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Iyun in Sota -
Lesson 3

Iyun Masechet Sota: 3a

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This week's shiur will be somewhat of a hodgepodge, attempting to roundup the various issues mentioned on 3a.

 

1.  The first point is the meaning of the word kinui and the legitimacy of performing kinui.  The gemara presents two alternatives as possible interpretations of the concept of kinui, suggesting that kinui may signify either the husband's jealousy towards his wife or the act of warning her not to sin with her lover.  The sugya draws a connection between these two possible options and the dispute regarding the permissibility of performing kinui, quoting a machloket whether there is an issur to do so or not. 

 

I would hope that anyone who has been following this series of shiurim will have realized by now that these two possibilities are a further reflection of the duality that we have been pursuing throughout.  Abaye and Reish Lakish who view the act of kinui as an expression of the husband's jealousy towards his wife conceive of sota as a function of kefeida deba'al and the breakdown of the interpersonal relationship between husband and wife; the kinui, therefore, is not designed to implicate the wife in sin but is the jealous expression of the strained relationship that is at the heart of sota.  This being the case, the gemara concludes that they must view kinui as an undesirable state of affairs, for it is self evident that a more forgiving and less severe attitude on the part of the husband would allow to mend the frayed relationship rather than consume it in the fires of jealousy.  The need for patience and tolerance rather than exact standards and for midat ha-rachamim to override midat ha-din in our dealings with our fellow human beings are basic principles of Yahadut's approach to man and his shortcomings, so that kinui is considered an undesirable option that should be avoided.

 

The above line of reasoning, however, is valid only if it is human relationships that are at stake.  If, however, we are concerned with potential tuma that may corrupt and defile the kedusha associated with the marriage, there is no point in avoiding kinui and shutting our eyes and ears to the actions of the paramours and to the possible contamination that they may be generating.  Therefore, kinui as a warning to prevent the sin of adultery and as an indication to enable us to identify such an event is not undesirable.  It follows that opinion that kinui is not undesirable is associated by the gemara with the understanding that the role of kinui is a warning rather than an expression of jealousy.

 

Further on in the sugya, the gemara returns to this point and raises two possibilities whether it is a positive "ruach tahara" that animates the husband or a negative "ruach tuma" that is at the root of the kinui.  The conclusion is that if it is a mitzva or a reshut to perform kinui, it must be a ruach tahara that abhors immodesty ("soneh et hapritzut" – Rashi).  This is a continuation of the previous discussion that accepts the axiom that prevention of sin and pritzut is a positive act, whereas jealousy is a negative trait, so that our appraisal of kinui as a negative or positive act is dependent upon our analysis of its aim and the role that it plays in the sota drama.

 

2.  The citation of a machloket between R. Yishmael and R. Akiva whether kinui is an optional or recommended procedure (reshut or mitzva) brings the gemara to quote a beraita that discusses three cases where R. Yishmael and R. Akiva disagree about their nature as reshut or mitzva: kinui, tuma of a kohen for a relative, and the enslavement of an eved kenani (non-Jewish slave).

 

The fact of an analogous triple machloket between the same pair of chakhamim grouped together in the same source, but in three totally unrelated areas of halakha, raises the obvious question whether there exists a common thread that runs through all of the cases.

 

To fully appreciate the suggestion that there is a common denominator to the triple machloket of R. Akiva and R. Yishmael, additional information must be brought into account.  The base of the machloket, if it is indeed a single uniform dispute, is rooted in their approach to the text of the Torah rather than their conceptual understanding of the respective issues of sota, tumat kohanim and avadim.  R. Akiva, according to this theory, assumes that the default reading of a passage in the halakhic portions of the Torah is in the imperative mode, while R. Yishmael is willing to view these passages as descriptive in nature.  In other words, R. Akiva proposes a more severe or exacting standard of textual compactness that R. Yishmael rejects.  In broader terms, R. Akiva essentially views the Torah's text as a legal document intended to establish laws ("patshegen oraita" is Onkelos' translation of "Mishna Torah," a phrase that denotes its legal nature).  The text must be understood as providing legal information in precise juridic terms without engaging in description of the event or providing any background "color" to enhance the story, so that all actions described in the text are mandated rather than optional.

 

The realization that the argument revolves around the standard of compactness or looseness of the text, leads us to directly consider the well-known debate regarding the issue of "dibra Torah kelashon bnei adam," for this is exactly the machloket regarding the Torah's style; whether it is a strictly legal text that does not contain any rhetorical or stylistic elements, or whether it appeals to the human reader and incorporates information and/or a style of writing unnecessary for a legal document.  Lo and behold, the two protagonists in this machloket are R. Akiva and R. Yishmael (see Yerushalmi Shabbat 19:2, Sanhedrin 64b and the sources quoted in the Encyclopedia Talmudit's treatment of this subject)!

 

There, too, as in our sugya, R. Akiva has a more rigorous view of the text's legal nature while R. Yishmael recognizes a non-legal, non-imperative element within the Torah's treatment of the subject.  The basic difference between their two approaches expresses itself in an additional machloket regarding the proper technique of drasha in cases that the Torah combines both rules and examples in its presentation of a mitzva.  R. Akiva maintains that his machloket is the proper technique to be used in cases of this relatively common paradigm is "ribuii umeuti," while R. uses "klal uprat." Without entering into great detail, the essential question at stake in this argument is whether the example's role is to ILLUSTRATE the previously stated rule or to EXPAND it (see Shavout 26a for a presentation of this machloket).

