs were implemented. Generations of students absorbed the laws unquestioningly, and along with the laws, the beliefs integral to them. But let us not lose perspective. Whereas none of these rabbinic evaluations of women do anything to narrow the status rift between the genders, it must be obvious that they are hardly capable of creating it ab initio. As noted, rabbinic psychology (like all psychology) will have relied heavily on empirical observation. Where latter-day psychology veers is in the attention it pays to chemistry as well as to learned or acquired behaviour. So whereas women’s compassionate edge may continue to be ascribed to the so-called maternal instinct, many of the other traits registered by the rabbis might today be ascribed to memes as well as genes. Take the observation that a woman will settle for the paltriest pudding-head.15 The rabbis never blame that alleged Â�womanly abjectness on the real culprit, namely, the contempt that time, has too often been overlooked even by those watchful for leads to the halakhic Â�reinstatement of women (cf. note 10). 14 See Chapter 9, note 9. 15 Note the phrase anan sahade (= we are witnessesÂ€– i.e. it is a verifiable fact) that introduces the maxim about a woman’s contentment with her miserable kol de-hu (B.Q. 110b–111a).

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once awaited those remaining single (cf. Isa 4:1). After all, it is only tardily and charily that we now grant culture’s role in deciding what is respectable and what shameful. When astronomy was still jumbled up with astrology and medicine with quackery, a woman’s docile acceptance of whomever father or fate might throw at her16 could have been mistaken for a law of nature; and that, no doubt, is what inveterate usage had effectively made of a girl’s mute docility. By the rabbinic age, women had long been reduced. Miriams, Deborahs and Huldahs were an extinct breed. Therefore, it must have been after Huldah that the climate so inclement to women’s growth set in, but donkey’s years before the Mishnah. And it is in that time slot that its stirrings should be sought. Apropos ritual purity, we considered certain developments for which the Priestly Torah may have served as catalyst. What became patent was that P’s purity could not fail to hamper potential Miriams and Deborahs.17 Now we are about to see the pattern repeated, only this time, it impinges on some fundamentals of Israelite religion. And the father had considerable discretion de’i ba‘e masar lah limnuval u-mukke shehin (if he [the father] so desires he can give her [his daughter] in marriage to a rotter or a leper (Ket. 40b)). 17 Incidentally, Miriam never appears as a prophet in P but as a cipher of genealogical interest:Â€“their [Moses and Aaron’s] sister” (Num 26:59). 16

18 Covenant

Not every divine covenant is ratified by an ’ot.1 Priests, for instance, cherished a covenant of their own2 which consecrated them into an elect with its own supernumerary misvot. Nevertheless, their covenant is not hallowed by an ’ot. So even though the ’ot would seem to be optional, when one is given, it habitually targets all partners on the human side of the compact. Noah’s covenant was made with all flesh; its sign, the rainbow, is correspondingly universal (Gen 9:9–12). The sign of the covenant with Israel mediated by Moses was to be the sabbath.3 Again, all inductees, in this case every Israelite man and woman,4 partake jointly in the sign. The Abrahamic covenant of Genesis 17 diverges from the pattern. In v. 7–8 God says to Abram (Abraham): I shall establish my covenant between myself and you and your seed after you (zar‘akhah aharekhah) throughout your generations an everlasting covenant to be the God of you and of your seed after you. I shall give to you and to your seed after you the land of your sojourning, the entire land of Canaan as an everlasting possession and I shall be their God.

The word zar‘akhah, semantically speaking, encompasses Abram’s entire progeny. Even the composite phrase “your seed after you” has ’Ot has the additional meanings of omen (e.g. Gen 1:14; Jer 10:2); wondrous sign (e.g. Ex 4:8–9; Ps 74:Â€4, 9). 2 Num 18:19; cf. Num 25:13. Outside P, it is the entire Levitical tribe that is party to the priestly covenant e.g., Dt 33:9; Jer 33:21; Mal 2:8. 3 Ex 31:Â€16–17; Cf. Ezek. 20:12. 4 See Ex 20:10. 1

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nothing scrimpy about it at Gen 9:9 or at Dt 1:8, 4:37 and 10:15. This is why the reader of Gen 17:Â€ 7–8 expects the signÂ€ – should one be appointedÂ€– to auspicate all Abram’s seed. Yet, on reaching v. 10, the same reader discovers that the sign chosen this time shuts out Abram’s female progeny. But that is not all. Circumcision is no vacuous token; Gen 17 presents its incision on the flesh as nothing less than the quid pro quo of the human partners to the pact. Hence, those disqualified from the pact’s human moiety must be presumed to fall outside the purview of the reciprocal promises. Accordingly, the six occurrences of zera‘ ahar in Gen 17 should probably be deciphered as male progeny, concomitant with ulzar‘o aharav berit kehunnat ’olam (Num 25:13 that bestows priesthood exclusively on Phineas’s male line; cf. Ex 28:43). Indeed, we have a hunchÂ€– reinforced by the Talmud’s understanding of the phrase at Yevamot 100bÂ€– that zera‘ ahar may have become P’s code for male descendants.5 Whatever the precise evolution of zera‘ ahar, the covenant of Gen 17 emerges as a monopoly of Abram’s male progeny. Thus P was not only the first to incarnate a covenant into the act of circumcision, but with that incarnation it pioneered the solemnizing of gender discrimination. The better to appreciate this last assertion, it will be in order to recount the saga of circumcision. Some think that circumcision, which extrabiblical sources show to predate the patriarchal age, began as a rite of passage marking the transition from childhood to adulthood. Foremost among the adult male’s duties was the defence and protection of the tribe. To concretize his commitment, the recruit was bled, for the commitment extended to his lifeblood.6 Since combat is not a woman’s job,7 no equipollent pledge was required of her. In other words, a ritual whose raison d’être was to incise on the persons of the male population the function of their manhood eliminated women by definition. This, then, is one of the less outlandish theories for pre-Abrahamic circumcision. But our

Confessedly, this would seem to drive a semantic wedge between Gen 9:9’s ‘seed after’ and Gen 17’s. But then the relationship between the various strands of the document[s] conveniently labelled P is not defined by absolute linguistic uniformity. 6 Bar Kokhba is reputed to have let blood from new recruits as an endurance test:Â€“Ben Koziba was there [at Beter or Betar] with 200,000 men whose fingers had been bled. The sages sent to him ‘How long will you continue to maim Israel?’ ‘How else can they be tested?’ came his [Ben Koziba’s] retort” (Y. Ta‘an. 4:6 [68d]). 7 Yev. 65b; Qid. 2b. 5

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present inquiry disposes us to pass from circumcision’s nascency to its narrative within Israel. The traditional account is straightforward. God makes a covenant with Abram (Abraham). Intrinsic to the covenant, a commandment is issued to the ninety-nine-year-old patriarch, incumbent upon him and all males of his household, to undergo circumcision. The covenant further stipulates that future generations of his male progeny be circumcised on the eighth day of their life. Any uncircumcised male who fails to rectify matters [when he grows up] shall be cut off from his people (Gen 17:Â€9–14).8 From then on, circumcision was, is and shall be Judaism’s cardinal rite. As to a reason for the choice of circumcision as the covenantal ’ot, all speculation is ultimately vain since the Omniscient’s wisdom is inscrutable. Hence circumcision, like all revealed law, is to be accepted on faith.9 It is no secret that modern scholarship discerns far greater complexity. For starters, the Moses it uncovers in the oldest biblical strata is a Moses lukewarm, if not hostile, to circumcision. It is not Moses, but Zipporah who circumcises their infant son;10 and under Moses’ tutelage, not a single Israelite is circumcised.11 Micha Josef Berdyczewski (d. 1921) was neither the first nor the last to note the data, but his summary is as succinct as any: If we examine the Bible’s circumcision narratives one by one, what we find is that at first the Hebrews were opposed to circumcision. In a roundabout way even Abraham’s circumcision suggests that it was only tardily at age 99 that Abraham entered the covenant of circumcision. But far more explicit is Exodus 4[:24–26].â•›.â•›.â•›. Moses forgot to circumcise [his son] says the Zohar; Moses neglected to do so says the Talmud. The author of Qorot Yisrael ve-Emunato12 concludes that circumcision was not very beloved of the Â�prophetsÂ€– especially not of Moses .â•›.â•›. who did not circumcise his sons [sic] or the Israelites during In Hebrew:Â€ve-nikhreta hannefesh hahu [qeri:Â€hahi] me‘ammeha. The rabbis as well as Philo understood biblical karet to be some kind of supernal punishment, but LXX’s exolethreuthesetai represents an understanding of karet as death at human hands (see Richard D. Hecht’s “The Exegetical Contexts of Philo’s Interpretation of Circumcision” in Nourished with Peace, 1984, p. 67). 9 “Ask not ‘why circumcision?’” is Ibn Ezra’s paraphrase of the command to Abraham ve-heye tamim (= be wholehearted, blameless; Gen 17:Â€2). 10 Ex 4:24–26. 11 Jos 5:Â€4–7. 12 That is Solomon Tsevi Hirsch, vol. 1 of whose book, Qorot Yisrael ve-Emunato, was published in Vienna in 1873. 8

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their forty years in the wilderness nor did he command circumcision as a misvah in the Torah that bears his name.â•›.â•›.â•›. Joshua circumcises the people after they enter the land [Jos 5:2–9] which may signify that circumcision was not adopted by the Israelites at first. It would also seem that they took it over from their neighbours .â•›.â•›. the god of the Shechemites was called Baal-berithÂ€– the god of the covenantÂ€– and the city of Shechem was the birthplace of covenantal religion.13 We go so far as to conjecture that Genesis 34 has reversed the roles. It is much more likely that the Shechemites were the ones to insist on circumcision which the sons of Jacob came to accept.14

Nor did Berdyczewski overstate the case. In fact, by confining himself to the Bible’s narrative parts, even his scriptural survey winds up being less than exhaustive. Take, for instance, Dt 10:16:Â€“You shall circumcise the foreskin of your heart”. This text hardly promotes the circumcision rite of Gen 17. It seems to be saying:Â€ Rather than the male member, it is the heart you need to circumcise. For in Â�adapting circumcision vocabulary to repentance and internal regeneration, Dt resorts to a favourite technique for revising and reinventing old, familiar praxis. Consider Dt’s shemitah legislation. Now shemitah terminology is already well established in The Book of the Covenant, reckoned to be the Torah’s earliest code. There, however, it refers to the renunciation by arable farmers of their land’s seventh-year crop for the benefit of the poor:Â€“Six years you may sow your land and gather its produce. But the seventh year you shall let it go (tishmetennah) and abandon it that the poor of your people may eat and what they leave the wild animals may eat; you must do the same with your vineyard, with your olive grove” (Ex 23:10–11). Dt replaces the agricultural institution with one of its own. Its alternative shemitah it ushers in with the proclamation:Â€“This is what shemitah is:Â€releasing debts”.15 Shemitah nomenclature is retained, but Shechem as the cradle of Israel’s covenantal religion is an idea still seriously entertained. For a recent treatment, see S. David Sperling’s The Original Torah:Â€the Political Intent of the Bible’s writers, New York 1998, pp. 68–69. 14 Sinai u-Grizzim (Heb.) Tel Aviv 1962, pp. 225–226. 15 In Hebrew ve-ze debar ha-shemitah shamot kol ba‘al mashe yado. The phrase ve-ze debar ha- recurs at Dt 19:4 where it introduces Dt’s homicide lawÂ€– a law Â�polemical in tone as it is revolutionary in its curtailment (no, not quite abrogation) of the ancient right of go’el ha-dam (=the redeemer of blood). In the context of the Siloam Inscription (ANET p. 321), “ve-ze debar ha-nqbh” which introduces the story of the tunnel (noqbah) also has an emphatic feel to it as if to say, the following is the authentic account, so please discard all knock-offs. (The attempt by Zipora Talshir [Tarbiz 51:1, pp. 23–35] to equate ve-ze debar ha- with ze ha-dabar asher is unconvincing). 13

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the institution’s character has mutated from agricultural to pecuniary, most probably in response to the exigencies of an urbanized economy. Similarly, Dt uses inherited circumcision phraseology but then invests it with new significance. This is surely the most natural explanation for Dt’s appropriation of circumcision vocabulary to express its idea of turning over a new leaf. And as fiscal shemitah appears to supersede its agricultural predecessor rather than supplement it, so does metaphorical circumcision mean to substitute somatic circumcision. Had Dt intended to heap its own on top of another circumcision, it might have given some indication of that intent. In fact, when at Dt 30:6, Moses reverts to circumcision, once again the inner being is its object. It is only when we get to the Priestly Torah, to which Gen 17 is ascribed by the higher criticism, that non-metaphorical circumcision is enjoined for the first time.16 To be sure, other scriptural passages know of circumcision as a popular rite that distinguished Israelites from neighbours such as the Philistines (e.g. 1Sam 17:36, 31:4; Jer 9:25), but outside P there is no suggestion of its performance being ritualized,17 not even in the prophet Ezekiel. Now Ezekiel certainly deplores the temple regimen that had not minded whether or not its clergy were circumcised. Still, even as this priest-prophet debars the uncircumcised (both of heart and of flesh) from ministering in his Utopian fane (Ezek 44:Â€7, 9), nowhere does he ritualize circumcision. Nor, for that matter, does he associate it with covenant as he does the sabbath (Ezek 20:12). Moreover, it is surely no accident that Abraham rather than Moses is the recipient of P’s circumcision commandment, and that it is Joshua, rather than his mentor, who undertakes the mass circumcision of the

P’s invariable formula to denote the surgery is mul besar ‘orlah. That is why Lev 26:Â€41’s o az yikkana‘ levavam he‘arel (= if then their uncircumcised heart shall submit) may strike one as odd:Â€Uncircumcision ought to be corrected not by submission but by circumcision. But it is just possible that P, while not eschewing metaphorical uncircumcision (witness Ex 6:12, 30; Lev 19:23), reserves the verb mul exclusively for hallowed usage. 17 In Covenant of Blood (Chicago 1996Â€– to be quoted more copiously anon), Lawrence A. Hoffman writes:Â€“even though Jews were practicing circumcision by the time the earliest accounts were penned, it was not until the time of the last author (P) .â•›.â•›. that circumcision became so prominent in Jewish consciousness.” (p. 30) “we do not find in pre-exilic writings the identification of circumcision as the essence of covenant, or even a sign of covenant. Though probably a popular custom, perhaps even universally applied to Israelite boys, circumcision does not appear there as a legal mandate .â•›.â•›.” (pp. 33–34). 16

