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Masechet Chullin Daf 26
Dec. 23rd, 2018 10:30 pmDaf 26
Rabbi Linzer pointed out that these parallel cases we've been covering for the past several days seem to cover cases from all six of the Sedarim of the Mishnah that meet our pattern. The first couple were cases about kodshim, then there were cases about tahara, then briefly a case about zeraim (which I didn't mention) and nezikin (which I didn't mention), and today we conclude with some cases of Nashim and cases of Moed that meet the pattern. The case about Moed is pretty straightforward, a discussion of how we navigate havdalah when a Chag falls straight into Shabbos.
But I want to be very careful in discussing the other case, which is about the amah ivri'a, the Hebrew maidservant. The primary discussion of this topic is in Masechet Ketubot, which I have not studied in depth, so be aware that this is not a complete discussion of the topic.
An Israelite man with a minor daughter can 'sell' her to another Israelite man to serve as his maidservant. c.f. Exodus 21. We can judge from the language of this verse, which offers a mandatory escape clause if the master or his son don't marry the maidservant, that the intention seems to be that this is a sort of 'tryout' for her to marry either her master or her master's son. If it works out, you can kind of imagine how it might work out well for everyone involved: The poor Israelite man gets some money to support his family, and his daughter is raised by and married into a richer family, the rich man or his son gets at minimum the (non-sexual) services of the girl and they get a chance to know her and decide if she will make a good wife.
But a)there's very little in the way of consent from the girl involved here. And b) It seems hard to imagine that this man who takes a girl who worked for several years as his servant and marries her will treat her with the same respect he would a wife taken from his social class. and c) as the Gemara goes into, the ages we're talking about are shocking. A girl is considered a marriageable adult woman from the moment of her sexual maturity, which is approximately 12 years old. And once she is a marriageable adult woman, she can't hold this position of maidservant anymore.
So the scenario we're contemplating here is a man sells his six year old daughter to another man without her consent, she works as a slave for about five years, and then he decides to marry her and arranges it with the father. And once she turns 12 and a half, she is then available sexually to him and there's little she can do about it. The Talmud does prohibit marital rape, so if she ever refuses to have sex, he is not allowed to force her, but on the other hand, we're potentially talking about a twelve year old girl refusing an adult she's been following orders from for years, there's no way you can possibly say this is fair consent.
I can't defend this halacha. Nothing remotely like this happens today in the craziest most isolated sectarian version of Orthodox Judaism that I have ever heard of. And the Gemara... well, there are ways in which it mitigates the law to some degree. The law as interpreted by the Rabbis is significantly narrower than the law as one might interpret it out of the Torah. Which is part of what was so crazymaking to me about Alice Walker's verse:
"Are three year old (and a day) girls eligible for marriage and intercourse?"
NO! In fact, three year old and a day girls are not eligible for intercourse according to the Talmud. And that is in spite of the fact that one might readily read the Bible as saying they are. The Talmud narrows the scope in a number of ways that give the girl more agency than the Bible seems to give them, and gives them a number of protections that the written Bible doesn't.
But I still can't defend the Talmud here, and no contemporary halachic thinker does. This is just one element of ancient oriental culture that the Talmud and the Torah considered part of life and we can no longer fathom.
Rabbi Linzer pointed out that these parallel cases we've been covering for the past several days seem to cover cases from all six of the Sedarim of the Mishnah that meet our pattern. The first couple were cases about kodshim, then there were cases about tahara, then briefly a case about zeraim (which I didn't mention) and nezikin (which I didn't mention), and today we conclude with some cases of Nashim and cases of Moed that meet the pattern. The case about Moed is pretty straightforward, a discussion of how we navigate havdalah when a Chag falls straight into Shabbos.
But I want to be very careful in discussing the other case, which is about the amah ivri'a, the Hebrew maidservant. The primary discussion of this topic is in Masechet Ketubot, which I have not studied in depth, so be aware that this is not a complete discussion of the topic.
An Israelite man with a minor daughter can 'sell' her to another Israelite man to serve as his maidservant. c.f. Exodus 21. We can judge from the language of this verse, which offers a mandatory escape clause if the master or his son don't marry the maidservant, that the intention seems to be that this is a sort of 'tryout' for her to marry either her master or her master's son. If it works out, you can kind of imagine how it might work out well for everyone involved: The poor Israelite man gets some money to support his family, and his daughter is raised by and married into a richer family, the rich man or his son gets at minimum the (non-sexual) services of the girl and they get a chance to know her and decide if she will make a good wife.
But a)there's very little in the way of consent from the girl involved here. And b) It seems hard to imagine that this man who takes a girl who worked for several years as his servant and marries her will treat her with the same respect he would a wife taken from his social class. and c) as the Gemara goes into, the ages we're talking about are shocking. A girl is considered a marriageable adult woman from the moment of her sexual maturity, which is approximately 12 years old. And once she is a marriageable adult woman, she can't hold this position of maidservant anymore.
So the scenario we're contemplating here is a man sells his six year old daughter to another man without her consent, she works as a slave for about five years, and then he decides to marry her and arranges it with the father. And once she turns 12 and a half, she is then available sexually to him and there's little she can do about it. The Talmud does prohibit marital rape, so if she ever refuses to have sex, he is not allowed to force her, but on the other hand, we're potentially talking about a twelve year old girl refusing an adult she's been following orders from for years, there's no way you can possibly say this is fair consent.
I can't defend this halacha. Nothing remotely like this happens today in the craziest most isolated sectarian version of Orthodox Judaism that I have ever heard of. And the Gemara... well, there are ways in which it mitigates the law to some degree. The law as interpreted by the Rabbis is significantly narrower than the law as one might interpret it out of the Torah. Which is part of what was so crazymaking to me about Alice Walker's verse:
"Are three year old (and a day) girls eligible for marriage and intercourse?"
NO! In fact, three year old and a day girls are not eligible for intercourse according to the Talmud. And that is in spite of the fact that one might readily read the Bible as saying they are. The Talmud narrows the scope in a number of ways that give the girl more agency than the Bible seems to give them, and gives them a number of protections that the written Bible doesn't.
But I still can't defend the Talmud here, and no contemporary halachic thinker does. This is just one element of ancient oriental culture that the Talmud and the Torah considered part of life and we can no longer fathom.