Is polygamy prohibited? The halachic status of post-Talmudic rulings and customs

 By Shmuli Phillips and מרדכי איש ימיני

In what feels almost like a footnote to the detailed account of the search for Yitzchak’s spouse, Chaye Sarah concludes with details of Avraham’s final marriage – to Keturah. Unlike Avraham’s previous marital setup, he now appears to be following his son's monogamous arrangement which the Torah has described in glowing terms: “And Yitzchak brought her to the tent of Sarah his mother, and he took Rivka, and she became his wife, and he loved her. And Isaac was comforted for his mother”.

Judaism Reclaimed highlights the Torah’s negative attitude towards polygamy: monogamous marriage is frequently invoked by the prophets as a symbol of the union between God and the Jewish People, while polygamy is compared to polytheism and idolatrous worship. This strong sentiment against polygamy is further reflected in the fact that prophets and sages were not known to have had more than one wife, unless under the most exceptional circumstances.

About 1,000 years ago in Germany, R’ Gershom ben Yehuda arranged a mass gathering of sages to issue decrees which, among other things, would seek to formalise this disapproval of polygamy into an outright ban. The ban took hold across European Jewish communities which, to this day, have ceased to practice any form of polygamy. Nevertheless, certain challenges have been posed to the legal status of R’ Gershom’s rulings. One question relates to the intended length of the ban, a matter discussed by R’ Gil Student in this post - https://www.torahmusings.com/2011/07/polygamy-a-bad-idea/.

A more fundamental challenge however relates to the very legality and binding nature of any Rabbinic edict in the post-Talmudic era. In his introduction to Mishneh Torah, Rambam contrasts the legal status of rulings issued before and after the conclusion of the Babylonian Talmud:

Ravina, R’ Ashi and their colleagues [compilers of the Babylonian Talmud] represent the final era of the great Sages of Israel who transmitted the Oral Law. They passed decrees, ordained practices, and put into effect customs. These decrees, ordinances, and customs spread out among the entire Jewish people in all the places where they lived…

Every Court that was established after the conclusion of the Talmud, regardless of the country in which it was established, issued decrees, enacted ordinances, and established customs for the people of that country - or those of several countries. These practices, however, were not accepted throughout the Jewish people, because of the distance between [their different] settlements and the disruption of communication [between them].

As a result of this lower legal status of post-Talmudic rulings:

People in one country could not be compelled to follow the practices of another country, nor is one court required to sanction decrees which another court had declared in its locale. Similarly, if one of the Geonim interpreted the path of judgment in a certain way, while the court which arose afterward interpreted the proper approach to the matter in a different way, the [opinion of the] first [need] not be adhered to [absolutely]. Rather, whichever [position] appears to be correct - whether the first or the last - is accepted.

Taken at face value, Rambam’s words have severe implications for the binding nature of post-Talmudic bans against polygamy (and similarly kitniyot on Pesach). It would appear that the authority of such rulings would be limited to the specific time and place of the Beit Din which issued the decree.

Creative suggestions have been made to find basis for binding post-Talmudic Rabbinic law. R’ Yosef Karo argues that broad consensus among sages can in itself generate binding legal status. This is explained by R’ Elchanan Wasserman to mean that a consensus/unanimous agreement of sages creates some form of “National Rabbinic Authority” which is equivalent to the ruling of Sanhedrin [for more on these suggestions see chap. 61 at https://judaismreclaimed.com/sample/). The implications of such arguments for the status of R’ Gershom’s polygamy edict are spelled out by Rabbeinu Asher: “His decrees are established as if they were given from Sinai because [the people] accepted them upon themselves and transmitted them generation after generation”.

Nevertheless, the simple meaning of Rambam’s words remains that unless a law was duly discussed and voted upon on the “senate floor” of a National Court – seemingly including the Talmudic Courts of Ravina and R’ Ashi – then it has no binding authority. Therefore, even if we accept that polygamy and kitniyot were banned in Franco-Germanic lands by a properly constituted local Beit Din, and that these bans were widely accepted, they were never properly restated by subsequent courts in Europe or Sephardic communities. The procedural requirement for such bans to remain legally binding was not met and therefore polygamy and kitniyot would not be forbidden halachically for any Jews today, regardless of their ethnicity.