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wilderness generation (Jos 5:2).18 The memory of Moses’ ambivalence towards circumcision was probably too tenacious. Water in torrents flowed under the bridge between the giving of the Priestly Torah to Israel and the rabbinic era. Circumcision, in Â�particular, grew in prestige when it became the badge of resistance for the pietists who stood their ground during the Seleucid19 and Hadrianic20 anticircumcision campaigns. In a rare admission of history’s footprint on religious observance, the Talmud concedes that Jews’ devotion to circumcision intensified as a result of their perseverance in adversity: R. Simeon son of Eleazar said, every misvah for which Israelites let themselves be martyred in times of persecution [or forced apostasy]21Â€– such as idolatry and circumcisionÂ€– [those misvot] are still held fast by them (Shab. 130a).22 Another indication of circumcision’s ascendancy is its invasion of Scripture’s covenantal lexis. The pristine import of covenant having long since dwindled,23 circumcision replenishes the emptying shell of berit discourse. Thus Achan’s breach of covenant (Jos 7:11) conjures up for the aggadah an epispastic Achan (San. 44a). “They, like adam, they broke a covenant” (Hos 6:7) implies that Adam was guilty of the same delinquency as Achan (San. 38b). In Elijah’s day, circumcision was neglected, according to a widely attested aggadah, for Elijah Although P’s Moses sometimes goes along with circumcision e.g. Lev 12:3; Ex 12:Â€44–45, 48 (but contrast Num 9:14), significantly, it is not through Moses that the rite is instituted. 19 See 1Maccabees 1:48, 60–61; 2Maccabees 6:10. 20 See Prolegomena to the Study of the Second Jewish Revolt 132–135 by Shimon Applebaum, BAR Supplementary Series 7, 1976, pp. 7–9; The Jews under Roman Rule by E. Mary Smallwood, Leiden 1976, pp. 428–431; “Ban on Circumcision” by Alfredo Mordechai Rabello, Israel Law Review vol. 29:1–2 1995; “The Ban on Circumcision as a Cause of Revolt” by Aharon Oppenheimer in The Bar Kokhba War Reconsidered:Â€New Perspectives on the Second Jewish Revolt against Rome, edited by Peter Schäfer, Tübingen 2003, pp. 55–69. 21 Gezerat ha-malkhut (=imperial persecution) in printed editions; var. lect. gezerat ha-shemad (=forced apostasy). 22 Cf. Mekhilta Ki Tissa, Horovitz/Rabin ed., p. 343. 23 The original idea of covenantal community being the antithesis of ethnic solidarity, it is understandable that where genealogy prevails, covenant survives merely as a form, eviscerated of its definitional status. As Mendenhall notes (of an age long before the rabbinic), “the basis of solidarity was no longer the covenant, but the myth of descent from a common ancestor” (The Tenth Generation, pp. 16–17). The rabbis made no attempt to revitalize the covenantal idea, but instead invested biblical references to covenant with the force of circumcision, the only berit in their experience. 18

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complains, “the children of Israel have forsaken your covenant” (1Kgs 19:14).24 “Were it not for circumcision heaven and earth would have had no abidance as it says [Jer 33:26] If not for my covenant [with] the day and the night, [if] the laws of heaven and of earth I did not establish .â•›.â•›.” (Ned. 32a; cf. M. Ned. 3:11; Shab. 137b). Another aggadah to identify biblical berit with circumcision may be found in Yalkut Shimoni to Nehemiah 9:8. “Abraham said to the Holy One blessed be He ‘Who will circumcise me?’ God replied ‘You yourself’. So Abraham picked up the knife .â•›.â•›. but as he was about to make the incision he was gripped by fear.â•›.â•›.â•›. So God stretched forth His hand and helped him .â•›.â•›. as it says [Neh 9:8] ve-karot ‘immo ha-berit .â•›.â•›. which words teach that God held while Abraham cut” (cf. Gen. Rab. 49:2). The foregoing outline of Israelite circumcision, if correct, would mean that circumcision owes its covenantal status to the Priestly Torah. It would further seem to imply that in choosing as its rite of entry into the covenant an exclusively male rite, the Priestly Torah intended the covenant itself for men only. Nothing in the pre-P dealings of God with His people prepares one for so divisive a covenant. But can we hope to fathom why the Priestly Torah introduces this unprecedented men’s covenant? Over time, the question has tweaked many a nimble mind.25 Still, it is only in the recent feminist decades that it has come to 24 25

This Elijah aggadah comes into full bloom in Pirqe R. Eliezer chapter 29. In the first century CE, we find Philo ruminating, in his own way, on the exclusion of women from Israelite circumcision:Â€“[T]he Egyptians by the custom of their country circumcise the marriageable youth and maid in the fourteenth (year) of their age .â•›.â•›. But the divine legislator ordained circumcision for males alone for many reasons. The first of these is that the male has more pleasure in and desire for mating than does the female .â•›.â•›. Therefore He rightly leaves out the female, and suppresses the undue impulses of the male by the sign of circumcision .â•›.â•›.” (Philo Supplement 1, Questions and Answers on Genesis, translated from the ancient Armenian version of the original Greek by Ralph Marcus, London 1953, pp. 241–242). To situate Philo among other ancients who considered circumcision’s gender implications, see “Why Aren’t Women Circumcised?” by Shaye D. J. Cohen (in Gender and the Body in the Ancient Mediterranean, Maria Wyke ed., Oxford 1998, pp. 136–154). Also Cohen’s “Your Covenant That You Have Sealed in Our Flesh:Â€Women, Covenant and Circumcision” in Studies in Josephus and the Varieties of Ancient Judaism, Louis H. Feldman Jubilee Volume (Leiden 2007, pp. 29–42) and idem “Are Women in the Covenant?” in A Feminist Commentary on the Babylonian Talmud (Tübingen, 2007, pp. 25–42). From around 1300, we have the anonymous Kolbo:Â€“Ba‘al Hamelmad [or Hamlammed] explains .â•›.â•›. that it suffices for males to carry the sign of the covenant because the female’s role is to be the male’s helpmate. Her husband is her desire and he rules over her [cf. Gen 3:16] leading and directing her to follow his ways and to do everything

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be contemplated in earnest. One scholar to seize the bull by the horns is Howard Eilberg-Schwartz: Since circumcision binds together men within and across generations, it also establishes an opposition between men and women. Women cannot bear the symbol of the covenant .â•›.â•›. The fact that circumcision sets up an opposition between men and women makes sense in terms of what we know about the priests’ conception of genealogy. As Jay (1985; 1988) has pointed out, the priestly writers suppress the names of women in their genealogies. Their genealogies generally list only the names of men, as women played no role at all in the continuation of the generations. Circumcision is one of the rituals that justifies this fiction. It provides physical evidence for the kinship ties between men.â•›.â•›.â•›. The above analysis shows that the most common explanation for the importance of circumcision among the priests is too simplistic. The experience in the exile may have made circumcision more important, as other interpreters suggest. But the symbol of circumcision also spoke to the interests of a group in which descent figured as an important factor in the organization and selfdefinition of the community.â•›.â•›.â•›.Why .â•›.â•›. is circumcision a rite of passage associated with birth? Indeed, given the connection with fertility it would seem more appropriate for circumcision to serve as a rite of passage into manhood. In African contexts, in fact, circumcision is usually a rite of passage associated with social maturation.â•›.â•›.â•›. Since the priesthood was not a calling but an inherited office, one could only serve as a priest if one claimed to be fathered by a man who was himself a priest. In the priests’ official self-understanding, one had no control over who one was. One’s self-definition was determined at birth by factors outside one’s own control .â•›.â•›. For the priests, the salient dimension of the covenant was the fact that a male was born into it. Entrance into the covenant was not a mature, reflective decision of adult life. It is for this reason that circumcision is performed as close to birth as possible.â•›.â•›.â•›. [T]he priests struggled against definitions of the covenantal community that differed radically from their own. For them, a community was a group of men who had descended from the same ancestor. Belonging to that community meant having a place in a lineage and having the obligations that go along with perpetuating the line and keeping it genealogically pure. To make these points, to themselves and those beyond their community, the priests adopted circumcision as a sign of the covenant (The Savage in Judaism, Bloomington, IN 1990, pp. 171–176).26 according to his instructions. This reason explains why it is enough that males have the sign .â•›.â•›.” (Kolbo 73, Laws of Circumcision). 26 Another writer to realize the ramifications of the covenant of Gen 17 for women is Gerda Lerner. “[T]he community of the covenant is divinely defined as a male community, as can be seen by the selection of the symbol chosen as ‘token of the covenant’.” (The Creation of Patriarchy, NY and London 1986, p. 190).

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The Savage in Judaism was followed six years later by a work whose title speaks for itself. This was Lawrence A. Hoffman’s Covenant of Blood:Â€ Circumcision and Gender in Rabbinic Judaism. Devoted entirely to the history and meaning of circumcision in Israel, it adopts several of Eilberg-Schwartz’s findings. The most germane sections of Hoffman’s book are those that explore the link between the elevation of the rite of circumcision and women’s demotion: The most striking feature of the biblical narratives bequeathed to us by the priestly authors is their obsession with lineage issues.â•›.â•›.â•›. Now the priestly concern with lineage has long been acknowledged. But until Eilberg-Schwartz’s work brought it to our attention we failed to notice the intrinsic connection between lineage and circumcision as a symbolic representation of the Â�patrilineal basis for the lineage.â•›.â•›.â•›. Eilberg-Schwartz presents considerable Â�evidence regarding the patrilineal system of the priests, which I need not repeat here. But I must explore one tantalizing claim he makes in order to keep my promise to attend to the gender dichotomy inherent in the fact that the central Jewish ritual is the purely male rite of circumcision.â•›.â•›.â•›. Circumcision is a representation of the very basic cultural dichotomy between men and women. It is not just men and women .â•›.â•›. who constitute contrasting poles in the priestly system. The concern with lineage purity had two consequences. Just as women were progressively excluded from covenantal status, non-Jews were separated from Jews.â•›.â•›.â•›. What we have is two boundary lines being established with ever greater severity. In both cases, the threat of ritual purity is used to enforce them.â•›.â•›.â•›.Where rules favoring male domination contradict other rules, thus leading to inherent structural contradictions but providing no easy way out, and where the legal system is moving toward rigidity rather than elasticity, we can expect to find purity rules predominating. That, I maintain, is exactly what we see in the priestly system developed following the Babylonian exile. The growing sense of male domination is evident in the circumcision symbolism at every level. But even as the rules of patrilineality increased, the rival matrilineal opposition was not forgotten. P did what he could to deny the underlying matrilineal tales, but he could hardly uproot them altogether from the canon of sacred Scripture that he inherited. The conflict within the system remained. As for a growing and inflexible legal system, one need only consult the priestly codes of Leviticus to see that legalism was precisely what P was establishing. Hence the concern with impurity.27

Giving so much space to these two authors, should not be taken for unconditional agreement. Over and above one’s own divergent tenets 27

Covenant of Blood, pp. 40–47.

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regarding the Bible’s revelatory dimension, issues of a more objective nature also militate. Particularly moot is their placing of patrilineality at the apex of priestly preoccupations. Perhaps it is petty to cavil at a matter of emphases, but to us, genealogy in the priestly documents of the Torah comes across as playing, at best, second fiddle to corporeal purity and holiness. Henry Pfeiffer’s supercilious tone may be abhorred, but the priests, we feel, would have relished his assessment of their virtual apotheosis of physical holiness. This is what Pfeiffer wrote: Only priests who were lawyers could have conceived of religion as a theocracy regulated by a divine law fixing exactly, and therefore arbitrarily, the sacred obligations of the people to their God. They thus sanctified the Â�external, obliterated from religion both the ethical ideals of Amos and the tender emotions of Hosea, and reduced the Universal Creator to the stature of an inflexible despot.â•›.â•›.â•›. From immemorial custom P derived the two fundamental notions which characterise its legislation:Â€physical holiness and arbitrary28 Â�enactmentÂ€– archaic conceptions which the reforming prophets had discarded in favour of spiritual holiness and moral law (Books of the Old Testament, New York 1957, p. 91). 28

The Concise Oxford Dictionary gives two senses for the adjective arbitrary:Â€1) based on or derived from uninformed opinion or random choice, capricious; 2) despotic (C.O.D. 1995, p. 63). Pfeiffer very kindly obviates all doubt as to which sense he intends. If “fixing exactly and therefore arbitrarily” does not rule out randomness, he settles the matter with “inflexible despot”. Yet no less an author than Mary Douglas misunderstood Pfeiffer to be saying that he thought the priests used random choice in putting together their code. Douglas thus proceeds to ridicule Pfeiffer:Â€“It may be true that lawyers tend to think in precise and codified forms. But is it plausible to argue that they tend to codify sheer nonsenseÂ€– arbitrary enactments?” (Purity and Danger 1966, p. 46).

