0:00 / 0:00
The Avlah Of Ones & Mefateh - The Rambam's Jurisprudence - Rav Josh Kaufman
496 views
This sicha/shiur was given to reflect on and trace broader perspectives on Ones U’Mefateh that we carefully developed throughout the previous zman of Eilu Na’aros Chaburos. We will shift our focus to Kim Lei B’drabbah Minei for the forthcoming zman https://www.yutorah.org/lectures/1160228
Categories:
Torah
Comments(0)
Transcript
Auto-generated transcript. Not time-synced to the video.
So the topic I want to you know speak
about
is uh what is the AA of ones um
particularly with a Rambam centered
analysis that there is something wrong
with onat's unequivocal the question is
what wrong is the Torah addressing
not what wrongs might exist in the
abstract
But what wrong this law itself is built
to address? I'm asking this question
because the law is extraordinarily
narrow. We all know from learning this
perman.
It's tempting, as it is to many, to to
read this as the Torah's general
approach to rape law, but that framing
uh is possibly mistaken. We may or may
not be able to construct a sweeping
legal theory of rape. Even if such a
theory were possible, the Torah here
deliberately limits its prescription to
a specific, targeted, and narrow case.
Whatever one takes the wrongdoing of
rape to be in general
could be violation of consent, physical
or psychological harm, right? A sort of
trauma,
mere objectification
of the woman
or you know something else.
Any one of those elements apply no less
exanti to other women than to anula.
Yet the law of onhat is limited
exclusively to her.
So the proper methodology
as it probably is in all cases is not to
situate the Torah's law within the
universal Jewish prudence of rape but to
reconstruct inductively and from within
how the Torah itself conceptualizes the
law it articulates.
like this you know that's where we begin
and it's it's really where we must
always begin as Ben Torah as Torah.
So right what is the abla expressed by
the law of onat
with that methodological framing in
place the first place to test it is the
question of consent ordinarily the
father is the rights holder in both on
and the offender whomever he is answers
to him
he gives it to the father of the girl
but what happens
when the daughter herself holds the
rights, right? Most clearly in the case
of
Sugio, we discussed we discussed many of
these subtopics
that we're weaving together here for,
you know, a broader um philosophy of
these laws.
Case of Muta is where there's consent
and no father whose rights could be
invoked.
What happens in such a case?
Given that consent is present and
there's no father, only the girl,
what, if anything, remains of the
Torah's claim against the offender in
Mifhat?
Before turning to the positions, I must
make a point um by stating it plainly.
In most legal systems,
once genuine consent is established to
be present, the wrongdoing largely
disappears.
Whatever remains
may be morally troubling, but it's no
longer legally legally actionable.
Some legal theorists, especially the
radical um you know, feminist um
you know, legal philosophers
make a living out of
um questioning whether real whether
presented consent is real consent. But
once again
consent is agreed upon as being
authentic and genuine again by and large
the the um the offense goes away.
However allows us to ask a striking
question
even where consent is fully present.
Did something happen?
>> Oh the best angle.
>> Okay. We have a group of and
videographers
really it's very talented.
Right? So there's the striking question
um that we can ask in the even where
consent is fully present even where
there's no father and the girl is the
sole party does the Torah still
recognize in a in
the very fact again that the question
can be asked already signals that the
Torah may be working with a conception
of wrongdoing that isn't exhausted by
consent or harm alone.
the Ramban
on the one hand and the USI as read by
the
on the other. Right? Those two
authorities are separated historically
by quite a distance. But the Ramban and
thei as the reads it
have two different interpretations which
are really fundamentally different
approaches to what the is of of oness
in Moshe
Siml
argues that if we understand the unique
50 shekel of as a form of a response to
personal injury or loss. Then consent
functions here exactly exactly as it
does elsewhere in the law of damages.
Just as pagam, right? Bosches, pagam and
s according to everybody. According to
every authority, pashas, the gimar,
according to everybody, those three
personal injury payments fall away when
the sole rights holder consents. Right?
Right? If she consents here as autism,
everybody agrees those payments are not
in order.
So if you look at
also as a form of theas too would fall
away. And once the loss would be
authorized by the victim, there's no
remaining injury for the law to redress.
When dealing with tors and personal
injury,
the whole point for those payments, the
mak of those payments, if you will, is
to redress loss. It's all about rights.
Rights that are violated, consent works
and there should be no.
