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Yeshivat Har Etzion

PARASHAT KI TEITZEI

By Rav David Silverberg

            Among the many mitzvot presented in Parashat Ki Teitzei, we find the laws concerning the first year of marriage.  The Torah writes that after a person marries, “lo yeitzei ba-tzava” – “he shall not go out to the army” – and, in addition, “ve-lo ya’avor alav le-khol davar” – “nor shall he be assigned for any purpose” (24:5).  The Gemara in Masekhet Sota (44) explains the difference between these clauses.  The first, of course, refers to regular military service.  The second clause, the Gemara explains, refers to other forms of mandatory civil service, such as bringing food and water, preparing roadways, fashioning weaponry, and so on.  The Torah thus forbids imposing upon a new groom military or civil responsibilities, in order that he may remain at home “and give happiness to the woman he has married.”

            The Rambam, in his Sefer Ha-mitzvot (lo ta’aseh 311), writes that although these two clauses refer to two different areas of service, they should nevertheless be counted as but a single mitzvat lo ta’aseh.  The Ramban, however, in his critique of the Rambam’s Sefer Ha-mitzvot, insists upon listing these two prohibitions separately.  He notes that drafting a new groom for non-military civil service clearly does not violate the prohibition of “lo yeitzei ba-tzava.”  Seemingly, then, these two prohibitions must be seen as independent of one another.

            In defense of the Rambam, Rav Yitzchak Di Lion, in his Megilat Ester, asserts that the Rambam interpreted the second clause, “ve-lo ya’avor alav le-khol davar,” as referring specifically to tasks performed in a military setting.  When the Gemara speaks of transporting provisions and preparing roadways, it refers to tasks performed to assist an army during warfare.  In effect, then, the Torah indeed issues but a single prohibition, forbidding the conscription of a new groom for military service, be it combat or other, secondary responsibilities.

            Indeed, Rashi, in his commentary to this verse, adopts this interpretation of the phrase “ve-lo ya’avor alav le-khol davar.”  According to Rashi, the word alav modifies the noun tzava – army – such that this phrase reads, “nor shall he be assigned to it for any purpose.”  Clearly, according to this interpretation, the two clauses are indeed closely related, perhaps lending support to the Rambam’s view.  Ironically enough, the Ramban, in his commentary to this verse, approvingly cites Rashi’s interpretation.  Apparently, he nevertheless felt that this connection between the two clauses does not justify their integration into a single mitzvat lo ta’aseh.

            However, the Megilat Ester’s explanation of the Rambam’s view seems difficult to accept in light of the Rambam’s comments in Mishneh Torah.  The Rambam discusses these halakhot in Hilkhot Melakhim (7:10-11), where he writes explicitly that a groom may not be drafted for either tzorkhei ha-ir - civic duty – or tzorkhei ha-gedud – military duty.  Furthermore, the Rambam describes this prohibition in very general terms, writing that besides military service, “ein matrichin otam le-shum davar ba-olam” – grooms may not be burdened with any type of civil responsibility.  What more, the Rambam, based on the Tosefta, adds that a new groom is exempt from pasei ha-ir – local taxes.  Quite clearly, then, the Rambam expanded “ve-lo ya’avor alav le-khol davar” well beyond the limited framework of military duty.

            In truth, this appears to be the Rambam’s implication in Sefer Ha-mitzvot, as well, where he writes, “It [the Torah] forbids a groom from leaving his house throughout the first year for any responsibilities, going out to the army or other [tasks].  We shall rather remove from him all responsibilities and burdens in which he would [otherwise] be obligated.”  Here, too, the Rambam seems to include all types of compulsory civic duty, and not merely tasks related to the military.  In light of this, his insistence on listing the two prohibitions as a single mitzvat lo ta’aseh seems somewhat difficult.

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            Yesterday, we discussed the prohibition(s) mentioned in Parashat Ki-Teitzei (24:5) forbidding the drafting of new husbands during their first of marriage for military and other forms of service.  Several sources address the question of whether this prohibition is directed to the government authorities, or to the groom himself.  Namely, does the Torah here forbid only the mandatory conscription of new husbands, or does it forbid the husbands themselves from leaving their homes for purposes of civic duty?

