by R. Gidon Rothstein
9 Tammuz: R. Ya’akov Ettlinger on Whether Slaves and Women Must Settle the World
Halachah defines two aspects to the obligation to bear children. The Torah commands piryah ve-rivyah (commonly translated as being fruitful and multiplying), and Chazal added an obligation known as la-shevet, based on Yeshayahu 45;18, where the navi reminds us Hashem did not create the world to be void, but la-shevet, to be inhabited.
Chazal defined the obligation to ensure the world was inhabited as meaning to have children, beyond the minimum one boy and one girl mandated by the Torah’s mitzvah of piryah ve-rivyah.
Shu”t Binyan Tziyyon 123, dated 9 Tammuz 5610 (1850) records R. Ya’akov Ettlinger’s response to a rabbi from Amsterdam. The latter suggested shevet applied neither to ‘avadim kena’aniyim, non-Jewish slaves (who are partially converted to Judaism and therefore obligated in most mitzvot), nor to women. He knows he is disagreeing with explicit views of Tosafot and other earlier authorities [which doesn’t prove he’s wrong, but the general custom has long been that later rabbis require overwhelming proof before they would allow themselves to do so; he is writing R. Ettlinger with what he thinks is proof, and advances his ideas with the proper sense of caution, to see whether his ideas rise to the level of a valid claim].
Slaves and Shevet
R. Ettlinger first notes a passage in Yerushalmi which explicitly obligates a slave in the mitzvah. Because of the other factors leading him to his view, the rabbi from Amsterdam had argued there might be another way to read the text, or we might not accept it as normative.
More significantly, R. Ettlinger thinks the language of a Mishnah on Gittin 41a points directly to a personal obligation on the slave. The Mishnah reports a dispute between Beit Shammai and Beit Hillel as to how to deal with a slave who was jointly owned by two people, one of whom has since freed the slave. The former slave is now half free and half slave.
Beit Shammai required the second owner to free him as well, because they find his current status halachically problematic. Beit Hillel originally did not see anything untenable — the slave could work half his days for himself and half for the remaining owner. They had solved the monetary issue, Beit Shammai countered, but not the slave’s need to be married and father children.
Beit Shammai’s words, which convince Beit Hillel to retract their claim, were “you have fixed his master’s problem [as to how to get his share of the half-slave’s work], but not his own [he cannot marry anyone—his slave half side may not marry a regular Jewish woman, and his slave side may not marry a slave woman].”
The phrasing treats childbearing as a concern of the slave’s. Had the owner been the one who bore the obligation (as this rabbi had claimed), Beit Shammai should have said, “you’ve solved the master’s work problems, but not his shevet problems.”
Slaves and Mitzvot
The rabbi also wondered why we would assume a verse in Yeshayahu applies to a slave, where R. Ettlinger wonders the exact reverse, why it wouldn’t. After all, an ‘eved kena’ani, what we often translate as a non-Jewish slave, has largely converted, is as committed to observance as any other Jew, with the caveat of being exempted from some obligations so he can serve his master. Why wouldn’t Yeshayahu’s declaration of one of Hashem’s intentions in creating the world, later legislated by Chazal, apply to a slave as well?
It’s true Tosafot presents two views (one in Chagigah 2, one in Gittin 42) as to whether the Biblical commandment of piryah ve-rivyah covers slaves, and that R. Ettlinger himself had taken the position (in Aruch La-Ner to Yevamot 62) they likely are not. But piryah ve-rivyah requires zar’o meyuchas acharav, the children be considered their father’s. Halachically, slaves’ children do not count as theirs, for technical reasons.
Shevet has no such condition, since Chazal phrased the obligation as a mitzvah to populate the world with no mention of relationships or lineage [he does not mean to imply it’s great to pop out children without any care for parentage or raising them well, but the mitzvah itself does not focus on those questions].
Nor could the master interfere with his attempts to fulfill his obligation; part of owning an ‘eved kena’ani is letting him fulfill all mitzvot which obligate him.
There’s a bit more to the discussion of the slave, but I want to get to the discussion of women’s obligation, since we have more women around today than slaves.
Women and Shevet
R. Ettlinger is initially more sympathetic to the possibility Chazal did not include women in shevet, as they are also exempt from piryah ve-rivyah. [R. Ettlinger never goes beyond the formal part of the discussion, teasing out conclusions from the sources and their implications, but there’s an underlying thought component, how Judaism views women’s obligation to bear children, if there is any. Some will see it as dismissive of women, others as unnecessary for women, since they’re already biologically prone to want children, and yet others might see it as sensitive to those who struggle with infertility. None of that very interesting and worthwhile conversation appears in Binyan Tziyyon; he is concerned with what the sources tell us].
Tosafot had argued to include women in shevet because they exactly parallel slaves, but we’ve already seen a view which thinks slaves must fulfill piryah ve-rivyah, which would mean there is no parallel.
On the other hand, the exemption from piryah ve-rivyah stemmed from the Torah’s phrasing the endeavor as a form of conquest, where shevet is a matter of settling [so women could be part of the latter even if not of the former; as I’m reviewing this, the distinction between conquest and settling reminds me of Rambam’s distinction between the two times the Jews took over Israel, the first by conquest, the second by taking possession, and the more permanent sanctity created by settling as opposed to conquest. I don’t know where that leads, but I wanted to mention it.]
In addition, the Gemara several times speaks of the world’s need for males and females; since shevet is about populating the world, it clearly means we need both men and women, which again gives reason to think women should have to strive to reproduce as well.
Ran assumes women fulfill a mitzvah when they marry, although he does not say which. For men, the mitzvah is preparing to fulfill piryah ve-rivyah. Ran offers a technical proof; when Kiddushin 41a certifies the effectiveness of a woman’s appointing a messenger to participate in the wedding ceremony for her, the Gemara prefers she do it herself, and calls it more of a mitzvah. Clearly, she’s fulfilling some mitzvah here.
Passive and Active Forms of Shevet
Ran’s proof seems not to have convinced Rambam, since Laws of Prohibited Relationships 21 exempts a woman from marriage and allows her to marry a man she knows to be unable to have children (because she has no mitzvah to procreate, which sounds like the view of R. Ettlinger’s correspondent), and yet also rules, inLaws of Marriage 3, that it’s more of a mitzvah for her to participate in her wedding than to appoint a messenger.
R. Ettlinger resolves the issue by pointing us to Kiddushin 2a, which read the Torah’s reference to a man “taking” a woman as a matter of common practice, men seek women to marry, not the other way around [matters may have changed somewhat in our times, but certainly for most of human history, women sought to attract men’s interest, but courtship commonly involved a man looking for a woman who interested him, and then working to convince her to marry him]. That being true, Chazal did not put the onus of shevet on women.
When she’s chosen to get married, she herself is performing a mitzvah, in that she’s laying the groundwork for populating the world. As with all mitzvot, it’s better to do that personally than by a messenger. But since Chazal did not require her to take an active role, they also would not have obligated the master of a half-maidservant/half-
Males are required to go looking to fulfill shevet, so the owner of a male half-slave would have to free him to do what Chazal understood Yeshayahu to tell us is one role of ours in the world, populating it.
Without contradicting rishonim, R. Ettlinger resolved the sources, to tell us partially converted male slaves bear an obligation of shevet (themselves, not their masters, as his correspondent claimed), and that women fulfill the mitzvah when they participate, but are not required to seek opportunities for it.
He leaves it there, without exploring any of the broader philosophical ramifications of that claim, and so will we.