So is that what on is
the Raman
gives us a almost resounding yes. Right?
As we know
in some text it's printed on
Raman basically says that consent
neutralizes the wrong.
He has a language where he says
the
he compares the case of a mafuta again.
She's the only interest um in the in the
picture. Father's not around. He
compares it to tearing someone's garment
with permission or breaking their jug
also with uh per permission.
And what the rim seems to be getting at,
whether you understand it like the or we
did um a little bit differently at the
time,
is that in such a case where the woman
again is the only person involved and
she gives her consent to the offender,
there's no
there's no liability here whatsoever.
The den on as it were ceases to exist.
Whatever Ones um fat was coming to
address her consent erases it and wipes
it away completely. It's as if whatever
that was didn't really happen. That's
how he explains why he is potter. That
doesn't mean that the offender and this
is important is excused from all moral
culpability. But it does mean that the
one for which the law of ones um fat
comes anchored in personal loss falls by
the wayside
for the Ramban.
On um emerges as a subcategory of nikim
in this case but as it turns out it's
how the Ramban treats on consistently.
He's constantly invoking the paradigm of
dema
that it's just a specialized instance of
personal injury.
I'll list them and just allude to them
as those of us in the room hopefully
know what I mean. the Ramban on the
nature of the damages paid.
The reason why normally they get paid to
the father
perhaps his position on low si alisha
being not a one-time obligation to marry
her
but a mitzvah that con that persists
is
if the is that the mitzvah of loia is
not about marriage which would be a
one-time thing but punishing the
aggressor and safeuard regarding this oh
so vulnerable victim.
Indeed the garment comparison
is kusi is borrowed from which gimar?
The gimar
which is not said of alas the way the
raan implies it. said in particular
reference to Tsar.
Sar again
classic of Kabala
but also only paid if ever in onus. Rabi
Shimon thinks that nobody pays
but that analogy only appears
in the context of and it isn't obvious
that it would extend beyond it.
The Ramban's expansion from the paradigm
into even the law of reinforces the
Nazikan element that I think one can
easily detect by reading the Rambanita
throughout the par.
That's the Rama
the
on the view
is in many ways the very opposite
perspective of the Rambali
in Gimmel Zion
is explicit
that in the case of Mafuta Yoma
there's no
against the simple reading of the Bavi,
not the only reading of the Bavi, but
the greatly prevalent view of the Bavi,
which is that Mafia does not get
again the reason why not is exactly the
debate. But against again the standard
very standard view of the bavi the usual
is clear
that the mafhata actually has to pay the
girl mafuta theas
she's not able to forgive it
remains even with consent as the usi
writes
she cannot be
redbaz explains ains the rationale of
the us why not the money's coming to her
after all why does the maf have to pay
it so says remarkably remarkably
because the offense is
not really hers
it's between
the
and the
so who is she
not not hers to be
according to me. Again, she receives the
money. She's the recipient of the money,
but not in response to harm or loss done
to her,
but because of what he did.
The redbaz gives an analogy an analogy
which will become relevant very soon
when we transition to the second part of
the
you understand my reference at the time
and it'll be fun to be able to say we
mentioned it you know on the eve before
the year turned
the analogy is eating truma if an cohen
fan eats truma bisho gig
He's obligated to pay money to the coin
right now
is to pay for eating truma for violating
Allah Allah were a very serious law
the is Mishna says in trumos that the
coen who's even though he's receiving
the money cannot be mo he cannot forgive
the zar from being obligated to pay.
He can't forgive the Zar
for being obligated to pay. But the
Cohen's the one getting the money, isn't
it? His isn't the reason he's being paid
for him? No. That's exactly the point.
Even though the coain's the recipient of
the money,
the zar's obligation is to shi
the response to the isser of against
eating truma is to pay to a cohen.
But the violation is
violation has nothing. There's no loss
that you caused to the cohen. It wasn't
the cohen's money previously that desire
was taking away from him.
maybe indirectly but it wasn't his it
was the
but he did the
so too says is the payment of the onus
she might be the recipient of the money
but she's not the source of the
violation
and then the ribbas goes on
to incorporate the den of ones
with other isabia.
It's an amazing
he says as follows.
Now the reason for the law
for
Michano.
The wrong is not done to her but through
her.
Reva we mentioned before
173 also argues that the special is not
a redress to orid
it differs from standard
or nazikin.
