Tag Archives: Islamic Law

Conferences, English, Guest Posts, Readings

Babylonian Talmud, Yoma 18b and Yevamot 37b: is this temporary marriage?- Guest Post by Zvi Septimus and Lena Salaymeh

Zvi Septimus and Lena Salaymeh are currently (at the time of publication) giving a lecture entitled “Marriage for Sex in Medieval Jewish and Islamic Legal Debates” at The Jewish Law Association’s 17th International Conference, going on now at Yale University.  This post is a summary of their talk and an opportunity to participate in the discussion. 

Two well-known and seemingly anomalous lines in the Babylonian Talmud have troubled many Talmud commentators for the last thousand years—yet these lines were notably ignored by the Gaonim: “When Rav came to Ardashir, he announced, ‘Who will have me for a day?’  When Rav Nahman came to Shkentziv, he announced, ‘Who will have me for a day?’”  What do these proclamations mean? The subsequent give and take of the Talmud implies that both Rav and Rav Nahman were the equivalent of modern-day rock stars.  They would send their entourage to the next stop on their tour in order to scout out groupies willing to engage in casual sex—or a temporary marital relationship—during their stay in various cities.  After their encounter they would be on their way, off to the next city to be coupled with the next willing set of groupies.  Had these rabbis actually been modern-day rock stars, these stories would probably not trouble us or the medieval commentators, many of whom felt forced to sanitize them.  But these stories are about rabbis.

The trouble with the rock star metaphor is that it implies that sexual relationships, or any relationship for that matter, between men and woman in the ancient world were anything like the way they are today, or even the medieval Christian and Muslim worlds in which medieval Talmud commentators lived.  The story we will now tell is about the evolution of the contexts in which these two Bavli lines were positioned from the time of their first appearance as historical anecdotes of the near past to the time when, as part of a Talmudic sugya, they needed to be incorporated into the complex web of rabbinic legislation.

The two statements of these rabbis appear in succession at two very different locales in the Talmud.  The first, in the order of tractates, and, as we argue, the development of the sugya, is at Yoma 18b and the second is at Yevamot 37b.  The Yevamot context is far more expansive and has therefore generally received more attention from traditional jurists seeking to contextualize the statements legally—to make laws for their contemporaries based on the way the Talmud discusses them.  At stake, for jurists like Alfasi, Maimonides, the Ravad, Nahmanides, the Rosh, and the Tur, is the legislative approach they would take toward casual or time-bound sexual relationships in their own eras in light of both the Talmud’s attitude toward such relationships and their own social and religious realities.  While traditional marriage may receive the most attention, there are many types of sexual relationships between men and women discussed in the Talmud.  Indeed, considerable effort is expended fleshing out sexual relationships between men and women outside of the standard permanent marriage arrangement, including conditional marriage and divorce, levirate marriage, servant marriage, slave marriage, concubines, casual sex, prostitution, and incest.  The Bavli’s discussion of these varieties of sexual relationships is reflective of late antique Near Eastern customary practices.  The question we would like to pose today is: To which of these categories did the Bavli’s redactors and the rabbinic commentators assign the relationships expressed by the stories of Rav and Rav Nahman?

Even within the Bavli itself, the statements of Rav and Rav Nahman—”who will have me for a day?”—can be seen in multiple contexts.  The first is to look at the statements themselves as actual stories recorded at or slightly after the times of their occurrence.  The second is to view them in the context of the extended sugya at Yoma 18b.  And the third is to understand them within the framework of Yevamot 37b.  When looked at this way, the stories can have three separate meanings.  To compound matters, there are numerous manuscripts containing alternate versions and textual variants.  Each of these, in addition, portrays different attitudes toward the story itself.  Of primary concern is the question of what type of relationship is meant by the words “who will have me for a day?”  Is it casual sex, a form of pilegesh relationship, or a temporary marriage?  If it were a pilegesh relationship, then was qiddushin performed?  Was nissuin performed?  Was there a ketubbah?  Is it realistic to think that the rabbis would be willing to pay the 100 or 200 zuz marriage settlement for a day’s worth of enjoyment, or, from a different perspective, a day’s worth of abating sexual urges in a legitimized manner?  Secondly, was the marriage for a day or “days”?  The manuscripts contain both readings.  If “days,” then was the marriage for a specific amount of time or just designated as temporary in some non-specific way?  If for a pre-determined amount of time, was this marriage naturally dissolved or was a get required?  If for a non-specific amount of time, could either party leave at will or was the husband the sole authority in determining the marriage’s end?  Further does the term yiḥud in these Bavli passages refer to non-sexual seclusion or is it a term referring to designating the woman as a partner, perhaps a pilegesh, where there would be neither qiddushin nor a ketubbah?  These questions are not only of interest to modern academic analysis of the positions of the authors of each sugya, or versions of the sugya preserved in a manuscript tradition, they also drive the medieval commentatorial tradition of those sugyot and the efforts of the codifiers and jurists in trying to incorporate these sugyot into their legal systems.

