Friday, August 31, 2012

Running commentary on Ki Teitzei, part i

Ki Teitzei begins in the middle of perek 21:
י  כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ ה אֱלֹהֶיךָ, בְּיָדֶךָ--וְשָׁבִיתָ שִׁבְיוֹ.10 When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive,

The Torah is given to all generations, but it is also given to the Hebrews who emerged from Egypt at just that time. One should not judge these laws entirely by modern sensibilities, but rather by ancient ones. No one is writing a Toras Hamelech nowadays to actually carry out these laws. And in social context, even the keeping of a slave for sexual purposes was not considered immoral or unethical. Nor was taking captives of war as slaves considered unethical.

Within this context, the laws of yefat toar are actually quite progressive in nature. They work to ensure the rights of the female captive, such that if she is taken captive and her captor decides to marry her (presumably even against her will), she is to become a full wife, rather than some sort of sexual slave.

Oh, and the Torah was not given to malachei hashareit, so indeed, the Torah assumes that people going to war have yetzers. At the same time, I am unconvinced that לא דברה תורה אלא כנגד יצר הרע, such that it was non-optimal or negative behavior, and that אם אין הקב"ה מתירה ישאנה באיסור.

כִּי-תֵצֵא לַמִּלְחָמָה -- this taking of yefat toar is not a positive mitzvah that one must seek to fulfill. The 613 mitzvot are 613 regulations that govern how one conducts oneself in different situations. If one seeks to divorce his wife, this is how to do it. If one goes to war, takes captives, and happens to desire one of the female captives sufficiently to want her as a wife, then this is how to do it. Indeed, much like shiluach hakan. Thus, כִּי as when, if. Now that more chareidim are going into the army, I don't think that anyone is going to establish this as a segulah.

עַל-אֹיְבֶיךָ -- against your enemies. Yet in the end, he wants to marry one. Perhaps that they are oyvim, enemies, would make one think that one could maltreat the prisoners and make use of their bodies however one sees fit. Therefore the need for this parasha.

וּנְתָנוֹ ה אֱלֹהֶיךָ, בְּיָדֶךָ -- it is not kochi ve'otzem yadi, the strength of your own hand, that performed this chayil. It is Hashem who gave them over into your hand. And it is Hashem who also demands that you treat them ethically and with some measure of human rights.

וְשָׁבִיתָ שִׁבְיוֹ -- thus, as Rashi writes, this is speaking of an optional war.
If you go out to war: The verse here is referring to an optional war [i.e., non-obligatory] (Sifrei 21:1), since in reference to the [obligatory] war [to conquer] the land of Israel, it would be inappropriate to say “and you take his captives” because it has already been stated [regarding the seven nations of Canaan],“[from these peoples’ cities…] you shall not allow any soul to live.” (Deut. 20: 16).כי תצא למלחמה: במלחמת הרשות הכתוב מדבר, שבמלחמת ארץ ישראל אין לומר ושבית שביו, שהרי כבר נאמר (לעיל כ טז) לא תחיה כל נשמה:

Next pasuk:
יא  וְרָאִיתָ, בַּשִּׁבְיָה, אֵשֶׁת, יְפַת-תֹּאַר; וְחָשַׁקְתָּ בָהּ, וְלָקַחְתָּ לְךָ לְאִשָּׁה.11 and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife;

וְרָאִיתָ, בַּשִּׁבְיָה -- the Torah is not speaking about going to war specifically for the sake of taking female captives. I'm thinking of the conduct of the tribe of Binyamin, in a very different context.

אֵשֶׁת, יְפַת-תֹּאַר -- Rashi says it means even a married woman:
a…woman: Heb. אֵשֶׁת, even a married woman (אֵשֶׁת אִישׁ). - [Kid. 21b]אשת: אפילו אשת איש:

Ibn Ezra, often a radical, contests with Karaites in this perek. Here he agrees with Rashi and Chazal:
אשת -כבר דרשוהו חז"ל.

Consider Tehillim 58:9:
ט  כְּמוֹ שַׁבְּלוּל, תֶּמֶס יַהֲלֹךְ;    נֵפֶל אֵשֶׁת, בַּל-חָזוּ שָׁמֶשׁ.9 Let them be as a snail which melteth and passeth away; like the untimely births of a woman, that have not seen the sun.