            The Sefer Ha-chinukh (591), in describing this prohibition, writes, “A groom is forbidden from leaving his home the entire year, meaning, to embark on long excursions.  The military commander is likewise forbidden from taking him against his will…”  According to the Sefer Ha-chinukh, then, this prohibition is directed to both the groom himself, he may not volunteer to serve, and the military establishment, which may not forcefully draft a new husband.

            The Netziv, however, in his Ha’amek Davar, states very clearly that a groom is permitted to volunteer for military and civic duty during his first year of marriage.  He contends that only during the first week after the wedding must a groom remain at home with his new bride.  During the rest of the first year, however, the Torah forbids only imposing mandatory service upon a new groom, but not voluntary service.

            There is considerable ambiguity concerning the Rambam’s position on this issue.  In Sefer Ha-mitzvot (311), as we cited yesterday, he appears to forbid the groom himself from leaving to perform civic duty: “It [the Torah] forbids a groom from leaving his house throughout the first year for any responsibilities, going out to the army or other [tasks].”  But in the very next sentence, the Rambam speaks of a prohibition directed to the government authorities: “We shall rather remove from him all responsibilities and burdens in which he would [otherwise] be obligated.”

            At first glance, we might determine the Rambam’s stance from his ruling mentioned yesterday, including under this provision an exemption from local taxes (Hilkhot Melakhim 7:11).  Clearly, the Torah would not forbid voluntary donations to the municipal treasury.  Seemingly, then, if this exemption is included under the prohibitions against a groom’s participation in civil service, then these prohibitions should apply specifically to compulsory service, and not to volunteer work.

            However, as noted by a number of writers (Rav Gershon Arieli, Torat Ha-melekh; Rav Avraham Yitzchak Sorotzkin, Rinat Yitzchak, Parashat Ki-Teitzei), the Rambam perhaps distinguished between different categories of service.  In Hilkhot Melakhim (7:10), when the Rambam introduces the list of those people exempted from military and civil service, he writes, “These are the ones who do not go out to warfare at all, and no burden of any kind may be imposed upon them…”  It appears that the Rambam forbids a groom’s participation in combat outright, even if he wishes to volunteer, whereas other forms of services may be performed, provided that they are not forced upon him.  If so, then the tax exemption sheds no light on the question of whether the Rambam permits a groom to join the army if he so desires.  The Rambam very likely permitted a groom to volunteer for civic duty generally, but not for military service.

            Of course, as noted by the aforementioned writers, this distinction implied by the Rambam further compounds the problem noted yesterday regarding his classification of this prohibition in Sefer Ha-mitzvot.  As opposed to the Ramban, who lists the prohibitions against military service and other civic duties as separate mitzvot lo ta’aseh, the Rambam combines them into a single prohibition.  Seemingly, if one provision proscribes only mandatory service, while the other forbids even volunteer service, they should, indeed, be seen as independent prohibitions.  The Rambam’s insistence on integrating the two into a single mitzvat lo ta’aseh thus requires some explanation.

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            Among the laws presented in Parashat Ki-Teitzei is the prohibition of machazir gerushato (24:4).  This prohibition forbids remarrying one’s former wife if she had married someone else in the interim, after her first divorce.  Once she marries a second time, she may never again return to the first husband, even if the second husband dies or gives her a halakhically valid divorce.

            Several aspects of this prohibition require explanation.  For one thing, it seems difficult to understand – at first glance – the rationale behind this prohibition (assuming, of course, that we are capable, entitled, and perhaps even encouraged to probe the reasoning behind God’s laws).  A husband’s death or a valid divorce permits the wife to marry whomever she pleases (with the exception of a kohen).  Why should her having been previously married to someone forbid her marriage to him now, after her most recent husband has either died or divorced her?  In fact, the Sefer Ha-chinukh, in his discussion of this mitzva (590) parenthetically remarks that if the divorced woman had not married since her divorce, the Torah actually encourages the original husband to remarry his ex-wife, assuming she is a suitable partner.  What exactly changes when she remarries?

