Aruch HaShulchan and the Levels of Halachah

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by R. Gidon Rothstein

Parshat Lech Lecha, 5784: More on Marriage and Children, Aruch HaShulchan Even HaEzer 1

Se’ifim, paragraphs, six and seven of Aruch HaShulchan’s restatement of Even HaEzer 1 put us once again in the interestingly fuzzy part of the world of halacha. Se’if six says a man should marry even if he already has many children, based on the Biblical verse where Hashem is quoted saying it was not good for man to be alone. Rambam in Laws of Marriage 15 took that to be a rabbinic mitzvah, to help avoid inappropriate thoughts. If so, it applies even to a man who can no longer bear children, says Nimmukei Yosef.

AH knows and wonders about great Torah scholars who did not remarry after their wives passed away, seeming to contravene this obligation. He suggests they relied on the fact that the verse is an asmachta, a rabbinic reading meant to in some way attach a purely rabbinic rule to Scripture. These rabbis assessed themselves, saw their age and weakened state dispensed with the problem of such thoughts, and did not remarry.

Maybe so, but that means either the rabbinic rule includes that exception, or they felt comfortable deciding there was such an exception. Either way, it suggests any man who has already fulfilled the obligation of procreation and finds himself single can decide whether he need to remarry, or is removed enough from such thoughts that he need not, which is not the usual tenor of discussions of remarriage, I think.

The Continuing Obligation of Childbearing and Ways Around It

The next paragraph grapples with if the man should still have children. Kohelet 11;6 tells us to plant both in morning and evening, because we never know which harvest will succeed, an idea Yevamot 62b thought included having children. Were we to accept this as an halachic imperative, any single man should try to marry a woman of childbearing age. However, Rema knows it might cause fighting with a man’s existing children, and thought that sufficient—if he has already fulfilled the Biblical obligation of procreation–to choose to marry a woman with whom he would not have children. He is still supposed to marry, however, to have a legitimate outlet for his sexual urges.

[I’m skipping a few nuances, but do want to point out that once we are sure a source is rabbinic rather than Biblical, with quoted verses not the source, later authorities feel more comfortable adjusting the application of a rule according to what they are confident is the underlying reasoning of a rule. In our case, if “lo tov heyot ha-adam levado, it is not good for the man to be alone,” were an existential statement, or if la-erev, in the evening plant, was more absolute, these leniencies would have no place. I’m not questioning them, I’m noting where halachic authorities do and do not see room for more options.]
For another debated issue within this idea, Megillah 27a allowed a man to sell a Torah scroll only either to support his Torah study or to get married, which some thought was only for a marriage where the man has yet to fulfill the Biblical obligation of procreation, some thought was true even to fulfill la-erev, and some allowed even for any marriage, since it will help him not have inappropriate thoughts.

Similarly, in paragraph nine, AH discusses a woman’s legal ability to forego her onah rights. Until the man has fulfilled his Torah obligation of piryah ve-rivyah, Rambam held the couple must have relations at every opportunity [I believe poskim today are open to a less pressured marital environment on this topic, but that is not our issue right now]. Once he has, the continuing la-erev mitzvah is not as pressing, the couple can occasionally decide to not have relations, as she can relieve him of his marital obligation towards her.

The Age of Marriage

Se’ifim 10-13 offer another great example of a question with no clear answer, the age of marriage. Usually, we say young men are obligated in mitzvot when they turn thirteen, but the Mishnah in Avot said marriage came at eighteen. AH thinks the Mishnah and Gemara knew the young man needed time to learn Torah (and the responsibilities of family would interfere), and was also too weak to be a father.

Kiddushin 29b does quote R. Chisda, who thought he had benefitted from marrying at sixteen, would have benefitted even more had he married at fourteen. Some authorities took that to be an ideal, but AH says the authorities of his time were sure nature had changed, and we should not rush people. The Gemara had seemed to say that waiting past the age of twenty constituted neglect of the mitzvah, and authorities of AH’s time thought twenty-four was a clear point beyond which the man must have married.