The inconclusiveness of these narratives and the widespread Near Eastern practices of temporary marriage suggest that at the time of the Bavli’s redaction, some form of temporary marriage was being practiced.  Indeed, Yaakov Elman argues that these “two prominent rabbis contracted temporary marriages in accord with the Sassanian institution.”  So, if rabbinic Jews practiced temporary marriages in late antiquity, then did these Jewish temporary wives receive a ketubbah?  Moreover, how did these temporary marriages end?  Did the rabbis in Yoma 18b or Yevamot 37b deliver divorce decrees or was a divorce effected at the moment of their departure or the conclusion of the day(s)?  This is of course probably depends on whether these temporary arrangements were actual marriages or merely pilagshut. The Bavli does not provide a clear answer on any of these technical details.

This leads us to wonder, how did the Gaonim understand this rabbinic practice of temporary marriage considering their context of Islamic debates about it?  It was not until the late 8th or early 9th century that a majority of Muslim scholars prohibited temporary marriages; prior to that time, temporary marriages were widely practiced and debated.  There is a notable geographic distribution, with Muslim jurists from Mecca generally permitting temporary marriage and jurists from Iraq and Medina opposing it.  Since the Gaonic academies were located in Iraq, it is quite likely that the Gaonim were exposed to these debates about temporary marriage among Muslim jurists.  There are three different forms of temporary marriage in the late antique Near Eastern world.  First: the Shīʿī version, in which the temporary marriage contract specifies the duration of the marriage, which ends automatically without a divorce declaration.  Second: the Sunnī version, in which the temporary marriage contract does not specify the duration, but the husband and wife or one of them intend to divorce and this type only ends with a divorce declaration.  The Sunnī version is a legal fiction because the husband and wife may have agreed upon the specific duration of the marriage, but simply did not specify it in the contract; in addition, in the Sunnī version, either the husband or the wife may intend to divorce the other without this affecting the validity of the marriage.  The third version may be understood as one component of the second version: the uninformed temporary marriage mentioned by Rabbi Eliezer Ben Yaaqov, in which the husband intends to divorce the wife with a get, but has not informed her.  Yet, somewhat surprisingly, there is little Gaonic discussion of the Yoma 18b or the Yevamot 37b sugyot.  Why is it that the “Who will have me for a day?” statements in the Talmud did not generate Gaonic commentary?

We want to end with this question and encourage those of you who are able, to attend our panel at the Jewish Law Association meeting or continue this conversation in the comments section of The Talmud Blog.

Lena Salaymeh is Robbins Post-Doctoral Fellow at UC Berkeley School of Law and recently earned her PhD in the History department at UC Berkeley; and Zvi Septimus is Anne Tanenbaum Post-Doctoral fellow at the University of Toronto. He was previously Alan M. Stroock Fellow for Advanced Research in Judaica at Harvard University and received his PhD in Jewish Studies from UC Berekely.

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Conferences, English

Conference Review: Legal Heterodoxy in Islamic and Jewish History: Late Antique and Medieval Transformations, University of California, Berkeley, April 23-24- Guest Post by Marc Herman

I confess that I arrived at the conference last week with a healthy dose of skepticism.  Though billed as a treatment of “Legal Heterodoxy in Islamic and Jewish History,” I worried that the conference’s subtitle and chronological frame, “Late Antique and Medieval Transformations,” lightly masked a correlation of Islamic:Medieval and Jewish:Late Antique.  As I reviewed the schedule in advance, I noticed that the symposium poster announced scholars of classical rabbinics in conversation with scholars of medieval Islam.  How, I wondered, would this create a valid historical conversation?  And if history is not the goal, why study late antique Judaism alongside medieval Islam?  Would the goals be ecumenical?  Philosophical?  The theoretical study of law?