19 Gauging Purity’s Weight in P

As we saw earlier, ritual purity-cum-defilement dominates in P. High as genealogy towers,1 purity peaks. P seems to stand in awe of ritual holiness and its congener ritual defilement, almost as though they were hypostatic and potent:2 1) Or a person who touches anything unclean either the carcass of an unclean beast or the carcass of unclean cattle or the carcass of an unclean creeping thing and the fact escaped him; but [then] Who are Moses and Aaron? In P, there is no miraculous infancy of Moses or his rescue by Pharaoh’s daughter; no childhood, no voluntary involvement with his brethren’s suffering; no indignation, no petulance or heroism, no flight to Midian, no Â�tending of sheep, no burning bush. Nor for Aaron is there rejoicing in the heart, or an encounter at God’s mountain, or any loving embrace. Instead their biographies, indeed their identities, consist in their illustrious pedigree. After tracing that pedigree (Ex 6:14–25), Scripture continues:Â€“This is Aaron and Moses to whom Hashem said cause the Israelites to go out (hosee’u) of the land of Egypt .â•›.â•›. This is they who spoke to Pharaoh king of Egypt to cause the Israelites to go out (le-hosi) of Egypt; that is [who] Moses and Aaron [are]” (Ex 6:Â€26–27). 2 Holiness and defilement, unlike sin, seem to wreak the same havoc whether incurred wilfully or inadvertently. There is no reprieve for anything left in a leprous house; evacuation is the only way to escape defilement (Lev 14:36). The Nazarite is contaminated even though the person who falls dead upon him [or at his side] does so accidentally and out of the blue (Num 6:9). At Num 9:7, men who have contracted corpse-defilement beseech Moses to allow them to participate in the Passover “at its appointed time in the midst of the children of Israel”. Their request is turned down and instead the Second Passover is instituted. The men are not quizzed as to whyÂ€– that is, for reasons fair, foul or indifferentÂ€– they had come into contact with a corpse on the eve of Passover. Indeed, according to R. Akiva, they had performed the pious deed of interring Nadab and Abihu (Suk. 25a–b). 1

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2)

3)

4)

5)

6)

7)

3

Intrinsic Equality being unclean he incurs guilt. Or if he touches uncleanness of a human, even any uncleanness of his whereby one becomes unclean, and the fact escaped him; but [then] he finds out and incurs guilt (Lev 5:2–3) Flesh that touches anything unclean shall not be eaten it shall be consumed in the fire. As for the flesh, anyone who is clean may eat flesh. But the person who while unclean eats flesh from the peace-offering belonging to Hashem shall be cut off from his kin. A person that touches anything unclean be it human uncleanness or an unclean animal or any unclean vile creature (sheqes) and then eats flesh from the peace-offering belonging to Hashem that person shall be cut off from his kin. (7:19–21) You shall warn (ve-hizzartem)3 the children of Israel against their defilement that they die not through their defilement by defiling my Tabernacle that is among them (Lev 15:31) Any person homeborn or alien who eats that which has died or has been torn by beasts, shall wash his clothes and bathe in water and remain unclean until evening; then he shall be clean. If he does not wash [his clothes] and bathe his body he shall bear his sin. (Lev 17:15–16) When the Tabernacle travels the Levites shall take it down and when the Tabernacle encamps the Levites shall put it up and any outsider who comes near shall be put to death (Num 1:51) Aaron and his sons you shall charge that they guard their priesthood and any outsider who comes near shall be put to death (Num 3:10) Encamping in front of the Tabernacle on the east, in front of the Tent of Meeting eastwards, shall be Moses Aaron and his sons on guard in the service of the temple (or sanctuary) .â•›.â•›. and any outsider who comes near shall be put to death (Num 3:38)

The hif‘il of the verb zhr (= to warn) has a heh between the zayin and the resh. The heh’s absence in ve-hizzartem disposes some to render the word ‘you shall separate’. But there is no such meaning as ‘to separate’ attested for the hif‘il of hazzirÂ€– a form local to the sixth chapter of Numbers, where it denotes taking a nazarite vow. Moreover, most ancient versions either understand our word to mean ‘warn’ (e.g. LXX, Targum Neophyti 1) or else read ve-hizhartem (e.g. Samaritan and the Temple Scroll [51:5]).

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8) Aaron and his sons shall finish covering the sanctuary and all the sacred equipment when the camp is due to move and thereafter shall the children of Kohath come to carry; but they shall not touch lest they die .â•›.â•›. (Num 4:15)4 9) Do not cut off the tribe of the Kohathite families from among the Levites. This is what you must do for them so that they live and not die:Â€when they approach the holy of holies Aaron and his sons shall come and set them each man to his task and to his load. No way must they see the dismantling of the sanctuary or they shall die (Num 4:Â€18–20)5 10) You and your sons with you must guard your priesthood in everything pertaining to the altar and to [the area] behind the veil .â•›.â•›. and any outsider who comes near shall be put to death (Num 18:7) 11) Whoever touches a dead person, the body of a person who has died, and does not get himself purified he has defiled Hashem’s tabernacle and that person shall be cut off from Israel (Num 19:13) 12) A man who becomes defiled and does not get himself purified that person shall be cut off from the midst of the congregation for he has defiled Hashem’s sanctuary (Num 19:20). These texts allude to guilt associated with defilement and some of them, more ominously, to excision and even death as the consequences of lay or defiled persons approaching sacred sites or objects. For such threats to resonate with a community, its members must surely be imbued with a belief in the enormity of holiness and defilement. The mood surrounding patrilineality is calmer. Not that its importance to P can be denied. One need only think of an anti-matrilineal text such as Lev 24:10–11 with its pointed distinction between “an Israelite” and a man it designates “the son of an Israelite woman and an Egyptian man”. The fact that his mother was Israelite (of the Danite tribe) did not suffice to ensure his own Israelite identity. Contrast this

4 5

Cf. 2Sam 6: 6–7. Cf. Ex 28:35; 30:20–21; Lev 10:1–2, 6–9; 16:1–2, 13; Num 16:35; 18:3, 22, 32; etc.

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with Ezra, who, at patent odds with P, confers on children of mixed marriages their mothers’ ethnicity. Ezra chides Jewish men “who have married foreign wives thereby causing the holy seed to become intermixed with the peoples of the land” (Ezra 9:2). His indignation sparks off the zealotry of Shecaniah, mouthpiece for the chastened exogamists:Â€“We pledge ourselves in covenant to our God to send away all these women and those born from them .â•›.â•›. and let the Torah (or the teaching) be followed” (ibid. 10:3; cf. Neh 13:23–28). Had Ezra been as staunch a patrilinealist as P, he might have disabused those pledging to bundle off not merely the foreign wives but also their children.6 The rabbis unhesitatingly took Ezra’s silence for acquiescence, and with the kudos of that Ezrite acquiescence, Shecaniah’s policy was to assume the status of legal precedent.7 Accordingly, children of a Jewish mother are Jews, irrespective of the father’s religion or nationality; and conversely, children of a non-Jewish mother are non-Jews irrespective of the father’s persuasion. So firmly does this Ezrite halakhah take hold that Lev 24:10 becomes something like an embarrassment to

For differing angles on Ezra’s policy, see The Beginnings of Jewishness:Â€Boundaries, Varieties, Uncertainties by Shaye J. D. Cohen, University of California 1999, p. 267 ff.; Have the “Foreign Women” really been Expelled? [Heb. with English title] by Yonina Dor, Jerusalem 2006; Judaism:Â€The First Phase by Joseph Blenkinsopp, 2009, pp. 63–71. 7 Exceptionally the Talmud speaks of a proselyte whose mother was Israelite (Yev. 45b, 102a; Qid. 76b). This strange formulation is best understood as the vestige of a once viable but ultimately rejected opinion that had withheld Jewish status [also] from offspring of a Jewish mother and a gentile father. More famous is Jacob of Kefar Nibburaya (3rd century) who catches the disparity between the Torah’s patrilineality and Ezra. But when, ignoring Ezra, he tries to follow the Torah’s radical patrilineality, he is unceremoniously called to order. “Jacob of Kefar Nibburaya went to Tyre and they asked him whether to circumcise the son of [a Jewish father and] an Aramaean mother on the sabbath. He was going to permit it because it says They registered their descent in the father’s line [Num 1:18Â€– see Targums]. But R. Haggai hears and summons him to be flogged. He [Jacob] asks ‘On what authority will you flog me?’ He [Haggai] replies ‘on the authority of that which is written [Ez 10:3] Now let us make a covenant [with our God to send away all the women and those born to them]’. He [Jacob] protests:Â€‘Will you flog me on non-Pentateuchal authority!’ He [Haggai] replies:Â€‘the verse goes on to say And let the Torah be followed’. ‘But where is there such a law in the Torah?’ Jacob brazens it out. ‘It is written’ [shoots back R. Haggai] â•… ‘You shall not intermarry with them [Dt 7:3] and it is further written For he will lead (ki yasir) your child away from me [Dt 7:4Â€– though this Scripture forbids all intermarriage, ki yasir being masculine can refer only to the Canaanite husband of ‘your daughter’. It is that child of a Jewish mother that Scripture refers to as ‘your child’ 6

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apologists for rabbinic matrilineality who almost wish Lev 24 would go away.8 Tentatively, P’s lineage program’s lagging behind its purity Â�program might be blamed on popular hankerings after the old mythologies. The clean/unclean antithesis will have meshed with any residual henotheismÂ€ – which in the end it unwittingly helped to invigorate.9 P’s commitment to solid patrilineage, on the other hand, had been compromised in Ezra’s day by the more pressing dictates of xenophobia.10 But xenophobia might never have carried the day if P’s genealogies had been infused with the same dread as its holiness legislation. Why, Shecaniah himself might have thought twice before proposing to cast off mixed-marriage issue fathered by a Jew. After all, the closing words of his pledge demand that “the Torah (or the teaching) be followed”. In other words, the politics that jolted Shecaniah felt no countervailing resistance from the Torah, which suggests that the Torah’s genealogical teaching failed to ignite the laity (as distinct from the priesthood) with its own enthusiasm for patrilineage. Another shortcoming of patrilineage as a pretext for P’s genderism is its remoteness from legislation such as Lev 12:2–5 and 27:3–7. To be sure, ritual purity comes no closer, for how does purity profit, any more than patrilineality, by barring a mother from the sanctuary twice as long after bearing a daughter? Or by fixing a female’s symbolic price lower than her male counterpart’s? Casuistically one might

despite the child’s Canaanite father]. Hence it was taught by R. Johanan in the name of R. Simeon b. Yohai:Â€A child [lit. your child] born of an Israelite [mother] is called ‘your child’ but a child [lit. your child] born of a gentile mother is not called ‘your child’ but her child’” (Y. Yev. 2:6 [4a]; Y. Qid. 3:12 [64d]; cf. Qid 68b and paralells). As for Sifra’s comment on Lev 24:10 “this teaches that he converted” opinions are divided regarding the identity of ‘he’. Both Ravad and R. Samson of Sens insist that Sifra’s ‘he’ denotes the blasphemer’s Egyptian father, since for the blasphemer himself being born to an Israelite mother, conversion would have been halakhically impossible. Rashi and Nahmanides, on the other hand, take Sifra at face value as referring to the blasphemer and thus have to contend with yet another ‘patrilineal’ rabbinic source (see next note). 8 Besides Nahmanides, see S. R. Hirsch on Lev 24:10 (Commentary to the Pentateuch, rendered into English [from the original Der Pentateuch übersetzt und erläutert] by Isaac Levy, London 1958, vol. 3 part 2, p. 270). 9 Also, ‘otot (heavenly omens) find a niche in P (Gen 1:14) though roundly condemned as pagan by Jeremiah (Jer 10:2). 10 Admittedly, this presupposes a time gap between P and Ezra; a gap seemingly discounted by Hoffman.

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venture that in grading the genders all the way back to the womb, these laws mean to rationalize a woman’s cultic and genealogical relegation. In that case, their message would presumably be:Â€wonder not that a woman stands on a lower genealogical rung than a man and at a further remove from the cult. She comes into the world defiling twice as long as her brother and, compared with him, she is worth but half, a third or three-fifths.11 Thus the riddance of women from cult and pedigree would supposedly be justified as befitting a gender whose subaltern status was congenital. However, to many students of Leviticus, ourselves included, its stratification of the genders at 12:2–5 and 27:3–7 resembles nothing so much as an end in itself. That these laws institutionalize a sexist hierarchy from birth is manifest. The question is only whether or not they do so in the interest of avowed heavyweights of P, such as genealogy and carnal holiness. We prefer to leave open the possibility that establishing the male/female dichotomy in the socio-religious sphere might be a discrete goal of P’s.12 Subsidiary, maybe, but a goal nonetheless. Nor is the idea altogether absurd, because in a culture where the human body has become the focus not merely of the physician but also of the priest, the biological differences between the genders are bound to loom large. This truth has been brilliantly articulated by Daniel Boyarin in respect of rabbinic culture:Â€“The human body is always normatively given as already anatomically divided into two kinds, which we call sexes. If human beings are defined as being their bodies, as I claim was the case for rabbinic Judaism, then sex ineluctably becomes a (if not the) central category for social practice”.13

The fact that both these laws quantify the ratios between them may be P’s penchant to express value arithmetically. 12 As mooted by Philip Peter Jenson:Â€“Numerous explanations have been given for the different times of purification for male and female infants. A structural interpretation might relate the inequality of time to the general inequality of impurity with regard to men and women. Although men and women could suffer the same degree of impurity, the regularity and universality of menstruation and childbirth suggests a quantitative difference. The different times of purification establish from the beginning of life the social, sexual and purity distinctions which will characterize the rest of life in both the domestic and the cultic spheres” (Graded Holiness:Â€A Key to the Priestly Conception of the World, Sheffield 1992, p. 143). Cf. Chapter 13, note 8 and Chapter 20, note 10. 13 Carnal Israel, pp. 235–236. 11

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If the body defined rabbinic man, how much more so priestly man. The Mishnah certainly goes great guns with the somatic. The deformities of Lev 21:17–23 it augments (Bekh.7:1–6), and it endorses P’s definition of priesthood as Aaronide and dynastic. But the rabbis also took on board non-priestly yardsticks, so that their commitment to body is tempered. This is why Boyarin’s diagnosis seems applicable to P, a fortiori. For P, not only catalogues bodily blemishes but, what is more, lists no disqualifying character flaws; not even Ezekiel’s Â�‘uncircumcised of heart’.14 It is not just a question, then, of championing the body; P has nothing to say about purity of the affections. Even the Deity as revealed in P’s vision is not the merciful, gracious and long-suffering God of the old Moses traditions.15 All these divine attributes have surrendered to the single attribute:Â€holy. Hence P’s exhortation to imitatio Dei: For I am Hashem your God; you shall make yourselves holy and be holy because I am holy and you shall not defile yourselves with any swarming thing that creeps on the ground (Lev 11:44). You shall make yourselves holy and be holy because I am Hashem your God (Lev 20:7;16 cf. Lev 19:2, 20:26).