 

Another example of R. Akiva's treatment of the Torah's text as a document where every word has significance is his participation in the enterprise to learn something from every "et."  The gemara in BK (41b) relates the story of R. Shimon (or R. Nechamia) Hamsoni who deduced halakhot from every "et" in the Torah, until he was stumped by the pasuk of "et Hashem Elokecha tira."  Since no addition could be made to God's uniqueness, he concluded that his approach to the Chumash was in error, and retracted his entire corpus of drashot, until R. Akiva came and taught that the "et" come to include scholars. Once more, R. Akiva aligns himself with the position that each and every word must be systematically mined for meaning, regardless of stylistic considerations (even in as basic a stylistic element as "et"), since the text exists to convey legal data alone.

 

Chazal, in a very famous aggadic passage (Menachot 29b) portrayed R. Akiva as deducing a multitude of halakhot from every individual line in each letter of the sefer Torah, a description that beautifully pinpoints R. Akiva's approach towards the text and indicates the proper methods to be employed in our analysis of it. 

 

Returning to our sugya, the suggestion that the triple machloket between R. Akiva and R. Yishmael is due to a more general disagreement that transcends the individual cases mentioned in the beraita is based upon the awareness that R. Akiva and R. Yishmael do indeed have opposite opinions regarding the basic question of the nature of the Torah's text.  Therefore, Rav Papah and/or Rav Mesharshia suggest that R. Akiva and R. Yishmael's positions in these particular cases are a function of their respective views as to the Torah's style.  R. Akiva, who perceives every utterance of the text as charged with legal significance, treats the phrases of "vekina," "la yitama" and "le-olam bahem ta'avodoo" as dictating necessary legal action, while R. Yishmael, who views the text as less charged, considers these phrases from a minimalist point of view, and views them as, describing a voluntary undertaking by one of the parties. 

 

Abaye and/or Rava reject this suggestion, since it is also possible to explain each of the three disputes locally, so that there is no justification for a grand theory that attempts an overarching solution when a more limited alternative is available.  Although the option of a system wide machloket cannot be ruled out, it also cannot be proven, so that the claim of such a machloket must remain in the realm of speculation.

 

[It is worth noting that a similar systematic argument, akin to the debate between R. Yishmael and R. Akiva, seems to pervade many of the machlokot between the Rambam and the Ramban in their discussions in the Sefer Ha-mitzvot of the proper guidelines for counting mitzvot.  The Ramban tends to view the text in the stricter legal fashion, while the Rambam's approach is more accepting of other elements existing within the text.  However, time and space do not allow us to engage here in a prolonged discussion to prove this claim.]

 

3.  Tosfot, s.v. "Rabbi," raise the problem of dealing with the effect of this machloket on our calculation of the 613 mitzvot, for R. Akiva presumably has three more mitzvot than R. Yishmael.  Tosfot's conclusion is that the count indeed has to be readjusted to reject three other mitzvot in order to arrive at the agreed upon 613.  This claim is based upon the assumption, articulated in the opening line of the Tosfot, that the number of 613 mitzvot, mentioned in the gemara in Makot (23b), is universally accepted, so that all discussions regarding the acceptance or rejection of individual mitzvot must factor the need to arrive at 613 mitzvot.  This axiom, widely accepted by Rishonim and expressed in many piyutim of the "azharot" genre that listed the 613 mitzvot in liturgical texts, was questioned by the Ramban in the preface to his glosses on Sefer Ha-mitzvot.  Noting the fact that he is raising doubts about an issue considered to be self evident, he observes that there are numerous disagreements (our gemara is one of the examples that he quotes) regarding the status of individual mitzvot without any attempt in the Gemara to calculate their ramifications upon the list of the 613.  The Ramban powerfully argues that the count of 613 mitzvot is not universally recognized as the total number of mitzvot, although it is mentioned in a few sources.  However, the Ramban does conclude that although the number of 613 may be disputed, it has, nevertheless, been accepted la-halakha as the standard.

 

Regarding our sugya and Tosfot's concern as to the count of 613, it would seem that we need not arrive at their assumption that other mitzvot are recalculated, nor accept the Ramban's theory that the sugya doesn't recognize the 613 count.  A simple answer to Tosfot's question is that the three cases of our sugya, even if they are mitzvot, are not counted as INDEPENDENT mitzvot, but rather as subcategories of mitzvot that are already listed (i.e. kinui is included in sota, tuma in aveilut and le-olam bahem tavodo in the category of hilkhot avadim.  The last of the three is clearly the most problematic; indeed the Rambam and the Ramban [Sefer Ha-mitzvot, mitzvat asei 235] argue as to whether it should be counted independently or subsumed under the general mitzva of avadim). 

 

Sources for next week's shiur:

1. The gemara until the middle of 4b; Pesachim 7b Tosafot s.v. al, (the section concerning netilat yadayim).

2. Chulin 106a, in middle of daf, "amar Rav Idi bar Abin...reshut." Tosafot s.v. mitzva. Pesachim 115a Tosafot s.v. kol. Ramban Sefer HaMitzvot shoresh alef (11a in the Warsaw edition) "aval inyan netila (8 lines from the bottom)..."

3. Rambam Hilkhot Berakhot 6:18.

4. Sifri Bemidbar 18:7 s.v. avodat matana (p. 86 in the Netziv edition).

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