"Man and Woman in the Mitzvah of Marriage and Birth" by Rabbi Eliezer Melamed

[yonaton behar]

 

Man and Women in the Mitzvah of Marriage and Birth

                                Rabbi Eliezer Melamed

 

The Greatest Mitzvah

It is a Biblical obligation to procreate, and in every child that parents give birth to, they fulfill a great mitzvah and merit participating with God in bringing life into, and saving, an entire world (Nida 31a; Mishna Sanhedrin 4:5). This is the initial purpose of Creation, for God desired the world be populated, as our Sages said: “And was not the world created for the sake of reproduction, as it says (Isaiah 45:18) “He made the world to be lived in, not to be a place of empty chaos” (Mishna Gittin 4:2).

 

The Need for a Binding Definition

Although, without a binding definition, this great mitzvah is liable to be extremely general, to the point where in many cases, it would not be implemented properly. After all, marriage is a complex matter which requires responsibility and courage, is dependent on the consent of husband and wife and economic means, and usually, the support of the parents. Concern exists that if the duty of this mitzvah is not an absolute requirement, despite its enormous importance, some people would delay it until it would be too late. 

 

After marriage as well, the general mitzvah leaves many doubts. On the one hand, since the birth of every child is a great mitzvah, some could argue that one child is enough – seeing as he alone is like an entire world – and postpone his birth until the age of forty, when the parents are established and experienced. On the other hand, since the mitzvah is so immense and important, perhaps each individual must make an effort beyond his powers to have as many children as possible, and thus, get married at the youngest possible age, and even curtail the time of breastfeeding so as to have as many children as possible. Consequently, the Torah had to set binding definitions for this mitzvah, and our Sages added other definitions according to the principles explained in the Torah. 

 

The General Mitzvah and the Obligation

The general Biblical mitzvah is to be fruitful and multiply, and one fulfills this mitzvah with every child born. The Torah obligation is to have one son and one daughter, similar to God’s original creation of Adam and Chava, as it is written: “God [thus] created man with His image. In the image of God, He created him, male and female He created them. God blessed them. God said to them, “Be fruitful and multiply. Fill the land and conquer it…” (Genesis 1:27-28). Since, as clarified in the verse, the Torah desires we be fruitful and multiply and fill the land, our Sages determined as an obligatory mitzvah to have more children, according to one’s ability.

   

On the one hand, the mitzvah to be fruitful and multiply is a more general and important mitzvah, to the point where it supersedes other mitzvoth, and in order to fulfill it, one is permitted to release a Canaanite slave, and sell a Torah scroll. On the other hand, the obligation is defined and more binding, but it is not more important than other mitzvoth (see, Gittin 41a, Megilla 27a; Tosefot Gittin ibid, Chagiga 2b).  

 

Man and Woman’s Obligation and Mitzvah

The general mitzvah is relevant to both man and woman alike, and in a certain respect, a woman’s reward is even greater, because, as we have learned, reward is according to the suffering (Avot 5:23). But concerning the obligation, the Tana’im differed.

In the opinion of the Sages, man is obligated in the mitzvah, because he sanctifies his wife in marriage, and is the dominant partner in physical relations. This is what the verse “Be fruitful and multiply, fill the earth and conquer it” hinted at – it is the nature of a man to conquer, but it is not the nature of a woman to conquer” (Yevamot 65b). Others explained that since the woman experiences the grief and danger of pregnancy and childbirth, the Torah – whose ways are ways of pleasantness – did not want to impose this mitzvah upon her as being obligatory (Meshech Chochma, Genesis 9:7).

On the other hand, according to Rabbi Yochanan ben Brokaw, women are also obligated in this mitzvah, because it is mentioned to Adam and Chava in the plural form, as it is written: “God blessed them. God said to them, “Be fruitful and multiply. Fill the land and conquer it” (Genesis 1:28).

The Amora’im were also divided on this question, and the halakha was determined that the obligation rests on the man, and not the woman.

 

The Meaning of the Halakha that Women are Commanded but not Obligated

The halakha determining that it is a mitzvah for a woman to have children but not an obligation does not affect a woman’s privilege to have children, for if it turned out that a woman married an infertile man and wanted to get divorced so she could have a son or daughter who could take care of her in her old age, her husband is required to divorce her and pay her ketubah (Yevamot 65b; S.A., E.H. 1:13; 154:6). 

Moreover, since the general mitzvah is greater and more important than the personal obligation, halakha determines that a Torah scroll is sold for the purpose of a woman’s marriage just like that of a man (M.A. 153:9; M.B.24), and even precedes a man in such a case.

Accordingly, the halakhic difference is that a woman who did not want to get married, or wished to marry an infertile man – although she cancels herself from the mitzvah, nevertheless, she is not considered to have sinned, since she is not obligated to fulfill the mitzvah. Conversely, it is forbidden for a man to remain single, or to marry an infertile woman, and only after fulfilling the mitzvah of ‘be fruitful and multiply’ with his first wife, is he permitted to marry an infertile woman.

As in Torah study and prayer, we find that in this mitzvah the Torah addresses men in the imperative and command form, while women are addressed in the language of reshut (optional) and mitzvah, and in this way, the mitzvah is fulfilled completely from both aspects – both as an obligation, and voluntarily.

