From the Talmudology Archives: Was There a Chanukah Miracle?

שבת כא, ב

מַאי חֲנוּכָּה? דְּתָנוּ רַבָּנַן: בְּכ״ה בְּכִסְלֵיו יוֹמֵי דַחֲנוּכָּה תְּמָנְיָא אִינּוּן דְּלָא לְמִסְפַּד בְּהוֹן וּדְלָא לְהִתְעַנּוֹת בְּהוֹן. שֶׁכְּשֶׁנִּכְנְסוּ יְווֹנִים לַהֵיכָל טִמְּאוּ כׇּל הַשְּׁמָנִים שֶׁבַּהֵיכָל. וּכְשֶׁגָּבְרָה מַלְכוּת בֵּית חַשְׁמוֹנַאי וְנִצְּחוּם, בָּדְקוּ וְלֹא מָצְאוּ אֶלָּא פַּךְ אֶחָד שֶׁל שֶׁמֶן שֶׁהָיָה מוּנָּח בְּחוֹתָמוֹ שֶׁל כֹּהֵן גָּדוֹל, וְלֹא הָיָה בּוֹ אֶלָּא לְהַדְלִיק יוֹם אֶחָד. נַעֲשָׂה בּוֹ נֵס וְהִדְלִיקוּ מִמֶּנּוּ שְׁמוֹנָה יָמִים. לְשָׁנָה אַחֶרֶת קְבָעוּם וַעֲשָׂאוּם יָמִים טוֹבִים בְּהַלֵּל וְהוֹדָאָה. 

What is Chanukah, and why are lights kindled on Chanukah? The Gemara answers: The Sages taught in Megillat Ta’anit: On the twenty-fifth of Kislev, the days of Chanukah are eight. One may not eulogize on them and one may not fast on them. What is the reason? When the Greeks entered the Sanctuary they defiled all the oils that were in the Sanctuary by touching them. And when the Hasmonean monarchy overcame them and emerged victorious over them, they searched and found only one cruse of oil that was placed with the seal of the High Priest,undisturbed by the Greeks. And there was sufficient oil there to light the candelabrum for only one day. A miracle occurred and they lit the candelabrum from it eight days. The next year the Sages instituted those days and made them holidays with recitation of hallel and special thanksgiving in prayer and blessings.

The miracle of the oil that was meant to burn for only one day yet stretched out for eight is a deeply beloved story whose origin in only briefly mentioned in the Talmud. It is fascinating therefore to learn that the great Russian maskil Chaim Zelig Slonimski, (a Talmudology hero to be sure) unleashed a storm when he published an essay questioning the authenticity of the miracle.

Some Background

Hayyim Zelig Slonimski aged seventy-five. From The Jewish Encyclopedia, New York, Funk and Wagnalls, 1912.

Hayyim Zelig Slonimski aged seventy-five. From The Jewish Encyclopedia, New York, Funk and Wagnalls, 1912.

We have discussed Slonimski before. To coincide with the appearance of Halley's Comet in 1835, he published Kokhava Deshavit (The Comet) in Vilna. It described where and when the comet would be visible with precise coordinates for the inhabitants of Bialystok, as well as an explanation of the nature of comets and their orbits. Hayyim Zelig Slonimski, (1810-1904), was also the founding editor of Hazefirah (The Dawn), a weekly Hebrew-language newspaper first published in Warsaw in 1862. He also wrote Mosdei Hokhmah (The Foundation of Wisdom), a work on algebra, and struck up a friendship with the famed German naturalist and explorer Alexander von Humboldt (1769–1859). Not content with all this, Slonimski invented a method to send two telegraphs simultaneously over one wire (which was a very big deal at the time,) and developed a calculating machine that he later presented to the Imperial Academy of Sciences in St. Petersburg. It was so successful that in 1845 the Russian minister of education made Slonimski an honorary citizen, a remarkable honor given the general oppression faced by the Jews at the time. So yes, Slonimski is a Talmudology hero.

The Chanukah Polemic of 1891

In December 1891 Slonimski published a short essay in the Hebrew language journal Hazefirah, which he happened to edit. In the piece he claimed that the Chanukah miracle of the oil discussed on today’s page of Talmud may not have happened, and that furthermore Maimonides himself did not appear to believe in the historicity of the story. There was indeed a miracle at Chanukah, he claimed: it was the victory of the Hasmoneans over the Greeks. But the miracle of the oil was witnessed only by a handful of the Cohanim who entered the Temple. “Who else besides them” he wrote “saw anything?”

