CHAPTER XLIX
The precepts of the fourteenth class are those which we enumerated in the Section on Women, the Laws concerning forbidden sexual intercourse, and [[373]]cross-breeding of cattle (Sefer nashim, Hilkot issure biah ve-kalee behemah). The law concerning circumcision belongs also to this class. The general purpose of these precepts has already been described by us. We will now proceed to explain them singly.
It is well known that man requires friends all his lifetime. Aristotle explains this in the ninth book of his Nikomachean Ethics. When man is in good health and prosperous, he enjoys the company of his friends; in time of trouble he is in need of them; in old age, when his body is weak, he is assisted by them. This love is more frequent and more intense between parents and children, and among [other] relations. Perfect love, brotherhood, and mutual assistance is only found among those near to each other by relationship. The members of a family united by common descent from the same grandfather, or even from some more distant ancestor, have towards each other a certain feeling of love, help each other, and sympathize with each other. To effect this is one of the chief purposes of the Law. Professional harlots were therefore not tolerated in Israel (Deut. xxiii. 18), because their existence would disturb the above relationship between man and man. Their children are strangers to everybody; no one knows to what family they belong; nor does any person recognize them as relatives. And this is the greatest misfortune that can befall any child or father. Another important object in prohibiting prostitution is to restrain excessive and continual lust; for lust increases with the variety of its objects. The sight of that to which a person has been accustomed for a long time does not produce such an ardent desire for its enjoyment as is produced by objects new in form and character. Another effect of this prohibition is the removal of a cause for strife; for if the prohibition did not exist, several persons might by chance come to one woman, and would naturally quarrel with each other; they would in many cases kill one another, or they would kill the woman. This is known to have occurred in days of old, “And they assembled themselves by troops in a harlot’s house” (Jer. v. 7). In order to prevent these great evils, and to effect the great boon that all men should know their relationship to each other, prostitutes (Deut. xxiii. 17) were not tolerated, and sexual intercourse was only permitted when man has chosen a certain female, and married her openly; for if it sufficed merely to choose her, many a person would bring a prostitute into his house at a certain time agreed upon between them, and say that she was his wife. Therefore it is commanded to perform the act of engagement by which he declares that he has chosen her to take her for his wife, and then to go through the public ceremony of marriage. Comp. “And Boaz took ten men,” etc. (Ruth iv. 2). It may happen that husband and wife do not agree, live without love and peace, and do not enjoy the benefit of a home; in that case he is permitted to send her away. If he had been allowed to divorce her by a mere word, or by turning her out of his house, the wife would wait for some negligence [on the part of the husband], and then come out and say that she was divorced; or having committed adultery, she and the adulterer would contend that she had then been divorced. Therefore the law is that divorce can only take place by means of a document which can serve as evidence, “He shall write her a bill of divorcement” (Deut. xxiv. 1). There are frequently occasions for suspicion of adultery and doubts concerning the conduct of the wife. Laws [[374]]concerning a wife suspected of adultery (sotah) are therefore prescribed (Num. v.); the effect of which is that the wife, out of fear of the “bitter waters,” is most careful to prevent any ill-feeling on the part of her husband against her. Even of those that felt quite innocent and safe most were rather willing to lose all their property than to submit to the prescribed treatment; even death was preferred to the public disgrace of uncovering the head, undoing the hair, rending the garments and exposing the heart, and being led round through the Sanctuary in the presence of all, of women and men, and also in the presence of the members of the Synhedrion. The fear of this trial keeps away great diseases that ruin the home comfort.
As every maiden expects to be married, her seducer therefore is only ordered to marry her; for he is undoubtedly the fittest husband for her. He will better heal her wound and redeem her character than any other husband. If, however, he is rejected by her or her father, he must give the dowry (Exod. xxii. 15). If he uses violence he has to submit to the additional punishment, “he may not put her away all his days” (Deut. xxii. 29).