Once competing taxonomies are eclipsed by those of pedigree, gender and bodily holiness,17 it is but a short step to the Of course, neither is uncircumcision of the flesh listed among the disqualifying blemishes of Lev 21:18–20. But whereas uncircumcision of the heart as an impediment is entirely passed over in P, the status of the uncircumcised flesh is taken well in hand at Gen 17:14 and again at Ex 12:Â€44, 48. 15 Ex 22:26; 34:6–7; Num 14:18; Ps 103:7–8 et al. 16 Both LXX and Samaritan have the variant reading:Â€“because I Hashem your God am holy”. 17 Maimonides seems to have felt uncomfortable with the idea of physical holiness being exhorted by Lev 11:44. However, qualms concerning anthropomorphic language are not the likeliest reason for his interspersing “the soul’s holiness from bad opinions” into his paraphrase of the Leviticus verse. Rather, in Rambam’s thought, the body had retreated, and the pendulum had swung towards a Platonic conception of the subservience of body to soul. It behoves us to quote Rambam in full:Â€“Although it is permitted to eat defiled foods and to drink defiled liquids, the pietists of old would eat their quotidian meals in purity and keep away from every defilement all their days. It is they who are called Pharisees. Now this behaviour is a matter of enhanced holiness and a way of piety so that a person separates and sets himself apart from the rest of the people, neither touching them nor eating and drinking with them. For separation leads to the body’s purity from bad deeds; purity of body leads to the soul’s holiness from bad opinions; holiness of soul causes [a person] to be like the shekhinah as it says [Lev 11:44] You shall make yourselves holy and be holy because I am holy” (Yad, Ma’akhalot Asurot 16:12 [in some printed editions of the Yad, Rambam’s scriptural citation is garbled, but it has been restored in Kafih 5753 and Frankel 1993]). 14

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formalization of gender distinction. The biblical vehicle of such formalization was covenant. We have now come full circle. The covenant of Gen 17 incorporates Israelite men as the hieratic covenant does the priests and Levites. To be sure, this men’s covenant may be of a different order and is, to boot, never defined as consecration nor yet by that archetypal P verb hvdlÂ€– the verb used of the Levites’ detachment from the rest of Israel (Num 8:14, 16:9 et al.).18 Nevertheless, for all intents and purposes, Gen 17 constitutes Israelite men into a distinct covenantal entity, setting them apart from uncovenanted outsiders, such as non-Jews and women. Gen 17’s covenant thus appears to be a deliberate reversal of Gen 1Â€– that greatest of levellers. Indeed, with its covenantal valorization of men, P seems to bolt the gates on its own level playing field (see Chapter 20, note 10). By the time we get to rabbinic texts, the notion of the Abrahamic covenant as a male birthright is taken for granted. “R. Hananel said in the name of Rav if one did not mention covenant and torah and kingship [in grace after meals] one has still fulfilled one’s obligation because [these things] do not pertain to women or to slaves” (Ber. 49a). “Surely it was to the males that the Holy One blessed be He promised [the land] not to the females” (Y. Bik. 1:4 [64a]). 18

Cf. Dt 10:8; 1Chr 23:13.

20 Body and Soul

The idea of the human as a body-soul composite suffuses our culture. Semantics aside, soul is most commonly associated with sentience, Â�animation and moral capacity.1 These are the same human properties that we think of as religion’s province. Thus, it may take some acclimatizing to the priestly harping on the body. Perhaps priestly religion is distrustful of the inner man (see Num 15:39)Â€– so will-o’-the-wispy compared with tangible, quantifiable, weighable and dissectable anatomy. In any event, there is no getting away from P’s use of body as a prime socio-religious definer of people. If we find the body-religion nexus Â�incongruous, it may be time to adjust our slant on priestly religion. But we are straying from gender. Inevitably, gender will rear its head where there is heightened awareness of body. Still, it does not follow that women have to wind up as a caste apart, which is virtually what happens to them from P onwards. Lest the word ‘caste’ misfire, it must be stressed that P’s legislation is no less humane to women than its biblical counterparts. If P promotes monogamy (a sustainable hypothesis as we saw), it would be salutary to women. Moreover, it is P that immortalizes “the ministering women who ministered at the entrance 1

The Concise Oxford Dictionary’s first sense for soul is:Â€“the spiritual or immaterial part of a human being or animal, often regarded as immortal”. Soul’s second sense it gives as:Â€“the moral, or intellectual nature of a person” (C.O.D. 9th edition 1995, p. 1328). For some exotic theories about the soul, see Carl Zimmer’s Soul Made Flesh:Â€the Discovery of the Brain and How It Changed the World, New York, London, Toronto, Syndney 2004.

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of the Tent of Meeting” (Ex 38:8);2 P that grants Zelophehad’s daughters the right to inherit (Num 27:1–4) and, within limits, to choose their husbands (Num 36:6). And it goes without saying that not the faintest wisp of the rabbinic woman-slave equation beclouds P. Above all, to the extent that P admits of conversion, its commitment to holy seed and body cannot be absolute.3 These philogynous tendencies are “Understandably, Exod. 38:8 is one verse which many of those who insist on the postexilic dating of P are happy to see as a preexilic element in P. Otherwise they would have to reckon with the distinct possibility that postexilic P is the only source of the Pentateuch that specifically mentions women functionaries in the official Israelite cult. That Exod. 38:8 may actually speak of women functionaries in the cult whose activity was similar to that of the Levites of the Book of Numbers finds support in the use of the same verbal root sb’ to describe the service of the Levites in Num 4:23 and Num 8:24.” (“Women in the Cult According to the Priestly Code” by Mayer I. Gruber in Judaic Perspectives on Ancient Israel, Philadelphia 1987, p. 36; see also “Outside the Lines” by Rachel Havelock in Embroidered Garments, Sheffield 2009, p. 91). 3 Ex 12:48 is P’s unequivocal affirmation of conversion. Rabbinic sources, echoing Ex 12:48, stipulate circumcision as the rite of passage whereby a [male] ger becomes a full-fledged proselyte. Thus conversion to Judaism, in the eyes of the rabbis, was firmly rooted in the Torah. The rabbis further took the Torah’s ger to be a proselyte. Scholarly opinion has generally gone along with the rabbisÂ€– something that is granted even by dissenters. “The scholarly consensus is nearly unanimous that P’s ger is a proselyte and hence a full Israelite. A different opinion is voiced by Abraham Ibn Ezra (on Lev 18:26), recently supported by Moshe Weinfeld. I submit that Ibn Ezra and Weinfeld are correct in pointing to the notion of purity behind the discrete status of the ger” (“Religious Conversion and the Revolt Model for the Formation of Israel” by Jacob Milgrom, JBL 101:2, p. 170). Weinfeld’s comment occurs in his Deuteronomy and the Deuteronomic School (pp. 230–231):Â€“It is commonly asserted that the ger in P, being subject to the same laws as the Israelite, has a status similar to the one held by the proselytes during the post-exilic period. This view, however, is without foundation. The Priestly document imposes upon the ger only those obligations which affect the sanctity and purity of the congregation, such as regulations concerning sacrificial procedure, the prohibition of eating leaven.â•›.â•›.â•›. The [ger] must submit to circumcision only if he chooses to observe the paschal ritual, that is, if he wishes to take part in the distinctively Israelite ceremony (Ex 12:48; cf. Num 9:14); If he does not wish to do so he may remain uncircumcised.” We would simply add that the Weinfeld-Milgrom definition of P’s ger in no way impugns the essential rabbinic position as regards a scriptural basis for gerut. In order to impugn that position, Ex 12:48’s “he shall be as a resident of the land” would have first to be deleted. Meanwhile, Ex 12:48 reads:Â€“If a ger sojourns with you and offers [or would offer] the Passover unto Hashem, every male of his must be circumcised and then let him come forward and offer it for he shall be as a resident of the land; but no uncircumcised one shall partake of it”. As for Ibn Ezra, though unwilling to identify biblical ger as a proselyte, he does not deny the scriptural authority for conversion as categorically demonstrated by his comment to Ex 12:Â€44:Â€“lirsonoÂ€– she-yashuv le-dat yisrael”. 2

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of P’s essence. Notwithstanding, the caste analogy has merit. The stations of the Israelite man, the Israelite woman, the priest, the Levite are inexorably nailed from birth. If carried through, such pigeonholing of humanity into predetermined niches cannot fail to deliver the dual effects of caste.4 To those who dig the stability of regimentation it promises the serenity of rote; to the restive mind, to the Â�unmechanizeable soulÂ€– Procrustean suffocation. But the Priestly Torah did not supplant the older writings. The Bible of the second-temple era comprised all five books of the Pentateuch, including Deuteronomy with its preaching of inward religion: Â�faithfulness, right choice and change of heart.5 Moreover, there are indications of prophetic and charismatic Judaisms pulsating at the margins of second-temple clericalism. Although data is sketchy for the later Persian period, it is inconceivable that prophecy could then (or at any other time) be entirely squelched. And it is Hebrew prophecy that speaks to men and women as beings endowed with volition and choice. The literary prophets transcend the body in visions that break out and above tellurian confines, so that the prophet’s encounter with the Ineffable could no longer be cramped inside a temple.6 Inevitably, the prophetic message tended to devalue animal sacrifice. But sacrificing was the bread and butter of sacerdotalism. Any theology palatable to priests had to accommodate the cult. The prophet to bring off such an accommodation was Ezekiel. However, the blueprint revealed through this priestly prophet is idealistic. In the real world, butchering droves of cattle to feed an altar is hardly the surest way to foster the prophetic spirit. Even when pious

To quote Tamar Ross:Â€“[A]lthough Judaism never adopted a caste order comparable in any way to that found in India, Jewish tradition .â•›.â•›. definitely reflects a hierarchical view of society.â•›.â•›.â•›. Various legal distinctions are drawn between the Jew and the non-Jew, between priests (kohanim) and ordinary members of Israel (yisraelim), and between free men and slaves.â•›.â•›.â•›. Undoubtedly one of the most cutting of these distinctions is that between men and women.” (Expanding the Palace of Torah, p. 15). 5 Even such staples of Deuteronomic religion as ahb, bhr and shb (‘ad or ’el Hashem) are not dwelt upon very often in P. Curiously, some scholars cite teshuvah’s absence as evidence for P’s antiquity. This clutching at straws would, presumably, date P anterior to Hosea. 6 See Isa 6:3; 8:Â€11–13 and the first two words of v. 14; 66:1–2. 4

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priests sublimated the sacrificing into an expression of submission to the Sovereign Plan as laid out in the Priestly Torah, an inner gnawing will have tormented the nobler sort.7 In any case, priests had to be vouchsafed a befitting theology, perchance a Torah of their own. For priestly ears to be receptive to Torah, its message had to be couched in their language:Â€God was all right as long as He approved the cult.8 We stop short of characterizing as corporeal the priestly concept of the numinous, if only because the priestly texts go to vast circumlocutory An explanation is in order for our unsolicited opinion as to the nobility of those who wrestled with the sacrificial system. We would never presume to sit in judgement on our stone- to iron-age forebears who offered blood sacrifices, whether animal or human. As long as sacrifice tallied with its practitioners’ cosmologies (and protoscience), it was as self-explanatory as it was genuine. Then science progressed and the prophets revealed truths that shook up sacrifice and its underpinnings. The persistence of a sacrificial factory at the Jerusalem temple after the exile is not covered by the romantic explanations of early man’s naive and spontaneous offerings. The rabbis can be seen intellectualizing the cult as meek acquiescence:Â€“I decreed [says God] and my will was carried out” (Sifre Num 107, 118, 143 cf. T. Men. 7:4). Thus the apotropaic rationale of sacrifice gives way to faith. Moreover, theocentric speculation as to why the Deity would want sacrifices is abandoned for the more immediate concern as to why people ought to keep on performing arcane rituals. The rabbis’ stock-in-trade answer was that all misvot, though not arbitrary, were ultimately a matter of compliance with the enactments of an inscrutable Torah (cf. “My laws shall you keep [Lev 18:4] refers to things at which Satan chafes such as .â•›.â•›. the leper’s lustrations, the scapegoat. But because I Hashem have ordained all these it is not for you to question” Yom. 67b). Whether inculcation of obedience was the sole or chief purpose of Ezekiel and the Priestly Torah is not the point. Nor can we be sure that obedience pure and simple motivated the myriad priests who served in the temple. No doubt, atavistic belief in the efficacy of animal sacrifice lingered on in some quarters, as it has to this day. But at the grass roots, sacrifice had ceased to be the natural response of individuals and was becoming problematic, especially to those who stopped to muse, namely ‘the nobler sort’ (see Ps 40:Â€7 and Rashi ad loc.; 50:8–14; 51:18–19 etc. [not because the priests are known to have been Psalmists, but because the Psalter was used in the Temple cult]; also Daniel R. Schwartz’s [unpublished] doctoral thesis Priesthood, Temple, Sacrifices:Â€Opposition and Spiritualization in the Late Second Temple Period, Jerusalem 1979, esp. chapter III pp. 113 ff. ). 8 With the substitution of ‘law’ for ‘cult’, an analogous attitude may be discerned in the following latter-day proposition:Â€“Judaism is thoroughly legal from beginning to end. If, to the linguistic philosopher, reality is ultimately language .â•›.â•›. to the Jew, reality is Â�ultimately law. The moral ethic is important to the degree that it can be expressed in terms of law.” (M. Meiselman, Jewish Woman in Jewish Law, p. 65). Elsewhere, Meiselman attributes a comparable theologoumenon to Rabbi J. B. Soloveitchik:Â€“God’s ownership of the world .â•›.â•›. is also subject to the rule of halakha. Halakha stands prior to all religious concepts and is the only source for their cognition.” (“The Rav, Feminism and Public Policy:Â€An Insider’s Overview” Tradition 33:1, p. 8). 7

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lengths to avoid anthropomorphism.9 But we do grant that spirit in P seems nugatory compared with body.10 As noted by Phyllis A. Bird:Â€“The idea that God might possess any form of sexuality, or any differentiation analogous to it, would have been for P an utterly foreign and repugnant notion. For this author/editor, above all others in the Pentateuch, guards the distance between God and humanity, avoiding anthropomorphic description .â•›.â•›.” (HTR 74:2, p. 148). Other scholars are less willing to describe P’s concept of the Deity as entirely non-anthropomorphic. Although their divergent conclusions are sometimes dismissed as a matter of semantics, to us they appear to represent an understanding of P’s theology that differs substantially from Bird’s (and our own). The latest (and arguably the best) articulation of that divergent understanding is Benjamin D. Sommer’s:Â€“[S]ome biblical authors regarded the substance of the divine body as one of its distinctive features:Â€This body was stunningly bright, so that it had to be surrounded by dark clouds to protect anyone nearby. In modern terms, we might tentatively suggest that this body was made of energy rather than matter. We can term this conception of God anthropomorphic in the most basic sense of the word:Â€having the shape of a human. But because the divine body according to this conception is not necessarily made of the same sort of matter as a human body, it might be appropriate to term this belief a nonmaterial conception of God or even a spiritual one” (The Bodies of God and the World of Ancient Israel, Cambridge University Press 2009, p. 2). “Priestly literature’s use of the term [kabod] recalls (or perhaps underlies) all these uses, for in it kabod refers to God’s body and hence to God’s very self.â•›.â•›.â•›. Unlike Ezekiel, the P documents in the Pentateuch do not describe the shape of the kabod, but they do speak of the form and shape of humans in Genesis 1.26–27, 5.1 and 9.6. In the first of these passages we read, God said ‘Let us make humanity in our form after our shape .â•›.â•›.’. To be sure, later Jewish and Christian interpreters of Genesis 1.26–7 have attributed abstract meanings of a moral or spiritual nature to the phrase.â•›.â•›.â•›. But any such reading of the terms demut and selem in our priestly passages in Genesis supplements the terms’ basic, physical meaning without superseding it.â•›.â•›.â•›. This becomes clear from Genesis 5:3:Â€“Adam fathered a son in his form, after his shape and named him Seth” (The Bodies, pp. 68–70). 10 The foregoing theory should probably not be pressed into service to explain the selem equality of man and woman in Gen 1:27, as though selem, belonging to the subsidiary spiritual domain, could be conceded to both genders. Howsoever, as noted by Coote and Ord, the prospect of selem-equality was bitten into by circumcision:Â€“In plain words, the male is twice as clean as the female. The redemption price for women is hence a half or three-fifths that of men. This set of perceptions, values, and procedures is what is anticipated in the second covenant of Abraham with its sign of circumcision.â•›.â•›.â•›. This second covenant goes on to involve Sarah .â•›.â•›. [but t]his attention to Sarah does not mean that the priestly writer regarded the sexes as equal. It goes without saying that both sexes play an essential role in reproduction. However, it is a Â�misunderstanding of the view of the priestly writer to imagine that, just because Genesis 1 refers to the creation of both male and female in the image of God, and Abraham and Sarah receive similar attention in the account of the covenant of circumcision, male and female enjoy an equality in the sight of God.” (In the Beginning:Â€ Creation and the Priestly History by Robert B. Coote and David Robert Ord, Minneapolis, MN 1991, pp. 73–75) cf. note 24 in the Preface and Chapter 19, note 12. 9