In support of his skepticism Slonimski cited Maimonides himself. Here is how Maimonides described the events surrounding the oil:

רמב׳ם משנה תורה הלכית מגילה וחנוכה ג, ב

וּכְשֶׁגָּבְרוּ יִשְׂרָאֵל עַל אוֹיְבֵיהֶם וְאִבְּדוּם בְּכ''ה בְּחֹדֶשׁ כִּסְלֵו הָיָה וְנִכְנְסוּ לַהֵיכָל וְלֹא מָצְאוּ שֶׁמֶן טָהוֹר בַּמִּקְדָּשׁ אֶלָּא פַּךְ אֶחָד וְלֹא הָיָה בּוֹ לְהַדְלִיק אֶלָּא יוֹם אֶחָד בִּלְבַד וְהִדְלִיקוּ מִמֶּנּוּ נֵרוֹת הַמַּעֲרָכָה שְׁמוֹנָה יָמִים עַד שֶׁכָּתְשׁוּ זֵיתִים וְהוֹצִיאוּ שֶׁמֶן טָהוֹר 

When, on the twenty-fifth of Kislev, the Jews had emerged victorious over their foes and destroyed them, they re-entered the Temple where they found only one jar of pure oil, enough to be lit for only a single day; yet they used it for lighting the required set of lamps for eight days, until they managed to press olives and produce pure oil.

Do you see what is missing? Slonimski did. There is no mention of any miracle. Instead Maimonides seems to hedge, and notes instead that “they used it for lighting the required set of lamps for eight days.” Slonimski suggested that the Menorah was lit for a short time each evening, and then the lamps were extinguished, instead of burning through the rest of the night. That is how the oil managed to last eight days. Nothing miraculous to see here.

The Response, and THE response to THE response…

Dozens of books and essays were written in response to Slonimski’s one page essay. (You can find them here, together with a helpful Hebrew language post about the episode.) For example in 1892 in Warsaw, Shmuel Alexandrov published Agadat Pach HaShemen (The Story of the Flask of Oil). The book was dedicated to Chaim Slonimski, and explained the miracle of the oil allegorically. Conservative reaction to the book was swift and strong. So much so that Alexandrov later wrote this retraction:

והנני אומר גם מפורש כי כל מה שכתבתי בקונטרסי אגדת פך השמן… הוא רק בתור בירור וביאור האגדות האלה ע”ד הביקורת, אולם בנוגע לגוף הקבלות והמסורות העתיקות המסתעפות מהאגדות האלו, הנני אומר מפורש אם קבלה היא נקבל, ואם אולי נמצאו ביטויים בספרי אגדת פך השמן שפלטה קולמוסי, הנוגעים בגוף הקבלה, הנני מתחרט ע”ז חרטה גמורה. מטרתו בכל מאמרינו השונים היא רק לבנות ולנטוע ולא לסתור ולעקור חלילה

I wish to explicitly clarify that everything I wrote in by book Agadat Pach HaShemen was written only to clarify the stories, but regarding the received tradition about theses actual events, I want to state explicitly…that I completely regret certain expressions that slipped from my pen regarding these events. My purpose throughout was to build and to plant, and not to destroy or uproot…

(You can find Agadat Pach HaShemen at the Jewish National Library here. But you won’t find it on HebrewBook.org. I wonder why.)

As Marc Shapiro has pointed out, there are examples of several other orthodox authors who appeared to ignore or deny the reality of the miracle of Chanukah. He notes that “ It could be that Isidore Epstein should be added to the list, as in his classic work Judaism he describes Hanukkah and the kindling of lights, but mentions nothing about the miracle….Yet I think it is telling that he does not even say something like, “according to tradition a cruse of oil with enough for one day burnt for eight.”” Another traditional author who ignores the miracle was Rabbi Zev Yavetz, a founder of the Mizrachi movement. The miracle of the oil is simply not mentioned in his fourteen volume Toldot Yisrael. Marc also points out that the miracle of the oil is omitted in R. Joseph Hertz’s  Authorized Daily Prayer Book, (or, as it is known by its short title, The Authorised Daily Prayer Book of the United Hebrew Congregations of the British Empire,) used by orthodox Jews in Britain for generations.

