"The Progress of Woman's Status in Halakha" by Rabbi Eliezer Melamed

[yonaton behar]

 

The Progress of Woman’s Status in Halakha

                   Rabbi Eliezer Melamed

 

The Progress in the Status of Women

In recent weeks, I discussed the status of women. We learned that the world was arranged in such a way that initially, man’s influence is more apparent – he is the innovator, establishes the principles and strengthens them – and afterwards, the inner side of the woman is revealed, as she develops and deepens the initial principles, integrating them into a whole. Man sanctifies his wife in marriage, and is charged with the mitzvah of Talmud Torah; however, the implementation of family life and Torah-living in a full and complete way is achieved to a greater degree by the woman. Consequently, as time goes by woman’s value becomes more apparent, and her status rises above her husband’s. This is true in the framework of each individual family, and also in the process of history; in the present world, man’s status is higher; in the future, there will be equality; and in the World to Come, the status of women will be higher. This does not mean that men will lose their role of initiator – courting his wife and sanctifying her, etc, rather it will be clear that the wife’s development of her husband’s initiatives are more important.

 

The Sin and its Rectification in Reality and in Halakha

As a result of the Sin of Adam, there was an enormous decrease in the status of women. The need for hard, physical, and taxing labor to bring forth bread from the ground caused woman to become totally dependent on her husband. Without him, she could not survive. This was necessary for tikkun olam (as I have previously written). Simultaneous to the world’s rectification from its curse, the status of women also gradually rises, and this is reflected in halakha (Jewish law).

 

How Can the Torah Sanction Inequality?

According to the Torah, a man can marry a number of women. Kiddushin (sanctification or dedication, also called erusin (betrothal), the first of the two stages of the Jewish wedding process) requires mutual agreement, however the man can divorce his wife without her consent.

Seemingly, this raises a question: How can the Torah agree to the discrimination of women? Why is man allowed to marry two women?

However, it must be clarified that the Torah does not impose upon a person to go against nature, seeing as nature, with all its faults, is also a Divine creation which gives man a platform on which he can perfect and complete himself. For that reason the Torah does not intervene in the financial market forces, but rather allows it to conduct itself on its own, while setting moral boundaries and giving direction for spiritual elevation.

This is also why the Torah did not prohibit slavery, because in times of scarcity and hunger it is preferable to have a slave than to perish. Without the framework of slavery those people who could not support themselves because they were either lazy or inefficient, or because their land had been usurped, would starve to death. By way of slavery, they survived and had children, who today are free people. Therefore, the Torah was content with simply asserting moral boundaries for slavery.

 

Today’s Tikkun Must be According to the Morals of the Torah

On the other hand, there are worldviews which placed for themselves a certain idea for which they were willing to sacrifice everything. Such was the Communist way of thinking, according to which economic equality was the supreme value, and on its behalf, millions of human beings sacrificed their lives and contentment. Today as well, the viewpoint of liberalism is ready to sacrifice everything for the sake of granting freedom and equal rights. Thus, for example, countries with a liberal point of view fought against the discriminatory rule in South Africa. They were successful, and in South Africa there have been equal rights for all citizens for twenty years. However, twenty years ago, the average life expectancy in South Africa was 64.5 years, and today, it has dropped to 49.5 (as reported in an article in ‘Basheva’ newspaper). According to the Torah, the value of freedom is extremely important, but it should be strove for gradually, without harming other values, and without causing so many people to die from disease, hunger, and crime.

 

The Torah’s Permission and Reservations of Marrying Two Wives

The same applies to marriage. In a situation where not everyone managed to support themselves adequately, if men who were resourceful in obtaining more food and resources were not allowed marrying two or more women, numerous women who failed to find a husband who could provide for them would have died of starvation, without offspring. Moreover, in times when making a living involved hard work, and required man to work all day long, slaving for his wife and children to feed and protect them, it was impossible to bind man to his wife. His ability to divorce his wife or marry another woman gave him the sense of freedom which allowed him to commit to support her as long as they were married, while further obligating him to support their young children.

The Torah, although, commanded that even if a man marries an additional wife, he must take care to make his first wife happy and provide her with all her needs, as it is written: “[Similarly], if [the master] marries another wife, he may not diminish [this one’s] allowance, clothing or conjugal rights” (Exodus 21:10).

 

The Ordinance of the Ketubah

Additionally, our Sages further established an important ordinance that a man could not marry a woman without a ketubah (a Jewish prenuptial agreement), committing himself upon getting married that if he divorces his wife, he will compensate her monetarily with a sum of money sufficient for her to exist for at least one year, so the option of divorcing his wife would not be a light matter (Ketubot 110b; Rambam, Laws of Marital Relations 10:7).