            The Chinukh explains that “it resembles immorality when a woman leaves one [man], has relations with another, and then returns to the first.”  Meaning, this situation has the appearance of adultery, as it resembles a case of a married woman who engages in relations with another man and then returns home to her husband.  But this explanation seems, at first glance, insufficient.  In the situation of machazir gerushato, any relations in which the woman engages are entirely permissible, and they are with a husband who married her according to halakha, and without any marital ties to another man.  How does this resemble adultery?

            And yet, the Chinukh’s theory is firmly rooted in the oral tradition.  As we discussed last week (amidst our discussion of bal tashchit), the Gemara (Yevamot 11b) extends this prohibition to include cases of adultery, forbidding a husband from resuming marital relations with his wife after she betrays him.  That the Talmud extracts such a prohibition from this context – the law of machazir gerushato – very clearly points us in the direction of the Chinukh, that the two prohibitions somehow resemble or relate to one another.  How?

            Further compounding the question is the Torah’s particularly harsh wording in issuing this prohibition: “Her first husband who divorced her may not take her once again to be his wife after she had been defiled, for this is an abomination before the Lord; you shall not bring iniquity to the land that the Lord your God is giving you as a heritage” (24:4).  This terminology, of “defilement,” “abomination,” and corrupting the land, brings to mind the arayot section in Sefer Vayikra (chapter 18), which speaks in similar terms in the context of sexual offenses such as adultery, incest and homosexuality.  This parallel, too, appears to portray a situation of machazir gerushato as a violation equivalent to, or associated with, adultery.

            Rav Shimshon Refael Hirsch, in his commentary to this verse in Sefer Devarim, suggests that this prohibition stems from the concern that a woman may use the halakhic system of marriage and divorce to avert the technical violation of adultery.  A woman desiring an adulterous affair might avoid the consequences by asking for a divorce and then seeking remarriage later.  Herein, Rav Hirsch claims, lies the “abomination” of machazir gerushato.  The woman has utilized the Torah’s institution of marriage and divorce, which is meant specifically to underscore the sanctity of the union between husband and wife, to betray and defile that union.  In this vein Rav Hirsch explains the description of this violation as “an abomination before the Lord.”  He writes, “In the eyes of Man nothing illegal has been done, but in the Eyes of God the mere possibility to immoral intentions is a desecration of His Torah, His teachings, and hence before Him it is a to’eiva [abomination].”

            Understandably, then, the Torah warns in this context, “you shall not bring iniquity to the land.”  Immorality under the guise of legality threatens to undermine the entire moral fabric of a society.  When perpetrators find legal loopholes that appear to sanction corruption and immorality, the collective moral conscience steadily begins to wither.  We are therefore admonished to avoid “bringing iniquity to the land” by upholding strict moral standards, even when the letter of the law appears to allow room for relaxing them.

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            Parashat Ki-Teitzei introduces the famous mitzva of shilu’ach ha-kein, which requires sending away a mother bird before taking the eggs or chicks from the nest (22:6-7).  Instinctively, we would explain this mitzva as a measure of sensitivity and compassion for the mother bird, sparing it the sight of its young’s capture.  Indeed, the Rambam (Moreh Nevukhim 1:48) and the Ramban (commentary here in Parashat Ki-Teitzei) explain shilu’ach ha-kein along these lines.  By demonstrating compassion for the mother bird, one develops sensitivity and concern for other human beings and refines his character.

            A famous passage in the Mishna, however, seems to imply otherwise.  In Masekhet Berakhot (5:3), the Mishna demands silencing a person who makes reference to the obligation of shilu’ach ha-kein in his prayer, asking God to have compassion for us just as He showed compassion to the mother bird.  According to one explanation cited in the Gemara (33b), the Mishna bans such a prayer “mipenei she-oseh midotav shel Ha-Kadosh Barukh Hu rachamim” – it approaches God’s laws as measures of sensitivity, whereas in truth, “einan ela gezeirot” – there are but decrees issued by God for us to obey.  Seemingly, this halakha indicates that we must not search for the reasons underlying the mitzvot, perceiving them instead as commands issued by God strictly for the purpose of engendering a sense of obedience to divine authority.