Or better, I Shmuel 28:7:
ז  וַיֹּאמֶר שָׁאוּל לַעֲבָדָיו, בַּקְּשׁוּ-לִי אֵשֶׁת בַּעֲלַת-אוֹב, וְאֵלְכָה אֵלֶיהָ, וְאֶדְרְשָׁה-בָּהּ; וַיֹּאמְרוּ עֲבָדָיו אֵלָיו, הִנֵּה אֵשֶׁת בַּעֲלַת-אוֹב בְּעֵין דּוֹר.7 Then said Saul unto his servants: 'Seek me a woman that divineth by a ghost, that I may go to her, and inquire of her.' And his servants said to him: 'Behold, there is a woman that divineth by a ghost at En-dor.'

Such that eshet, even in contruct form (of eshet instead of isha) needs not mean a married woman. The Karaites make this point:

Of course, they hold that this refers to the specific case of war against distant cities, such that the rebellious men who had been killed, and the women spared, such that "of course" these women would not be married.

At the end of the day, eshet as married is not peshat, but it can still stand as a derash. And one could readily say that the bonds of marriage are cancelled by captivity in war.

 יְפַת-תֹּאַר -- dibra haTorah behoveh. As Ibn Caspi writes, the same would be true if she was ugly.  So, sort of, is Ibn Ezra:
יפת תאר -בעיניו.

but that is that beauty is subjective. According to Ibn Caspi's reading, such subjectivity is not even required.

וְחָשַׁקְתָּ בָהּ -- Rashi notes that this is Chazal's evidence that לא דברה תורה אלא כנגד יצר הרע. This would then mean desire for the sexual act.

Ibn Ezra has a slightly different take, saying:
וחשקת בה -שתחשקנה לקחתה לאשה. כי אחר כן יאמר: ובעלתה, וכמוהו: ואקח אותה לי לאשה:

that you desire her for a wife.

וְלָקַחְתָּ לְךָ לְאִשָּׁה -- while one can understand this as biah rishona in the field, the peshat that seems more like peshat is that this is a comprehensive statement, that he shall take her not as a zonah, but as a full wife, according to all the conditions which will be spelled out in the next pesukim.

יב  וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ.12 then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;

וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ --  not as an act separate from bia rishona, but as the first step in the process of וְלָקַחְתָּ לְךָ לְאִשָּׁה. Thus, it is not in the field, but in the safety and security of a house. Is is not hidden from view, but it is widely known that she has entered his house.

And most importantly, she started out in a vulnerable position, of וְרָאִיתָ בַּשִּׁבְיָה. This is the first stage in setting the correct psychological tone for the marriage.

וְגִלְּחָה, אֶת-רֹאשָׁהּ -- It is amazing how the same words can be taken in such opposite directions. Is this an attempt to make her seem ugly, in case he was attracted to her hair? Is it, as Shadal suggests, part of mourning?

I say that it is part of the removal of her insecure, captive of war, status. וְגִלְּחָה does not need to mean complete shaving of the head. She gets a haircut, since her hair could have become unkempt and could have grown wild during the war and captivity. Compare to Yosef, when he was removed from prison, in Bereshit 41:14:
יד  וַיִּשְׁלַח פַּרְעֹה וַיִּקְרָא אֶת-יוֹסֵף, וַיְרִיצֻהוּ מִן-הַבּוֹר; וַיְגַלַּח וַיְחַלֵּף שִׂמְלֹתָיו, וַיָּבֹא אֶל-פַּרְעֹה.14 Then Pharaoh sent and called Joseph, and they brought him hastily out of the dungeon. And he shaved himself, and changed his raiment, and came in unto Pharaoh.

Note the changing of the garment as well.

וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ -- she "does her nails". Again, this is trimming not to remove beauty but to restore beauty or basic cleanliness. We compare with the act of giluach to know this means paring. Also, because of this example from II Shmuel 19:
כה  וּמְפִבֹשֶׁת, בֶּן-שָׁאוּל, יָרַד, לִקְרַאת הַמֶּלֶךְ; וְלֹא-עָשָׂה רַגְלָיו וְלֹא-עָשָׂה שְׂפָמוֹ, וְאֶת-בְּגָדָיו לֹא כִבֵּס, לְמִן-הַיּוֹם לֶכֶת הַמֶּלֶךְ, עַד-הַיּוֹם אֲשֶׁר-בָּא בְשָׁלוֹם.25 And Mephibosheth the son of Saul came down to meet the king; and he had neither dressed his feet, nor trimmed his beard, nor washed his clothes, from the day the king departed until the day he came home in peace.

in which asa means trimming.

Rashi and Ibn Ezra take this as making them grow long so as to make her disgusting in his eyes, so that he will not go through with taking her as a wife. Nowadays, long nails are considered more attractive.

Next pasuk:
יג  וְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים; וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה.13 and she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

 וְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ -- again to add to her emotional stability. She only had the one dress of captivity, because her city was captured. She only had the clothes on her back. Now she removes this tattered and dirty clothing and receives new clothing in its place.

Compare to the pasuk involving Yosef above,  וַיְגַלַּח וַיְחַלֵּף שִׂמְלֹתָיו, וַיָּבֹא אֶל-פַּרְעֹה.

וְיָשְׁבָה בְּבֵיתֶךָ -- again, stability. She stays in a normal home as a member of the household.

וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ -- and she is not thrown into this new marriage, but has gets a chance to grieve. And an acknowledgement that, as a fellow human being, who has lost loved ones, she has a right to grieve.

Rashi takes it as a further way that she becomes disgusting, compared to Israelite women, so that he will not go through with this.

Ibn Ezra writes:

יש אומרים: 
כי זה הבכי על אביה ועל אמה שלא התייהדו. 
ולפי דעתי שחייב כל אדם בשקול הדעת לכבד את אביו ואת אמו בחיים ובמות.

וטעם ובכתה - 
שתתאבל עליהם כמשפט ישראלית כי היא מתייהדת, אם נהרגו כאשר נשבת ואין צריך להזכיר תרחץ, כי היא צריכה למי נדה כי כבר נכתב אתם ושביכם. 

The reference is to this pasuk in Bemidbar 31:
יט  וְאַתֶּם, חֲנוּ מִחוּץ לַמַּחֲנֶה--שִׁבְעַת יָמִים:  כֹּל הֹרֵג נֶפֶשׁ וְכֹל נֹגֵעַ בֶּחָלָל, תִּתְחַטְּאוּ בַּיּוֹם הַשְּׁלִישִׁי וּבַיּוֹם הַשְּׁבִיעִי--אַתֶּם, וּשְׁבִיכֶם.19 And encamp ye without the camp seven days; whosoever hath killed any person, and whosoever hath touched any slain, purify yourselves on the third day and on the seventh day, ye and your captives.

יֶרַח יָמִים -- Is this a Biblical source for shloshim?

וְאַחַר כֵּן --
see Chazal, see meforshim such as Ibn Ezra. Does she wait 30 days before intercourse, in case she is already pregnant? Ibn Ezra also mentions:
וחז"ל אמרו: 
עד שלשה חדשים ואע"פ שאין צורך לחזוק, הנה העד: ויהי כמשלש חדשים והוא הזמן שיחל הולד להתנועע ואסור לשכב עם אשה בספק, אם היא הרה בעבור הולד, כי יש מי שיולד בחסרון שנים חדשים, כמנהג ג"כ ביתרון, רק הוא המעט.

This based on a Sifrei where this is Rabbi Akiva's position, that this wait is three months. Regarding this:
See Sifrei pisqa 213 line 10 and the list of manuscripts cited by Finkelstein in the apparatus. It is Finkelstein's opinion that this addition was not part of the original Sifrei text.
This three month period to determine pregnancy is mentioned in Tosefta Yevamot 6: 8 as well.
I don't know that this can necessarily be read into yerach yamim. Perhaps it can be read into veachar ken, with the yerach yamim being simply for mourning.

(The Karaites question how this could be, if the Pharisees hold that there was bia rishona. I have an nice answer, but am not at liberty to reveal it at present.)

תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ -- individually and as a unit, תָּבוֹא אֵלֶיהָ and וּבְעַלְתָּהּ  mean the act of intercourse.

וּבְעַלְתָּהּ carries the added connotation that you will be her baal, acting as a husband to her. And, in parallel to that,

וְהָיְתָה לְךָ, לְאִשָּׁה -- she shall be your wife. And this means a full wife, as opposed to some concubine or sexual slave.

Next pasuk:
יד  וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ.  {ס}14 And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her. {S}

This could either refer to after he has married her, or before marrying her, having changed his mind. I believe that it means after he has performed the full marriage with her, and is stressing her status here as a full wife.

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ -- after some time of full marriage

וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ -- she is divorced. But she is lenafshah, to herself, rather than to another.

וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף -- she no longer has the status of captive. If she had been taken as a slave, then you could have sold her as property when you no longer desire her service. But since she is a full, freed, wife, she cannot be sold.

לֹא-תִתְעַמֵּר בָּהּ -- the translation above is that you shall not deal with her as a slave. To quote Rashi:
You shall not keep her as a servant: Heb. לֹא-תִתְעַמֵּר בָּהּ. [This means:]“You must not use her [as a slave]” (Sifrei 21:16). In the Persian language, the term for slavery and servitude is עִימְרָאָה [the term used here]. I learned this from the Yesod of Rabbi Moses the Darshan. לא תתעמר בה: לא תשתמש בה בלשון פרסי קורין לעבדות ושימוש, עימראה. מיסודו של רבי משה הדרשן למדתי כן:

This word is almost a hapax legomenon, occurring only one other time, notes Ibn Ezra:
לא תתעמר בה -כמו והתעמר בו ומכרו ואין להם שלישי ופירושו: לפי מקומו בטעם רמאות.

This is in this parasha:
ז  כִּי-יִמָּצֵא אִישׁ, גֹּנֵב נֶפֶשׁ מֵאֶחָיו מִבְּנֵי יִשְׂרָאֵל, וְהִתְעַמֶּר-בּוֹ, וּמְכָרוֹ--וּמֵת הַגַּנָּב הַהוּא, וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ.  {ס}7 If a man be found stealing any of his brethren of the children of Israel, and he deal with him as a slave, and sell him; then that thief shall die; so shalt thou put away the evil from the midst of thee. {S}

and he says it means dealing with someone with trickery / dishonesty.

Perhaps betraying.

Shadal writes to switch the ayin with an aleph to understand its meaning:
תתעמר: נ"ל בחילוף אל"ף בעי"ן מל' ( תהלים צ"ד ד') יתאמרו כל פועלי און, את ה' האמרת היום ( למטה כ"ו י"ז)..

which is a negative act of some sort.

תַּחַת -- because of your previous action, of אֲשֶׁר עִנִּיתָהּ.

The alternative would be tachat as "in place of, instead of," in which case אֲשֶׁר עִנִּיתָהּ would be the action you are not taking now.

אֲשֶׁר עִנִּיתָהּ -- this does not need to mean rape. You have humbled her; you have mistreated her. See Shemot 22:
כא  כָּל-אַלְמָנָה וְיָתוֹם, לֹא תְעַנּוּן.21 Ye shall not afflict any widow, or fatherless child.

Particularly if we wanted to say there was no bia rishona in the field, and that this is prior to marriage, one must say this, that it does not refer to unwillfull intercourse.

I say this was post marriage, with no bia rishona in the field. In which case either אֲשֶׁר עִנִּיתָהּ  is a condemnation of his previous action of intercourse in marriage, now that he has betrayed her by sending her off against her will, or better (IMHO), that  אֲשֶׁר עִנִּיתָהּ means that he has dealt overall with her in an improper manner. Once he takes her in this manner, he has some responsibility to her. The sending her off now is the betrayal. Compare to amah ivriyah, in parashat Mishpatim, Shemot 21, in divorcing an amah ivriyah, with an identical law:
ח  אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ:  לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.8 If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her.

The words בְּבִגְדוֹ-בָהּ parallel the present  אֲשֶׁר עִנִּיתָהּ, because the situations and betrayal are parallel.

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