Legislating Intimacy

Vayishlah By :  Ismar Schorsch Rabbi Herman Abramovitz Distinguished Service Professor of Jewish History and Chancellor Emeritus Posted On Dec 1, 2001 / 5762 | Main Commentary

Judaism is not an ascetic religion. It makes no virtue of mortifying the flesh. At the end of Shabbat, a day devoted to the renewal of body and soul, we ask God not only to forgive our sins, but also to increase the number of our children and our financial assets.Each morning as we ready ourselves for prayer, we profess to see God’s handiwork in the smooth functioning of our wondrously intricate bodies. Judaism has managed to avert dichotomizing human nature into the physical, which is unholy, and the spiritual, which is divine.

That integrated view is already implicit in the narratives of Genesis. All of the patriarchs became men of conspicuous wealth. In this week’s parashah, Jacob, who twenty years earlier fled his brother’s rage with little more than a walking stick, returns burdened with possessions. The story betrays no trace of discomfort at the materialism. On the contrary, Jacob orders a cascade of gifts to soften the feared resentment of Esau:

After spending the night there, he selected
from what was at hand these presents 
for his brother Esau: 200 she-goats and
20 he-goats; 200 ewes and 20 rams; 30
milch camels with their colts; 40 cows 
and 10 bulls; 20 she-asses and 10 he-asses.
(Genesis 32:14-16)

I suspect that, from us, this prosaic list would evoke only a comment to the effect that indeed Jacob was a rich man. But the midrash quoted by Rashi takes the list in a startlingly unexpected direction. What triggers it is the observation that the list seems to stress not only the inclusion of males and females in each species but a distinct ratio between them. So two hundred she-goats come with twenty he-goats. Thus, beneath the surface of the text at issue is also the question of the conjugal obligations a man owes toward his wife, hardly a subject of interest to a religion with a strong ascetic bent.

According to the Torah, a husband must provide his wife with food, clothing and sex; if he fails to, she is entitled to a divorce (Exodus 21:10-11). Both the ancient translations and the rabbis understood the Hebrew term onah to refer to a woman’s conjugal rights. In his commentary, Prof. Nahum Sarna notes: “If correct, this would be the only instance in the laws of the ancient Near East that stipulates that a wife is entitled to sexual gratification.” The midrash posits that duty and then attempts cryptically to define its extent:

Men of leisure, every day. Workers,
twice a week; Sailors, once every
six months. “Two hundred she-goats”
need “twenty he-goats.” “Two hundred ewes”
need “twenty rams.” “Thirty milch camels
with their colts,” that is fifteen of
each (B’reishit Rabbah, 76:7).

Rashi adds the omissions:

It seems to me that the duty of satisfying the conjugal rights of a wife is not the same for every male, but rather defined by the labor that he is engaged in. This is the point of “one he-goat for every ten she-goats” and also “one ram” etc., because they are free of work and indulge in a lot of mating and thus can easily impregnate ten she-goats. . . Similarly with cattle that work, he gave only four females to each male, or with donkeys that travel far, just two females per male, or with camels that go even greater distances, one female per male (translations are mine).

Taken together, the midrash and Rashi add up to a bold exegetical move. Conjugal relations are neither a begrudging concession to human weakness nor restricted to procreation. The wife’s right to intimacy does not lapse after a husband has fulfilled the commandment of fathering at least one son and one daughter. Morever, the Mishnah confirms that our midrash is not an isolated but a normative view. It asserts categorically that a husband is forbidden to deny his wife sex for more than two weeks according to the school of Shammai or for only one week according to the school of Hillel (Ketubbot 5:6). Maimonides decides in favor of Hillel and requires a divorce if the husband persists in withholding sex from his wife (Mishneh Torah, Hilkhot Ishut 14:6). The Talmud also grants a wife the right to prevent her husband from switching jobs if his new livelihood should increase their time apart (BT Ketubbot 62b). In short, Judaism rejects a negative approach that envisions the eradication or suppression of our sexual drives as the human ideal.

What I find equally praiseworthy is the recognition of human differences. In the matter of conjugal relations, Judaism grants legitimacy to pluralism in practice. The Mishnah, which clearly underlies our midrash, sets forth the expectations that accompany each line of work including students of Torah, who are not permitted to absent themselves for more than thirty days without the consent of their wives. No scriptural basis, however, is provided. The taxonomy is simply declaimed. It is the midrash that ingeniously invents the torahitic matrix thereby reinforcing its pluralistic thrust. Conjugal rights for the wife constitute an inviolable principle; in practice, there is room for adjustment to circumstances. Both, it seems to me, bespeak an enlightened sense of reality.

Finally, this midrash is an instance of the interaction between law and lore, halakhah and aggadah. The two realms are not hermetically sealed off from one another. Clearly in this case the law and its underlying value gave rise to the exegesis. In other cases, the creative flow moves in the opposite direction. The midrashic mind is an integrated one, joining theory and practice in finding ever new meaning in the words of Torah. Watered by many streams, Judaism’s tree of life never withers.

Shabbat Shalom,

Ismar Schorsch

The publication and distribution of Dr. Schorsch’s commentary on Parashat Va-yishlah are made possible by a generous grant from Rita Dee and Harold (z”l) Hassenfeld.