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The priestly model did not die out with the cult. The rabbis, like their putative precursors the Pharisees, were heirs to both priest and prophetÂ€ – in that order.11 As noted in passing, some historians see the Pharisees as democratizers. If expanding the constituency of ritual purity is democratization, the accolade is warranted, for the Pharisees imposed upon themselves purity standards P had ordained for the Sanctuary and its personnel. The ancient sources do not identify the motivation for this voluntary adoption of ritual stringencies (for Rambam’s romanticization, see Chapter 19 note 17). Ten to one, it was more than cocking a snoop at the priests or an ‘if you cannot join them, beat them’ triumphalism. Pharisaic angst vis-à-vis tuma‘ah/ taharah is quite unmistakably a chip off the priestly block.12 But as Pharisaism (as indeed all sectarianism of the Temple era) recedes, rabbinism with its modified politico-religious program heaves into sight. Whereas the regnant rabbinic attitude to corporeity may be contiguous with the Pharisaic, talmudic literature preserves dicta of which the prophets would have been mighty proud. For an illustration, we do not have far to go. The protocol of Horayot, as we saw earlier, lays down a pecking order. Priority is not measured by the individual’s level of distress or vulnerability,13 nor yet by his or her usefulness to society. Instead, man takes precedence over woman le-hahayot and to return lost property and woman takes precedence over man to clothe and to take out from captivity. If both are in peril of being used for immorality, then the man takes precedence (M. Hor. 3:7). The Mishnah continues:Â€A priest takes precedence over a Levite; a Levite over an Israelite; an Israelite over a bastard .â•›.â•›. when [does this order apply]? When all are [otherwise] equal. But if the bastard is a scholar and the high priest an ‘am ha-ares then the bastard scholar takes precedence over the high priest (M. Hor. 3:8). The last clause mocks the protocol of 3:8. Therein resides its subversion, irrespective of whether or not it reaches back to 3:7. If it stops “Rabbinic Judaism was .â•›.â•›. conflicted in its estimation of the priesthood of the Second Temple period despite its fascination with the conduct of the Temple rituals” (Ritual and Rhetoric in Leviticus:Â€From Sacrifice to Scripture by James W. Watts, Cambridge University Press 2007, p. 156). 12 See Dem. 2:3; Hag. 2:7; Edu. 1:14; T. Shab. 1:7; T. Yom. 1:10; T. Hag. 3:13 (end); Tos. Pes. 85a s.v. mi-shum; Tos. San. 48a s.v. meshammeshin et al. 13 As at Ket. 9:2 where R. Tarphon rules that when a widow, a creditor and heirs all have claims on an estate, the feeblest party takes precedence. 11

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short of impacting 3:7, it would mean that an ‘am ha-ares woman still takes precedence even over a scholarly man to clothe and to take out from captivity and, vice versa, an ‘am ha-ares man still takes precedence over a scholarly woman to be rescued from immorality, because begging for a woman and harlotry for a man are presumed to go against their respective propensities. Alternatively, and more cynically, mishnaic law would not admit the possibility of women scholars. That is as it may, but the very introduction of the sage-ignoramus test deals a shattering blow to the body’s supremacy. An analogous polarization marks talmudic attitudes to proselytes: “R. Yose taught A proselyte once converted is like a newborn babe”.14 “Once he has immersed himself and emerged [from the water] behold he is like an Israelite in every respect” (hare hu ke-yisrael Â�le-khol Â�debarav Yev. 47b). At the other pole, the Talmud harbours an opinion about proselytes that is, with all due respect, unadulterated carnality. Arguably the Talmud’s one and only ‘racist’ law, it is attributed to an anonymous plurality of sages at M. Yev. 6:5:Â€“R. Judah says even if he [a rank and file priest] has a wife and children he may not marry a woman incapable of child bearing for she is the zonah spoken of in the Torah. But the [other] sages say zonah refers to none but a proselytess, a manumitted female slave and a woman who had been in a forbidden relationship”. Lev 21:7 forbids a priest to marry a zonah. Prior to their conversion, proselytes will no doubt have contravened Mosaic and possibly Noahide Torah in all sorts of ways, but no other law, Mosaic or Noahide, that a person may have transgressed prior to conversion trails the convert into Israelitehood. Why the exception for meretriciousnessÂ€ – nay, for the mere suspicion of it? To rationalize this paradox within rabbinic parameters, one would have to posit that although a convert’s soul, saturated as it may once have been in idols, is capable of living down its idolatrous past, the body, once tainted, is irremediable.15 14 15

Yev. 48b; see also Yev. 22a, 62a, 97b, Ket. 61b, Bekh. 47a. Some view the proselytess-harlot equation as a priestly legacy. The degree to which P embraces conversion is a matter of debate (as we saw earlier). What seems clear is that the Aaronide priesthood of the Second Temple, increasingly obsessed with pureness of pedigree, had little use for conversion. If other Jews, who believed in conversion, chose to accept converts, the priests for their part would still turn up their

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A proselyte’s status is the context for another tug-of-war between the carnal and spiritual. The former is represented by a Mishnah which deals with the First Fruits offering and its associated liturgy (Dt 26:3, 5–10), and by extension all analogous liturgies:Â€“A proselyte brings First Fruits but does not recite [the associated liturgy] because he cannot say the words ‘Which Hashem swore to our forefathers’ [Dt 26:3] .â•›.â•›. similarly, when he [the proselyte] prays alone he says ‘God of Israel’s forefathers’. When [leading prayers] in the synagogue he says ‘God of your forefathers’” (Bik. 1:4). This Mishnah’s counterpoise is found in the Yerushalmi:Â€“It was taught in the name of R. Judah:Â€A proselyte not only brings the First Fruits but also recites [the associated liturgy]. Why? Because God told Abraham ‘I make you father of a multitude of nations [Gen 17:5]. Previously you were father to Aram; henceforth you will be father to all the nations’. R. Joshua ben Levi said The halakhah is according to R. Judah” (Y. Bik. 1:4 [64a]). The Yerushalmi’s breakthrough is its recognition of adopted offspring. Officially, of course, rabbinic parenthood was as narrowly biological as the priestly. But as we have seen time and again, the still small voice of rabbinic dissent was not to be quelled. Here is another rabbinic text that affirms the integrity of adoptive parenthood: One Scripture (2 Sam 21:8) speaks of the five sons of Michal daughter of Saul whom she bore to Adriel son of Barzillai of Meholah. According to another Scripture (2 Sam 6:23) Michal daughter of Saul was childless until the day of her death. How can these two Scriptures stand? You must conclude the five were Merab’s insofar as Merab bore them. But Michal raised them and so noses at such neophytes (see R.H. 1:7; for further examples see Agrippa l, The Last King of Judaea by Daniel R. Schwartz, Tübingen 1990, pp. 126–129; also Christine E. Hayes’s Gentile Impurities and Jewish Identities, Oxford University Press 2002, pp. 26–27). Yev. 6:5’s approximation to priestly law is sometimes explained as rabbis having resigned themselves to the priests’ de facto avoidance of proselyte spouses. If that is so, the citation of Lev 21:7 as prooftext will have been a rabbinic flourish, for the priests’ eschewal owed nothing to Lev 21:7, but was part of a priestly ethos entrenched in genealogy and ethnic ‘holiness of seed’. Alternatively, the anonymous opinion at Yev. 6 is native to rabbinic Judaism, perhaps going back to the Shammaite school that, in stark contrast to the dominant Hillelite love for converts, tended to misprize them (see Shab. 31a). However, it should be noted that none of the named tannaim, including R. Eliezer ‘the shamuti’, defines zonah as a convert (Yev. 61b). As to the extent of R. Eliezer’s Shammaite leanings, see Yitzhak D. Gilat’s R. Eliezer ben Hyrcanus a Scholar Outcast, Ramat Gan 1984, p. 328f.

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they were called hers. Similarly it says (Ruth 4:17) The neighbours gave him a name saying a son is born to Naomi. It also says (Num 3:1) These are the descendants of Aaron and Moses etc.16 (T. Sot. 11:9).

At the heart of all these tussles between somatism and pneumatism lies, no doubt, the hoary, ontological question as to whether body or spirit is the human essence. We suspect, however, that besides ontological speculation, the dichotomy witnessed in these rabbinic sources has its roots in the BibleÂ€– specifically in the two creation stories. In the second story, Adam is formed out of ‘dust from the earth’ into which a breath of life (nishmat hayim) is inhaled (Gen 2:7). Later, when Adam is told “Dust you are and to dust you shall return” (3:19), there is no mention of the breath of life and its final destination (such as we find, for example, at Eccl. 12:7). This may suggest that although endowed with nishmat hayim, the Adam of Gen 2–3 is identified primarily with his earthly component. Still, this Adam’s neshamah is undeniable, which is more than can be said of the male and female subsumed by the Adam of Gen 1. They are presented not as aggregates of preÂ�existing compounds, such as dust and breath, but as holistic monads. Tractate Berakhot preserves a prayer that says “My God, the soul that you placed within me [neshamah she-natatta bi] is pure .â•›.â•›. you created it and breathed it into me .â•›.â•›. you shall take it away from me [mi-menni] some day and put it back into me [ul-hahazirah bi] at a time to come” (Ber. 60b). The speaker in this prayer identifies with his/her bodyÂ€– which approximates a Genesis 2 bodyÂ€– into and from which the extraneous soul enters and exits. On the other hand, the ‘you’ addressed by Aqavia b. Mahalalel seems monistic, as if harking back to Genesis chapter 1:Â€“Aqavia b. Mahalalel says ponder three things .â•›.â•›. whence did you come? from a noisome speck. Where are you headed? to a place of dust, maggots and worms. In front of whom shall you give a reckoning? in front of of the Supreme King” (Avot 3:1). The ‘you’ that may look forward to being recycled by bugsÂ€– thereby remaining within the ongoing pageant of lifeÂ€– is the selfsame ‘you’ that faces his/ her Creator. Aqavia’s addressees, like the humans of Genesis 1, appear to be monistic and thus devoid of a separate soul. 16

The descendants listed at Num 3:Â€2–4 are identified throughout Scripture as Aaron’s. Moses’ paternity must therefore have been non-biological. Cf. Yev. 49b, San. 19b and Tg. to 2Sam 21:8.

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Mostly, however, the rabbis believed that each individual human body housed an ethereal neshamah. They may have entertained as many different notions of the neshamah as they did eschatologies, yet, over against the Sadducees, the rabbis generally affirmed the soul’s existence. Having inherited the Pharisaic belief in an afterlife, rabbinic eschatology necessitated something besides the perishable body. This is why, despite their colossal debt to the priestly heritage, in which humans lack a non-somatic afflatus, rabbinic menÂ€– aye, and women tooÂ€– can soar skywards on the wings of their divinely animated spirit that is beyond ethnicity and beyond gender.

Conclusion

If one thing has become clear, it is the rich diversity of Judaism’s received traditions. Women fare very differently in the sundry traditions and, as we have seen, even from one revelation to another. The recognition of this fact holds great promiseÂ€ – not the feckless promise of open season, but the tried and tested promise of Torah displaying its complexities uninhibited. In the past, people were often deterred from descrying Torah’s kaleidoscopic panoply. Some laboured under the premise that to be God-given, Torah must of necessity be monolithic. Therefore, inconsistency and contradiction had to be camouflaged. In 1632, Manasseh ben Israel’s Conciliador was published at Frankfort-on-the-Main. Faithful to its title, this work sets out to reconcile Scripture’s apparent disparities because “the Bible being in the highest degree true, it cannot contain any text really contradictory of another”.1 Manasseh was obviously disconcerted enough by the contradictions to grind away, amassing his arsenal of conciliations both old and new. His effort makes sense when one ponders Manasseh’s axiom, that for the Bible to be true, it must be free of contradiction; indeed it takes on formidable proportions. After all, the Bible’s reputation hung upon it. 1

From Manasseh’s Introduction. The original reads “Y porque siendo la Ley summamente verdadera, no puede aver en ella algun texto, a otro repugnante”. English is E. H. Lindo’s (The Conciliator, London 1842; Brooklyn 2000).

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Manasseh was no trailblazer in the art of harmonizing, any more than he was the first to be riled by Scripture’s contrariety. That distinction belongs to the Chronicler whose ‘blending and homogenizing’ of Pentateuchal texts is outlined by Michael Fishbane: Being products of different regions and periods, the laws of the Pentateuch are often in manifest contradiction. For example, in Exod. 12:9 the Israelites are instructed:Â€“Do not eat [the paschal meat] raw or boiled in water, but [eat it] roasted through and through.” However, the law in Deut. 16:7 is in outright contradiction to this regulation. It commands:Â€“You shall boil it and eat it .â•›.â•›.”. A striking attempt to resolve this contradiction is found in 2 Chron. 35:12–13. After noting that the paschal slaughter was performed “as written in the Book of Moses” (v.12), the Chronicler states “then they boiled the Â�paschal-offering in fire according to the law” (v.13).â•›.â•›.â•›. Bothered by the incomprehensible phrase “they boiled the paschal-offering in fire”, and its apparent variation from the received Pentateuchal traditions, many ancient and modern interpreters have argued most extraordinarily that the verb in 2 Chron. 35:13a must mean ‘roast’, on the basis of the assumption that the same verb in Deut. 16:7 also means ‘roast’. This argument is both tendentious and circular.â•›.â•›.â•›. An unprejudiced examination of the plain sense of the Chronicler’s text makes it clear that 2 Chron. 35:13 is, in fact, a textual blend of the two aforementioned Pentateuchal laws prescribing the paschal-offering. The word ‘fire’ has been taken from Exod. 12:9, and the verb ‘boil’ has been derived from Deut. 16:7; hence the peculiar formulation “they boiled the paschaloffering in fire”. Evidently, the Chronicler knew the two distinct sets of ritual norms, and, regarding both as authoritative traditions, preserved them by an artificial, exegetical harmonization.â•›.â•›.â•›. [T]he scriptural harmonization in 2 Chron. 35:13 and its laterÂ€– rabbinically inspired oneÂ€– are clear corollaries of one and the same principle:Â€that the Pentateuchal Torah of Moses is integral and indivisible (Biblical Interpretation in Ancient Israel, Oxford 1985, pp. 135–136).