The reason of the law concerning marrying the deceased brother’s wife is stated in the Bible (Deut. xxv. 5). It was a custom in force before the Law was given, and the Law perpetuated it. The ceremony of ḥaliẓah (ibid. 6, seq.), “taking off the shoe,” has been introduced, because in those days it was considered disgraceful to go through that ceremony, and in order to avoid the disgrace, a person might perhaps be induced to marry his deceased brother’s wife. This is evident from the words of the Law: “So shall it be done unto that man that will not build up his brother’s house. And his name shall be called in Israel, The house of him that hath his shoe loosed” (Deut. xxv. 9). In the action of Judah we may perhaps notice an example of a noble conduct, and uprightness in judgment. He said: “Let her take it to her, lest we be shamed; behold, I sent this kid, and thou hast not found her” (Gen. xxxviii. 23). For before the Lawgiving, the intercourse with a harlot was as lawful as cohabitation of husband and wife since the Lawgiving; it was perfectly permitted, nobody considered it wrong. The hire which was in those days paid to the harlot in accordance with a previous agreement, corresponds to the ketubah which in our days the husband pays to his wife when he divorces her. It is a just claim on the part of the wife, and the husband is bound to pay it. The words of Judah, “Let her take it to her, lest we be shamed,” etc., show that conversation about sexual intercourse, even of that which is permitted, brings shame upon us; it is proper to be silent about it, to keep it secret, even if the silence would lead to loss of money. In this sense Judah said: It is better for us to lose property, and to let her keep what she has, than to make our affair public by inquiring after her, and bring still more shame upon us. This is the lesson, as regards conduct, to be derived from this incident. As to the uprightness to be learned therefrom, it is contained in the words of Judah when he wanted to show that he had not robbed her, that he has not in the least departed from his agreement with her. For he said, “Behold, I sent this kid, and thou hast not found her.” The kid was probably very good, therefore he points to it, saying, “this kid.” This is the uprightness which he had inherited from Abraham, Isaac, and Jacob: that man must not depart from his given word, nor deviate from what he agreed upon; but he must give to others all that [[375]]is due to them. It makes no difference whether he holds a portion of his neighbour’s property as a loan or a trust, or whether he is in any other way his neighbour’s debtor, owing him wages or the like.
The sum which the husband settles upon his wife (ketubah) is to be treated in the same way as the wages of a hired servant. There is no difference whether a master withholds the wages of a hired servant, or deprives his wife of that which is due to her; whether a master wrongs a hired servant, and brings charges against him with the intention to send him away without payment, or a husband treats his wife in a manner that would enable him to send her away without the payment of the promised sum.
The equity of the statutes and judgments of the Law in this regard may be noticed in the treatment of a person accused of spreading an evil report about his wife (Deut. xxii. 13, seq.). There is no doubt that the man that did this is bad, does not love his wife, and is not pleased with her. If he desired to divorce her in a regular manner, there is nothing to prevent him, but he would be bound to give her what is due unto her; but instead of this, “he gives occasion of speech against her” (ibid. xxii. 14), in order to get rid of his wife without paying anything; he slanders her, and utters falsehood in order to keep in his possession the fifty shekels of silver, the dowry fixed in the Law for maidens, which he is obliged to pay unto her. He is therefore sentenced to pay one hundred shekels of silver, in accordance with the principle, “Whom the judges shall condemn, he shall pay double unto his neighbour” (Exod. xxii. 9). The Law is also analogous to that about false witnesses, which we have explained above (chap. xli. p. 195). For he intended to cheat her of her fifty shekels of silver, he must therefore [add fifty, and] pay her a hundred shekels. This is his punishment for withholding from her her due, and endeavouring to keep it. But in so far as he degraded her, and spread the rumour that she was guilty of misconduct, he was also degraded, and received stripes, as is implied in the words, “and they shall chastise him” (Deut. xxii. 18). But he sinned besides in clinging to lust, and seeking only that which gave pleasure to him; he was therefore punished by being compelled to keep his wife always, “he may not put her away all his days” (ibid. 19); for he has been brought to all this only because he may have found her ugly. Thus are these bad habits cured when they are treated according to the divine Law; the ways of equity are never lost sight of; they are obvious and discernible in every precept of the Law by those who consider it well. See how, according to the Law, the slanderer of his wife, who only intended to withhold from her what he is bound to give her, is treated in the same manner as a thief who has stolen the property of his neighbour; and the false witness (Deut. xix. 16, seq.) who schemes to injure, although the injury was in reality not inflicted, is punished like those who have actually caused injury and wrong, viz., like the thief and the slanderer. The three kinds of sinners are tried and judged by one and the same law. See how wonderful are the divine laws, and admire His wonderful deeds. Scripture says: “The Rock, His work is perfect; for all His ways are judgment” (Deut. xxxii. 4), i.e., as His works are most perfect, so are His laws most equitable; but our mind is too limited to comprehend the perfection of all His works, or the equity of all His laws; and as we are able to comprehend some of His wonderful works in the organs of living [[376]]beings and the motions of the spheres, so we understand also the equity of some of His laws; that which is unknown to us of both of them is far more than that which is known to us. I will now return to the theme of the present chapter.
