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seekingferret) wrote2023-08-15 11:54 am
seekingferret) wrote2023-08-15 11:54 am
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Masechet Kiddushin 2
More Daf Yomi. I stalled a third of the way through Ketubot and I learned a little Gittin without blogging it, but lannamichaels posted that Kiddushin is starting and I was like, yeah, okay, that seems fun. So we'll see. I'm sure it won't all be fun.
Daf 2
The first Mishna makes two big moves: It conceptualizes betrothal as a kinyan, which I think we would most typically translate as an act of taking ownership. And second, it conceptualizes betrothal and divorce as happening by analogous processes.
There are basically two feminist approaches to this text. One is to just outright say that this is the worst kind of patriarchal thinking, that this idea of a husband purchasing and owning his wife is abhorrent and should be rejected. The other is to try to find a broader definition of the word kinyan. So for example, Artscroll is not super invested in this point because Artscroll is not feminist, but they argue that kinyan is used to refer to the enactment of many types of contractual bond, so a better way to understand kinyan here is not that the husband is buying the wife, but rather that that husband is offering certain contractual obligations that both he and his prospective wife will be taking on, and his wife can then choose to accept them through a kinyan process. And I know I am often an apologist for these sort of technical halachic reads that find a more feminist approach while retaining the idea of mesorah, but here I'll say I'm more sympathetic to the rejectionist approach. I don't think Mishnaic marriage quite works for me as is, I think it needs some tweaks. I do like the sort of legalistic framework that marriage is about accepting obligations to your spouse, but I think it ought to be more symmetric in the obligations than it is, and I think the framework of kinyan inherently creates really fraught asymmetries. I feel like Mah Rabu had a great post ages ago about how to think about the traditional commitments of marriage in a fairer way. Aha, i found it! Not necessarily endorsing Mah Rabu's conclusions, just saying that they're worth thinking about.
Oh, maybe we should review the idea of Kiddushin. Jewish traditional marriage is segmented into two parts, the kiddushin and the erusin. They're often translated as betrothal and marriage, but in modern times both take place during the same day as part of the wedding ceremony, because kiddushin isn't really betrothal as people in the West do it, it's a partial marriage commitment, and it's too legally problematic to have a long period between kiddushin and erusin the way we approach things today. Most significantly, you can't 'break an engagement' if kiddushin has been done, you need to go through a full divorce. A better way to understand the split is that Kiddushin enacts the couple's commitment to fidelity (or in a polygynous society, the wife's commitment to fidelity) and Erusin enacts the couple's other marital obligations to each other, the Jewish versions of in sickness and in health and so on, with my and so on doing a lot of heavy lifting. Those obligations were covered in more detail in Masechet Ketubot, which as I said I didn't make it through.
Where does the Mishna get the idea that marriage operates through kinyan, asks the Gemara? By a really gross g'zeirah shavah. It says in the Torah, in context of the discussion of divorce as well as in some other places, that a husband 'takes a wife'. The same verb 'take' appears when Abraham purchases the Cave of Machpelah for Sarah's burial, and there the text refers to it as a kinyan. Therefore here, too, with marriage, there is kinyan. I don't like this, I think the best I can do with it is to find some homiletics on the fact that Kever Machpelah was Avraham's way to honoring his wife, and so some part of the gezeirah shavah could be about how Avraham is fulfilling his final marital obligation by way of this act of kinyan, and kiddushin in some sense is a reminder that going forward, all purchases are for the sake of the marriage and not just the individual. But this is kind of acrobatic homiletics.
The other move I think is more conceptually interesting. The laws of kiddushin are learned in part through the laws of gittin. Just as a get is executed through a shtar, kiddushin can be executed through a shtar, and you see very clearly in the Mishna's conception that they are seen as reciprocal processes, one by which a woman is 'acquired' and one by which she 'acquires herself', to use Artscroll's language, or one process by which a woman participates in a kinyan exchange of obligations and the other in which she is released from those obligations. Like I said earlier, I do like this idea of marriage as a set of legal obligations that people undertake with respect to each other, and I like the idea that it's all about these documents that have a clear mapping to a relationship, that in some sense the documents create a specific reality about a relationship, and then different documents can alter that reality.
In any case, the Mishna teaches that you can effect Kiddushin by kesef, shtar, or biah, but in practice basically everyone today uses kesef- most commonly a ring.
But it can be worth as little as a perutah, which we understand as essentially the smallest possible coin, which admittedly does argue against conceptualizing this as the husband buying the wife. It actually feels more like that thing where a friendly lawyer tells someone to give them a dollar, because that dollar creates an attorney-client relationship in the eyes of the law. Similarly, the perutah creates a husband-wife relationship by analogy to acquisition of land moreso than by actual monetary acquisition.
lannamichaels posted that Kiddushin is starting and I was like, yeah, okay, that seems fun. So we'll see. I'm sure it won't all be fun.Daf 2
The first Mishna makes two big moves: It conceptualizes betrothal as a kinyan, which I think we would most typically translate as an act of taking ownership. And second, it conceptualizes betrothal and divorce as happening by analogous processes.
