#oded zinger

[maimonidiva]

The Mishnah states that if the dowry consists of money rather than articles, the husband's obligation in the marriage contract is higher than the value it would have if it were an article. So the Gemara then asks: what about cases where the line between money and article is not entirely clear?

By problematising the relationship between valuable object and value, the Gemara is making an observation regarding money that is all the more salient today when money is just a number on a screen, money is a promise, the promise that that which is given holds a certain universal value, a promise that cannot be held on the individual but only on the societal level and as the Gemara then establshes, less important than the object itself is the societal agreement of its status as value-holding:

We find that sometimes, even, when it is societally agreed that someone's claim to money is situational, money now longer holds the status of money for that person but rather the powers mediating access to participation in the society of the value-promise do, as those relationships then become the value-promise:

Gender and status were intertwined in the work of the courts. The previous chapter demonstrated the centrality of social relationships to the dynamics of disputes in the legal arena. The petitions and responsa explored in the first part of this chapter show that women of weak status (widows, orphans, yevamot, captives, etc.) without male backing often encountered great difficulties when they came before the communal courts. However, the conclusion of this chapter should not be limited to women of weak social status. Jalila and Barra were once part of the comfortable middle class and yet when Jalila lost her husband and Barra lost her father, they encountered a legal arena stacked against them. [...] Because social ties were the primary form of capital for women, and this asset was limited to a rather narrow pool of men, even women of the upper and middle classes could find themselves at a severe disadvantage is they lost their male support.

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

By situating the relationship between object and value in the context of marriage, we can extrapolate a covenantal argument about the relationship between objects and holiness. As value is merely the promise assigned to a certain signifier, falling away if that which it signifies is no longer agreed upon, so too, holiness is nothing but the societal agreement that an object is a signifier for the holiness of Hashem, as Leibowitz writes:

The story of the golden calf and what follows it is linked to another major incident. Moses breaks the Two Tablets after he descends from the mountain and sees what is going on. Now, if the concept of holiness applies (and many in our days use the word freely in regard to human problems, interests, needs or achievements, to the nation, the land, the state, etc.) in human existence, it certainly applied to the tablets, which were "the work of God", with "the writing of God engraved on them", and yet Moses smashed them when he saw who the nation was and what the nation was.

A lack of time prevents me from expanding on the tremendous significance of this, and I will content myself with quoting one of the great Sages of our time, R. Meir Simcha Hakohen of Dvinsk [...]: "Torah and faith are the main aspects of the Jewish faith, and all the sanctities – Eretz Israel and Jerusalem and the Temple – are but details of the Torah and were sanctified through the holiness of the Torah [...] Do not think that the sanctuary and the Temple are holy objects in their own right. Far be it! God dwells among His people, and if they are like Adam who violated the covenant, all their sanctity is removed and they are profane objects, [...] for nothing in creation is holy in itself, only in terms of the observance of the Torah in accordance with God's will."

Yeshayahu Leibowitz, Accepting the Yoke of Heaven: Commentary on the Weekly Torah Portion

[maimonidiva]

Leaving aside the line of reasoning based on the literal reading, the reading according to Shmuel gives us model of thought in which that which is societally expected of women is framed as what women want, by acting counter to which the man brings about the dissolution of the marriage. Boyarin writes on this complex structuring of biopolitics:

Discursive practices related to female desire that appear in the Talmud and Midrash constitute a structure that functions as an equivalent to the "conjugal right" of European legal discourse in terms of the ordering of sexual relations between the genders, even as the structure does so without sanctioning physical force or economic coercion. The hegemonic rabbinic discourse provides for male sex-right paradoxically through a mystifying construction of women as being needy for sex and of men as being primarily service providers to their wives. [...] In other words, through the construction of sexuality as a form of husband taking care of the wife's needs and through the construction of her needs as both compelling and in part inexpressible, virtually the same effect in terms of the differential political meanings of women's and men's bodies is achieved as that which Pateman has discussed for the Western sexual contract, with one enormous difference: it is accomplished without physical violence – indeed with a strong execration of any violence in association with sex – on one hand, and with the absolute right in principle of the wife to say no strongly encoded in law on the other.

