Volume 15 Number 87
                       Produced: Thu Oct 20  0:42:24 1994

Subjects Discussed In This Issue: 

Halacha/mitzvos, rights or obligations
         [Jonathan Baker]
         ["Yaakov Menken"]
         [Naomy Graetz]
Wifebeating - a Meta Issue
         [Eric Safern]


From: <baker@...> (Jonathan Baker)
Date: Tue, 18 Oct 94 00:46:30 -0400
Subject: Halacha/mitzvos, rights or obligations

Aryeh Blaut writes:

>> or do they [women] have rights?
> In terms of halacha/mitzvot, there is no such thing as "rights."
> We have obligations.

We have obligations, to be sure, but there is room for one to express
concern about their "rights" under halacha.  Consider the spectrum of
halachic opinions on an issue with respect to a person:

+ Chayav (obligated)
+ Muttar (permitted)
  + encouraged or
  + discouraged
+ Patur (exempt)
+ Assur (forbidden)

Within the realm of muttar, one may speak about rights.  Just because
certain authorities or communities have discouraged certain behaviors,
if those behaviors are technically permitted or even encouraged, there
is room to speak of rights.  For example: women are permitted to put on
tefillin.  At various times and in various places, women have been
discouraged from doing so.  They are certainly not obligated to.  But
it is a place where one may speak of a woman's "right" to put on
tefillin.  If a local rabbi disapproves, the woman can go elsewhere.

For a more concrete example, take the issue that raised this question:
women and sifrei Torah.  We had a minor revolt in our shul when the women
decided that since halacha gives them the right to touch the sefer Torah,
they wanted to dance with it on Simchat Torah.  Some of them learned the
relevant halachos, and went to the rabbi, who said "I don't like it, but
I can't forbid it.  Just do it thus-and-so, so as to preserve modesty."


From: "Yaakov Menken" <ny000548@...>
Date: Tue, 18 Oct 94 09:16:34 -0400
Subject: Re: Wife-Beating

Shaul Wallach writes:
>     Now let us quote - this time in full and more literally - the
>Rambam that allegedly gives the husband permission to whip his wife
>(Ishut 21:10):
>    Any wife who refrains from doing a labor among the labors that she
>    is required to do, they force her ("kofin otah") and she does it,
>    even with a whip. If he claims that she isn't doing (it) and she
>    claims that she is not refraining from doing (it), then they sit
>    a woman down between them, or neighbors. And this thing (is done)
>    the way the judge sees as it is possible.
>Note here the plural ("kofin otah") and the mention of the judge in
>the last sentence. From this it is obvious that it is not the husband,
>but the court (the Beit Din) who has the authority to force her to do
>the required labors. And from the last sentence we see that where there
>is a dispute between them over whether she is doing her work, the court
>first has to use every possible method to find out what is going on. I
>would humbly suggest that in most cases this would indeed have to be
>done, since a woman would rather defend herself than rebel in court.
I only quote this to reemphasize and restate - it's not difficult to 
read this Rambam, and Ms. Haut, for all her good intentions, misread and 
distorted it in a most horrible way.  Heaven forfend that the Rambam 
should be seen here as permitting wife-beating!

If this is the best source available, then we're also pretty safe calling 
upon Robert Klapper to produce "halakhic sources permitting wife-beating"
before believing that _any_ opinion would support this.

David Kaufman adds:
>Finally, as one could as easily find a quote from the Rambam saying
>the _husband_ should be beaten for abusing his wife, I suspect that no
>quotation would have helped the situation. 

As already noted, the courts have almost never found it necessary to hit
women.  The same is not true of men - an unfortunate part of our stubborn
nature.  I have heard of cases where representatives of the courts 
demonstrated with their fists exactly whom it was appropriate to hit.

Well, I usually don't speak to people in second person on a list, but here 
I must add [I missed the original post, so I don't have Ms. Haut's address]:
Ms. Haut - what you told the beaten woman was not merely mistaken, but
extremely harmful to her.  The only sources you need are "V'Ahavta 
L'Rei'echa Kamocha [Love your neighbor as yourself]" and the Gemara
that "One who lifts his hand to strike his neighbor is labelled wicked."
If this is true for any Jew, all the more so one's WIFE!  Her husband is 
LABELLED WICKED until he stops.  I know you don't lack compassion - you have
an obligation to correct your error IMMEDIATELY, for this woman's sake.

I hope that you continued contact with this woman, and helped her deal 
with her animal on two legs claiming to be her husband.  If this continues 
for _any_ length of time, you should immediately take it to the courts.  
They will tell you to go to secular courts if necessary.

