The Talmudic tractate Ketubot has been called “Shas Katan” (the “little Talmud”) by Talmud aficionados, because the range of subject-matter in it is so broad as to cover aspects of most topics of the Talmud itself. An exploration of Tractate Ketubot is therefore a good way for me to structure my own interaction with the Talmud for purpose of a philosophical inquiry on what is distinctive about the Talmud’s logic and discourse.
An excellent study of the topic of marriage in Talmudic law exists in the form of Judith Hauptman’s Rereading the Rabbis: A Woman’s Voice. I will be relying on the insights of this book, while using it as a starting-point for my own.
The tractate begins: “A virgin is married on Wednesday, and a widow on Thursday, for twice a week the courts are in session in the towns, on Monday and Thursday, so that if [the groom] should have a claim regarding her virginity, he would go early [the next morning] to court.”
Colleague Michael Pitkowsky has informed me that Joshua Kulp has recently completed a study on virginity claims in Talmudic times, epitomized in his HUCA article “Go Enjoy Your Acquisition: Virginity Claims in Rabbinic Literature Reexamined.” The upshot for our purposes is that in rabbinic times the whole issue of bringing virginity suits was declining and discouraged, but not totally dead, so that it was still able to influence such things as the customary day of the week to schedule a wedding, as announced in the opening to this tractate.
My chief focus for this comment, though, is in another direction. What was the “Oral Law”? We have here a striking instance of a central Mishnaic law that is of rabbinic (not Mosaic) origin, by universal consensus. The custom of having courts in session on Monday and Thursday is dated by the rabbis to Ezra’s time, and the day of the wedding is contingent on that.
A popular view of the “Oral Law” (fostered by Avot 1:1) is that it is a body of law, complementary to the written Torah, communicated by God to Moses and communicated by oral tradition from Moses to Joshua, to the elders, to the prophets, to the “Men of the Great Assembly” (in Second Temple times), thence to the rabbis, until it was finally codified by Rabbi Judah the Nasi in the 2nd century in the form of the Mishnah. The popular view assumes that it comprises the basic content of Mishnaic law, minus certain embellishments and rabbinic disagreements recorded in the Mishnah. Call this the “traditional view of the Oral Law.”
In contrast to this, we have the modern scholarly view, that the “Oral Law” was (in its entirety, or nearly so) developed by the rabbis, from Second Temple times through the first five centuries of the Common Era, producing the literary products of the Mishnah and the Palestinian and Babylonian Talmuds.
Both views are reflected in Maimonides’ Introduction to his Commentary on the Misnhah. In one passage, he describes vividly how Moses would receive a law directly from God, transmit it to Aaron, then to Aaron and his sons, then to the seventy elders, then to the entire people. But in another passage, Maimonides dismisses the view (reflected in Talmud Yevamot) that the divergence of rabbinic opinion is due to the distortion of memory in transmission (the “telephone” game). Rather, different rabbis had different “sevarot” (rational considerations based on common experience) for judging that the law should be X rather than Y, or the reverse. So at least in those matters recording different opinions of rabbis, the substance of the disagreement was over matters rabbinic in origin.
Still, even for those of us who tend to hold the modern scholarly view, the question may rightly be asked: What did the rabbis have in mind by the “Oral Law” of Mosaic origin, according to the traditional view? What was included in it, by a conservative estimate?
It is clear, from our example here, that even on a conservative estimate, the “Mosaic Oral Law” could not have comprised all topics of the Mishnah. As Judith Hauptman reminds us in her book, the very ketubah itself was a rabbinic innovation, according to the rabbis themselves. Naturally, then, the tractate concerning “Ketubot” must have been on a topic itself rabbinic in origin. No surprise, therefore, that Ketubot begins with another law – the day of the wedding – that also (according to Rashi, who was no flaming modern scholar) was instituted by the rabbis!
There is a rabbinic recognition that the time-honored ancient stratum of law was a variable factor. Mishnah Chagigah 1:8 tells us: “The laws of release from vows hover in the air—they have nothing to support them. The laws about Shabbat, Chagigah, and sacrilege are as mountains hanging by a hair—little text, but many laws. The rules about civil law, the Temple service, purities and impurities, and forbidden liaisons have ample support; they are the essentials of Torah.”
The essentials of Jewish practice today – Shabbat, holidays, prayer, kashrut – contain many regulations, some of them (such as Shabbat and holiday) having much detail based on cursory statements in the Torah, others (such as prayer) absent in the Torah altogether. Clearly, most of Judaism falls into the category of the “Oral Law.”
But could that Oral Law be Mosaic in origin?
The continuation of the discussion in Ketubot links to the topic of Shabbat in an amusing way.
The question is raised: What about consummating the marriage on Friday night? To those familiar with the holy-erotic significance of Friday night in later Judaism, influenced by the kabbalah, this question should have an obvious answer: Of course! And in early-modern Ashkenazic Jewry, weddings on Friday were common. (One of Moses Isserles’s famous responsa stems from such a case, when the bargaining between the families forced postponement of the wedding ceremony until after sundown, causing a minor scandal. Isserles himself performed the wedding, and defended his action in his responsum.)
Why not consummate the marriage on Friday night? Because breaking the bride’s hymen would be inflicting a wound, a possible violation of Shabbat, under the category of “derivatives of shehitah [slaughter].” (A Baraita cited on page 3b indicates that in some localities it was actually the custom to separate the bride and groom in such a case.) But the counter-argument says: A melakhah she-eino mitkavvein – a work-action that is a secondary, unintended byproduct of one’s primary action – is not forbidden on Shabbat.
So we ask: Is the principle of melakhah she-eino mitkavvein (the secondary, unintended byproduct) of Mosaic origin? The very principle is the subject of dispute between Rabbi Judah (who prohibits it) and Rabbi Simeon (who permits it). Rabbi Judah (not the Nasi) and Rabbi Simeon were of the generation after Rabbi Akiba, in the middle of the second century. By all evidence, this point of law was not even theoretically raised prior to then. And it would fall under Maimonides’ principle, that issues debated by the rabbis on the basis of sevara were themselves of rabbinic origin.
But what of the 39 “principal categories of work” themselves – were they of Mosaic origin, or of rabbinic origin? And is it possible to maintain that even though the articulation of the 39 categories was rabbinic, they can still be regarded as de-oraita (of Torahitic status) for purpose of determining the law? To these issues we will turn in our next posting.
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