If nowadays the incentive to ‘blend and homogenize’ seems on the wane, it is due to the vitiation of certain assumptions once held by the best of folks, including Manasseh ben Israel.2 Jon Levenson puts his finger on one of the most critical of those assumptions that have driven people down the ages to seek harmonizations: 2

James Kugel lists four assumptions of ancient interpreters:Â€“[T]hat the Bible is perfectly consistent and free of error; that it is addressed to human beings today, speaking about our present and immediate future; that it is, in the strictest terms, the word of God; that the Bible speaks cryptically” (How to Read the Bible:Â€a Guide to Scripture Then and Now, New York, London, Toronto, Sydney 2007, p. 673).

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The assumption .â•›.â•›. is that the Deuteronomic law is not independent of that given in Exodus. On the contrary, the operative law is to be discovered by taking both passages into account. The unity of the Mosaic Torah requires that all its data be considered.â•›.â•›.â•›. If one assumes with the rabbis that they [the Deut and Exod scriptures] are of equal sanctity and that they exist in the same mind (the mind of God) at the same moment (eternally), then one is required to undertake just the sort of exegetical operation in which the rabbis [engage].â•›.â•›.â•›. By harmonizing .â•›.â•›. the tradition presents itself with a timeless document, one that appears to speak to the present only because the historical setting of the speaking voice or the writing hand has been suppressed, and all voices and all hands are absorbed into an eternal simultaneity.3

In other words, it is not the Torah itself that cries out to be read as homogeneous; rather it is the extra-biblical doctrine of simultaneity that demands it. Those who feel bound or persuaded by ‘simultaneity’ may still require the Torah to be homogenized before they can accept it. Others, even as they recognize the efficacy of harmonization for unifying a community, doubt that for Torah’s truth to be vindicated, discrepancies must be whitewashed. These others may be found not exclusively in circles unreceptive to the idea of revelation, but indeed among professing believers. The latter take heart from a type of rabbinic hermeneutic that, despite its low profile, is no less authentic than blending and homogenizing. The hermeneutic in question, rather than go into denial on encountering diversity, embraces that diversity as something ordained and as the Torah-reality it is. Furthermore, it is willing to apply the ramifications of this reality to halakhic discourse and rulings. For example, R. Eliezer says feast days should be spent either entirely in prayer and study or else exclusively on family and feasting. Why? “Because one scripture says ‘An asereth shall it be for Hashem’ (Dt 16:8). Another scripture says ‘An asereth shall it be for you’ (Num 29:35). R. Eliezer understands these as two options:Â€either devote the whole day to Hashem or devote the whole day to yourselves” (Bez. 15b). Another example relates to the ark of the covenant:Â€“One scripture says ‘You [Moses] shall make a wooden ark’ (Dt 10:1), elsewhere it says ‘Let them [the people] make an ark of acacia-wood’ (Ex 25:10). One applies at a time that Israel is doing the will of maqom, the other 3

The Hebrew Bible, the Old Testament and Historical Criticism by Jon D. Levenson, Louisville, KY 1993, p. 3.

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when Israel is not doing the will of maqom” (Yom. 3b). Lastly, an example pertaining to the sacrifices to be offered on the festival of Weeks. Leviticus prescribes:Â€ ‘One young bull and two rams’ (Lev 23:18), Numbers:Â€‘Two young bulls one ram’ (Num 28:27). Among the solutions proposed is this:Â€“Maybe the Merciful One is giving a choice to offer either one bull and two rams or two bulls and one ram” (Men. 45b). If this method works for prescriptive scriptures, neither does the tradition at its profoundest moments ignore discrepancies in the narrative parts of the Torah: They journeyed from Moseroth and encamped at Bene-jaakan. They journeyed from Bene-jaakan and encamped at Hor-hagidgad. They journeyed from Horhagidgad and encamped at Jotbathah. They journeyed from Jotbathah and encamped at Ebronah. They journeyed from Ebronah and encamped at Eziongeber. They journeyed from Ezion-geber and encamped in the Wilderness of Zin that is Kadesh. They journeyed from Kadesh and encamped at Mount Hor on the edge of of the land of Edom. Aaron the priest went up Mount Hor at the command of Hashem and there he died .â•›.â•›. (Num 33:31–38).

Elsewhere in the Torah, the place of Aaron’s death is described thus:Â€The children of Israel journeyed from Beeroth Bene-jaakan to Moserah; there Aaron died and was buried (Dt 10:6). Rashi, in the wake of the rabbis, explicates matters:Â€“Could Aaron have died there [at Moserah]? Surely he died at Mount Hor, and if you count you will find Moseroth and Mount Hor to be eight stations apart.â•›.â•›.â•›. But what happened is that deep mourning was observed at Moserah over Aaron’s death .â•›.â•›. ‘and it seemed to you’ [said Moses to the people] ‘that he had died there [at Moserah]’” (Rashi to Dt 10:6 based on Y. Sot. 1:10 [17c]). This explication enshrines a cardinal principle, namely that the Torah may report an event the way it is perceived by the people or remembered in their collective memory. It is a principle that should probably be seen as an offshoot of that other great hermeneutical rule:Â€Torah uses language after the manner of people (dibrah torah kilshon [or bilshon] bene adam). Like that rule, it is regularly recruited by commentators, notably Rashi, to the end of alleviating conflict between two biblical texts or between a biblical text and a firm oral tradition. For instance, Abraham’s visitors did not actually eat. When Scripture says that they sat under a tree and ate, it records what they appeared to do (Rashi to Gen 18:8). Again, Egypt’s king who knew not Joseph according to

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Ex 1:8 actually did know Joseph (according to tradition), but it suited him to affect incognizance (Rashi; Sot. 11a). The Canaanite king of Arad was no Canaanite but an Amalekite who disguised himself to fool Israel (Rashi to Num 21:1). The unleavened cakes the Israelites took out of Egypt, and on which they subsisted until the manna began to fall, tasted (miraculously?) of manna. But though the cakes’ claim to being called manna was a specious one, nonetheless it says “The children of Israel ate manna for 40 years” (rather than 40 years less 30 days; see Rashi on Ex 16:35; Qid. 38a). “The manna never saw the inside of millstones, mortars or pots; it was merely to the palate that it tasted, variously, like ground, pounded or boiled [manna]” (Rashi on Num 11:8; Sifre). Saul visited the witch of Endor not by night, but under circumstances so tenebrous that it seemed nocturnal (Rashi to 1Sam 28:8; Tanhuma, Emor 2). The Yerushalmi supplies yet more instances of Scripture recording history ‘as perceived’ rather than ‘as is’. One of these Yerushalmi sources is paraphrased by Tosafot apropos the Bavli’s discussion of Zechariah’s four commemorative fast-days. The Bavli cites a baraita:Â€“The fast of the fourth month (Zech 8:19) refers to the 9th of Tammuz on which day the wall was breached as it says ‘By the ninth day of the fourth month the famine had become acute in the city .â•›.â•›. and the city was breached’ (Jer 52:6–7)”. Tosafot’s comment is as follows:Â€“The Yerushalmi states that the wall was actually breached on the seventeenth, and as for Scripture giving the date as the 9th, the reckoning was confused. Meaning to say, in their trauma they got their dates muddled and Scripture did not wish to go contrary to their thinking” (Tos. R.H. 18b s.v. ze). The next example comes from Y. Sanhedrin 11:5:Â€“‘Hananiah the prophet died that same year in the seventh month’ (Jer 28:17). But surely the seventh month [Tishri] belongs to the next year? When it says he died that same year it tells you that he actually died on New Year’s eve. However, in compliance with his [Hananiah’s] last wishes, his children and family concealed his death until after New Year with the aim of discrediting Jeremiah’s prophecy”.4 Finally an example from the Babylonian Talmud. “It says ‘In the 19th year .â•›.â•›. came Nebuzaradan captain of the guard [who] stood in front of the king of Babylon in Jerusalem’ (Jer 52:12). Did 4

Cf. Y. Peah 1:1[16a] shedibru ha-ketuvim lashon bedai.

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Nebuchadnezzar [king of Babylon] ever come to Jerusalem in person? No, but so mesmerized was he [the captain of the guard] by the king, that he imagined himself to be in his presence” (San. 96a–b). One way or another, then, dissonances of this sort need not unsettle a faith awake to Torah’s vibrancy. But as noted earlier, it is not faith in GodÂ€– nor yet in revelationÂ€– that feels threatened by R. Eliezer’s concept of Torah offering alternatives or by the idea of Torah narrating history as experienced by the sons and daughters of Israel. “Until when in the sixth year may a grain-field be ploughed?” asks the Mishnah. “As long as people are ploughing their cucumber and pumpkin beds. R. Simeon objected ‘You have thus put the law of each individual in his own hand!5 Rather, ploughing in a grain-field ceases at Passover .â•›.â•›.’” (Shevi. 2:1). R. Simeon does not invoke either written or oral Torah on which to base his objection; uniformity is evidently a value in its own right and possesses clout enough to impact halakhah. To quote again Jon Levenson, “The[y] .â•›.â•›. had a method that could harmonize the contradictions and, in the process, preserve the unity of the text and its religious utility”.6 Some people balk at the collocation of usefulness and religion as in the phrase ‘religious utility’; indeed, many view it as oxymoronic. Yet surely pragmatism infiltrates all human endeavours, like it or lump it. But perhaps those miffed by the ‘religion utility’ combination have somewhere along the road caught expediency masquerading as religion. Then, like all that sail under false colours, it unfairly defames the entire fleet. However, most instances of pragmatism or expediency impersonating religion lack malice and, at worst, are the result of lax thinking. For it takes clarity as well as courage to articulate pragmatism’s role as bluntly as R. Simeon. Closer to our times we find R. Yair Bacharach (d. 1702) acknowledging, with equally refreshing candour, the sway of utilitarian considerations. The case has an added poignancy for us inasmuch as it relates to women’s halakhic rights, and illustrates yet again the Â�fragility of those rights in the face of titans such as consuetude. When asked whether an only child, who happened to be a daughter, could recite Kaddish in memory of her father, R. Bacharach replied “There 5 6

Natata torat kol ehad ve-ehad be-yado. Op. cit., p. 2.

Conclusion

177

is no source that gainsays it; indeed women no less than men are commanded to sanctify the Holy Name [at Lev 22:32 which verse is the scriptural authority for Kaddish].â•›.â•›.â•›. Nevertheless one must fear lest in sanctioning it the stature of Jewish customs, which are also Torah, will be diminished. People will then build high places [or shrines] for themselves as their own reason dictates and what the rabbis say will be disregarded and derided” (Havvot Ya’ir, responsum 222). The compulsion observable in some people to hug the beaten track (even when it forks away from halakhah as discussed in our introduction), can be understood best in utilitarian or, if you like, political terms; group-survival being identified with fixity and standardization. That is why where standardization and continuity are enthroned, halakhah turns into politico-halakhism whose primary goal is no longer the ongoing search for the divine will as revealed in Bible and Talmud. Instead the focus is diverted to things like conserving the status quo (as one would conserve an antique grandfather clock); staving off any boat-rocking; and getting individuals to march in lockstep. Such a program and such aspirations necessitate a Torah that speaks in a single voice. Hence, even if run-of-the-mill believers, having outgrown contrivance and evasion, find a thriving Torah beyond, even if they can look documentary hypotheses in the eye without cringing and then live Torah more honestly and less neurotically, still, dogmatists and politico-halakhists seem to be almost trapped within the sanctum of formal harmonizing. Once conformity becomes a virtue, obscuring tradition’s versatility tends to take on the aura of piety. In bygone days, such pious obfuscation was often indulged in by well-intentioned men who saw communal fusion and solidarity as contingent upon a linear tradition. Some may lament aspects of that desperate manoeuvring and special pleading. But it is surely churlish and arrogant to put on trial a past that is so imperfectly understood. The more seemly and profitable course will be to slough our own pusillanimous vacillation and turn to advantage the bright Torah-scape that is graciouslyÂ€– yes, graciously and providentiallyÂ€– opening up. We have all heard of the devil who planted fossils in the earth in order to test muggins hapless enough to stumble upon them. Is that same rascal to be credited with letting the Torah speak ‘pluripotently’, and in both early and late forms of the Hebrew language? Or with placing entire libraries of Torah wisdom

178

Conclusion

and accumulated critical acumen at our fingertips? Except that in Jewish tradition, Satan is not autonomous. Therefore, the fossils calcified in the rock and the philological tell-tales in the Torah must have been approved by the Ultimate Cause. And the same goes for their belated discovery. So here’s the dilemma:Â€Either one believes chicanery to inhere in creation and revelation, or else that it is blasphemy to attribute machiavellianism, whatever its purpose, to the One whose seal is truth!7 As far as we are concerned, it is Hobson’s choice. 7

See Shab. 55a, Yom. 69b.