Yaakov Menken

From: Naomy Graetz <graetz@...>
Date: Wed, 19 Oct 1994 08:51:21 +0200 (IST)
Subject: Wifebeating

I have stayed out of the discussion, but since wifebeating seems to be
THE topic on this list and I "just happen" to be writing a book on this
topic, I will jump into the fray.

I am fascinated by the recent respondents to Shaul Wallach and the
negative reactions to Rivka Haut (who was accused of "misinterpreting
the Rambam to advance one's own cause or agenda" by Gad Frenkel.  I
would like to know where Frenkel gets the "true" meaning of Rambam's
statement in Hilchot Ishut 21:10 of the use of plural meaning the Beit
Din (the court).  If you look at the Migdal Oz (14th) century in his
commentary or even Rabad it is clear that it is the husband who is the
referrent depite the use of kofin (forcing her in the plural) be shot (a
whip or rod). Rabad says in his commentary on Rambam that "I never heard
of (her husband) beating her with a whip (if she doesn't do her duties);
HE (simply) lessens her food supply until she submits (presumably from
hunger)." (parentheses are my insertions) Thus Rabad understands Rambam
to mean that it is the husband not the beit din.
     Incidentally, I do not find it more comforting that the beit din
would beat the women for not performing her duties. I would prefer to
think that Rambam was misguided on this issue.  In fact I am a admirer
of his (see Ishut 14.8) for if we followed him women could be divorced
more easily and there would be less agunot today.  Unfortunately
Rambam's opinions are NOT accepted today on that particular issue (as
Shaul Wallach himself pointed out in vol 15.51 of Mail Jewish).

Robert Klapper asked "does anyone know of any post-medieval responsa
permitting wifebeating?"  As Avraham Grossman writes in his article,
when women's status is high then wife-beating seems to be less
acceptable to the rabbanim. But in the fifteenth century women's status
started to go down and correspondingly wife-beating begins to be dealt
with less stringently than it was when women's status was high.
     This is illustrated in Sefer Terumat Hadeshen, which is the
responsa of Israel Isserlein.  According to Shlomo Eidelberg, Isserlein
(c. 1390-1460) "was the last famous rabbinical scholar of medieval
Austria.  He was a disciple of the old Franco-German school of the
preceding centuries."(Jewish Life in Austria in the XVth Century: As
reflected in the Legal Writings of Rabbi Israel Isserlein and His
Contemporaries, Dropsie College: Philadelphia, 1962, p.38)
     Terumat Hadeshen (Heave Offering of the Ashes){Lev. 6.3} contains
354 (corresponding to the Hebrew letters daled, shin, nun) responsa
which follow the order and arrangement of Jacob ben Asher's work,
Arba'ah Turim.  It is not clear whether the questions are genuine, or
whether Isserlein fabricated them so that he could respond.{Eidelberg,
p. 51} Jacob Weil, who was Isserlein's older contemporary refers to
Isserlein's decisions with such respect that he wrote they could not be
changed.  He was considered a gaon, a prince of prince of his
generation.  His writings were popular among both Ashkenazic and
Sephardic scholars.  Solomon Luria said of him "Do not deviate from his
works because he was great and eminent."{Solomon Freehof, The Responsa
Literature, Jewish Publication Society of America: Philadelphia, 1959,
p. 76} R.  Joseph Caro refers to him as an important codifier, although
he also criticizes him. He was well thought of by R. Moses Isserles who
cites him constantly.{Eidelberg, pp. 58-9. See Beit Joseph, "Gittin
vKiddushin, No. 9} Isserlein was a man of independent thought and wide
learning.  According to Freeehof, he was a "bridge between East and
West.{p.76} Isserlein mentions the Spanish scholars like Alfasi and
Maimonides, but believed "in the German rabbinic tradition that the Law
had to be interpreted according to the Ashkenazic Rishonim, or
classicists....When he found a contradiction betwen the decisions of the
Spanish and the German scholars, he followed the German
tradition."{Eidelberg, p. 55} Despite this general tendency he
occasionally contradicted Rashi, Maimonides, and Mordecai b. Hillel,
disciple of R. Meir of Rothenburg and others when it suited him.  This
we can see in the following responsa.

     He is asked whether a man can hit his wife in order to keep
her from cursing her parents.