Daniel Boyarin, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man

We might, on the other hand, take a different approach entirely: the contraceptive is what separates sex for pleasure from sex for reproduction, and, following Zinger's analysis of Cairo genizah documents, we can see how physical force and economic coercion did very much occur in the marital relationship, as well as how social relationships were women's main form of capital and thus it was very much in women's interest to secure stable relationships that would last into times of potential precarity, such as divorce:

It is also important to understand what costudy meant for women, [a]s [...] the primary form of power for women was their social relationships. As a woman grew older, her supportive kin changed from her father, to her brother, and finally to her children. Thus, cementing the relationship with her children was a woman's most important investment for the future. Therefore, at divorce, it was of paramount importance to retain custody of the children, especially the boys (girls were in any case given over to their mother's custody). To signal women's love for their children as the cause of these compromises not only construes husbands' attempts to shirk their responsibility as natural and transparent but also distorts women's difficult predicament as they had to compromise their immediate economic circumstances for their future prospects.

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

While both texts give us somewhat contradictory views on our sugya, keeping in mind that both refer to time periods that are not congruent with that of the Talmud, we can nontheless see how the textual system resigning women to the family, excluding them from being actors in the process of halakhah-making, creates a societal system in which the cards are stacked against them one way or another, in which women's consent is at all times a point of compromise.

[maimonidiva]

Apart from a concern with showing preference to family, Rav Nahman speaks here on his understanding of what a judge should be, an understanding we find echoed in Mishnah Avot:

That is, a judge aught not to treat any of the litigants differently, not to give advice for how to argue, so is to not pervert the judgement. So we can see Rav Nahman's concern and that of the Mishnah built on the way that Jewish jurisprudence is structured: judges are not to act as lawyers because there are no lawyers, litigants are to speak for themselves:

As Goitein observed, litigants often aired claims in court as sort of trial balloons, in the hope that they would go unchallenged and thus accepted as truths, not unlike the prices declared in a bazaar. In a recent study, Jessica Goldberg observed that lawsuits between Jewish merchants follow a "logic of slow assemblage and negotiation, in which the competing narratives of the litigants are presented, but the court adjourns to acquire further legal opinions, to give litigants continual opportunities to agree to settlements, and to pressure litigants to avoid forcing the court to hand down a final judgement."

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

Not only do the litigants speak for themselves in talmudic theory, in practice they often reach their own verdicts, too. More than just a consequence of material circumstances, this is part of how the Talmud conceives of the ideal court of justice, as we see in Levinas:

Our Mishnah, the oldest part of our text – that which follows is to deliver the commentary –, teaches us that the Sanhedrin was arranged in a half-circle, "so that its members could see each other". It was, thus, an amphitheatre. It had this particularity that nobody ever saw each others back, always face to face or in profile. Never was the interpersonal connection lost in this assembly. People looked each other in the face. Never, thus, was dialogue interrupted or lost in impersonal dialectic. An assembly of faces rather than an anonymous society.

But it is a half-circle, an open circle. Since the judges' concern is precisely – when they discuss matters brought to their jurisdiction or hand down a verdict – to remain open to the world around them: in the half-circle's opening, according to the commentators, we find the litigants and witnesses. That's also where we find the scribes. An open circle: the judges at the heart of Judaism – its navel and navel of the world – are open to the world, or live in an open world.

Emmanuel Levinas, Quatre lectures talmudiques

That is, halakhah is not separate from the world, it is part of it, its border easily crossed, the judge is not so much a type of person as it is a role many, if not, ideally, all should be able to take on:

Now, something new, never seen before at a tribunal: before the judges are the "students of Law", those who study Torah, but are not yet judges. The court is not a synagogue, but it is a kind of school. Study of Law and jurisdiction, theory and action, rigor and mercy – all the polarising aspects of the mind belong, in Judaism, to the duality of the court and study house.

ibid.

Here we see the connection: one does not act as a lawyer, because halakhah aught to be the domain of everyone who studies Torah – and the commandment to study Torah applies to almost everyone. Maybe it is also in this light that we can read, as does Leibowitz, Maimonides' opposition to earning money through Torah:

The Sages, peace be upon them, cautioned us regarding this, stating (Avot 4:5, Nedarim 62a): "Do not make the words of Torah into a crown for your own glory, nor into a spade with which to dig and earn a livelihood." They thereby alluded to that which I explained to you above, namely, that one should not establish as the purpose of study that people should honor him nor the acquisition of money. Neither shell he establish the study of the Divine Torah to be for him a source of livelihood.