            The Rambam, in the aforementioned passage in Moreh Nevukhim, claims that this Mishna follows the minority view that denies the rational basis of the mitzvot.  The Ramban interprets the Mishna to mean that God’s laws concerning the treatment of animals are intended not to ensure the well-being of the animals, but rather as a means of character refinement, to develop within ourselves the virtues of sensitivity and compassion.

            A particularly novel and counterintuitive approach to shilu’ach ha-kein – and this Mishna in Berakhot – is cited in the name of the Vilna Gaon, in the compendium Kol Eliyahu (Parashat Vayera).  According to the Gaon, sending away the mother bird is actually an act of cruelty, rather than compassion.  He cites as proof a comment from the Talmud Yerushalmi that at times the mother bird would be so overcome by anxiety after being sent away from the nest that it would drown itself in the sea.  Evidently, the Gaon concludes, sending away the mother before seizing its young actually causes it more distress.  The purpose of this mitzva, according to the Vilna Gaon, is to demonstrate one’s willingness to obey the Almighty even with an element of insensitivity.  Only by serving God with two opposite character traits does one demonstrate unqualified loyalty to the divine command; if one obeys God with only one of two opposing qualities, his obedience may result from a natural tendency, rather than from unwavering subservience.  The Torah therefore issued the obligation of shilu’ach ha-kein, which constitutes an expression of mild insensitivity, so that one can demonstrate his subordination to the divine will even in a manner that runs counter to the compassion and consideration generally demanded of the Jew.

            In this vein the Gaon explains why God declares to Avraham after the trial of the akeida, “I now know that you are God-fearing” (Bereishit 22:12).  Avraham lived a life of chesed, constantly involving himself in lending assistance to others.  What left to be demonstrated was Avraham’s willingness to act cruelly in the service of God; only then would it be known that Avraham was not merely kind by nature, but committed unconditionally to God’s commands.  Thus, once he prepared to kill his beloved son, God proclaimed, “I now know that you are God-fearing,” having demonstrated his willingness to serve the Almighty regardless of what His commands entail.

            For this reason, the Gaon contends, the Mishna forbids making reference to God’s compassion as manifest in the mitzva of shilu’ach ha-kein – for in truth, this mitzva was issued for the precise opposite purpose, to demonstrate that one must be prepared to obey God even under circumstances requiring an element of insensitivity.

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            Towards the end of Parashat Ki-Teitzei (25:5-10), the Torah introduces the mitzva of yibum, requiring the brother of a deceased, childless man to marry the widow.  The Torah very clearly forbids the childless widow from marrying anyone else: “the wife of the deceased may not be wed to a foreign man…”  Should the brother-in-law refuse to marry the widow, he is given the option of performing the chalitza ceremony, whereby the woman becomes permitted to marry whomever she wishes.

            Among the classic questions that arise in the analytical study of the laws of yibum is the precise definition of this law, forbidding a childless widow from marrying anyone else until chalitza.  One might explain that in a yibum situation, where a married man with a brother dies without children, the ishut – the marital bond between him and wife – continues even after his death.  Whereas normally this bond terminates upon a husband’s death, thus permitting the wife to remarry, in this instance the bond continues after death.  Alternatively, one might argue that an ishut status cannot possibly extend beyond one partner’s death.  Rather, in a yibum situation, the Torah imposes a new bond between the widow and her brother-in-law, resulting in a prohibition for her to marry another man.  According to this approach, the bond between the two is not an extension of the original ishut that bound the woman to her first husband, but rather a new relationship imposed by the Torah after the husband’s death.

            Said otherwise, these two approaches differ in identifying the source of the woman’s prohibition to marry another man.  The first approach claims that the initial prohibition that was in effect during her husband’s lifetime simply remains, whereas the second approach sees this prohibition as originating with the brother-in-law, who is bound by Torah law to marry the widow.

