Over the last few weeks, Daf Yomi readers have followed the debates in Tractate Ketubot about how to punish a man who rapes or seduces an unmarried young girl. In most circumstances, his penalty involves paying a fine to the girl’s father and offering to marry the girl himself. But what if a girl, while she is betrothed to one man, has sexual relations with another? What is her punishment—a fine, or forced marriage? Alas, the answer we learned this week in chapter 4 of Ketubot is very different. In accordance with the explicit statement in Deuteronomy 22:21, a bride who is found not to be a virgin on her wedding night is stoned to death: “They shall bring out the maiden to the door of her father’s house, and the men of her city shall stone her with stones so that she die; because she has done a wanton deed in Israel, to play the harlot in her father’s house.”
The Talmud, in Ketubot 44a, applies its usual commonsense logic to this law. What if the bride’s father doesn’t have his own house, so that she can’t be stoned at “the door of her father’s house”? In that case, we learn, “she is executed via stoning, as the requirement that she is to be executed at the entrance to her father’s house is stated only for a mitzvah but it is not an indispensable requirement.” A little later, we learn that the location and manner of the woman’s execution depend on her age and status at the time her transgression is discovered. If she is found to have been unfaithful after she is already married, “one stones her at the entrance to her father’s house, as though to say: See what you have brought up.” If she is exposed while still living in her father’s house, during her betrothal, then “one stones her at the entrance to the gate of the city.” These punishments are reserved for a “young woman,” a na’arah—which, as we saw last week, the Talmud defines strictly as a girl between the age of 12 and 12 and a half. If, however, her infidelity is exposed only once she is older than that, and legally a grown woman, then she is not stoned but strangled.
The natural response to a passage like this is outrage—at the sexual double-standard between men and women, and at the sheer cruelty of the punishment. Stoning, strangling, flogging—today these are the kinds of brutality we associate with ISIS. It would be gratifying to feel that they are no part of our heritage as Jews; but the Bible and the Talmud do not allow that kind of gratification. The truth is that, in Deuteronomy, we find the same kind of panic about female sexuality, the same need to control women’s feelings and behavior, that to modern people in the West is one of the hallmarks of barbarism. The core of the matter is laid bare in the mishna on Ketubot 46b where we learn that “a father has authority over his daughter” until her marriage, whereupon her husband takes over that authority. A woman, under Talmudic law, is not a legally competent individual, but the responsibility of a man.
Reading Seder Nashim, the division of the Talmud that deals with laws relating to women, involves coming up against this kind of thinking again and again. Seder Moed, the first division of the Talmud, which deals with the Jewish calendar and holidays, contained plenty of foreign and obsolete ideas; yet somehow they did not provoke the same kind of indignation. The premise of all the Shabbat laws, for instance, is that deliberate desecration of Shabbat is also punishable by stoning. Today many, maybe most, American and Israeli Jews violate Shabbat without a second thought, and we do not get angry when we learn that we would be liable to death under biblical law. Why is it so different when it comes to laws about women and sex?
The reason, I think, is that the modern West’s emancipation from ritual is much older and better established than its emancipation from patriarchy. It has been four centuries since Catholics and Protestants murdered each other over matters like the transubstantiation of the Eucharist, or whether a priest should face toward the congregation or away from it during Mass. Modern Europe and America were largely built around the idea that such religious issues belong to the private sphere—which doesn’t mean they are not important, but does mean that they are not subject to compulsion. In the Jewish context, Moses Mendelssohn, in his famous 1783 book Jerusalem, already arrived at the conclusion that there should be no compulsion in matters of religion; the community, he argued, had no right to excommunicate dissenters. Today, for almost all Jews except those born into isolated ultra-Orthodox, or Haredi, communities, Jewish practice presents itself as a matter of choice. You can choose to be highly observant or barely observant, and no worldly authority can compel you to do otherwise.
When it comes to gender relations, however, things are very different. It is only about 50 years since the feminist movement and the sexual revolution made sexual egalitarianism a central part of the liberal creed. Many Americans, especially the most religious, still resist this development, seeing it as a sign of decadence and immorality—that is why the abortion issue is one of the most divisive in American politics, because it relates directly to women’s sovereignty over their bodies. When we see female genital mutilation in Africa, or the veiling of women in Saudi Arabia or Iran, we recognize a way of thinking about gender and sex that we have only recently and incompletely overcome. No wonder we define ourselves so strongly in contrast—so that the French, for instance, made it illegal for girls to come to school veiled. This is a culture war that is still ongoing, both within Western culture and between it and others.
For me, at least, it does not feel necessary to bring this culture war to the Talmud. While I recognize that the way the rabbis thought about gender is oppressive and patriarchal, I don’t see that as a reason not to read the Talmud at all. I think there are three reasons for this reaction. First, of course, is that I am a man, and so I am perhaps less personally affronted by what I read in Ketubot than a woman might be.
Second, however, is that it seems to me the tendency of the Talmud is usually in the direction of more gender equality and more fairness, rather than less. It’s crucial to remember that the rabbis of the Talmud are not legislators; they are interpreters, bound to a legal code that in their time was more than a thousand years old. And the iron-age morality of Deuteronomy was already, for the late-Roman rabbis, something of an embarrassment. That is why, for instance, they define a na’arah very narrowly, so that the biblical restrictions and punishments applying to a “maiden” are in force for only six months out of a woman’s life. It is why they loosen the requirements for declaring an absent spouse dead, so that a widow won’t be left in a legal limbo. It is why they turn the custom of levirate marriage on its head, so that chalitza, the refusal to wed a dead brother’s wife, becomes more meritorious than going through with the marriage. It is why, finally, the death penalties that the Bible speaks of—such as stoning a licentious young woman—were actually null and void in Talmudic times, their enforcement left up to God and fate.
What this suggests is that Jewish law, far from being a dead hand, is an ongoing process of negotiation between the needs of the present and the authority of the past. And of course, this negotiation continued long after the Talmud was completed. The Talmud, for instance, takes plural marriage for granted. But around the year 1000, Rabbi Gershom, the “Light of the Exile,” made monogamy binding on Ashkenazi Jews, motivated perhaps by a desire to fit in with the Christian culture surrounding them.
Still, there is a difference between negotiating with the past and simply disagreeing with it—which is, perhaps, the difference between Orthodox and Conservative or Reform Jews. The problem of the agunah, the “chained” woman unable to get a divorce from her husband, arises in Orthodoxy because it is unwilling to abrogate the basic patriarchal law that only a man can grant a divorce. Other Jews abandon it happily, along with other unjust and obnoxious laws such as the prohibition of homosexuality in Leviticus.
The idea that Jewish law can be unjust, that we have evolved a moral sense more complex and advanced than biblical codes can contain, is not at all a modern invention. Two thousand years ago, Philo of Alexandria was already reading the Exodus story as a philosophical allegory of individual spiritual liberation. Eight hundred years ago, Maimonides theorized that many Jewish laws were instituted solely to distinguish Judaism from paganism, not because they were inherently moral. Yet Philo and Maimonides were equally quick to insist that their revisionist explanations of Jewish law did not compromise the authority of that law: Whatever the reasons for the law, it had to be obeyed to the letter. What is modern is the idea that we have the right to legislate for ourselves. Secure in that freedom, I think it is possible to read the Talmud with the necessary combination of respect and distance.
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