     Answer: Even though Mordecai [b. Hillel] and R. Simcha wrote that
he who beats his wife, transgresses, and is dealt with very harshly, I
disagree with this strict interpretation.  I base my interpretation on
R. Nachman b. Yitzchak who wrote that all was in order in the case of a
Cananite slave woman who was beaten in order to prevent her from
transgressing.  He of course should not overdo it or else she would be
freed.  Anyone who is responsible for educating someone under him, and
sees that person transgressing, can beat that person to prevent the
transgression.  He does not have to be brought to court.{Responsa, #218}

The implications of this responsum are that a wife is like a slave in
that the husband/master is permitted to strike her in order to save her
from committting a transgression.  Thus in this case, in Isserlein's
opinion, a man can hit his wife.
     Rabbi Jacob ben Asher, the author of the TUR, which is the
precursor to the Shulchan Aruch discusses the case of a man who was
insane.  His wife was afraid that he might kill her in his rage.  The
harsh answer given by his father, the ROSH (Rabbenu Asher ben Yehiel)
is: "we do not force him to divorce her because we only compel those who
are cited by the Sages as ones who are compelled to divorce.  Rather,
let her persuade him (tefaysenu) to divorce her or let her accept him
and live from his estate."

Joseph Karo rules that we should not compel a husband to divorce on the
basis of such grounds since they were not mentioned [as legitimate
grounds] by any of the famous authorities."{Beit Yosef, on the Tur, Even
Ha-Ezer 154:15}

     Moses Isserles rules that although unwarranted wifebeating
justifies compelling a husband to divorce his wife, there are
extenuating circumstances when one does not have to force the husband.
He writes in The Shulchan Aruch:
      "A man who beats his wife commits a sin, as though he has beaten
his neighbor, and if he persists in this conduct the court may castigate
him and place him under oath to discontinue this conduct; if he refuses
to obey the order of the court, they will compel him to divorce his wife
at once (and pay her the ketubah) because it is not customary or proper
for Jews to beat their wives.
 Only let the Bet Din warn him first once or twice [not to persist].
But if she is the cause of it, for example, if she curse him or
denigrates his father and mother and he scolds her calmly first and it
does not help, then it is obvious that he is permitted to beat her and
castigate her.  And if it is not known who is the cause, the husband is
not considered a reliable source when he says that she is the cause and
portrays her as a harlot, for all women are presumed to be
law-abiding.{Moses Isserles, Darkei Moshe, Tur, Even Ha-Ezer 154:15}

     Thus there are two kinds of wife-beating: one a form of aggression
and the other a form of punishment or education.  It is to Isserles'
credit that he considers women to be innocent unless proven guilty--and
this is because he recognizes that the husband can easily be omnipotent
in the home and thus the wife has to be protected from his wrath.
     How can we summarize these varied schools of thought.  There is
clearly a diversity of halakhic opinion on the subject.  "Men should not
beat their wives.  But, if the wife may be prevented from committing a
transgression, beating is sometimes considered understandable.  If a man
is habitually abusive, his punishment is most severe, yet the woman is
also liable for punishment if the guilt is found to be hers.
     The majority of rabbis reject Maimonides position on this issue.
Their attitute, like Rabbi Jacob Weil's, is that "He who beats his wife
is in greater fault than he who beats his neighbor".  Weil implicitly
criticizes Isserles who merely writes that "He who beats his wife,
commits a sin, as though he had beaten his neighbor."  Weil refers to
the classic texts in the Talmud{b.  Kethuboth 60a and 61a} which stress
that a women has to be honored more than a husband, and since she was
given as a companion for life and not for misery, if he mistreats her
his punishment will be greater than for mistreating a neighbor.

     (The above are some of my notes from a work in progress).  I agree
with David Wallach that "it's dangerous to label the halacha as an
'approach to wife-beating'."  There are many approaches and the Rambam
some of the gaonim are examples of those who find it acceptable in
certain cases.  Most rabbis as I mentioned are opposed.  The real
problem as I see it, is should wife-beating be grounds for a kefiat get
(forced divorce)?  My study of the responsa literature has shown that
only a minority opinion of rabbis (Yakov Herzog is an example) are in
favor of forced divorce.  And he bases himself on the Rambam!  Thus we
have come in full circle.  Any comments?  Naomi Graetz


From: <esafern@...> (Eric Safern)
Date: Tue, 18 Oct 94 09:36:01 EDT
Subject: Wifebeating - a Meta Issue

I note with interest, four responses in V15 #80 to a recent article.
As I'm sure you all recall, the original article suggested the Rambam
condones wifebeating under certain circumstances.

I'm sure many noticed as well, that all four pointed out the same alternate
(and compelling, IMO) interpretation of the Rambam - namely that only beis din
has the power (in this and many other cases) to inflict corporal punishment.

A special 'yasher koach,' I believe, should go to Robert Klapper - for
making this point in a reasoned and restrained manner - the sort of
response which has a chance of keeping this discussion on a level of
reasoned discourse.

						Eric Safern


End of Volume 15 Issue 87