            This question very likely underlies a debate between Rav and Shemuel recorded in Masekhet Yevamot (95b), concerning the halakhic status of the widow during the interim period, as she waits for either yibum or chalitza.  According to Rav, Halakha considers her legally equivalent to a married woman.  Therefore, should she engage in relations with another man, she may no longer marry the brother-in-law, just as a married woman may not resume marital relations with her husband after she betrays him.  In addition, if another man betroths the widow during the interim period, the betrothal is of no halakhic significance whatsoever, just as betrothal of a married woman is halakhically meaningless.  Rav apparently felt that the original ishut between the woman and her first husband remains in effect after his death in a yibum situation, and thus she retains the status of eishet ish (a married woman).  Shemuel, by contrast, held that the widow does not become forbidden to her brother-in-law should she engage in relations with another man, and that betrothal by another man is indeed binding during this interim period.  Evidently, Shemuel understood the prohibition as resulting from a new relationship imposed by the Torah between the widow and her brother-in-law.  Since this bond is not the standard husband-wife relationship, it does not yield the same repercussions in situations of infidelity or betrothal by another man.

            This question also appears to underlie the Gemara’s discussion in Masekhet Kiddushin (14a), where it searches for the source permitting a widow in a yibum situation to remarry if the brother-in-law dies.  The Gemara initially tries to derive this halakha from the more common case of a husband’s death in a non-yibum situation, which obviously renders the widow permissible to other men.  The Gemara notes that the prohibition against a married woman’s infidelity is deemed halakhically more severe than the prohibition forbidding a widow awaiting yibum to engage in relations with another man.  Therefore, if a husband’s death eliminates the grave prohibition forbidding her to other men, then the brother-in-law’s passing most certainly does the same in a yibum situation, where the prohibition we seek to terminate is less severe.  The Gemara suggests dismissing this argument, noting that in the standard case of a married woman, it stands to reason that the husband’s death results in her permissibility, since it was he who initiated the original status of prohibition by betrothing her.  The same cannot be said about the brother-in-law in a yibum situation, who did not trigger the prohibited status.  Clearly, this argument presumes that the prohibition in a yibum situation results from the ongoing ishut between the wife and her first husband, which extends even after death.  We therefore cannot point to the brother-in-law as the source of this prohibition, and we might therefore not assume that his death renders her permissible.  But the Gemara then cites Rav Ashi as responding that in truth, the brother-in-law is indeed the one who created the prohibition.  In his view, the original ishut dissolves after the husband’s death, and the prohibition against the wife’s marriage with another man results from a new status imposed by the Torah between her and her brother-in-law.  Thus, we may indeed deduce that the widow may marry after the brother-in-law’s death, since he is the source of the initial prohibition, just as in the standard case of a husband’s death.

(Taken from an article by Rav Dr. Samuel Belkin in Yeshiva University’s 1986 publication, Yevul Ha-yovlot)

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            Parashat Ki-Teitzei begins with the laws of eishet yefat to’ar – literally, “the attractive woman” – referring to a gentile woman taken captive during battle.  The Torah permits a soldier to take a captive woman as a wife after the procedure outlined in the first verses of this parasha.

            Rashi, commenting on the word eishet, writes, “afilu eishet ish” – “even a married woman.”  Meaning, the Torah permits taking an eishet yefat to’ar even if she was married.  Chizkuni and Malbim explain that Chazal extracted this point from the Torah’s use of the word eishet – which generally means “wife of” – rather than simply isha – “woman.”  The Hebrew expression for “attractive woman” is normally isha yefat to’ar; the fact that the Torah here employs the word eishet alludes to the extension of this law to include even an eishet ish – a married woman.

            However, Rav Eliyahu Mizrachi and the Levush Ha-ora, two of the classic works on Rashi’s commentary, note that we indeed find the word eishet used in place of isha, to mean “woman” rather than “wife of”: “Neifel eishet bal chazu shamesh” (“Stillborns of a woman have never seen the sun” – Tehillim 58:9).  Therefore, the use of the term eishet to describe the captive woman does not necessarily imply that the Torah speaks of a married woman.  Rav Eliyahu Mizrachi therefore suggests that Chazal viewed the word eishet as otherwise unnecessary in this verse.  The Torah could have simply described a soldier who comes upon a yefat to’ar – an attractive woman.  The superfluous word eishet, Rav Eliyahu Mizrachi claims, indicated to Chazal that this law extends even to married captives.