It is important to note that this post specifically addresses the status of R’ Gershom’s ruling according to Rambam’s understanding of the halachic system. In countries where polygamy is illegal under secular law it would be forbidden to practice it under the principle that laws of the land have halachic status dine demalchuta dina. [EDIT: SEE THE FACEBOOK COMMENTS SECTION WHERE THIS HAS BEEN DISPUTED].

On a separate note, Rambam’s teaching can be understood to challenge popular distinctions for purposes of law and custom between Ashkenazim and Sepharadim (and subdivisions within these groups). What is halachically binding is the ruling of a Beit Din. What may superficially appear to have been an ethnic division of halacha or custom between different halachic communities may, in reality, merely be the result of different Courts under different circumstances that ruled to the best of their understanding.

According to Rambam, the only permanent and universally binding laws and customs are those issued or affirmed by the last National Court ruling, the Talmud’s conclusions. There is no valid ethnic divide for halachah or custom between European and Middle-Eastern or North-African Jews. In the post-Talmudic era, we are all bound to follow the enactments of the Beit Din in our locale regardless of our ethnicity. The notion of two such Courts in one locale, even a separate Sephardic and Ashkenazi Court, may be (even biblically) forbidden and can invalidate both courts. How Rambam’s ruling can be applied practically in today’s era of the global village and multi-ethnic Jewish communities presents the opportunity for some fascinating discussion.

First posted on Facebook 11 November 2020, here.

Shu"t First, Ask Questions Later

Thanks so much to Rav Moshe Kurtz for hosting a fascinating discussion on his "Shu"t First Ask Questions Later" podcast, where we discussed fundamental principles of whether there can be binding rabbinic authority in the post-Talmudic era in the context of a dispute between Rambam and a Rosh Yeshiva of Bavel... 

https://www.facebook.com/photo/?fbid=3773061649591147&set=a.1376575852573084

Nu, who got the reference??

https://open.spotify.com/episode/3sFsT7d2mqTf86hqFpoTtr...

A pleasure learning from Rabbi Shmuli Phillips! Info and the best links for buying books are at www.TalmudReclaimed.com.

First published on Facebook 16 May 2024

A rabbinic response to sacrificial price gouging

Attempts to identify external motive behind rabbinic interpretations or applications of hermeneutical derashot typically produce claims and theories which rely on a great deal of speculation. Taken at face value, legislative disputes among the sages seem to be based almost exclusively upon their contrasting assessments as to which application of Talmudic logic and rules of scriptural interpretation is deemed the most persuasive. As Talmud Reclaimed explores, however, the Sanhedrin was also required to consider the needs of the generation when processing and voting on these details of biblical law. 

Consider these words of the Yad Malachi (a similar principle emerges from the Meshech Chochma): 

“Regarding middot and other interpretative tools through which the Torah is expounded: new laws were formulated throughout the generations according to the needs of the times, and they directed them in the form of full derashot in accordance with transmitted principles.” 

The difficulty which remains for us is to determine how and to what extent practical considerations and needs of the generation were balanced with the purely logical and interpretive principles and arguments which appear to dominate the Midrashei Halacha? 

One of the most insightful and illustrative examples in rabbinic literature relates to a law which we read about at the start of yesterday’s parashah. The parshiyot of Tazria and Metzorah describe the korbanot that a woman is required to bring after giving birth, miscarrying or being subject to certain forms of bodily discharge. It would seem that many families who lived far from Jerusalem would only visit the Mikdash on relatively rare occasions – presumably around a pilgrimage festival. The pressing question therefore emerged: For a woman who has experienced multiple births, miscarriages or discharges, is she obliged to bring an additional korban for each distinct obligation or does it suffice for her to offer a single combined korban for all of them? 

