Children and Women as Halachic Categories of Jews

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by R. Gidon Rothstein

Peri Megadim Petihah Kollelet : Finishing Children, Moving On to Women

A Physically Undeveloped Twelve/Thirteen Year Old

Last time, we finished with when we decide a person has become an adult despite never developing physical signs of adulthood, male or female, nor signs of being a man or woman who will never develop. I should have pointed out we also worry the child had developed those characteristics and then they fell off.

Such a person might be an halachic adult, meaning s/he is obligated to fulfill Biblical mitzvot just in case, and rabbinic ones either way (as a matter of hinuch, education, or because s/he is an adult). For rabbinic issues, the doubt still matters according to those opinions a double de-rabbanan (a child, whose entire obligation in mitzvot is rabbinic, performing what is in any case a rabbinic obligation) cannot perform the act on behalf of someone obligated with one de-rabbanan (an adult in a rabbinic obligation).

Relying on a Majority to Define Adulthood

Last time, Peri Megadim told us even those who never produce signs of physical maturity or of permanent lack of such signs become full adults for all purposes once they have lived the majority of their lives, which Magen Avraham says is thirty-six years. Peri Megadim thinks it might be thirty-five years and a day. Note that both use seventy years as a model, one of those cases where we can wonder whether a future Sanhedrin would adjust the numbers (or make them irrelevant, given our better ability to ascertain physical maturity).

Peri Megadim wonders why the rov that most twelve- and thirteen-year-olds have already matured into full adults cannot allow us to assume it about all children. Possibly, we cannot rely on it because it is easily checked; on the other hand, perhaps asking a child to undress counts is enough of an embarrassment to count as not easily checked. Magen Avraham 199;7 thought we could not rely on the rov because there is a hazakah, an existing state, pointing in the other direction.

The tension between the two issues comes up in monetary matters, where we cannot rely on a rov to require someone to pay money because of a countervailing hazakah, existing state of this person being in possession of the money. With shehitah, the animal’s currently being alive (and therefore inedible) might also get in the way of relying on the Gemara’s assumed rov, most people who present themselves as competent ritual slaughterers are in fact competent ritual slaughterers.

Peri Megadim tells us he has written about this elsewhere, and we will leave it here. [It is an element of his writing I have not made enough of a point; he wrote this Petihah Kollelet after the rest of the commentary on Shulhan Aruch, and frequently referenced the rest of Peri MegadimGinat Veradim, and the apparently still in progress Shoshanat Ha-Amakim. He was a unified thinker, I think I am trying to say, issues he raised in one work coming to play everywhere.]

A Minor Will Become an Adult

The minor has an advantage over the other two categories of exempt Jews we have seen, the deaf-mute and not fully sane person, because we expect the minor to become an adult. For example, therefore, if someone must ask one of these kinds of people to violate Shabbat for him, we would prefer the shoteh, who has no da’at, no halachic mental competence, to the katan, who will one day become an adult.

We also trust minors on some issues, although they cannot be full-fledged witnesses. Magen Avraham 343;1 suggests a minor who sins should repent of it when s/he becomes an adult. Although the sin does not count, I think Magen Avraham reads the developmental process to mean the child slowly forms the kind of da’at that would make him/her fully culpable for sins, and we are not sure where along the path s/he was at the time of the sin.

Coming back to our undeveloped teenager, since it is possible s/he had signs of physical maturity before they fell off, his/her sins possibly count fully. If among those were sins for which a Jew would bring a sacrifice, Peri Megadim recommends s/he recite the verses of the relevant sacrifice with the appropriate yehi ratzon beforehand (let it be Your will that my reciting these verses count as if I brought the sacrifice; this is one small advantage of a time without a Beit Ha-Mikdash, in that we might not be able to actually offer such sacrifices “just in case,” but we are allowed to say the verses just in case).

The Speech/Thought of a Minor

[Rishonim disagree on the meaning of mahshavah, thought, in the Gemara. In many places, the Gemara dismisses devarim she-ba-lev, matters purely in one’s heart, leading Rashi and Tosafot to assume that when the Gemara speaks of mahshavah, thought, having an effect (such as in invalidating certain sacrifices), it means articulating those thoughts as or before the person acts. To think of a certain sacrifice as a hatat, a sin offering, would mean to say it out loud, for these rishonim. Rambam seems to disagree, seems to think in these areas, thought does count.]