Maimonides, Introduction to Cheilek, in: Kisvei HaRambam ed. R. Yehuda Meir Keilson

We cannot think the commandment of Torah study as a merely personal one, it is a communal one, and a societal ideal in which everyone studies Torah is incompatible with one where Torah study is the domain of a professionalised class absolving the non-professional of the need to study.

[maimonidiva]

Two things might jump out to the reader here: first, the somewhat surprising notion that the husband, too, can be fined for rebelling against his wife, second, taking a bit of a step back again, that the husband's fine amounts to less than half of the wife's.

The Gemara then elucidates the minutiae of the fine as well as its cause, determining that "rebelling" here must mean withholding intercourse and concluding:

Carrying the entire argument is the idea that men need compassion and gentleness where women need a firm hand, that a woman is to be punished more harshly for the same misdemeanor.

Jumping ahead a few centuries, we find that idea persisting:

Of course, there are several Geniza documents in which we witness men being reprimanded by the court and communal authorities in strong language. However, whereas in the examples above strong language was used to urge women to take certain actions on the grounds of "religious duty", when it comes to men they are usually admonished for serious infractions they have already committee. Furthermore, I am not aware of a male parallel of the phenomenon explored above in which women were admonished to take actions not actually required by Jewish law. [...]

In moving from letters to legal records we are assisted by a fascinating eleventh-century document that contains [two perspectives]. One side of the document is a letter in Hebrew from the communal head of Tsahrajt, a small Delta town, reporting how the local community handled a particularly difficult case of marital strife. A man married the sister of his deceased wife, but the marriage was not a success. According to the letter, the wife appealed to a Muslim court to divorce her from her husband:

"She took him to a Muslim judge and divorced him according to her will against his will. [...] We spoke to her thus: "Let go of all that is past. It is between you and your Creator. Go back to your husband as you were of yore in love and fondness" [...] We had to act with her in a reprimanding manner because she said bad things about her husband and because she went with her ketubbah to a Muslim court and divorced her husband through them and because of her refusal to accept the laws of Israel and her being rebellious [...]"

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

Zinger then goes on to describe the back side of the document, detailing the wife's travelling to Fustat to plead her case to another court, where she was received much more favourably. So while the Mishnah and Gemara are not without compassion, and neither are all the judges of later times, we still find set in place a legal framework that certainly makes it harder for women to obtain justice.

Against this backdrop, we ought to be careful with rabbinic readings that, through nostalgic glasses perhaps, see in the mistreatment of women at the hands of their husbands a purely modern issue that could be solved by going back to the truly observant ways of yore, as writes R. Benzion Uziel on the matter of agunot:

The Istanbul rabbis sent their proposal, Mahberet Kiddushin al Tenai, to Rabbi Uziel for his reactions. Rabbi Uziel began his response with a lament at the increase of agunot problems in this generation (Mishpatei Uziel, 5698, no. 44). The root problem, he argued, was the general breakdown in religious values.

"When such questions have arisen before me, I asked myself in great wonderment: who engendered for us this unruly situation of betrayal of the wife of one's youth? Let these occurrences strike the faces of those who have cast off the yoke [of commandments] and the deniers of faith; let the cries of these unfortunate women, oppressed at the hands of their husbands, open our eyes to see how much we have sinned against ourselves and others by casting off the yoke of religiosity and fear of Heaven. [...] [T]he best and most effective takkanah is to return our nation to the Torah and to the moral Jewish culture."

R. Marc D. Angel, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel

He does, then, adress the urgency of the problem as well as admitting that a return to Torah would be ideal, but that simply isn't the world we live and have to render decisions in. İt is nonetheless striking, against the backdrop of our two previous texts, that he considers marital abuse a modern problem.

Venturing into speculation, we could see here the idea of the constant decline of the generations go hand in hand with continuously putting a stumbling block before women seeking justice for themselves.

[maimonidiva]

The initial question posed via the Mishnah is if a husband may consecrate the earnings of his wife to the Temple, concluding that a wife must produce a certain amount of value for her husband, in turn for which the husband provides for her sustance and supplies her with a fixed allowance. İf she earns more than the value she most produce, this is the surplus and the husband may consecrate it.