As understood by the Gemara (Keritot 8a), each of these positions is advanced by one set of Tannaim, supported by their respective applications of standard Talmudic hermeneutical principles in order to derive this new law from existing precedents. The law initially appears to have been established by the Sanhedrin in accordance with the stricter interpretation, which required a far greater number of korbanot to be brought by these women. What then transpired is related by a Mishnah there: 

It happened in Jerusalem that the price of a pair of doves rose to a golden denar. Rabban Shimon ben Gamliel said: By this sanctuary, I shall not go to sleep tonight before they cost but a [silver] denar! Then he entered the court and taught: if a woman had five certain births or five discharges she needs to bring only one offering, and she may then eat sacrifices, and she is not liable to bring the other [offerings]. Thereupon the price of a pair of birds stood at a quarter of a [silver] denar each. 

As understood by a number of Rishonim to this passage, Rabban Shimon ben Gamliel reacted to the extortionate pricing of doves by re-entering the Sanhedrin and persuading his colleagues to rule instead according to the more lenient derashah. If this is all correct it provides us with a key insight into how the Sanhedrin combined Talmudic wisdom and practical expediency in reaching their conclusions. Yes – it is true – that Rabban Shimon ben Gamliel and his Sanhedrin were prepared to reverse their initial ruling in order to make the sacrificial obligation affordable for women. But crucially, both the initial stricter interpretation as well as the subsequent more lenient retraction were in line with pre-existing Tannaic derashot, therefore both fitting within the parameters of legitimate legislative possibility.

First posted on Facebook 16 April 2024, here.

Could the Sages completely change the meaning of a Biblical verse?

One of the primary questions dealt with in Talmud Reclaimed is the extent to which the sages and Sanhedrin were empowered by the Torah to legislate and amend aspects of biblical law. Yesterday’s Torah reading contained a fascinating case study which suggests that the sages were delegated so much legislative power that they could even, on occasion, alter the meaning of seemingly explicit verses. 

The passage in question concerns details of which burials of family members a kohen (priest) may attend in spite of the overarching prohibition against his becoming ritually impure. Initially, it would seem, the Torah viewed the wife’s burial as being the primary responsibility of her father and family in which she was raised. As social realities and values changed, the sages via the Sanhedrin were pressed to apply Torah law to the new circumstances (see R’ Amnon Bazaq Nitzchuni Banai, Hebrew, for more details).

The verses read:

“Let none [of you] defile himself for a dead person among his people except for “she’ero” who is close to him: his mother, his father, his son, his daughter, his brother…[But] a husband shall not defile himself [for a wife] among his people, “lehechalo.”

In his commentary to this passage, Ibn Ezra notes that the basic meaning of the word she’ero is an umbrella term which covers all close relatives for whom a kohen may become involved in their burial, even though he will become impure by doing so. Meanwhile, the final clause appears explicitly to exclude a wife from this list of close relatives.

However, continues Ibn Ezra, the sages have transmitted to us that a kohen must bury his wife despite the fact that he will contract ritual impurity by doing so. In order to do this, he continues, they reread she’ero to mean “wife” [i.e. his specific close relative] – who is now included in the list of exceptional relatives whom a kohen is obliged to bury. Most significantly, in the final clause, the sages “annulled the original meaning” of the verse in order to interpret it to be teaching that the only sort of wife for whose burial a kohen should not make himself ritually impure is one whom he was forbidden to marry in the first place.

Ibn Ezra indicates that this technique of altering the meaning of a verse, which he understands to have been the case with she’ero, is one that the sages employed on numerous occasions – further potential examples of this phenomena are analysed elsewhere in Talmud Reclaimed.

Rambam by contrast, while accepting the ability of the sages to amend Torah law, does not seem to embrace the suggestion that they could so radically alter the meaning of a verse. Rather, writing in Hilchot Avel (2:7, see Radvaz) he appears to follow the Talmud’s explanation that the sages (via the Sanhedrin) legally categorised a wife as a form of met mitzvah – abandoned corpse – that even a kohen would be permitted to bury. The husband as the sole inheritor was then required to take responsibility for burying her. Rather than changing the meaning of the verse, Rambam preferred to stretch the limits of existing legal exceptions to work around the Torah’s initial position which prohibited the kohen from burying his wife. 

