Week Three: More on Aruch HaShulchan Even HaEzer 1: Marriage and Children

Se’if, paragraph, six of Aruch HaShulchan’s restatement of Even HaEzer 1 says a man should marry even if he already has children, based on Hashem’s famous statement, it is not good for man to be alone. Rambam in Laws of Marriage 15 took that to be a rabbinic requirement, 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 flout this obligation. He suggests they, too, considered the rule to be rabbinic, the verse an asmachta, an example of the Talmudic practice to find verses for ideas either as a way to remember them or, perhaps, to show this non-Biblical idea does have some Biblical roots.

If rabbinic, and to help avoid inappropriate thoughts, as Rambam had said, 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 the exception, or they allowed themselves to generate the exception on their own. Either way, it suggests any man who has already fulfilled the obligation of procreation and finds himself single can decide whether he needs 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. Perhaps only truly great people have the self-honesty to have the right to reach this conclusion.]

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 in morning and evening, because we never know which harvest will succeed, an idea Yevamot 62b applied to bearing children. Were we to accept this as an halachic imperative, men would have to always try to marry a woman of proper age. Rema found a way out, the possibility/likelihood it would cause tension (he says fighting) with the man’s existing children, and thought that enough to allow him not to do so, as long as he has fulfilled the Biblical obligation of procreation.

He is still supposed to marry, however, to have a legitimate outlet for his sexual urges.

[Note the comfort later authorities feel with adjusting the application of a rule-to fit what they understand to be its underlying reason--once they know it is rabbinic, with quoted verses not the source. 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, the idea of “planting” in the evening of life, was more absolute, these leniencies would have no place.]

For another debated issue, 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 man who still needed to fulfill the Biblical obligation of procreation, some allowed even to fulfill la-erev, and some allowed 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, 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 works on a question with no clear answer, the age of marriage. Men are obligated in mitzvot from age thirteen, but a 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 reveled in the positive effects on his having married at sixteen, thought he 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 if the Gemara’s telling the story sets it up as an acceptable model to follow.

[I am struck by the blurriness of the discussion, in a de-oraita, a Biblical mitzvah, with some apparent guidelines from the Gemara. Even so, 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 son and daughter, each 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 alive, it’s good enough for the grandfather’s 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.

Children born out of wedlock count, even mamzerim, children from a relationship prohibited at the level of karet or death (such as adultery).

Converts and the Mitzvah

Last time, we mentioned the idea of a convert having fulfilled this mitzvah with children he bore while not Jewish, because non-Jews are also supposed to settle the world. Rambam and Tur were sure the children had to convert with him, where Beit Shmuel knew of Maharil and other important authorities who think it is true 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?

Laws We Don’t Act On

In the last five paragraphs of the siman, AH points out Rema already (three hundred years before AH, another hundred and fifty before us) 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 why this is so [a reminder that Judaism had a strong original belief in courts’ guiding people], 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 marry multiple women, Ashkenazic Jews having accepted Cherem Rabbenu Gershom. While the original rule sunset in 1240 (the new millennium in the Jewish calendar), wide swaths of Jewry kept it permanently, and it is also the law of the land in many places [and Jews, as we all know, are supposed to follow the law of the land].

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.

A rule required a man not to marry women in different places (even not at the same time), lest the children of one marriage unknowingly meet and marry the children of the other (half-siblings may not marry in halachah). AH dismisses all the previously suggested reasons for the rule, and eventually assumes the better mail systems means people know more about their fathers, etc., than they used to, so the problem has been dealt with.

A remarkable claim, considering that even today, there are cases of men who manage to have multiple families without the others knowing about it, and certainly to father children only later found by happenstance or 23andMe.

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.

Adapted from articles previously published on Torah Musings