More often than not, the sum of money in the ketubah was higher, as agreed upon in negotiations between the groom and the bride’s family. In a case where the amount was extremely high and it turned out the man had married a bad woman who caused him grief, his life became unbearable because he was obligated to take care of all her needs without being able to divorce her. Pertaining to such men, our Sages applied the verse: “Behold, I am bringing disaster upon them that they cannot escape” (Yirmeyahu 11:11), “The Lord gave me into the hands of those whom I cannot withstand” (Eicha 1:14). And in regards to such a woman, it is said: “And I find something more bitter than death: the woman…He who pleases God escapes her, but the sinner is taken by her…” (Kohelet 7:26). Raba said: “A bad wife, the amount of whose ketubah is large, should be given a rival at her side.” In other words, the advice for such a man is to take another wife, and as a result of his first wife’s jealously of the second woman, she will correct her ways. This, obviously, was on the condition the man was able to provide for the needs of both women, giving each one a separate room (Yevamot 63b).

 

The Talmudic Custom was not to have Two Wives

Over the generations the economic situation improved steadily, and parallel to this, cases of men marrying two women diminished significantly, to the point where in the Mishnaic period, approximately 2,000 years ago, not one Tanna or Amora is mentioned as having two wives.

In the Talmudic period, roughly 1,400 years ago, the custom of men not taking a second wife was so clear, that the Amoraim were divided on the question of whether a man could actually marry another woman. According to the opinion of Rabbi Ami, it is forbidden because every woman who agrees to marry her husband does so with the knowledge that her husband will not take a second wife. Therefore, a man is permitted to take a second wife only if his first wife agrees, or if he pays her ketubah and divorces her.  Nevertheless, the halakha was determined according to the opinion of Raba, that the norm is not binding, and therefore in principle, a man is permitted to marry an additional woman without his first wife’s consent (Yevamot 65a).

 

The Takana of Rabbeinu Gershom

Approximately 2,000 years ago, Rabbeinu Gershom Me'Or Hagolah ("Our teacher Gershom the light of the exile”) made a takana (an institutional reform) in Ashkenaz, that forbade a man from marrying more than one wife. He further instituted that a man could not divorce his wife without her consent. Only under a special permit of one hundred rabbis from three countries, would a man be permitted to divorce his wife against her will.

This takana of not marrying two wives was accepted as completely binding in Ashkenaz, while Jews living in Sephardic countries did not accept it as binding, but in practice, it was the general custom, with the majority of ketubot stipulating that the groom commits not to take an additional wife. In 1950, following the establishment of the State of Israel, the Council of the Chief Rabbinate decided that the prohibition of marrying two women would apply to all communities equally.

 

How Could Marrying Two Women be Prohibited?

Seemingly, this poses a problem, for we have a basic rule that our Sages do not have the authority to prohibit something expressly permitted in the Torah (Taz, Yoreh De’ah 117:1), and if so, how could Rabbeinu Gershom forbid the marrying of two women, and why was his takana accepted in the Jewish world?

Our guide and teacher, Rabbi Tzvi Yehudah Hakohen Kook ztz”l, explained that from the context in which the Torah states that marrying two women is permitted, it can be understood that it is not desirable, as it is written: “[This is the law] when a man has two wives, one whom he loves and one whom he dislikes, and both the loved and unloved wives have sons, but the first-born is that of the unloved one” (Deuteronomy 21:15). The first problem is that one woman is loved and the other unloved; similarly, we find that in the Torah, two women are termed tzarot (trouble, or distress) for one another. Such a situation leads to disputes over inheritance which is liable to tear the family apart, to the point where the Torah needed to warn: “He must not give the son of the beloved wife birthright preference over the first-born, who is the son of the unloved wife. [Even if] the first-born is the son of the hated wife, [the father] must recognize him so as to give him a double portion of all his property. Since [this son] is the first fruit of [his father’s] manhood, the birthright is legally his”. Immediately after this, the Torah presents the case of a rebellious son, and our Sages said this comes to teach us that the son’s poor behavior is a result of the man having two wives (Rashi, Deuteronomy 21:11; Sichot of Rabbi Tzvi Yehudah Hakohen Kook, D’varim, pg.361). We see then that the heter (a dispensation from the normative prohibition pertaining to a given matter) to marry two women is b’diavad (less than ideal), because it was a necessity that could not be condemned. But when the necessity no longer existed, it was customary among Jews not to marry two women.

 

When did Woman’s Status Rise?

It should be noted that the innovative halakhic provisions were simultaneous to man’s enhanced ability to earn a living, and preceded the rise in women’s status in economic terms by hundreds, and even thousands of years. Only in modern times, with the improvement of machines and the transition from hard physical labor to work requiring more intellectual and emotional skills, did women’s income level rise, and their economic status improved.  In other words, it was not the growing economic power of women that caused our Sages to determine new takanot raising women’s status, but rather the improvement of the economic situation of the population as a whole. Therefore, already from the time in history when it was possible to support all women without having to rely on the heter, it became totally forbidden to marry two women, or extremely rare. The same holds true in regards to the ketubah – from the time it was instituted, it became the accepted rule.

This article appears in the ‘Basheva’ newspaper, and was translated from Hebrew.