But what is it? So he says several times
a very loaded and yet vague
phrase
for the sin or transgression of the beia
and the defilement
defiling the narula.
I'll be honest with you I'm not sure how
to pinpoint exactly what he's trying to
identify.
End of the day Mosha was a post. He also
wasn't necessarily trying to express you
know
what exactly the wrong was. It seems to
me if anything he was trying to cast a
broad net like to include you know more
than one there could be more than one
problem with the ones um
in light of this and Mosha I want to
diverge for a moment also to raise
that raises an important question we're
not going to answer it but it's
important that we know it it's
especially problematic for the who
connects
OS
and
which is where is the biblical
prohibition to be found for
talking about it as some sort of a
like we would expect to find some sort
of prohibition
of prohibition that's unique
to on
not just a way of subsuming ones in some
other pre-existing prohibition like los
or loia kadesha for the rama but what if
any
is the prohibition
for
is there one what is it and if there's
not what is what do we make of it and
what does that tell us if we're not just
going to based off of that reject this
other perspective.
We need to step back and reframe the
question in a more basic terms. The
tension that we've seen until now is
real and very fundamental. What kind of
law is ownus in plain and simple? Is
this a specialized case within Zikin, a
law of injury, loss,
monetary redress, albeit an unusual one
for sure? Or is it instead an expression
of Iser and ishus, a religious moral
norm governing sexual relations and the
Torah's conception of family and
marriage. [snorts]
The ambiguity is already expressed
and reflected in the Torah itself. In
para's mishbatim
the law appears of in this case among
civil laws of property and tors the
evanzra
in his comment to the puk that begins
compares the ptoy done to the girl
stealing her heart like stealing
someone's money.
On the other hand, we also encounter it
in paras. This time speaking about oness
appearing alongside laws of marriage,
sexuality
and relational obligations.
The arayos
are not so far away. The mitzvah of
kushian well some of them at least the
kushian iboom.
So the question presses itself
is on um a law of damages that happens
to involve intimacy or a law about
intimate relations that happens to
employ monetary mechanisms.
With the framing in place, I think we
can now ask how the Rambam understands
the nature of this law.
The Ram treats on um as a self-contained
system.
And clearly not a variant of tort law.
He codifies it in safer nashim noter
following rebias
right who puts these laws in
rather than in
and say rather than
but the rama making the choice
to do so is really an act of conceptual
work.
By doing it, I think the Ram wants to
tell us something that the cork is not
injury or loss, but something bound up
with ishas.
When the Ram decides to place something
somewhere, we're never allowed to see
it. We must not see it. Just as neutral,
but as interpretation. Ram is giving us
interpretation based on how he chooses
to classify and categorize. It's true.
He's following what Revi does. But you
can say that
he's preserving the maybe that Revi is
coming to suggest what is the Ram doing
by putting it there
within
which is the name he gives for the laws
of math itself. Two other choices stand
out that I want to highlight. Number one
is the mitzvah's formulation.
We'll start with that. The Ram counts
two mitzvah for on
he says the mitzvah is
lick knows how
in the that's what he writes and in
mitzvos and the miner as well for oness
what does he say
>> close Lisa on s anuso
I should say that the Rambam's
description here is extremely
counterintuitive. Number one, the Torah
is more explicit about and on
meat is only derived there from only
after we know the payment from the by on
the Garins and says we compare Mat to
Oness.
Moreover, like moral intuition suggests
that a rapist deserves the fine more
than the seducer. We'll all remember the
subluh
which describes
the oness's payment and the meat's
payment differently. How so? It calls
what the ones pays
and what the maf pays py
on as many of the there just pick up on
it's just a gim. If you don't change the
gear so the are just picking up on it
sayas and ptoy because ones commends
more than meat.
And yet despite these two points,
the Rambam attaches to Matate rather
than onus.
And he emphasizes marriage
in onus.
And he does this consistently everywhere
not just in the
as well
if whatever it is about the marriage as
well
emphasizes the onus.