            Rav Yaakov Kaminetzky, in his Emet Le-ya’akov, suggests a slightly different reading of the Sifrei’s inference.  Rav Kaminetzky postulates that at times the Torah will use the semikhut form (a grammatical contraction device whereby the word “of” can be omitted from a phrase, such as by using eishet rather than isha shel) without explicitly mentioning the second noun.  He cites as an example the word aron (ark).  Although the word aron is a noun in the masculine form, we nevertheless find it spoken of in the feminine form (e.g. Shemuel I 4:17; Divrei Hayamim II 8:11).  Rav Kaminetzky explains that Scripture sometimes uses the word aron as shorthand for the term aron ha-berit (ark of the covenant) or aron ha-eidut (ark of testimony), in which case it understandably assumes the feminine form.  Similarly, he suggests, the word eishet was perhaps taken by Chazal as a shorthand reference to the full expression, eishet ish, and on this basis concluded that the laws of eishet yefat to’ar apply equally to single and married captive women.

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            Towards the beginning of Parashat Ki-Teitzei (21:15-17), the Torah discusses the issue of the bekhora, or birthright, whereby a firstborn receives a double portion of a father’s inheritance.  The Torah forbids transferring birthright privileges to another son, even if a younger son was born by his more favored wife: “Should a man have two wives – one who is loved, and one who is despised – and the firstborn is that of the despised wife… he may not grant birthright privileges to the son of the loved wife over the son of the despised wife.”

            The Chatam Sofer (responsa, 6:52) was asked to reconcile these verses with a famous theory established by the Taz, in several places in his work on the Shulchan Arukh (O.C. 588, Y.D. 117).  The Taz asserted that although the Torah grants the rabbinic authorities (when there exists a central authoritative body) the power to legislate and even suspend Torah law when they deem it necessary, they may not enact a law that runs counter to an explicit verse in the Torah.  Thus, for example, once the Torah explicitly permits selling meat of a neveila (an animal that was not slaughtered according to halakha) to a gentile, Chazal are not licensed to forbid doing so.  (They forbade only purchasing such meat for the purpose of selling it for a profit.)  If so, then the question arises how Rabbenu Gershom was permitted to issue a ban against polygamy (around the year 950 CE).  Since the Torah here in Parashat Ki-Teitzei very clearly sanctions the marriage of two wives, forbidding only giving preference to the younger son over the older son, Rabbenu Gershom should not have had the power to issue such a ban.

            The Chatam Sofer answered by distinguishing between two types of rabbinic legislation: a gezeira (rabbinic decree), and a cherem (ban).  A gezeira is the more familiar type of enactment, whereby the Jewish people’s central rabbinic authority issues laws binding on the entire nation, as they see fit in order to ensure proper observance of the Torah (such as refraining from blowing the shofar when Rosh Hashanah occurs on Shabbat).  A cherem, however, such as that imposed by Rabbenu Gershom, operates much differently, on a communal, rather than national, scale.  Citing from the Ramban’s Mishpat Ha-cherem, the Chatam Sofer explains that a cherem is essentially a communal neder – a provision taken on by a community, corresponding to a personal oath taken by an individual.  Rabbenu Gershom’s cherem was exceptional in that its sphere of influence covered all of German Jewry, rather than a single community.  Fundamentally, however, it operates according to the same halakhic mechanism as a standard cherem, a provision taken on by a community at the behest of its rabbinic leadership.

            Therefore, the explicit reference in the Torah to polygamous marriages did not stand in the way of Rabbenu Gershom’s ban.  Just as an individual can take a personal neder to refrain from something explicitly permitted by the Torah, so can a community accept a cherem banning an activity which the Torah expressly permits.

            A simpler answer is suggested by Rav Yosef Schwartz of Grosvarden, in his Ginzei Yosef (154), who points out that the Torah does not, in fact, explicitly sanction polygamy in this verse.  The Torah here does not specify when the man married the second wife; it perhaps speaks of a case where one married the more beloved wife after having divorced the despised wife or after her death.  The verse can just as easily be read to mean that the husband married the two wives successively, and thus it does not make any clear reference to a polygamous marriage.

(Taken from the work Ke-motzei Shalal Rav, Sefer Devarim)