Whether you believe that the miracle was an improbable military victory or long-lasting oil, Chanukah remains a beloved holiday for the Jewish people. On that, at least, we can all agree.

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From the Talmudology Archives: Rashi and Why Women Light the Menorah

Don't Share This With Your Young Children

The festival of Chanukah begins this evening. Ask a well-educated Jewish child about the origins of Chanukah, and she will likely tell you about the wicked Greeks who defiled the Temple, about the brave Maccabees who fought them, and about the miracle of the oil.  But in Rashi's commentary to the Talmud there is another part of the story. Here it is:

דאמר רבי יהושע בן לוי: נשים חייבות בנר חנוכה, שאף הן היו באותו הנס

 רש"י שם:  שגזרו יוונים על כל בתולות הנשואות להיבעל לטפסר תחלה  

Rabbi Yehoshua ben Levi said: Women are obligated to take part in the lighting, for they were included in that miracle...

Rashi: For the Greeks made an edict that all virgins who were about to marry must first have intercourse with the Prefect...

The great French exegete Rashi (d.1105) is referencing the Law of the First Night - Jus Primae Noctis, also known more graphically as The Right to the Thigh - Droit du Cuissage. We first encountered this when studying Ketuvot 3a. So let's go back to that daf.  

MAZAL TOV; WHEN'S THE WEDDING?

Today, when a bride and groom wish to secure a wedding day, it will depend on their budget and the availability of the caterer. My, how things have changed. In the times of the Mishnah, the wedding day was decided by the availability of the local rabbinic court, the Bet Din. Then, a wedding (of a virgin) could only take place on the night before the Bet Din convened.  This would ensure that if, after their magical first night, the groom suspected that his bride had not been a virgin, he could take his claim to court the very next day.  

מפני מה אמרו בתולה נשאת ליום הרביעי שאם היה לו טענת בתולים היה משכים לב”ד

Why did they teach that a virgin must only marry on a Wednesday? So that if the groom questioned her virginity, he could hurry to the Bet Din...
— Ketuvot 3a

The Talmud (Ketuvot 3a) explains that this happy custom changed during a period of persecution. Rabbah, a forth century Babylonian sage, explained what this is all about: "[The authorities] said, "a virgin who gets married on Wednesday will first have intercourse with the governor" (הגמון). In order to avoid this awful legal rape, the wedding was moved a day early, to fly, so to speak, under the radar of the local governor. 

JUS PRIMAE NOCTIS IN THE TALMUD & MIDRASH

The law that Rabbah referenced is the same one that Rashi claims was imposed on Jewish brides by the Greeks. Its origins are further explained in the Talmud Yerushalmi, which dates it to the time of the Bar Kochba revolution:

 תלמוד ירושלמי כתובות פרק א הלכה ה  

בראשונה גזרו שמד ביהודה שכן מסורת להם מאבותם שיהודה הרג את עשו...  והיו הולכין ומשעבדין בהן ואונסין את בנותיהן וגזרו שיהא איסטרטיוס בועל תחילה התקינו שיהא בעלה בא עליה עודה בבית אביה 

In the beginning, they [the Romans] decreed destruction in Judea (for they had a tradition that Yehuda killed Esau) ... and they enslaved them and raped their daughters, and decreed that a soldier would have intercourse [with a bride] first. It was then enacted that her husband would cohabit with her while she was still in her father's house. 

A reference to Primae Noctis also appears in the Midrash Rabbah, a collection of rabbinic homilies edited sometime in the forth or fifth century. As told in Genesis 6, “the sons of God saw that the daughters of man were beautiful (tovot), and they took wives from whoever they chose.” The Midrash focuses on that word beautiful, and explains:

בראשית רבה (וילנא) פרשת בראשית פרשה כו 

אמר רבי יודן טבת כתיב, משהיו מטיבין אשה לבעלה היה גדול נכנס ובועלה תחלה, הדא הוא דכתיב כי טבת הנה, אלו הבתולות ויקחו להם נשים מכל אשר בחרו, אלו נשי אנשים, 

“Rabbi Judan said the word tovot (טבת) – beautiful – is written in the singular, [but read as a plural]. Meaning that the bride was made beautiful for her husband, but the lord of the nobles had intercourse with her first...”