It's a story I told the first kabur that
we had that about 11 years ago
I was learning suis uh at the same time
that while you was learning yes was
learning suis which is where I was at
the time and as a young boy I you know I
was really gripped by this problem in
the Rambam how exactly the Rambam you
know why he did this just seems so
counterintuitive
and instead of you know and on doesn't
even tell you about my own like what
exactly is going on and it troubled me
for weeks like everybody I had any
person who I would want to answer from
that I could possibly ask I would ask
if there came to visit as he as he
always does and I slotted myself in for
a time we sat with and the first thing I
had to ask him said you know the yeshiva
is learning su
what's shot with this rah I asked him
the question he looked at me I was
waiting so exced excited like he's going
to give me this amazing answer. Here's
the galador. At the time I didn't know,
but he gave me his signature answer. I
don't know.
I was to say the least very frustrated.
But this is the question. This is the
question. The Ramba.
But I think the answer is that it's not,
you know, something the Ram glossed over
an omission.
Ram is trying to tell us something that
in oness marriage is the defining
response.
Everything else which the oness has to
undertake is just subsumed
or expressed by the marriage obligation.
And in mate where marriage is
structurally weaker or there may for the
Ram there is no mitzvah. There's no
obligation for the mafhat to marry to
marry her. He can and he won't have to
pay but he doesn't have to marry her. So
in where marriage is structurally weaker
best expresses the Torah stance.
The Ramom is moving.
What I'm trying to say is that the Ramom
is moving from
the special unique payments of oneshat
to redefine everything else that is
within it.
The best way to capture the myths of
ones is by accentuating what is unique
about it. Not the other payments of
not even the maybe the most unusual of
them is the mitzvah of Nis
and in the for the Rambam I don't think
like some suggest the ones which is not
doesn't seem to be explicit I don't
think it's like some say it's subsumed
in the that he says for
I think on is the and is the
but whereas says
in on the MS nuin encapsulates
the ram's perspective towards ones is
what does that in
we'll continue to explain this but
that's I think what the raom does in the
structure and organization of the as
well
this is the second point chapter one in
deals with only two obligations the and
marriage
And remember there's only two chapters
in all of chapter one. All the Rama
mentions is marriage. What's striking is
what's missing. There's no bes no
these only appear in chapter 2. But even
when they come up there they're
secondary.
Ram says by the way in addition
to the like don't think that there isn't
something else. We have to tell you
there's something else. There's also
Basagam and in the case of Oness there's
Tar.
So what is the effect of the Rambam's
organization?
Again a very conceptual one. I think the
Ram's telling us
what the law is, the nature of the law
before telling us what else follows from
it.
Raam following Rebi again who also put
first rebi only mentions in the Mish as
the kubetas points out and only later in
the Mishnayas in our in it's do even
hear of the payment
the Ram is using
to define the category
Basamsar just to address the residual
consequences
which again is why he spotlights
in on
the perspective reaches its sharpest
expression in
Bud where the Rambam introduces
what seems really to be his own very
novel legislation.
Ram says,
says the Rambam that even boam and S are
owed only to those women who fall within
the Torah's category of
anyone excluded from kass like a
divorcee a convert an islandist they're
all excluded from those payments as well
and the mafarim
really struggle to embrace this the tour
objects
even if there's no class well why should
that affect liability for humili
iliation,
depreciation
or pain.
The insists that at minimum
this should revert to the law of
and even the Mishna
the Rambam's greatest defender concedes
you hear the desperation
but for the Rambam I think the answer is
consistent
The payments are not independent tor
damages that merely accompany the
offense.
They are internal components of the
special law of
tofos's lang language. But to push
further iskushes
up,
they're defined by derived from and
limited by the framework itself.
The unique law of ones um fat does not
merely add special penalty penalties to
ordinary injury, but it redefineses what
constitutes the wrong in the first place
when we're within this legal framework
already. So then even seemingly generic
damages are reconstituted according to
its own logic. Which explains why
throughout chapter two
in all of them each has a
based on the perspective that the Rambam
treats these payments in ways different
from that of general tort law. What
emerges then is a striking jurist
credential claim.
Oness um are not about harm alone but
about a violation of a Torah defined
ideal of ishas.
The legal response is therefore not
exhausted by the compensation of injury
as such but is oriented towards and here
it is. It's oriented towards preserving,
even reasserting the sanctity and
meaning the Torah assigns to marital
relationships.
KNAS and marriage give direct expression
to that goal.
Bes, pagam and sar function perhaps only
within that normative frame.
The remaining question though of course
is the deepest one.
We now need to ask what constitutes that
ablah in the Rambam's view beyond what
can be inferred from the structure and
placement alone.