Potential flaws in this system are not only detectable to the modern eye:

These mutual obligations were reciprocal and allowed for various changes. For example, while Jewish Law typically linked women's right to maintenance with the husband's ownership of her labour, Geniza marriage documents often declare that the wife would retain her earnings in return for relinquishing her right to be clothed by her husband.

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

We can see how the ketubah, as a contract allowing for certain stipulations to be made by the signatory parties, can be made to correspond to the economic needs of women at different times – supplying them with sustenance in a society where they had no agency, allowing for more economic autonomy in a society where that is no longer the case. This doesn't come without risk, as we see in the anxiety voiced by Rav Pappa: what if that economic autonomy ends up leading to poverty? İn both scenarios, still, the ketubah and its economic stipulations are of vital importance for the woman, giving her a bit of leverage in an economic system tipped against her – a reality that, while ameliorated, is very much still extant today.

Yet we find in legislative attempts towards the ketubah in the Conservative movement today a different picture:

A ketubbah must reflect the social and economic reality of a couple of today that shares assets and responsibilities. The ketubbah in this sense is a real contract. The bride must undertake to provide for the groom the same material and spiritual support that he has provided to her during the period of their marriage. [...]

I have added the phrase "they will control their property equally," a phrase used in tenaim.

R. Pamela Barmash, Egalitarian Kiddushin and Ketubbah, teshuvah, 5780/2020

The wording in her draft regarding betrothal is

Be my wife according to the laws and traditions of Moses [...] I obligate myself to give you the sum of 200 zuzim as the money for your ketubbah [...]

Be my husband according to the laws and traditions of Moses [...] I obligate myself to give you the sum of 200 zuzim as the money for your ketubbah [...]

ibid.

Much more than of financial matters, the teshuvah speaks of ceremonial egalitarianism as reflecting the real or aimed for egalitarianism of lived reality which the financial aspects of the ketubah are supposed to correspond to rather than impact. What we can see here is that the ketubah is no longer a tool by which the woman seeks to attain her economic autonomy, rather, the autonomy is considered a given that the egalitarian ketubah ceremonially acknoledges. The ketubah is thus, in liberal denominations, no longer the main arena in which that equality is being fought out.

[maimonidiva]

Debating the case of testimony on whether or not a given person is a priest, the rabbis find their liberty of pursuing the halakhic ideal confronted by the limits of a real world court. On this topic in medieval Egypt, Oded Zinger writes:

The autonomous-yet-incorporated status of the Jewish courts also influenced the type of power yielded by them. Jewish courts had limited coercive powers. Generally speaking, physical coercion (public humiliation, flogging, capital punishment) was in the hands of the Muslim authorities. As part of the state's administration of justice, the Jewish judge could theoretically turn to the Muslim authorities to use their monopoly over violence to rein in his flock. However, Jewish communal leaders were reluctant to do so because they knew it would prove detrimental to their legitimacy and claim of autonomy. Fines as a form of punishment were also practically unknown. While many legal agreements impose a fine for breach of contract, in practice even when contracts were breached the fines were often negotiated down to a minimum. The remaining instruments of direct coercion were excommunication (Heb. nidduy) and the ban (Heb. herem). However, these instruments were also used reluctantly and sparingly because if they were imposed too often or used against prominent members of the community, there was a significant chance that they would be ignored. As a result, not only would these instruments lose their effectiveness but the authority of the person who imposed them would be publicly curtailed.

Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt

Although in the Gemara the concern for contempt of the court is ultimately rejected as driving the argument, we can nonetheless see an interesting tension expressed by its being brought up. Here collide the Talmud as a means of philosophically and theologically negotiation ones place in the world and the Talmud as a means of generating laws to live by in practical reality, on the one hand, practically, in a specifically diasporic context – contempt for the court being so risky is directly linked to the court's relative worldly powerlessness – and, on the other hand, theologically, in the context of a heavenly Torah that can only be rendered inadequately in our physical world much like the lofty hights of talmudic debate have trouble landing in lived reality at times, thus, expressed by the court's powelessness we see, much as in the story of the golden calf immediately following revelation, that no coercion in the world, even at the hand of Hashem, is effective where the system it seeks to implement is not accepted willingly.