There are basically two feminist approaches to this text. One is to just outright say that this is the worst kind of patriarchal thinking, that this idea of a husband purchasing and owning his wife is abhorrent and should be rejected. The other is to try to find a broader definition of the word kinyan. So for example, Artscroll is not super invested in this point because Artscroll is not feminist, but they argue that kinyan is used to refer to the enactment of many types of contractual bond, so a better way to understand kinyan here is not that the husband is buying the wife, but rather that that husband is offering certain contractual obligations that both he and his prospective wife will be taking on, and his wife can then choose to accept them through a kinyan process. And I know I am often an apologist for these sort of technical halachic reads that find a more feminist approach while retaining the idea of mesorah, but here I'll say I'm more sympathetic to the rejectionist approach. I don't think Mishnaic marriage quite works for me as is, I think it needs some tweaks. I do like the sort of legalistic framework that marriage is about accepting obligations to your spouse, but I think it ought to be more symmetric in the obligations than it is, and I think the framework of kinyan inherently creates really fraught asymmetries. I feel like Mah Rabu had a great post ages ago about how to think about the traditional commitments of marriage in a fairer way. Aha, i found it! Not necessarily endorsing Mah Rabu's conclusions, just saying that they're worth thinking about.
Oh, maybe we should review the idea of Kiddushin. Jewish traditional marriage is segmented into two parts, the kiddushin and the erusin. They're often translated as betrothal and marriage, but in modern times both take place during the same day as part of the wedding ceremony, because kiddushin isn't really betrothal as people in the West do it, it's a partial marriage commitment, and it's too legally problematic to have a long period between kiddushin and erusin the way we approach things today. Most significantly, you can't 'break an engagement' if kiddushin has been done, you need to go through a full divorce. A better way to understand the split is that Kiddushin enacts the couple's commitment to fidelity (or in a polygynous society, the wife's commitment to fidelity) and Erusin enacts the couple's other marital obligations to each other, the Jewish versions of in sickness and in health and so on, with my and so on doing a lot of heavy lifting. Those obligations were covered in more detail in Masechet Ketubot, which as I said I didn't make it through.
Where does the Mishna get the idea that marriage operates through kinyan, asks the Gemara? By a really gross g'zeirah shavah. It says in the Torah, in context of the discussion of divorce as well as in some other places, that a husband 'takes a wife'. The same verb 'take' appears when Abraham purchases the Cave of Machpelah for Sarah's burial, and there the text refers to it as a kinyan. Therefore here, too, with marriage, there is kinyan. I don't like this, I think the best I can do with it is to find some homiletics on the fact that Kever Machpelah was Avraham's way to honoring his wife, and so some part of the gezeirah shavah could be about how Avraham is fulfilling his final marital obligation by way of this act of kinyan, and kiddushin in some sense is a reminder that going forward, all purchases are for the sake of the marriage and not just the individual. But this is kind of acrobatic homiletics.
The other move I think is more conceptually interesting. The laws of kiddushin are learned in part through the laws of gittin. Just as a get is executed through a shtar, kiddushin can be executed through a shtar, and you see very clearly in the Mishna's conception that they are seen as reciprocal processes, one by which a woman is 'acquired' and one by which she 'acquires herself', to use Artscroll's language, or one process by which a woman participates in a kinyan exchange of obligations and the other in which she is released from those obligations. Like I said earlier, I do like this idea of marriage as a set of legal obligations that people undertake with respect to each other, and I like the idea that it's all about these documents that have a clear mapping to a relationship, that in some sense the documents create a specific reality about a relationship, and then different documents can alter that reality.
In any case, the Mishna teaches that you can effect Kiddushin by kesef, shtar, or biah, but in practice basically everyone today uses kesef- most commonly a ring.
But it can be worth as little as a perutah, which we understand as essentially the smallest possible coin, which admittedly does argue against conceptualizing this as the husband buying the wife. It actually feels more like that thing where a friendly lawyer tells someone to give them a dollar, because that dollar creates an attorney-client relationship in the eyes of the law. Similarly, the perutah creates a husband-wife relationship by analogy to acquisition of land moreso than by actual monetary acquisition.
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My read on the gezerah shavah (it's soooooo weak, the fact that both verses use the word "take" which is just a ludicrously common word, I think the only worse one I've come across is based on two verses that both use the definite article, I mean, c'mon guys, what are you doing here?) is that Mishnah has a problem that there is in fact no marriage from the Torah. There is adultery, there is divorce, but men just "take" women (you can just about read in consent or at least absence of refusal from some of the examples in Genesis) and then they're obligated in marriage. So going from 'take' to 'acquire' is in fact a huge improvement, because you're entering a contract which can be legally enforced. I think drawing analogy from divorce via a get to marriage via a shtar fits with this as well. There is no actual marriage in the Torah, and we would quite like there to be a legal institution of marriage, so ok, we're going to reason based on analogy with a get. Also the rules about the get needing to be validly drafted and actively accepted by the wife are quite helpful if you're trying to create something recognizable as modern marriage.
I have a sense that Gemara often uses a really weak argument (a nearly trivial gezerah shava, a random prooftext from, like, Megillat Esther, a reading of a pasuk that's really grammatically strained) intentionally, as a signal to future generations that there's a real chidush here. Not that the rabbis of the Gemara were stupid and couldn't tell the difference between a plausible and a ludicrous reading of Torah. But because the student is intended to learn that they wanted to go beyond the Torah and enact something beneficial to society.
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I think when it comes to kinyan and all, trying to go into English loses some factors. For instance, you could call it acquiring, which is more of a neutral term. And let's side track into avos where it says kaneh licha chaver. It doesn't mean buy a friend.
I make no claim any of this is feminist because it's not; my own feelings on all this stuff is to shrug. I have no expectation of having the same moral or legal sense as someone 1500+ years ago.
regarding prutah, you missed in gittin but either yesterday or the day before, there was a fun bit about rumors of kiddushin using something and they decided it didn't count because it was worth less than a prutah.