Unlike the Rambos,
the Rambam largely avoids framing the qu
the offense in terms of consent
which would have been helpful
methodologically to help us figure out
what kind of problem he thinks it is.
So his silence makes it hard to anchor
his perspective in in das in consent
which is actually the ram doesn't really
speak about it all that much which is a
difficulty that remains troubling to me
doesn't really speak about um the role
of the mafuta yoma
um so much
but you know the main commentators
assume that a woman's authorization for
the rambom is not like the ramban it
does not eliminate any legally
recognizable cognizable wrong and even
where there is no father whose rights
are implicated. Instead of consent, I
think the Rambam assigns an outsized and
unexpected role to the
yes. within the laws of
through the I think the Rambam
shapes the meaning of the the function
of the marriage obligation and the
nature of the ALA this body comes of law
comes to address because we're surprised
to find here something native to
ordinary Jewish marriage that we're
learning about in the morning playing
such a central role in the laws of
oneshat
Let's take a concrete case. When a meat
marries the woman, the Torah tells us
that marriage eliminates the 50 shakas.
But that raises an obvious question
which is what happens to the
Ram's answer is striking and every word
matters here.
Rambam writes in
[snorts]
by Mufuta she
her father and the Mata himself all
agree Imratu the kansa they all won and
he marries her analas
he doesn't pay
but instead of the coba he writes her
kisharulus
He pays her like Shah Habasulus.
The Rambam seems to rule that she
receives auba of 200 kimar habasulos
like all other all other virgins which
is remarkable.
At the time of the marriage she's a
bulah. Ordinarily that would mean that
she gets 100. And Tossus and the Ridid
explicitly say that. Why should she get
200? Why should she get 200?
But it's so much more than that. The Ram
doesn't just say that she gets 200. He
insists on the formulation.
He could have said she gets auba of 200.
But what does he say?
Like all other basulos.
I think because
the den itself is that you're required
to see her as a visa.
As Moenu of Rosen has suggested, the
Rambam uses kuba here to address the
very wrong of Mata and by extension of
oness.
To see why we need to recall what Kuba
does in Jewish marriage.
Kuba, which obviously practically at its
core provides her financial security,
is not really just a financial safety
net. It actually gives marriage weight,
seriousness, and consequence.
Right. Shalom.
Shouldn't be easy for him to divorce
her. Certainly functions as a deterrent
to casual divorce.
A kind of last ditch effort before he
pulls the trigger trigger. But more
deeply, its financial stakes give the
marriage from the beginning a certain
kind of weight. They make intimacy
consequential
nor casual but serious and not
disposable.
The fact that right is
payable only after the marriage ends
capture captures its essence. It
represents a commitment that outlives
desire utility and even the relationship
itself. Without auba
we're arguing you haven't merely failed
to pay money but to define the marriage
properly. That's why the Ram defines the
mitzvah of marriage itself in terms of
in the ishas right he writes
the mitzvah there's a mitzvah
and this is exactly
what on violate they're the antithesis
of reliance
reciprocity
dignity and commitment they take
intimacy and strip it of responsib
possibility much like though I insist
not identical to the Rambam's
prohibition of Kadesha which the Rambam
defines as intercourse without and
kaducin on meat represent a corruption
of the very institution of Ishas
an emboldened requirement then is not
just an added detail it's the perfect
response to the onus
it forces the offender to restore weight
consequence and moral seriousness where
he tried to avoid them
by treating her as any other basis.
The law is in effect rolling back the
clocks
the clock restoring her to the marriage
that she was always entitled to. She's
now met with responsibility with
consequence and commitment. In the case
of ones, that commitment takes the
extreme form of
perhaps the fullest expression of shala
of
because in that sense the perpetual
marriage itself may even obiate the need
for exuba.
But here's the deeper point.
The Rambam's language that is not only
the response to the wrong.
It's the key to understanding the 50
shekelas itself. For the Ramub and are
two expressions of a single idea,
one within marriage, one outside of it.
And this is not really the Ram's
innovation. Kazal already note that the
50 shekel equals the value of a 200 kuba
and the gar even derives the itself
from according to the view that is from
the verses of ones and
kimarulos.
It also explains something that can be
easily overlooked which is why do these
laws appear in kubis at all?
Why is onus inubus?