JUS PRIMAE NOCTIS...IN THE MOVIES

There are numerous references to Primae Noctis in ancient and modern literature, from the Epic of Gilgamesh to The Marriage of Figaro. One recent example can be seen in the movie Braveheart, when the evil King Edward gallops into a village, to interrupt a wedding celebration. “I’ve come to claim the right of Primae Noctis. As lord of these lands, I will bless this marriage by taking the bride into my bed on the first night of her union.”  And as the groom is restrained by Edward's henchmen, Edward reminds the peasants “it is my noble right.”  

Jus Primae Noctis. Is there a more fearsome example of feudal barbarism? Of what one scholar called “a male power display…coercive sexual dominance…and male desire for sexual variety”?  But the legend, despite its appearance in many guises, is, fortunately, likely to be nothing more than just that: a legend.  

JUS PRIMAE NOCTIS...IS A LEGEND

Perhaps the most comprehensive investigation of the legend of Primae Noctis is The Lord's First Night: the Myth of the Droit de Cuissage, by the French social scientist Alain Boureau. His careful analysis is particularly important since, as we have seen, Rashi, our favorite French commentator, cites this legend twice. After a meticulous two-hundred page review of every alleged appearance of the legend, Boureau is clear:

[T]he droit de cuissage never existed in medieval France. Not one of the arguments, none of the events insinuated, alleged or brandished, holds up under analysis.
— Alain Boureau, The Lord's First Night.

Others scholars agree with Boureau. In 1881, the German historian Karl Schmidt concluded that the right never existed.  In 1973, the historian J.Q.C. Mackrell noted that there is "no reliable evidence" that it existed. And Prof. Tal Ilan, now at the Free University of Berlin, addressed the myth of Primae Noctis in a magnificently titled 1993 paper: Premarital Cohabitation in Ancient Judea. Prof. Ilan noted that that “all medieval literature that evokes the custom of Jus Primae Noctis has been proven to be folkloristic and has no historical basis.” But what about the evidence from the Talmuds, and the Midrashim? Don’t they provide evidence that Primae Noctis was indeed practiced in the time of the Talmud? Not so, claims the professor:

If a motif of this sort could have appeared in a sixteenth-century document and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have cropped up in the fourth -or fifth-century Palestinian Talmud, falsely describing events of the second century.

Instead, Prof Ilan suggests that the Talmud used the myth of Primae Noctis to excuse the behavior of some prospective couples, who would engage in sexual relations before they married.  “the jus primae noctis was conveniently drawn in order to explain and justify a custom that seemed to the rabbis to undermine their view of proper conduct in Jewish society.”

Some events do take place but are not true; others are—although they never occurred.
— Elie Wiesel, Legends of Our Time

There is some further support to the claim that primae noctis never existed, and it is not one I have seen suggested before.  It is a claim from silence.  I've checked over 100,000 responsa, and there is not one on this topic. Not a single one.  If primae noctis really was a law of the Greek and Roman empires, and a feudal right across medieval Europe, then why were its implications for the Jewish community never discussed in the responsa literature?  This silence supports the conclusions of work done by Boureau, Ilan and others: it never existed. In fact Boureau wonders what muddled thinking would lead anyone to believe it existed in the first place: 

It has been clear from the start that no matter what social restrictions were put on conduct and the management of wealth, and no matter how violent mores became, the principle of free choice of an unfettered matrimonial life was the most sacred area of individual liberty in medieval Europe. The Church, European society's principal normative center, very early removed all restrictions on the marriage of dependents, and it imposed consent as a sacramental value. No juridicial form, no custom, could attack that principal...sanctified in the twelfth century by the establishment of the sacrament of matrimony.

HISTORY AND HERITAGE

The historian David Lowenthal has explained the differences between history and heritage. While history "seeks to convince by truth," heritage "passes on exclusive myths of origin and endurance, endowing us alone with prestige and purpose." Heritage, continues Lowenthal, commonly alters the past: sometimes it selectively forgets past evils, and sometimes it updates the past to fit in with our modern sensibilities. Sometimes it upgrades the past, making it better than it was, and sometimes it downgrades the past, to attract sympathy.  And so, how we read the Talmud will depend on whether we see it as a work of history or as a book of our heritage.  