Whether this shift involved the Sanhedrin assigning a new meaning to the verse as Ibn Ezra argues, or significantly extending the scope of met mitzva as Rambam rules, do we have a way of knowing when this change might have taken place? 

Unfortunately we have received few if any of the court records from early generations of the Sanhedrin. However a verse from Yechezkel, read in yesterday’s Haftarah seems to provide some insight here. 

Reviewing a number of the priestly laws, Yechezkel paraphrases our parasha’s verse stating: 

“To no human corpse shall they come to defile themselves, except to father and to mother and to son and to daughter, to brother and to a sister who has had no husband, shall they defile themselves.” (44:25)

No mention at all is made of a husband’s obligation – or even permission – to bury his wife. This implies that the change would have taken place during the Second Mikdash period. 

More about Talmud Reclaimed: An ancient text in the modern era can be found at www.TalmudReclaimed.com.

First posted on Facebook 19 May 2024.

The peculiar demonic prohibition of not "eating on the blood"

Yesterday’s Torah reading included a most unusual commandment which has been interpreted in numerous different ways: “Do not eat on the blood”. What might be the nature of the activity prohibited here?

From the context – a verse containing prohibitions against soothsaying and divination – it would seem that “eating on the blood” is forbidding some sort of parallel activity (Vayikra 19:26). Indeed, in his explanations of the commandments in the third section of the Moreh (3:46), Rambam interprets this law with reference to an ancient pagan rite in which participants poured the blood of animals into a pit and then ate food over it – in the apparent belief that this would provide them some kind of supernatural powers of insight (see also Ibn Ezra).

Yet in his legal codes, Rambam interprets this prohibition in an entirely different fashion, drawing upon the teachings of the Oral Tradition which offers a long list of very different applications of “not eating on the blood”, connecting it first with the law of the wayward and rebellious son, and then to other forms of prohibited eating such as (i) not eating an animal until its blood has been properly processed, (ii) not eating before prayer, and (iii) when addressed to judges, eating at the time they hand down a death penalty.

Talmud Reclaimed notes the unusual relationship here between the Written and Oral teachings. The typical structure of a commandment, as we demonstrate at length, is a core immutable teaching (either explicit in the biblical text or a “perush mekubal” transmitted through the Oral Tradition) which contains the primary intent of the law. The finer details are then delegated to the Sanhedrin of each generation to define and legislate in accordance with their application of Talmudic wisdom, hermeneutical principles and in the context of the needs of that generation.

But with the prohibition of “do not eat on the blood”, something very different is happening. This law is categorised as a “Lav Shebichlalot”, meaning that there is no clear transmitted action that it prohibits. Instead the Court is empowered to legislate prohibitions which accord with its umbrella meaning – in this case some kind of demonic or uncivilised eating. This would appear to mean that the Court is empowered even to disapply the seemingly literal meaning of eating over a blood-pit, and identify entirely new forms of this biblical law. Nevertheless, since no specific action is proscribed by the Torah, the biblical punishment of lashes cannot be applied to the breach of this commandment (ein lokin al lev shebichlalot - see further Kessef Mishneh to Hilchot Avodah Zarah 12:14, commentary of Rabbi S. R. Hirsch to the verse, Talmud Reclaimed chap. 5).

Another fascination feature of this prohibition, discussed later in the book, is the way in which one of its applications – which is known only from the Oral Tradition – appears to have been referenced early in the First Temple period. It is often hard to offer any degree of proof to support the antiquity of the Oral Tradition – after all exclusively oral teachings typically leave little if any historical footprint. It is therefore highly significant that, when King Shaul’s famished army hurriedly slaughters animals to eat, he rebukes them for “eating on the blood” – clearly referencing our verse in a way which appears to rely on the interpretation of the Oral Tradition which includes in its words a prohibition against eating an animal until its blood has been properly removed (I Shmuel 14:31).

Far from being a Tannaitic rereading of a verse concerned solely with banning occult practices, a tradition of the prohibition’s broader interpretation can be seen to have existed as early as the time of Shaul, the first Jewish king.

May Israel continue to stand tall and proud in the face of the surrounding hate-filled critics and their demonic behaviour.

First posted on Facebook 12 May 2024, here.