But I think it's because they express a
shared principle for the ra then is
effectively
obligation outside of marriage a way of
forcing responsibility
and commitment where the offender is
trying to evade them. And it's precisely
this equation that the Ramban Alatra
and the Rivid resist because for them
Kas belongs to Nazikin,
not Is.
And with that framework in place, we can
finally return to a troubling gimmar.
[clears throat] It's bothered me the
whole year until I was quickly preparing
between Sunday and now
to try to give us a way of reflecting
on the year to kind of thread
um you know thread a string between a
lot of the stuff that we've done.
There's a serious challenge uh if we
frame kas the way we have been because
the gimmar itself actually asks what the
kas is for.
We should look at it probably.
Morales
quotes the defeat the abaya.
I meant
rightas
[snorts]
of 50.
is
for the affliction the trauma abay
grounds the enoi harm right trauma or
affliction which fits naturally with a
certain you know kind of moral reading
of understand that
but rabba says something startling
is none. The 50 shekels is for the
pleasure of lying of
but and as we know
So what does that mean? Is this payment
for pleasure?
Is that what the Gar is saying?
We ought to deal with this. I'm making
all these claims.
Is that all it is? It's a gimar
pay for 50 shackles for
some maybe the toasak in
and certainly I think the kilis have
taken have taken it that way.
Mosha in that chuva responds critically
um to also to somebody who interprets
the gimar this way as well.
They really say that it's dehana as if
the pleasure itself was like being
priced.
The same way if a person
would hire themselves out for beia
it's exchange
that really all it is. It's hard for
that to be right though. If this were a
payment for benefit, would it really be
a Would it have the DM of
No, it would be Mama
wouldn't be
and there also it'd be so hard to
understand why we'd limit this payment
to Naira bas
like the Han is different or
non-existent. In other cases, if it's
quid proquo in exchange of goods or
benefits
so many rishonim
are uncomfortable over here.
Rashi in Babakama
actually emphasizes the abay instead of
raas. He often speaks about the kas as
for the enoi
for the pain the trauma
which obviously coaleses with a more
rambanlike if we just have to be
you know strict about it a more ramban
like view
but again he's he's basically giving you
know putting rava
out on the street for
the tour actually reformulates rava
Torah says that the
which is beautiful.
The is for the
which has all of the the religious moral
connotations you could want.
But Raa didn't say that.
The Ram does neither
inf
says
after by the way discussing the already
for a whole chapter
he preserves rabba's language.
So what is another way of understanding
rabba? I think Rava is not speaking
about pleasure as compensation
but about corrupt pleasure seeking
like Abay.
Rava understands Kas as responding to a
moral wrong but the focus is different.
Abay emphasizes what was done to her the
harm the trauma whereas Rava emphasizes
what he did with desire itself.
This was Han's
pleasure taken selfishly, instrumentally
on his own terms. It's desire severed
from responsibility.
He's paying because of because how he
went about the
and he's paying for that
for the intimacy basically without
kidushin
but even more even worse even more
corrupt
and this is where I think the raom's
broader conception of marriage becomes
even more crucial for the Rambam the
very foundation of marriage is rat
is true will. When a man and a woman
enter into ishas, it has to be the
meeting of two wills.
Not persuasion, not pressure, not
willbounding.
The Ram opens the entire book of
Nashinishas
with the formulation of
both of them almost reciprocally, you
know, in unison expressing
the same level of will. Even though the
man initiates and courts and proposes,
right, the man has to take and not the
woman. Marriage is only created when
there is genuine convergence of will
where there's real affinity between the
partnersh
and mutual ascent in Isus in the Ramb
may even be raising the bar for what
counts as consent especially on the
woman's side more than any of the other
is
in this sense as much as any other ones
and are the antithesis of Jewish
marriage. They're not merely harmful
acts,
but they're a corruption of desire
itself.
It's a extracted without mutual
without
reliance and respect and responsibility.
I think that's what Ra is pointing to
and why the Rambam chooses
to preserve that language. So the kas is
not a payment for pleasure but a penalty
for the degradation of desire for
turning what should be an expression of
shared roone into an act of
exploitation.
