by R. Gidon Rothstein
Only When Hashem Fought For Us
I find both parts of Meshech Hochmah’s comment to Devarim 21;10 worth considering, although I am not sure how they go together. The Torah introduces the idea of a yefat to’ar, a woman a Jew takes captive during war, whom he plans to have convert and then marry (against her will, if he persists).
Meshech Hochmah picks up on the verse’s description of the victory, u-netano Hashem Elokecha be-yadecha, God will give this enemy into your hands. He first assumes a Jew may take a yefat to’ar only when the war was conducted solely (or demonstrably) by God, where the Jewish victory was so thorough, only the Jews took captives. When the Jews clearly had Hashem’s full support, they could enact this practice.
Where both sides take prisoners, the war ends with each side returning all their prisoners. Were a Jew to take a yefat to’ar wife, he would withhold her from the swap, and the enemy would hold some Jewish captive in return (Meshech Hochmah is assuming prisoner trades were one to one, and that the enemy knew exactly how many of their own had been taken).
He doesn’t tell us which factor mattered more to him. I could imagine he thought Jews would only be allowed to take yefat to’ar wives when they had reason to believe God was “happy” enough with them to give them a completely supernatural victory [although I confess it seems to me an odd next step, to force a woman to join a new nation as one’s wife]. Still, it is an idea we could work with, that when we have good reason to believe our conduct sets us apart from other people, it gives us extraordinary leeway.
But I don’t honestly think he meant that, because of the other part.
We Can’t Benefit Off of Fellow Jews’ Misery
His insistence on divine intervention seems more likely to have been the way to have no need for prisoner exchange. In usual wars, the enemy will not release their Jewish captives until and unless the Jews release all theirs. Captive wives cost a parallel Jew his freedom.
In saying that, Meshech Hochmah doesn’t cover all the options. Prisoner exchanges can take months or years to accomplish. Would Meshech Hochmah think the Jew could live with his captive wife until then? What if the non-Jews don’t know about her, and turn over all the Jewish prisoners without her? Etc.
He leaves us with the possibility he meant both (which I would prefer), yefat to’ar is allowed only if we have tangible reason to think God intervened supernaturally on our side, and that the Jew taking the wife is not costing other Jews their freedom. Or one or the other.
Caring For Our Own Evil
The Torah’s command to execute adulterers, 22;22, ends u-vi’arta ha-ra mi-Yisra’el, you shall extirpate the evil from the Jewish people. The words u-vi’arta ha-ra are followed by mi-kirbecha, from your midst, in seven of the nine times they appear in the Torah. Meshech Hochmah says in those cases we would not have made the mistake of including a ger toshav, a non-Jew who adopts enough of Jewish law to be allowed to live among Jews (Rambam thinks the ger toshav had to commit to all Noahide law; other sources imply a lower set of requirements, such as agreeing not to worship any power other than God), in mi-kirbecha.
Most of the u-vi’arta ha-ra rules (like a rebellious son), do not apply to non-Jews, and therefore mi-kirbecha is clear enough. They are included in the adultery prohibition, opening the possibility adultery does apply to them, leading the Torah to stress we Jews are responsible only to extirpate this evil from our midst.
While Jewish courts are not responsible for ensuring non-Jews follow their laws, Rambam in Laws of Kings 10;11 says the courts must set up judges for the resident non-Jews to avoid chaos, but saw no obligation to make sure Torah justice prevails. [and if their courts do not address adultery, I think Meshech Hochmah means, it does not necessarily destroy society, absolving Jews of the need to police it].
Even with murder, 19;13 only required Jews to address the innocent blood in Israel, a word Meshech Hochmah is taking to mean Jewish courts address non-Jewish murder only to the extent that it affects society. Non-Jewish murderers also incur the death penalty, but it is not a Jewish responsibility to be sure it happens.
[There’s a theory here of how an halachic Jewish state treats the non-Jews in its midst; he is saying Jewish courts make sure those societies function, but leave to them the work on observing their Noahide laws.]
Crimes that Destroy Society
While he is saying killing a murderer may not be indispensable to a working society, zaken mamrei gives us the reverse option, a crime with greater impact than we’d have imagined. In 17;12, the Torah considered his death penalty a bi’ur ha-ra, a getting rid of evil. The Torah adds those words because we might have thought it was “only” a lack of respect for the judges, who could decide to forego the insult.
U-vi’arta ha-ra tells us the judges may not, because this wrong starts a trend of individuals assuming they know as well or better than the central authorities. If everyone does whatever they decide is right, the nation will be divided into various and warring camps (a concern we saw him address last week as well). Jews are supposed to be a goy ehad ba-aretz, unified and singular, models of what God wants from humans, and the courts play a vital role in the process. (Same with a king, for similar reasons, he says.)
The need to address, remove, and destroy evil has offered Meshech Hochmah the chance to make two points: the Jews of a well-functioning Torah society are obligated to establish a working justice system for the non-Jews who live among them, but have no requirement to be sure those societies take steps to completely cleanse them of the evils within their societies. Second, among those evils are some whose threat to society are more serious than we’d have thought, like a zaken mamrei.
Theoretical Reasons for a Man to Choose Divorce
For our third comment, I turn to the idea of divorce, 24;1, expressed as the husband having “found an ervat davar” in his wife. Beit Shammai at the end of Gittin held the verse accepts divorce only in case of a wife’s infidelity (Meshech Hochmah assumes she was seen by two valid witnesses, for reasons I do not have the space to analyze here).
Beit Hillel allowed other complaints of the husband to justify it, the example of the Mishnah being her having burnt the soup (intentionally, it seems). R. Akiva takes the most surprising view, a man may divorce his wife simply because he now prefers someone else.
Whatever the cause, the Torah allows the woman to remarry, life to go on.
Reasons Aren’t Always Justifications
In Gittin 90b, R. Yohanan limits this Mishnah’s purview. Malachi 2;16 speaks of God hating those who cast away their wives, to R. Yohanan a sign permission to divorce is not validation of it.
Meshech Hochmah sees another indication of the point, this verse refers to God as Elokei Yisra’el, the God of Israel, where Malachi usually talks of Hashem Tzeva’ot, the Lord of Hosts. The switch was to remind us of the Patriarch Ya’akov (also named Yisrael), who stayed with his hated wife Le’ah, despite his ample cause to divorce her. God rewarded him by opening her womb, giving Ya’akov sons he desperately wanted.
I don’t think Meshech Hochmah is reading R. Yohanan to reject all divorce, only to be careful about exercising one’s rights, that sometimes not insisting on divorce brings unexpected rewards.
It’s Not All About Rights
The Ki Tetsei I found in Meshech Hochmah this time around lays out a world where we likely do not see the whole picture. We go to war and win, sometimes “naturally,” sometimes with God’s more direct intervention. Only then, where no other Jews would suffer for our stepping outside the usual bounds of conduct, may one take a captive wife.
We might have thought our battle against evil extends to non-Jews who live among us, but Meshech Hochmah did not, thought we only have to give them the wherewithal to build a working society, without the larger project of ridding their society of evil.
Finally, even where we might have the right to claim a divorce will rid us of certain evils, it’s often the better choice not to do it. Right isn’t always what we assume at first glance.