Wife Beating in Jewish Law II
In a previous post on this topic, I critiqued aspects of an article by Prof. Naomi Graetz (link). I was rightly criticized for both brevity and errors. I submit the following as a more detailed and precise critique.
Of Graetz’s long article (link), I will be commenting only on her treatment of the positions of five authorities — four generally influential and one fairly obscure but influential on this issue. My contention is that regarding four of the five, Graetz misleadingly quoted, misrepresented and/or mistakenly summarized some of their words. I refer solely to this article (which is featured prominently on the web), having no knowledge of Graetz’s other writings nor whether she subsequently revised or retracted her statements in this essay.
II. Two Views
Before we get started, let me summarize the field we are approaching. There are two main views on this subject. As Graetz rightly notes, no Jewish authority permits wife beating without cause. They all forbid injuring your wife just like they forbid injuring your neighbor. The issue at hand is whether your wife receives the same treatment as your neighbor or better.
- According to some, any time you may injure your neighbor you may also injure your wife.
- According to others, your wife receives preferential treatment and you may never hurt her.
I fully admit to being uncomfortable with the first position because it yields the following result. You are, in theory, allowed to physically prevent someone from committing a sin. Therefore, according to this view, you may beat your wife to prevent her from sinning. This does not sit well with me but, as Graetz points out, the modern consensus follows the other view — that you may never hurt your wife. Be that as it may, my concern here is for accuracy and I will even be correcting Graetz’s incorrect attribution of the second view to an authority who really holds the first.
The five authorities I wish to discuss are the Rambam (Maimonides; R. Moses ben Maimon), R. Binyamin Ze’ev (of 16th century Corfu), the Mechaber (R. Joseph Karo), the Maharshal (R. Solomon Luria) and the Rema (R. Moses Isserles).
The Rambam arguably holds the first view, which Graetz accurately shows. She also summarizes the commentarial debate over whether the Rambam allows a husband to physically prevent his wife from sinning or only a court to do so. Commentators disagree, as Graetz describes.
My only critique is more a matter of judgment. The Rambam discusses wife beating twice in his Mishneh Torah but Graetz only quotes one passage, where he (arguably) adopts the first view (Hilkhos Ishus 21:10). I would have quoted the other passage as well (Hilkhos Chovel U-Mazik 4:16), in which the Rambam obligates a husband who injures his wife to pay her damages. Granted, this is certainly referring to a case of unjustified beating (assuming he holds there is ever a justification). However, I would have quoted it anyway to emphasize the dual nature of his position.
IV. R. Binyamin Ze’ev
R. Binyamin Ze’ev wrote a lengthy responsum on wife beating which, thanks to the wonders of the internet, we can access here: link (Responsa Binyamin Ze’ev, no. 88). The first three of the five pages of the responsum reflect a very negative attitude toward wife beating. However, on the fourth page, R. Binyamin Ze’ev adds a qualification — that a husband may beat his wife to prevent her from sinning, which includes cursing him or his parents. In other words, R. Binyamin Ze’ev adopts the first view.
However, Graetz describes R. Binyamin Ze’ev as adopting the second view. She calls his responsum “a major medieval source for responsa which reject wifebeating unconditionally.” While I feel much more comfortable with the second view, R. Binyamin Ze’ev took a different approach. To be generous, perhaps Graetz meant that the first 60% of R. Binyamin Ze’ev’s responsum serves as a major source for other responsa that adopt the second view. Meaning, they quote the arguments in the first part and ignore his further comments. However, even if this unlikely interpretation of Graetz’s words is true, she nevertheless ignored that his responsum (also) serves as a source for those who adopt the first view. This mistake or oversight about R. Binyamin Ze’ev’s view is compounded into an additional misunderstanding of the Rema’s position, as we will soon see.
Graetz claims that the Mechaber was inconsistent on this subject. In making that argument, she misinterprets the Mechaber‘s view in two ways. First, she misunderstands the nature of his Kesef Mishneh commentary on the Rambam’s Mishneh Torah. Kesef Mishneh‘s goal is to explain the Rambam’s meaning and sources. Regarding the Rambam’s position that a husband may beat a sinning wife (Hilkhos Ishus 21:10), the Mechaber offers two possible explanations. Neither of the two represent his own position; both are explanations of the Rambam’s position. It is true that sometimes the Mechaber inserts his own view into the commentary but that is a rare occurrence. There is no indication in this passage that the commentary represents his own view, even without taking into account his stated opinion elsewhere to the contrary.