This may be too subtle, but it dawned on
me even if you want
to reject a nazikin approach to onat
and you wouldn't want to put the laws in
safer nazikin but in nim at large there
is still a choice that the ram is left
with
in s kaduca there'sia which is 22
chapters
that detail all of the many prohibitions
relating to via it's where I think the
would have put the laws of on
the Ram is markedly different from
the in ways which in which we've already
demonstrated but I think his decision to
include it specifically in safer nashim
now that we've said all of this not on
it alone but now that we've said all of
this is very telling right what's in
safer nashim
the mitzvah of kadushian
all that is in
they're all mitzvah of marriage. Zam
himself actually calls them all mitzvah
shall be
about the fabric of the institution.
Even sot right is where there's a
breakdown in the marriage relationship.
What is on doing here?
And if you're just going to tell me, oh,
because there's a mitzvah to marry her,
loa, it definitely could be.
And even though there's a mitzvah for
kangad to marry vasula and that's inia,
not here. You just say because that's
where he talks about the laws of kohanim
who kanim can marry
maybe.
But I wonder it's because the raam is
exactly saying that what nar bisula is
is a corruption of the institution of
marriage itself.
There are several other phenomena from a
Rambam perspective that can be more
clearly understood within this
orientation. I'll just list them as I am
starting to conclude. Such as his
decision to place these laws within
safer nashim specifically like I just
said
that he names the section and
accentuates the narula persona in the mo
and actually in the Torah they speak
about how the narula is like the most
omade for marriage. They speak about it
more pragmatically,
but I wonder if there is something to be
said about that also
again about the corruption
of the Torah principles of marriage.
It also explains the omission or
exemption of a gentile victim
which again it seems to be a rashi and
if a non-Jewish girl is the is the
victim of such a crime with all the
other conditions in place except she's
not Jewish versus Jewish what about that
Ram never talks about that but what
would the conclusion that we would draw
be and also I think even the Ram it
would be an interesting take on the
obscurity uh or an obvious source for
there being any biblical prohibition.
How the Rambam would deal with that
if there is none, why that would be.
But for all of that really,
I'll just say one more thing before I
actually just make a concluding remark,
which is
that it behooves us to all appreciate if
this is in fact the perspective of the
Rambam
what I said from the very outset
that it's impossible
merely to see
or merely to look at the of as in
conversation with how
law at large
other systems and cultures, other legal
systems, how they might talk about rape
or different kinds of it.
For the Rambam, if we're right,
the wrong, the AA of on
is internally Jewish. It's an expression
of an already particularistic
approach to the marital union. Something
reserved even from the standpoint
intrajewishly
only Jews have
gaish.
So all the very things that all those
institutions come to promote in terms of
kadusha the sanctity of ishas and
marriage that we're saying
is ravaged by ones
on expresses the a very Jewishly
specific
and again there may be other things that
are common
other things happening in the particular
case
where there is a benu
At the end of the day, the primary wrong
the way I'm establish
approach to marriage. It's a function of
the Jewish approach to marriage
for the Rambam.
Again, the love of is not exhausted by
harm, injury,
or even the absence of consent. Although
they may be present, I'm not totally
dismissing that they're there at all.
Well, it's a violation of the Torah's
conception of ishas itself.
Marriage as the Rambam understands it is
founded on rats and the genuine meeting
of two wills sustained by suba which
gives intimacy weight and permanence
that makes a relationship something
which you can't easily walk away from
like the ones who the equivalent
metaphorically of a hidden run
on represent the categorical negation of
that ideal.
which is really pleasure taken without
mutual will.
It's a type of intimacy
stripped of obligation
and someone who's pursuing desire really
in defiance of isas
spitting in the face. So are therefore
not compensatory mechanisms but
expressive ones. They force
responsibility where it's refused and
serious where it's denied. The law does
not merely respond to what was done.
It really restores what was desecrated.
And this in fact
is the Rambam's resounding
and remarkable answer
to what is the ALA of ones um
this was a tremendous man of learning
of seeing suga
collecting it
each topic rigorously
analytically thoughtfully Y carefully
and then ultimately
after everything is done to organically
without even straining too much right we
were able to do all this what in a
couple days just reflecting basically on
everything that we've learned then
trying to zoom out
after focusing
laser focused in on all the sugas
whenever we learn really the goal is to
try again to build things peace meal to
build things
again with rigor with integrity
and also with a conceptual focus. But
then when you're able to put all the
things together and run the needle
through. So what emerges um is a very
comprehensive and rich um perspective
towards Jewish law. Uh and in our case
really
the avla the wrong
of uh the den of ones
we'll continue after the year in the
next man with the rest of uh kim.
Thank you.