There you have it...some of it fact, and some of it fiction, but all of it true, in the true meaning of the word
— Miles Orvel, The Real Thing: Imitiation and Authenticity in America

There are stories both wonderful and terrible from our Jewish past. Some are factual, and some are not, and a measured approach to how we might approach these stories has been suggested by Judith Baumel and Jacob J. Schacter. They explored the claim (published in The New York Times) that in 1942, ninety-three Beis Yaakov schoolgirls in Cracow committed suicide rather than face rape by their German captors. They concluded that the evidence to support the truth of the story is not conclusive one way or the other

Whether or not it actually happened as described is difficult to determine, but there is certainly no question that it could have happened...in response to those claiming that the incident was "unlikely" to have occurred, let us remind the reader that the period in question was one during which the most unlikely events did occur, when entire communities were wiped out without leaving a single survivor...Maybe it did happen. But maybe again it didn't. Could it have happened? Of course.

So Why Should Women Light the Menorah?

It seems very unlikely that Rashi's explanation for why women should light the Menorah has any factual basis; the legend of Primae Noctis is not likely to have been trueBut some stories are true, even though they never happened. Ask yourself, from what you know about Jewish history, could it have been true? Yes. And that's what makes it all the more terrifying. Sadly, we have plenty of tragic stories from our Jewish history, and there is no need to create one that probably never happened. 

But if Rashi's reasoning was based on a myth, then why should women light the menorah on Chanukah, since they are exempt from a positive time-bound command?  For an answer that should satisfy moderns, we need look no further than the Code of Jewish Law - the Sulchan Aruch (written about 460 years after Rashi's death).   

שולחן ערוך אורח חיים הלכות חנוכה סימן תרעה סעיף ג 

 אשה מדלקת נר חנוכה, שאף היא חייבת בה

 A women should light a light on Chanunkah, for she is obligated to do so...

So there you have it. Women should light...because they should light. We need no more of a reason than that.

Happy Chanukah.

Tomorrow on Talmudology: Was There A Chanukah Miracle?

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Pesachim 9b ~ Talmudic Probability Theory

Photo by andwill/iStock / Getty Images

Our new tractate Pesachim, deals with all things Paschal. (Well, nearly all). What happens if there were nine piles of matzah and one pile of forbidden leavened bread known as chametz, and along came a mouse and took a piece from one of the piles and carried it into a house that had already been searched for chametz. Must the house be searched a second time? To find an answer, the Talmud quotes a Baraiasa that deals with an analogous question.

פסחים ט, ב 

דִּתְנַן: תֵּשַׁע חֲנוּיוֹת, כּוּלָּן מוֹכְרִין בְּשַׂר שְׁחוּטָה, וְאַחַת מוֹכֶרֶת בְּשַׂר נְבֵלָה, וְלָקַח מֵאַחַת מֵהֶן, וְאֵינוֹ יוֹדֵעַ מֵאֵיזֶה מֵהֶן לָקַח — סְפֵיקוֹ אָסוּר.

With regard to nine stores in a city, all of which sell kosher meat from a slaughtered animal, and one other store that sells meat from unslaughtered animal carcasses, and a person took meat from one of them and he does not know from which one he took the meat, in this case of uncertainty, the meat is prohibited.

וּבַנִּמְצָא — הַלֵּךְ אַחַר הָרוֹב

And in the case of meat found outside, follow the majority.

What this boils down to is this. If most stores in the city sell kosher meat then a piece of meat that is found in the city (that is “outside”) is assumed to be kosher, since the majority of the stores sell only kosher meat. But if a person bought meat from one of the ten stores, but he cannot recall whether or not it was from a kosher store, the meat may not be eaten. In this latter case, we assume that there were simply an equal number of kosher and non-kosher stores. There is a 50-50 chance that the meat comes from a non-kosher store, and it may not be eaten.

By analogy, if the mouse took the morsel from one of the piles, the legal status of the morsel is that of an equally balanced uncertainty concerning whether it was taken from a pile of matzah or a pile of chametz. Consequently, the owner is required to go back and search the house all over again.