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Schremer, Adiel. “Qumran Polemic on Marital Law:Â€ CD 4:20–5:11 and its Social Background” in The Damascus Document A Centennial of Discovery:Â€Proceedings of the Third International Symposium of the Orion Center for the Study of the DSS and Associated Literature, Leiden 2000. â•… Male and Female He Created Them:Â€ Jewish Marriage in the Late Second Temple, Mishnah and Talmud Periods [Hebrew], Jerusalem 2003. Schwartz, Daniel R. Priesthood, Temple, Sacrifices:Â€ Opposition and Spiritualization in the Late Second Temple Period, Ph. D. thesis, Hebrew University of Jerusalem 1979. â•… Agrippa I, The Last King of Judaea, Tübingen 1990. Selvidge, Marla J. Woman, Cult and Miracle Recital:Â€A Redactional Critical Investigation of Mark 5:24–34, Lewisburg 1990. Shailat, Yitzhak, editor. Igrot Ha-Rambam, 2 Vols. Jerusalem 1987. Skinner, John. The International Critical Commentary on Genesis, Edinburgh 1910 (1930). Smallwood, E. Mary. The Jews under Roman Rule, Leiden 1976. Smith, Henry Preserved. A Critical and Exegetical Commentary on The Books of Samuel, Edinburgh 1899 (1969). Sommer, Benjamin D. The Bodies of God and the World of Ancient Israel, Cambridge 2009. Sperber, Alexander. The Bible in Aramaic:Â€ Based on Old Manuscripts and Printed Texts, vol. 4B:Â€The Targum and the Hebrew Bible, Leiden 1973. Sperling, S. David. The Original Torah:Â€ The Political Intent of the Bible’s Writers, New York 1998. Spiro, Solomon J. “Who Was the Haber” Journal for the Study of Judaism Vol. XI:2. Sterring, Ankie. “The Will of the Daughters” in A Feminist Companion to Exodus to Deuteronomy edited by Athalya Brenner, Sheffield 1994. Swidler, Leonard. Women in Judaism, Metuchen NJ 1976. Talshir, Zipora. “The Detailing Formula ve-ze ha-dabar” Tarbiz 51 (1981). Tawil, Hayim ben Yoseph. An Akkadian Lexicon Companion for Biblical Hebrew:Â€Etymological, Semantic and Idiomatic Equivalence, Jersey City, NJ 2009. Tishby, Peretz. “Ha-im ha-taqqanah shello laset shete nashim, me-rabbenu gershom hi?” Tarbiz 34:Â€(1965). Tosato, Angelo. “The Law of Leviticus 18:18:Â€ A Reexamination” Catholic Biblical Quarterly 46:2 (1984). Urbach, E. E. The Tosaphists:Â€Their History, Writings and Methods, fourth enlarged edition, Jerusalem 1980. Valler, Shulamit. Women and Womanhood in the Talmud, Atlanta, GA 1999. Vanderkam, James C. The Book of JubileesÂ€– translated by. Lovanii (Louvain) 1989. Vermes, Geza. “Sectarian Matrimonial Halakhah in the Damascus Rule” Journal of Jewish Studies 25:1 (1974).

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Bibliography

Wacholder, Ben Zion. The New Damascus Document The Midrash on the Eschatological Torah of the DSS:Â€ Reconstruction, Translation and Commentary, Leiden 2007. Wassen, Cecilia. Women in the Damascus Document, Leiden 2005. Watts, James W. Ritual and Rhetoric in Leviticus:Â€From Sacrifice to Scripture, Cambridge 2007. Weber, Max. Selections in Translation edited by W. G. Runciman, translated by E. Matthews, Cambridge 1978. Wegner, Judith Romney. Chattel or Person?:Â€ The Status of Women in the Mishnah, New York and Oxford 1988. â•… “‘Coming before the Lord’:Â€The Exclusion of Women from the Public Domain of the Israelite Priestly Cult” in The Book of Leviticus:Â€Composition and Reception, edited by Rolf Rendtorff and Robert A. Kugler, Leiden 2003. Weinfeld, Moshe. Deuteronomy and the Deuteronomic School, Oxford 1972. Weininger, Otto. Sex and Character, authorized translation from the sixth German edition, London and New York 1906. Weisberg, Dvora E. Levirate Marriage and the Family in Ancient Judaism, Waltham, MA 2009. Weiss, Ann E. Bioethics:Â€Dilemmas in Modern Medicine, Hillside, NJ 1985. Wenham, Gordon J. and Heth, William E. Jesus and Divorce, London 1984 (2002). Werblowsky, R. J. Zwi. Joseph Karo:Â€Lawyer and Mystic, Oxford, 1962. Yadin, Yigael, editor. The Temple Scroll (11QT), Jerusalem 1977. Zimmer, Carl. Soul Made Flesh:Â€ The Discovery of the Brain and How It Changed the World, New York 2004.

Index of Authors (Medieval & Pre-modern)

Abraham ben David (Ravad), 157 Abudraham, David, 45 Adret (also ben Adret), Solomon, 130 Anatoli, Jacob, 46, 122 Asher (Rosh), 125 Azulai, Hayim Yosef David (HYDA), 130 Bacharach, Yair, 176 Edels, Samuel (Maharsha), 137 Gershom (Meor ha-Golah), 3–4 Gunzburg, Aryeh Leib, 42 Hananel (ben Hushiel), 36 Heller, Yomtov Lipman, 129

Judah ha-hasid, 32 Judah Loewe of Prague (Mahral), 45 Karo, Joseph, 130, 133 Manasseh ben Israel, 171 Margoliot, Moses ben Simeon, 129 Meiri, Menahem, 46, 130 Moses Alashkar, 42 Moses ben Maimon (Maimonides or Rambam), 9, 22, 36, 42, 44, 46–48, 63, 65, 100–101, 104, 125, 134, 137, 159 Moses ben Nahman (Nahmanides or Ramban), 93, 157 Nissim Gerondi (Ran), 23

Ibn Ezra, Abraham, 145, 162 Ibn Shuaib, Joshua, 122 Isserles, Moses (Rama), 140 Jonah ben Abraham Gerondi, 32

Qimhi, David (Radaq), 64 Samson of Sens, 157 Sofer, Moses (Hatam Sofer), 88

189

Index of Citations from Rabbinic Literature

A.Z. 3a, 103 A.Z. 5a, 64 A.Z. 22b, 99 A.Z. 43b, 36 A.Z. 53b, 57 Avot of R. Nathan B, 104 B.B. 17a, 64 B.B. 98b, 57 B.B. 109a, 113 B.B. 119b, 113 B.Q. 15a, 39 B.Q. 38a, 53, 103 B.Q. 110b-111a, 141 B.Q. 111a, 140 Bekh. 47a, 167 Ber. 16b, 53 Ber. 17a, 105 Ber. 20b, 69 Ber. 28a, 110 Ber. 2a, 57 Ber. 31b, 137 Ber. 60b, 169 Bez. 15b, 173 Bez. 40a, 57 Eruv. 63a, 137 Eruv. 100b, 64, 141 Eruv. 104a, 57 Gen. Rab. 18:3, 141 Gen. Rab. 20:12, 36

190

Gen. Rab. 45:14, 36 Gen. Rab. 49:2, 149 Gen. Rab. 63:8, 36 Gen. Rab. 78:11, 13, 135 Gen. Rab. 85:6, 3 Git. 60a, 72 Git. 89b, 140 Git. 90b, 25 Hag. 3a, 114 Hag. 4a, 73, 118 Hag. 6a-b, 72 Hag. 6b, 98 Hag. 12b, 128 Hag. 14a, 109 Hor. 13a, 131 Hor. 13b, 116 Hul. 141a, 46 Hul. 27b, 107 Ker. 5a, 22 Ker. 7b, 118 Ket. 15b, 133 Ket. 28b, 118 Ket. 40b, 142 Ket. 56a, 63 Ket. 61b, 167 Ket. 65a, 125 Ket. 67a-b, 61, 130 Ket. 75a, 140 Ket. 77a, 4 Ket. 8a, 36

Index of Citations from Rabbinic Literature M. Arak. 8:6, 94 M. Avot 1:5, 115 M. Avot 2:1, 104 M. Avot 2:3, 63 M. Avot 2:10, 112 M. Avot 2:16, 91 M. Avot 3:1, 169 M. Avot 3:5, 91 M. Avot 6:9, 115 M. B.B. 9:7, 111 M. B.M. 5:9, 55 M. B.Q. 10:9, 55 M. Bekh. 1:7, 3 M. Ber. 9:5, 105 M. Bez. 5:4, 54 M. Bik. 1:3, 42 M. Bik. 1:4, 168 M. Bik. 1:5, 42 M. Bik. 1:6, 42 M. Dem. 2:3, 128, 166 M. Edu. 1:14, 166 M. Git. 5:9, 54 M. Git. 9:10, 4 M. Hal. 1:7, 54 M. Hal. 2:3, 54 M. Hal. 4:1, 54 M. Hal. 4:10, 42 M. Hor. 3:6, 134 M. Hor. 3:7, 61, 127, 166 M. Hor. 3:8, 166 M. Kel. 1:4, 89 M. Kel. 1:6, 96 M. Kel. 2:1, 55 M. Kel. 8:11, 55 M. Ker. 1:1, 124 M. Ker. 6:9, 65 M. Ket. 5:5, 54 M. Ket. 9:2, 166 M. Ma‘aser Sheni 4:10, 60 M. Makh. 5:11, 55 M. Men. 10 [6]:6, 42 M. Miq. 8:5, 88 M. M.Q. 1:7, 54 M. M.Q. 3:8, 54 M. Naz. 2:7, 15 M. Ned. 3:11, 149 M. Neg. 2:4, 57 M. Neg. 7:1, 65 M. Ohal. 2:3, 60 M. Ohal. 3:7, 60 M. Ohal. 4:1, 60

M. Ohal. 5:4, 55 M. Ohal. 9:9, 60 M. Peah 8:4, 60 M. Pes. 1:4, 138 M. Pes. 2:7, 54 M. Pes. 3:4, 54 M. Pes. 9:5, 77 M. Qid. 1:7, 41–42, 67, 115 M. Qid. 1:9, 91 M. Qid. 1:12, 139 M. Qid. 2:7, 31 M. R.H. 1:7, 168 M. R.H. 1:8, 42 M. R.H. 2:5, 116 M. R.H. 2:7, 91 M. San. 4:1, 42 M. San. 4:5, 35 M. San. 5:4, 138 M. San. 6:5 M. San. 7:4, 124 M. San. 9:1, 22 M. Shab. 6:1, 54 M. Shab. 6:4, 108 M. Shab. 18:2, 54 M. Shab. 18:3, 116 M. Shab. 23:1, 54 M. Shevi. 2:1, 176 M. Shevi. 5:9, 54 M. Shevu. 7:8, 55 M. Sot. 1:5, 98 M. Sot. 1:7, 91 M. Sot. 3:1, 112 M. Sot. 3:4, 98, 108, 112, 114 M. Sot. 3:8, 42 M. Suk. 3:10, 54 M. Suk. 3:15, 54 M. Tah. 2:1, 55 M. Tah. 3:8, 60 M. Tah. 5:2, 61 M. Tah. 7:6, 98 M. Tah. 7.8, 61 M. Tah 7.9, 55, 138 M. Yev. 1.1, 9 M. Yev. 6:5, 167–168 M. Yev. 6:6, 35, 43, 62 M. Yev. 11:1, 31 M. Yom. 8:9, 91 M. Zev. 14:4–8 120 Mak. 11a, 46 Mak. 22a, 111 Meg. 14a, 36

191

192

Index of Citations from Rabbinic Literature

Meg. 14b, 116, 121, 137 Meg. 31b, 65 Meg. 3a, 110 Meg. 6b, 133 Mekhilta, xi, 27, 36, 119–120, 133, 138, 148 Men. 43a, 44 Men. 43b, 40 Men. 45b, 174 Men. 83a, 46 Moed Qatan 28a, 126 Naz. 59a, 108 Naz. 61a, 118 Ned. 32a, 149 Nid. 13a, 111 Nid. 16b, 126 Nid. 64a, 124 Pes. 5a, 138 Pes. 12b, 139 Pes. 18b, 23 Pes. 25b, 134 Pes. 63b, 138 Pes. 65a, 117 Pes. 96a, 77 Pesiqta of R. Kahana, 96, 107 Pirqe R. Eliezer, 99, 149 Qid 2b, 61, 144 Qid. 4a, 23 Qid. 19b, 63 Qid. 29a, 100 Qid. 29b, 112, 115 Qid. 30b, 63 Qid. 31a, 66, 134 Qid. 31b, 107 Qid. 33–36, 41, 47, 135 Qid. 34a, 46, 117 Qid. 35a, 63 Qid. 38a, 175 Qid. 41a, 107 Qid. 52b, 98 Qid. 68b, 157 Qid. 69a, 57, 62 Qid. 73a, 41 Qid. 76b, 156 Qid. 80b, 139 R.H. 10b-11a, 72 R.H. 16b, 116

R.H. 24b, 36 Ruth Rab. 2:23, 116 San. 7b, 109 San. 8b, 128 San. 19b, 7, 169 San. 20b-21a, 62 San. 22a, 121 San. 28a, 57 San. 34a-b, 87 San. 38b, 14, 148 San. 44a, 148 San. 56a-60a, 120 San. 59a, 103 San. 68a, 112 San. 73a, 133 San. 74a, 134 San. 75a-b, 22 San. 76b, 20, 22 San. 93b, 109 San. 96a-b, 176 San. 97b, 109 Shab. 31b–32a, 104 Shab. 33b, 44, 139 Shab. 55a, 178 Shab. 63a, 109 Shab. 64b, 88 Shab. 86a–b, 92 Shab. 86b, 72 Shab. 88b, 128 Shab. 92b Shab. 116a, 46 Shab. 119a, 107 Shab. 130a, 148 Shab. 132a, 46 Shab. 137b, 149 Shab. 146a, 99 Shab. 156a-b, 126 Shevu. 30a, 42, 139 Sifra beginning of Behar, 72 Sifra Nedaba 2:2, 98 Sifra to Lev 11:33, 55 Sifra to Lev 13:2, 65 Sifra to Lev 15:33, 88 Sifra to Lev 17:6, 119 Sifra to Lev 18:6, 124 Sifra to Lev 19:3, 46, 63 Sifra to Lev 19:16, 133 Sifra to Lev 19:25, 97 Sifra to Lev 24:10, 157 Sifre Dt 49, 112

Index of Citations from Rabbinic Literature Sifre Dt 175, 40 Sifre Dt 226, 108 Sifre Dt 344, 53 Sifre Num, 44, 79, 107, 164, 175 Sofrim 13:6, 105 Sot. 11a, 175 Sot. 20b, 98 Sot. 21a, 101, 103, 106 Sot. 37a-b, 69 Suk. 20a, 107 Suk. 21b, 57 Suk. 25a-b, 153 Suk. 28a-b, 47 T. Ber. 6:23, 40 T. Hag. 3:13, 166 T. Ket. 4:7, 116 T. Men. 7:4, 164 T. Shab. 1:7, 166 T. Shab. 16:5, 124 T. Sot. 8:7, 69 T. Sot. 11:9, 7, 169 T. Yev. 6:10, 3 T. Yom. 1:10, 166 Tanhuma to Gen 5:29, 64 Tanhuma, Emor 2, 175 Tg. to 2Sam 20:18, 116 Tg. to 2Sam 21:8, 169 Y. B.Q. 4:3 [4b], 53 Y. Ber. 9:1 [12d-13a], 107 Y. Ber. 9:1 [13b], 40 Y. Ber. 9:3 [14b top], 36 Y. Bik. 1:4 [64a], 160, 168 Y. Git. (end), 88 Y. Hor. 3:4 [48b], 129 Y. M.Q. 3:5 [82c], 65 Y. Meg. 4:2 [75a], 118 Y. Ned. 3:2 [37d], 16 Y. Pe’ah 1:1 [15c], 104 Y. Pe’ah 1:1 [15d], 68 Y. Pe’ah. 1:1 [16a], 175 Y. Pes. 1:4 [27c], 139 Y. Pes. 5:4 [32b], 138 Y. Qid. 3:12 [64d], 157