 

The Obligation is Deferred until the Age of 18 for Torah and Livelihood

Since the mitzvah is binding for men, we must clarify from what age does it apply?

The poskim (Jewish law arbiters) have written that although a man becomes obligated to fulfill all the mitzvoth from the age of thirteen, our Sages postponed the age of marriage for men until eighteen. This is because a man needs to prepare for the big challenge of raising a family in two areas: First – studying Torah, in order to shape his worldview, and know how to act properly (Mishna, Avot 5:21; Kiddushin 29b). Second – parnassah (livelihood). During the years devoted to studying the fundamentals of the Torah, part of the day was dedicated to working, in order to build a house and save money to purchase instruments for earning a livelihood (Sotah 44a; Rambam, Hilchot De’ot 5:11).

 

Not Later than the Age of Twenty

Therefore, our Sages postponed the age of marriage for men until eighteen, but cautioned that in any event, not to postpone it beyond the age of twenty. Our Sages said (Kiddushin 29b): “Until the age of twenty, the Holy One, blessed be He, sits and waits. When will he take a wife? As soon as one attains twenty and has not married, He exclaims, ‘Blasted be his bones!’” –an expression of damnation for not having fulfilled the mitzvah of ‘Be fruitful and multiply’. In addition, our Sages said: “He who is twenty years of age and is not married spends all his days in sinful thoughts,” because as long as getting married is close at hand, a man knows that his passion is reserved for his partner, but when bachelorhood persists beyond the appropriate period of marriage, and his passion fails to find the proper channel, he becomes accustomed to having sinful thoughts, and is not able to escape them for his entire life.

Nowadays, the preparations necessary in respect to Torah and finances  are greater, and consequently, many men need to postpone marriage beyond the age of twenty, but in the opinion of many poskim, they should not postpone marriage beyond the age of twenty-four. With God’s help, I will clarify this matter next week. Now, I will continue dealing with men’s obligation to get married. God willing, I will also dedicate an entire column to the appropriate age for women to get married.

 

The Severity of the Obligation and Coercion of the Mitzvah

The law has been determined in the Shulchan Aruch: “It is incumbent on every man that they should marry a woman at the age of eighteen… but in any case he should not go beyond the age of twenty without marrying a woman. If twenty years go by and he does not want to marry, the courts can force him to marry in order to fulfill the mitzvah of being fruitful and multiplying” (E.H. 1:3). How is this coercion achieved? According to Rif and Rambam, he is coerced with the use of a whip, and according to Tosephot and Rosh, he is coerced with harsh words and fines – i.e., no one should do business or hire him, but he should not be beaten or excommunicated for not getting married (S.A., E.H. 154:21). 

 

How Can Marriage be Forced?

 

Seemingly, one could ask: How can this mitzvah be forced? After all, marriage must occur out of love and desire!

Indeed, it is clear that in practice, a man was not forced to marry a woman he did not choose. Rather, our Sages made this statement in order to express a fundamental position, that a person is obligated to get married by the age of twenty to fulfill the mitzvah of procreation, and in principle, beit din should force him to fulfill this mitzvah. Although in practice, only rarely did beit din exercise its power. For example, in a case where the man had close relations with a certain woman and she wanted to marry him, and the man had even expressed his desire to marry her, but continues postponing the marriage on various pretexts – then the court can compel him to marry her (D’var Moshe Amirlio, Section 1:51).

Another example was presented in a question sent to Rivash, concerning a young man who wanted to marry an elderly, very rich woman. The beit din in that city wanted to prevent him from marrying her because with her, he could not fulfill the mitzvah of ‘Be fruitful and multiply’. However, Rivash answered them, stating that already from the times of the Rishonim, the custom was not to use coercion in matters of marriage, because coercion in such issues is liable to cause many fights.

In practice, the Shulchan Aruch ruled that we do coerce a person to fulfill the mitzvah of ‘Be fruitful and multiply’, and it can be induced from his words that in his judgment, the main opinion goes according to those who maintain that coercion was done by lashes. However, as we have explained, it is clear that such actions were taken in rare cases of harsh violations of the mitzvah.

In contrast, in the opinion of Rema, the halakha goes according to Rivash, and even in rare cases, coercion is not used in regards to the mitzvah ‘Be fruitful and multiply’. And even if the beit din did use coercion, it was through harsh words and fines (S.A., E.H. 1:3; 154:21). This is the accepted practice.

Nevertheless, from this we learn just how great and binding is the mitzvah of marriage, that in principle, beit din would have to coerce its fulfillment.

 

Criticism on a Section of the Proposed Army Enlistment Law

In the proposed law concerning the Zionist yeshivas, both Hesder and higher yeshivas, a dangerous section was introduced, according to which the Defense Minister can arbitrarily set “standards” where he decides which yeshiva to confirm. Also, it would be under his authority to close a yeshiva if “other circumstances exist that justify, in the opinion of the Minister, negating the yeshiva’s recognition”.

This is a severe blow to the role of the Roshei yeshivot (heads of the Torah academies), who must be able to express their Torah views freely, without fear from any government body. This section of the proposed law must be changed.

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