For a minor (or heresh or shoteh), thought does not count (and, therefore, for Rashi and Tosafot, even their pronouncements), even to require a stringency. If a minor slaughters an animal with an adult standing there to verify the action was performed correctly, we consider the animal kosher even if the minor said “I’m doing this as stabbing the animal, not as shehitah.” Although Shulhan Aruch implies a specific intent not to perform shehitah would invalidate the shehitah if an adult said it, a minor’s intent does not count at all.

Where Women’s Rules Differ

We cannot finish Peri Megadim’s comments on women in halachah this time, but I am trying to finish this second part of the Petihah Kollelet by the first of Elul, so we can switch to teshuvah topics (Mabit’s innovative ideas in Beit Elokim) through Yom Kippur. So let’s push on.

Women are the same as men for any matters for which the Torah declared a punishment, R. Yehudah says in the name of Rav, Kiddushin 35a. They are mostly exempt from obligations with a time component [time-bound is the more common phrasing; to me it seems inexact, since some mitzvot apply for long periods, yet are considered zman grama. For example, tefillin are considered zman grama even if the only time not to wear them is Shabbat and holidays. Circumcision might be considered zman grama if the baby cannot be circumcised during the first seven days of life. A time component, are not really time bound.]

Today, we often say women are the same as men for all prohibitionsPeri Megadim picks up on Rav’s reference to onshim, punishments, and wonders about prohibitions without one, such as a lav she-ein bo ma’aseh, where there is no action and is not punishable by a court.  Rashi focuses on punishment in reading Rav’s idea. Rambam did not adopt that inference, Laws of Worship of Powers Other Than Gd 12;3; he ruled women were the same as men for all prohibitions, with only three exceptions.

He recognizes exceptions to the exemption from time-component obligations, too, such as kiddush on Shabbat, eating matzah on Pesah. Rambam’s phrasing seems to treat all obligations with a time component the same, regardless of whether an action is involved.

For Peri Megadim’s example, were a woman to own hametz past noon on the fourteenth of Nisan—even were she to buy it—she would seem to be exempt, because the requirement to divest of all leavened on that day is phrased in the Torah as an obligation. So, too, if a woman converted and owned hametz on the fourteenth and then passed away, the hametz is unowned on Pesah, and would therefore seem to avoid the rabbinic ban on hametz she-avar alav ha-Pesah, leaven owned by Jews on Pesah.

Where We Infer Exceptions

Despite these rules, the Gemara other times provides derivations of ideas we might have thought already covered, such as a specific verse to hold women equally culpable as men in cases of improper marriages or physical intimacy. R. Eliyahu Mizrahi suggested where the man and woman’s actions are not the same, the Torah needed a verse to include women.

Peri Megadim also thinks the rule applies only where the Torah happens to use male gendered language. Where it speaks of ish, a man doing x, Tosafot Sukkah suggests the word does refer to a man and not a woman, unless we are told otherwise. (Similarly, Tosafot points to places the Gemara looks for a verse to apply a rule to converts because the Torah spoke of Benei Yisrael, the children of Israel, possibly to exclude those not born Jewish.)

R. Eliyahu Mizrahi thoughtTosafotneglected an element of the distinction. For all punishments, where R. Yehudah in the name of Rav had shown a source-verse to equate men and women, Benei Yisrael includes both; where there is room to think they might be different, we need a verse to include them. In other situations, like a father teaching Torah to his children, a reference to sons is assumed to mean sons and not daughters.

There are ins and outs of the topic, without firm conclusions, so we will stop here, because next time, he takes up arevut, the extent of women’s inclusion in the general assumption Jews are obligated to help and ensure we all observe mitzvot.

I also note Peri Megadim does not delve into reasons. He may have thought of reasons, but his analysis sticks to the system of rules and sources and works from there. Next time, we will see his further thoughts on women.

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