Y. San. 2:2 [20b], 121 Y. San. 2:3 [20b], 64 Y. San. 11:5, 175 Y. Shab. 6:1 [7d], 140 Y. Shevu. 4:1 [35b], 42, 139 Y. Sot. 1:10 [17c], 174 Y. Sot. 3:4 [18d-19a], 114 Y. Sot. 3:4 [19a], 111, 141 Y. Sot. 7:1[21b], 36 Y. Suk. 1:1 [51d], 40 Y. Ta‘an. 4:6 [68d], 109, 144 Y. Yev. 2:6 [4a], 157 Y. Yev. 6:6 [7d], 62 Y. Yom. 1:1 [38d], 32 Yev. 3a, 22 Yev. 5b, 65 Yev. 21a-b, 21 Yev. 22a, 167 Yev. 39b, 3 Yev. 45b, 156 Yev. 47b, 116, 167 Yev. 48b, 167 Yev. 49b, 169 Yev. 54b, 89 Yev. 62a, 167 Yev. 62b, 20 Yev. 64b, 124–125 Yev. 65b, 62, 144 Yev. 84b, 41 Yev. 97b, 167 Yev. 102a, 156 Yev. 103a, 121 Yev. 103b, 99 Yev. 109b, 109 Yom. 3b, 174 Yom. 13a, 32 Yom. 33a-b, 133 Yom. 42b, 23 Yom. 43a, 23 Yom. 66b, 116 Yom. 67b, 164 Yom. 69b, 178 Yom. 75a, 4 Yom. 84b-85a, 133 Zev. 83b, 87

193

Index of Names (Hebrew Bible)

Aaron, 62, 78–79, 99, 119, 153–155, 169, 174 Abigail, 116, 121 Abihu, 153 Abraham, 7, 11, 85, 143, 145, 147, 149, 165, 168, 174 Achan, 148 Adam, 37–38, 64–65, 148, 165, 169 Artaxerxes, 52–53 Bathsheba, 121 Coniah, 13–14 Darius, 52–53 David, 7, 11, 13–14, 26, 119, 121 Deborah, 85, 116, 142 Eleazar, 26 Eliezer of Damascus, 13 Elijah, 148 Er, 125 Esther, 85, 121 Eve, 37–38, 49, 63–65 Ezekiel, 57, 82, 98, 147, 159, 163 Ezra, 51–53, 156–157 Hananiah, 175 Hannah, xvi, 85 Heber, 109 Hosea, 2, 152, 163 Huldah, xvi, 85, 110, 116, 137, 142

194

Jacob, 6–7, 135, 146 Jael, 109, 121 Jeremiah, 13–14, 137, 157, 175 Joseph, 127–128, 174 Joshua, 26, 146–147 Josiah, 110, 137 Judah, 125 Laban, 80 Lot, 127 Malachi, 2, 25–26 Merab, 7, 168 Miriam, 37, 142 Moses, 3–4, 7, 20, 37, 41, 44, 47, 52, 68–69, 90, 92–93, 99, 109, 142–143, 145, 147–148, 154–155, 159, 169, 172–174 Nadab, 153 Naomi, 85, 116, 169 Nebuchadnezzar, 176 Nebuzaradan, 175 Noadiah, 121 Noah, 64, 77, 127, 143 Onan, 125 Pharaoh, 153 Phineas, 144

195

Index of Names Rachel, 80 Rebecca, 36 Ruth, 16, 116

Solomon, 62, 98, 120

Sarah, 7, 36, 85, 165 Saul, 7, 175 Shecaniah, 156–157 Sisera, 109, 121

Zadok, 26, 62 Zechariah, 175 Zipporah, 145

Tamar, 125

Index of Names (Talmudic)

Abayye, 62, 125, 139 Abba Eleazar, 98 Abba Saul, 3 R. Antignas 128–129 Aqavia b. Mahalalel, 169 R. Aqiva, 4, 22, 88, 97, 109, 116, 137 R. Ashi, 124

Hillel, 55, 106 R. Huna, 140 R. Hiyya of Kefar Tahmin, 104 Homa, 125 Hyrqanos, 111

R. Ba b. Kahana, 36 Bar Kokhba (Ben Koziba), 109, 144 Ben Azzai, 108, 112–115 R. Berakhia, 104 Beruria, 103, 116, 122

R. Jacob of Kefar H anen, 36 Jacob of Kefar Nibburaya, 156 R. Johanan (Nappaha), 46 R. Johanan ben Beroqa, 35, 62, 113 Rabban Johanan ben Zakkai, 96, 109 R. Joshua, 60, 101, 114 R. Joshua ben Levi, 118, 128, 168 R. Judah (amora), 36 R. Judah (tanna), 40, 54, 60–61, 138, 167–168 Judah the Patriarch (Ribbi), 53, 62, 104

R. Dimi, 62, 106 R. Eleazar (Lazar) ben Azariah, 110, 113–114 R. Eleazar ben Phila, 138 R. Eleazar Hisma, 114 R. Eleazar ben R. Simeon, 62 R. Eliezer, 101, 108, 111–114, 116, 141, 168, 173, 176 Eliyahu (school of), 139 R. Gam[a]liel, 54, 110 R. Haggai, 156 R. H ama b. Uqba, 118 R. Hamnuna, 140 R. Hananel, 160 R. Hananiah ben Aqashia, 67, 115

196

R. Il'a, 62 R. Ishmael, 22, 54

Mar Zutra, 132 R. Meir, 40, 60, 102–104, 138 Rav (R. Abba), 41, 160 Rava, 125, 134 Ravina, 101, 107, 131–132 R. Samuel ben Isaac, 113 Shammai, 168 Shebna, 106 R. Shila (school of), 137

197

Index of Names R. Simeon ben Judah of Kefar Akko, 69 Simeon the brother of Azariah, 106 R. Tarphon, 62, 166

Yose ben Johanan of Jerusalem, 115 R. Yose ben R. Haninah, 118 R. Yose ben Zimrah, 62, 109

R. Yose, 7, 61, 139, 167

Ulla, 106

General Index

Abolition, 56 Abundance of misvot, 39 Adultery, 3, 11, 19, 29, 33 Afterlife, 96, 105, 170 Age of the world, 72 Agenda, 57 Altar, 77–78, 95, 155, 163 Am ha-ares, 128–129, 166–167 Animal sacrifice, 163–164 Anthropology, 136 Apocryphal Lamentations A, 13 Aquila, 64 Aristotle, 122 Babylon/Babylonian, 52, 106, 151, 175–176 Balcony seeÂ€Gallery Barren wives, 107 Bathing seeÂ€Miqveh Ben Sira (Ecclesiasticus), 13, 102 Bioethical scale, 135 Body (seeÂ€ Soul), 87, 98, 153–170 Caste, 161, 163 CD, 5–6, 8, 10–12, 18, 20–22, 24, 26–29, 31–32 Centralization, 119–120 Charismatic Judaisms, 163 Chauvinism, 134 Childbirth, 65, 81, 85, 98, 158 Christianity, 120–121

198

Circumcision, 72, 143–152, 159, 162, 165 Combat – not a woman’s job, 144 Comely-captive law, 27 Corinthians, 29 Covenant, 2, 28, 68–69, 72, 76, 93, 143–152, 156, 160 Curses – precative or prescriptive?, 64 Dangers, 102 Daughters of Aaron, 41, 80 Dead Sea Scrolls, 1–4 Decalogue, 66, 92 Defilement (see Purity), 13, 72–74, 86–89, 95–98, 131–133, 153–155, 159 Democratization, 166 Demonism, 96 Derekh, 60–62 Determinism, 136 Diversity in the Bible, 173 Divorce, 9, 11, 24–30 Doctor’s dilemma, 129 Documentary hypotheses, 177 Dualism, 95 Equality, 1, 35, 72, 76, 119–123, 165 Eschatology, 105, 170 Ethnic solidarity, 148 Euthyphro, xiii

199

General Index Evil inclination, 97 Expediency, 176

Keeners, 55 Kolbo, 149

Feminism, 3 Fossils, 177 Funerals, 64, 95

Ladies subtext, 57 Levirate marriage, 12, 16, 24, 26, 113, 117 Levites, 52, 69, 75, 79, 103, 154–155, 160, 162 Luke, 3, 29

Gallery (in synagogues), ix Gender stereotyping, 58 Genealogy, 148, 150, 152–153, 158, 168 Golden calf, 111 Greek societies, 56 Haber, 128–129 Hakhamah and hakhamot, 116, 122 Halakhah, 4, 28–29, 41, 49, 56–57, 59, 61, 64–65, 98, 116–117, 127, 136–137, 139, 141, 156, 168, 176–177 Halakhah le-moshe mi-sinai, 44 Harmonization, 26, 94, 130, 172–173 Hekhalot, 36 Henotheism, 157 Higher criticism, 71, 147 Hittite law, 18 Holy seed, 156, 162 Humanism, xiii Idioms, 90 Idolatry, 33, 56, 148 Idols, 36, 65, 70, 167 Imitatio Dei, 159 Immolation rites, 80 Incest, 7, 10–12, 17–20, 22, 33, 124 Inflections – masculine and feminine, 86 Inheritance law, 16 Invitation to men and women, 113 Iron-age forebears, 164 Jerusalem, 52–53, 110, 115, 119–120, 137, 164, 175 Jesus, 3, 27, 29 Jinxiness, 125 Jonathan (targum), 110 Josephus, 98, 137, 139 Jubilees, 13, 37 Judith, 108, 121 Kabbalah, 122 Kaddish, 176–177 Kallah, 88

Maccabees, 148 Mahzor Vitry, 116 Manavadharmasastra (Manu), 51 Mark, 3, 27, 29 Maternal instinct, 141 Matron, 111, 116 Matthew, 27, 29 Meals, 42, 73–82, 159–160 Merit, 39, 101–102, 105, 107 Methodology, xii Midrash Eshet Hayil, 116 Midwife, 116 Milhamta shel Torah, 109 Miqveh, 88 Monogamy, 16, 25, 32, 35, 72, 161 Monogyny, 12, 74–82 Monolatry, 91 Monotheism, 91–95 Morality, 11 Nazarite, 41, 153–154 Neophyti (targum), 18, 108, 154 Niddah, 13, 81, 87–88, 98, 104 Noahide laws, 120 Non-Torah mores, 56 Obedience, 104–105, 108, 164 Occultism, 95 Onqelos, 108 Ontological questions, 169 Original Sin, 64 Orphan, 56, 61, 74–76, 95, 114, 130 Parturient, 85, 87–88 Passover, 42, 53–54, 77, 138, 153, 162, 176 Patrilineality, 11, 151–152, 156, 157 Persia, 51–53, 163 Pesiqta of R. Kahana, 96, 107 Pharisaism/Pharisees, 5–6, 29, 108, 122, 128, 137, 159, 166, 170

200 Philistines, 147 Philo, 31, 145, 149 Pilgrimage, 68, 76 Politico-halakhism, 177 Polygamy, 3, 28, 31–32 Polygyny, 1–5, 10, 12, 19, 21, 29, 31, 64 Pragmatism, 18, 176 Pre-Sinaitic revelation, 65 Priests, 3, 26, 41, 52, 68–69, 71, 73, 78, 82, 92, 103, 131, 143, 150–152, 160, 163–164, 166–167 Priests’ marriage options, 24–26, 32, 41, 168 Procrustean suffocation, 163 Prophet, xiii–xiv Prophetess, 36, 85, 120–122 Proselytes, 156, 162, 167–168 Pseudo-Jonathan (targum), 110 Psychology, 108, 136–137, 141 Purity (seeÂ€Defilement), 46, 61, 72–75, 79–80, 82–83, 85, 87, 89–91, 93–95, 97–98, 128, 142, 151–153, 157, 159–160, 162, 166 Qinyan Torah, 103, 115 Qumran, 4, 6, 13, 21–22, 25–31, 89 Quran, 38 Rainbow, 143 Recycling, 169 Red heifer, 96 Reductionism, 136 Respectability and shamefulness, 142 Resurrection, 96, 128 Revelation, 37, 68, 77, 91, 119, 171, 173, 176, 178 Reward and punishment, 105 Rib-woman, 37–38 Ritual holiness, 92, 95, 98, 153 Rival-wife, 8–9 Rome, 53, 109

General Index Sefer ha-Kanah, 117 Selem, 35, 165 Septuagint (or LXX), 13–15, 18, 25, 64, 69–70, 113, 145, 154, 159 Shechem, 146 Shehitah by women, 139 Shemitah, 146–147 Shulhan Arukh, 125 Siloam Inscription, 146 Sisit, 44, 110 Social convention, 63 Sotah, 98 Soul (seeÂ€Body), 105, 121–123, 159–161, 163, 167, 169 Spinsters, 107 Spoon-feeding, 22 Status quo, 50, 177 Taboos, 82 Temple Scroll, 12, 27–28, 97, 154 Teshuvah, 163 Testimony, 42, 138–139 Theodotion, 64 Tiflut, 101, 111, 114 Timothy, 38 Tithe, 74–75, 79, 95, 111 Torah as elixir, 104 Tosafot, 15, 18, 46, 88, 131–133, 175 Tur (Arba’ah Turim), 125, 131 Uncovenanted outsiders, 160 Vicarious expiation, 107 Vows of wives and daughters, 66 Weltanschauung, x Women officiants at bamot, 119 Women who ministered, 161 Women’s court, 97–98 Women’s estrangement from Torah, 102 Xenophobia, 157

Sabbath, 54–55, 94, 96, 104, 108, 114, 139, 143, 147, 156 Samaritan Pentateuch, 70, 154, 159 Scholiasts, 63 Seder Olam, 36 Seder Tannaim va-Amoraim, 116

Yavneh (Jamnia), 111 Yeshivah, 110 Zelophehad’s daughters, 113, 135, 162 Zohar, 40, 145