The law about forbidden sexual intercourse seeks in all its parts to inculcate the lesson that we ought to limit sexual intercourse altogether, hold it in contempt, and only desire it very rarely. The prohibition of pederasty (Lev. xviii. 22) and carnal intercourse with beasts (ibid. 23) is very clear. If in the natural way the act is too base to be performed except when needed, how much more base is it if performed in an unnatural manner, and only for the sake of pleasure.
The female relatives whom a man may not marry are alike in this respect—that as a rule they are constantly together with him in his house; they would easily listen to him, and do what he desires; they are near at hand, and he would have no difficulty in procuring them. No judge could blame him if found in their company. If to these relatives the same law applied as to all other unmarried women, if we were allowed to marry any of them, and were only precluded from sexual intercourse with them without marriage, most people would constantly have become guilty of misconduct with them. But as they are entirely forbidden to us, and sexual intercourse with them is most emphatically denounced unto us as a capital crime, or a sin punishable with extinction (karet), and as there is no means of ever legalizing such intercourse, there is reason to expect that people will not seek it, and will not think of it. That the persons included in that prohibition are, as we have stated, at hand and easily accessible, is evident. For as a rule, the mother of the wife, the grandmother, the daughter, the granddaughter, and the sister-in-law, are mostly with her; the husband meets them always when he goes out, when he comes in, and when he is at his work. The wife stays also frequently in the house of her husband’s brother, father, or son. It is also well known that we are often in the company of our sisters, our aunts, and the wife of our uncle, and are frequently brought up together with them. These are all the relatives which we must not marry. This is one of the reasons why intermarriage with a near relative is forbidden. But according to my opinion the prohibition serves another object, namely, to inculcate chastity into our hearts. Licence between the root and the branch, between a man and his mother, or his daughter, is outrageous. The intercourse between root and branch is forbidden, and it makes no difference whether the male element is the root or the branch, or both root and branch combine in the intercourse with a third person, so that the same individual cohabits with the root and with the branch. On this account it is prohibited to marry a woman and her mother, the wife of the father or of the son; for in all these cases there is the intercourse between one and the same person on the one side and root and branch on the other.
The law concerning brothers is like the law concerning root and branch. The sister is forbidden, and so is also the sister of the wife and the wife of the brother; because in the latter cases two persons who are considered like root and branch, cohabit with the same person. But in these prohibitions brothers and sisters are partly considered as root and branch and partly as one body; the sister of the mother is therefore like the mother, and the [[377]]sister of the father like the father, and both are prohibited; and since the daughter of the parent’s brother or sister is not included in the number of prohibited relatives, so may we also marry the daughter of the brother or the sister. The apparent anomaly, that the brother of the father may marry a woman that has been the wife of his brother’s son, whilst the nephew must not marry a woman that has been the wife of his father’s brother, can be explained according to the above-mentioned first reason. For the nephew is frequently in the house of his uncle, and his conduct towards the wife of his uncle is the same as that towards his brother’s wife. The uncle, however, is not so frequent in the house of his nephew, and he is consequently less intimate with the wife of his nephew; whilst in the case of father and son, the familiarity of the father with his daughter-in-law is the same at that of the son with the wife of his father, and therefore the law and punishment is the same for both [father and son]. The reason why it is prohibited to cohabit with a menstruous woman (Lev. xviii. 19) or with another man’s wife (ibid. 20), is obvious, and requires no further explanation.