Talmudic Probability

As Dov Gabbay and Moshe Koppel noted in their 2011 paper, there is something odd about talmudic probability. If we find some meat in an area where there are p kosher stores and q non-kosher stores, then all other things being equal, the meat is kosher if and only if p > q.This is clear from the parallel text in Hullin (11a) where the underlying principal is described as זיל בתר רובא – follow the majority. Or as Gabbay and Koppel explain it:

Given a set of objects the majority of which have the property P and the rest of which have the property not-P, we may, under certain circumstances, regard the set itself and/or any object in the set as having property P.

In other words, what happens is that if there are more kosher stores than there are non-kosher, the meat is considered to have become kosher. It's not that the meat is most likely to be kosher and may therefore be eaten.  Rather it takes on the property of being kosher

We encountered another example of talmudic probability theory when we studied the tractate Ketuvot. There, a newly-wed husband claims that his wife was not a virgin on her wedding night. The Talmud argues that his claim needs to be set into a context of probabilities:

  1. She was raped before her betrothal.

  2. She was raped after her betrothal.

  3. She had intercourse of her own free will before her betrothal.

  4. She had intercourse of her own free will after her betrothal.

Since it is only the last of these that renders her forbidden to her husband (stay focussed and don't raise the question of a husband who is a Cohen), the husband's claim is not supported, based on the probabilities. Here is how Gubbay and Koppel explain the case - using formal logic:

 
Detail from Gabbay paper.jpg
 

Oh, and the reference to Bertrand's paradox? That is the paradox in which some questions about probability - even ones that seem to be entirely mathematical, have more than one correct solution; it all depends on how you think about the answer. One if its formulations goes like this: Given a circle, find the probability that a chord chosen at random will be longer than the side of an inscribed equilateral triangle. Turns out there are three correct solutions. Gubbay and Koppel claim that just like that paradox, the solution to many talmudic questions of probability will have more than one correct answer, depending on how you think about that answer.

Rabbi Nahum Eliezer Rabinovitch, who died in May of this year at the age of 92 was the Rosh Yeshiva of the hesder Yeshivah Birkat Moshe in Ma'ale Adumim.  (He also had a PhD. in the Philosophy of Science from the University of Toronto, published in 1973 as Probability and Statistical Inference in Ancient and Medieval Jewish Literature.)  Rabbi Rabinovitch seems to have been the first to point out the relationship between Bertrand's paradox and talmudic probability theory in his 1970 Biometrika paper Combinations and Probability in Rabbinic Literature. There, the Rosh Yeshiva wrote that "the rabbis had some awareness of the different conceptions of probability as a measure of relative frequencies or a state of general ignorance."

James Franklin, in his book on the history of probability theory, notes that codes like the Talmud (and the Roman Digest that was developed under Justine c.533) "provide examples of how to evaluate evidence in cases of doubt and conflict.  By and large, they do so reasonably. But they are almost entirely devoid of discussion on the principles on which they are operating." But it is unfair to expect the Talmud to have developed a notion of probability theory as we have it today. That wasn't its interest or focus. Others have picked up this task, and have explained the statistics that is the foundation of  talmudic probability. For this, we have many to thank, including the late mathematician and Rosh Yeshiva, Rabbi Rabinovitch.

(The [Roman] Digest and) the Talmud are huge storehouses of concepts, and to be required to have an even sketchy idea of them is a powerful stimulus to learning abstractions.
— James Franklin. The Science of Conjecture: Evidence and Probability Before Pascal, 349.
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Eruvin 100b ~ Spousal Rape

After a discussion about walking on grass on Shabbat, the Talmud switches to another topic entirely. Spousal rape:

עירובין ק, ב

ואמר רמי בר חמא אמר רב אסי אסור לאדם שיכוף אשתו לדבר מצוה שנאמר ואץ ברגלים חוטא

Rami bar Chamah said in the name of Rav Asi: It is prohibited for a man to force his wife in the conjugal mitzvah, [i.e., sexual relations,] as it is stated: “And he who hastens with his feet sins” (Proverbs 19:2). [The term “his feet” is understood here as a euphemism for intercourse.]