Additionally, Graetz writes that the Rema’s view, which we will discuss shortly, “further complicates” the Mechaber‘s view. I fail to understand how the Rema’s view sheds any light whatsoever on the Mechaber‘s. They were two different people who often disagreed.
The Rema began writing a lengthy commentary on the Tur, extensively citing all relevant sources from the Talmud through his contemporaries. However, once he saw R. Karo’s Beis Yosef, which was similar in nature, the Rema stopped and instead only wrote glosses to the Tur and Beis Yosef, titled Darkei Moshe. In Darkei Moshe, the Rema sometimes quotes sources verbatim, sometimes just provides summaries and references and sometimes offers his own opinion on how to practice.
On this particular issue, the Darkei Moshe has two glosses. The first is in Even Ha-Ezer 154:16 (link). The Rema quotes the Mordekhai’s quote of the Maharam, in which the Maharam strongly adopts the second view, and then the Rema quotes other similar rulings. In the next entry (154:17), the Rema quotes sources who strongly oppose wife beating and then quotes R. Binyamin Ze’ev at length about the permission to beat a wife in order to prevent her from sinning. The Rema then adds that the Maharam, which he quoted in the previous note, disagrees with R. Binyamin Ze’ev, and cites additional sources on the subject.
Nowhere in these glosses does the Rema reveal his personal view. He quotes sources verbatim on both sides — the Maharam who follows the second view above and R. Binyamin Ze’ev who follows the first. However, Graetz only quotes the Rema’s lengthy citation from R. Binyamin Ze’ev and attributes these words to the Rema. Perhaps she made this mistake because, as discussed above, she wrongly concluded that R. Binyamin Ze’ev adopted the second view and not the first. Quoting this passage as if the Rema wrote it himself is wrong because it ignores the Rema’s other lengthy citation from the Maharam and because it mistakenly attributes the quote to the Rema and not to R. Binyamin Ze’ev.
In a gloss to Shulchan Arukh (154:3), the Rema states that men may not normally beat their wives and then presents the two views. In this work, as opposed to Darkei Moshe, he concludes by siding with R. Binyamin Ze’ev. I believe that Graetz reached the correct conclusion on the Rema’s view but wrongly attributed to him someone else’s words. Personally, I would also have given the background in the Rema’s initial words, generally forbidding wife beating, in order to fully present the Rema’s view. However, this is merely a judgment call.
The Maharshal discusses wife beating in a section in his Yam Shel Shlomo (Bava Kama, ch. 3 no. 9). He quotes from those who adopt the first view. Absent any other information, we could conclude that he adopts that view as well, although he does not say so outright. And this is how Graetz reads the Maharshal.
However, in a later passage (ibid., no. 21 – link), the Maharshal explicitly rejects this view. He cites it as the view of the Rambam, directing readers to his previous discussion, and states that this view is null in relation to the second view, which the Ra’avad adopts. In directing readers to his previous discussion, the Maharshal explicitly rejects the view addressed there (ועוד גם דברי הרמב״ם בטילים נגש הראב״ד). The only possible conclusion is that the Maharshal rejected the first view in favor of the second. However, Graetz only quotes the Maharshal’s first discussion and accepts the view discussed there–the first view–as the Maharshal’s.
Let me emphasize that I only address here a few points in her article. My silence on other points should not be taken as agreement or disagreement. However, I believe that the reader can rightly conclude that he should independently review Graetz’s sources in that article rather than accepting her presentation or interpretation.
Note that I intentionally refrained from discussing the issue of compelling an abusive husband to divorce his wife because it is a complex subject that requires a lengthy discussion of its own. This issue winds throughout Graetz’s article, including–relevant to our discussion–her treatment on the Mechaber‘s view. For the reason just stated, I chose to only discuss two of her statements regarding the Mechaber.
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