Unless he finds himself able to control his urges, in which case some allow him to wait, perhaps only until twenty-four, perhaps longer, although if he has the money to learn after marriage, his excuse for waiting goes away. For an extreme example, Yevamot 63b has the story of Ben Azzai, who either never married or married briefly (to R. Akiva’s daughter!) and realized he could not tear himself aways from Torah. AH is unsure the Gemara’s telling the story means others can follow Ben Azzai’s example.

[The blurriness of the discussion bears note. We are in the realm of a de-oraita, a Biblical mitzvah, with some apparent guidelines from the Gemara, yet poskim became convinced that changes in time and circumstance could guide our choices around its fulfillment.]

The Basic Mitzvah

In se’ifim 20-25, AH sets the parameters: a man is required to have a son and daughter, each of whom must be physically capable of bearing children. If those children passed away in the father’s lifetime, their offspring count towards his obligation, as he has contributed to the continued settlement of the world. However, those grandchildren must include a boy and a girl, and must come from a boy and a girl of the grandfather’s. If a man’s daughter had a boy and a girl and the son had none, and the children were no longer with us, the grandfather will not have fulfilled his mitzvah.

That’s Rambam, our current practice. A future court might decide differently, accept the view of Tosafot, even two boys among the grandchildren can work, or the Tur, who thought even two granddaughters do it.

Gender aside, children out of wedlock count, even mamzerim, children from a relationship prohibited at the level of karet or death (such as adultery). [This is not the venue, but it seems to me there is a range of views of how negatively we see mamzerim; some sources see them as largely regular Jews, restricted only in whom they can marry, whether others think of them as essentially and deeply damaged and damaging to the community.]

Converts and the Mitzvah

For another example of the unclear, a non-Jew who had children and converted has fulfilled the mitzvah, according to the Gemara, because non-Jews are also supposed to settle the world. Rambam and Tur were sure the children had to have converted with him, where Beit Shmuel knew of Maharil and other important authorities who think it applies even if only the man converted. AH favors the latter view, because we usually liken a convert to a newborn baby, so his children are only attached to him at all because of various rabbinic concerns. Why should their conversion affect his procreation status?

Another issue, with ramifications for Torah law, without unequivocal sources to decide it.

The Retreat From Practical Applications

In the last five paragraphs of the siman, AH points out Rema already (three hundred years earlier) said courts no longer mix in, do not formally pressure/coerce a twenty year old man to marry, do not oppose a man’s marriage to a woman unable to have children despite his not yet having had children of his own, do not separate a couple infertile for ten years. AH sees no good reason for this, thinks it is a function of our courts not having the power to do so, but does not lessen the wrong committed by those who act in these ways. He insists no man should delay marriage beyond age 24.

We also no longer practice Torah law regarding marrying multiple women, Ashkenazic Jews having accepted Cherem Rabbenu Gershom, an ordinance originally set to expire in 1240 (the new millennium in the Jewish calendar), but permanently adopted by wide swaths of Jewry, and also the law of the land in many places. Where there is no firm tradition, AH thinks we assume the idea was accepted there as well.

More, he says the rule is in effect in the New World, America and Australia, because most Jews who went there came from where it was in force. [This isn’t the place to discuss it, but he has just taken for granted that people carry their customs with them, an idea found in Teshuvot HaRan 48. Other sources think custom depends on place, and can change when one goes somewhere else.]

His last discussion explains why we today ignore a seemingly practical halachah. Halachah said not to marry women in different places, lest the children of one marriage unknowingly meet and marry the children of the other. He dismisses all the suggested reasons not to worry about it today (though it would be only after the first marriage ended, the same concern applies), and eventually assumes the better mail systems means people know more about their fathers, etc., than they used to.

A remarkable claim, considering that even today, there are cases of men who manage to have multiple families without the others knowing about it.

But that’s a distracting side point. We should not let it take away from the lessons of the last two weeks, the obligation and importance of marriage, having children, and being part of building God’s world. Next week, Choshen Mishpat and back to cycling through the four parts of Aruch HaShulchan.

About Gidon Rothstein

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