 
No means No image.jpeg
 

This statement of Rav Asi is codified in all of the major codes of Jewish law. And as we will see, it is cited in a decision of the Israeli Supreme Court which ruled spousal rape to be, well, rape. First, Maimonides, in his Mishnah Torah:

משנה תורה, הלכות דעות ה׳:ד׳

וְלֹא יֶאֱנֹס אוֹתָהּ וְהִיא אֵינָהּ רוֹצָה אֶלָּא בִּרְצוֹן שְׁנֵיהֶם וּבְשִׂמְחָתָם

A husband may not force himself sexually on his wife, if she does not consent. Rather [intercourse] should be with the consent and happiness of both husband and wife…

The Shulchan Aruch (Code of Jewish Law) addresses this in two separate rulings:

שולחן ערוך אבן אורח חיים ר״מ:י׳

אם הי' לו כעס עמה אסור לשמש עד שיפייסנה ויכול לספר עמה קודם תשמיש כדי לרצות

A man is forbidden to have intercourse with his wife if he is angry with her…

שולחן ערוך אבן העזר כ״ה:ב׳

ולא יבעול אלא מרצונה ואם אינה מרוצה יפייסנה עד שתתרצה

He may not have intercourse without her consent, and if she is not interested he should appease her until she is interested.

A History of Spousal Rape Law

So spousal rape (also called marital rape) has been forbidden in Judaism since talmudic times. But other legal traditions did not consider it a crime until recently. Take for example, criminal law in England, as outlined in The History of the Pleas of the Crown (vol. 1, ch. 58, p. 629), written by Lord Hale and published in 1736.

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.

Hale had died 60 years earlier, but as Chief Justice his words reflected common law of the time. It remained the law of the land until it was formally overturned by a ruling in Britain’s House of Lords in 1992, which found that there were no grounds against “declaring that in modern times the supposed marital exemption in rape forms no part of the law of England.”

The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.
— R. v R [1991] UKHL 12. House of Lords. (23 October 1991)

Spousal Rape In ameRican law

In 1962 the American penal code still exempted spousal rape as a crime. Back then a man could only be guilty of rape if the victim was “not his wife”:

§ 213.1. Rape and Related Offenses. (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if…

This changed over the next thirty years, and today spousal rape is recognized as a crime in all fifty states, although the circumstances and reporting requirements vary, and they are sometimes different to those in which the victim is not the spouse.

In New York for example, the exemption of spousal rape was ruled unconstitutional in 1984, in a ruling from the New York Court of Appeals. A man had forced sexual intercourse with his wife while they were separated (and after the wife had obtained a protection order from the court that required him to move out and remain away from the family home). The husband raised the spousal exception as a defense for rape. Here is part of the that ruling:

We find that there is no rational basis for distinguishing between marital rape and non-marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.

Spousal Rape in Israeli Law

In 1980 Israel’s Supreme Court ruled that spousal rape was a crime as heinous as any other kind of rape. One of the three justices, David Bechor (1910-2000) cited a number of Jewish sources, including Maimonides’ Mishnah Torah and the Shulchan Aruch. He also cited Ravi Asi on this page of Talmud, as well as a number of contemporary rabbis. Here is an excerpt of the opinion of Justice Bechor, and you can read the entire decision here.

...סקירת התלמוד מלמדדת אותנו, שקיון יחסי אישות באונס אינו מותר והנו בגדר עבירה...המסקנה אליה הגעתי, עולה בקנה אחד גם עם עקרונות היסוד של כבוד האישה כאדם חופשי ולא כשפחה, הנתונה לחסדי בעלה בעניין כה רגיש ועדין, עקרונות אשר, לדאבון הלב, לא מומשו בחקיקה ובפסיקה של מדינות נאורות ומתקדמת בעולם

A review of the Talmud teaches us that forced sexual relations are not  permitted and are unlawful…the conclusion at which I arrive is also in keeping with the fundamental principles that a woman is to be respected as a human being and not as a servant, who depends on her husband’s kindnesses in this sensitive area. Sadly, these principles have not been enshrined in the laws of many enlightened and advanced nations…

There are, regrettably, areas in which Jewish marital law has not caught up with modern notions of justice and equality. But on the subject of spousal rape Jewish law set a precedent which was adopted only hundreds of years later by modern western legal systems. Rav Asi’s ruling, cited by the Israeli Supreme Court, is succinct. No means no.

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