When Lena Salaymeh, one of the organizers, opened the symposium with a nod to the above disparity, it began an honest discussion of the challenge of placing Islamic and Jewish law in synchronic conversation.  The pride of place of rabbinics in both Jewish Studies and the popular Jewish imagination leads to a concomitant lack of emphasis on the medieval transmitters and interpreters of rabbinic culture.  Even among those who have studied medieval Rabbanite law, far greater work has been done on Jewish law in Latin Europe than on its counterpart in Arabic lands.  Recent decades have seen a resurgence of interest in Geonica, but surprising lacunae include Jewish law in Muslim Andalusia, North African halakhists, and even, relatively speaking, the legal writings of Maimonides.  Many books could be written about these and other topics, both from an “internal” perspective and by understanding them in light of their Muslim contexts.

This is not to say that the conference papers did not contribute to the study of Muslim and Jewish law in concert.  While previous scholarship has acknowledged connections between Sasanian-era rabbinic and nascent Islamic legal systems, these connections await thorough scrutiny.  G. Libson and others have long championed S. D. Goitein’s “Mediterranean society” view of medieval Judaism and Islam, but scholarship has not always appreciated regional or contextual factors in medieval Jewish legal history.  Developments in the study of Sasanian culture will improve the study of both Geonic-era Islamic and Jewish legal cultures.  Yaakov Elman’s paper, to nobody’s surprise, served as a good touchstone for that project. Only in teasing out what I like to call the “late antique soup” of the pre-Geonic world will we properly understand the rise of Islamic law.

Phenomenologically, I was most excited by the papers of Steven Fraade and Mohammad Fadel.  Fraade analyzed rabbinic traditions that valorize legal pluralism, while Fadel focused on the unusual positions of Ibn Hazm (d. 1064), who lived at the end of Muslim hegemony in al-Andalus and rejected the “normative pluralism” of medieval Sunni orthodoxy.  Though it went unmentioned, it is highly suggestive that as a religious minority, Geonic culture famously downplayed the multivocal vision of the rabbis, conceivably for similar reasons to Ibn Hazm.

A good conference is marked by the questions it poses and the avenues it opens, and this conference was no exception.  In her closing review of the proceedings, Talya Fishman outlined three areas of Jewish studies that could be enhanced by greater understanding of Islamic law: (1) the consolidation of legal traditions in the Geonic period; (2) a change in the “technology” of the law (from oral to written Torah); and (3) Geonic epistemology and treatment of both aggadah and halakhah.  To this list one may add the lacunae mentioned above, as well as scholarly understanding of Karaism (something this blog has recently highlighted).  Ultimately, Judeo-Islamic studies remains a young and exciting field.

Marc Herman is a graduate student in The University of Pennsylvania’s Department of Religious Studies.

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English, Guest Posts

Thoughts on Near Eastern Legal Culture- Guest Post by Lena Salaymeh

This post is the first in what will be an ongoing series introducing our readers to the work of young scholars engaged in new and interesting research. 

I usually describe my research interests as being comparative Jewish and Islamic law (or legal history), but that depiction is often misleading.  The term “comparative” assumes two distinct legal traditions that interact in discernible ways.  But in the context of Jewish and Islamic legal history, my conception and implementation of “comparative” is more akin to thinking and to speaking in “proto-Semitic.”  As a metaphor, “proto-Semitic” offers a useful heuristic for thinking through how we approach the study of Jewish and Islamic law.  If you imagine scholars of Jewish law articulating their ideas in Hebrew and Aramaic, while scholars of Islamic law articulate their ideas in Arabic, then my objective is to converse with both groups of scholars in a meta-language (proto-Semitic) that engages both legal traditions.  Just as “proto-Semitic” is the common ancestor of the Semitic language family, Near Eastern legal culture is the shared antecedent of Jewish and Islamic legal systems. Undeniably, the challenge is that proto-Semitic no longer exists as a spoken language and is instead a scholarly reconstruction of a language that may have existed.  Similarly, I am interested in recreating the discourse of Near Eastern legal culture in the late antique and medieval periods using terminology and ideas from law, history, and critical theory.  While diglossia (in this case, speaking both in a Semitic dialect and in proto-Semitic) is inevitable, my objective is to transcend disciplinary boundaries.

My “proto-Semitic” perspective on the subject of my research differs considerably from the viewpoint of colleagues who assume that my research interest is “religious law.”  However, there are several interrelated problems in “religious law” as a category.  In contemporary discourse, the modern bifurcation between “secular” and “religious” law is taken for granted, but it lacks historical resonance.  There is a common presumption that the “essence” of religions is their laws, but this oversimplifies the multi-dimensional nature of religious groups and movements.  Instead of “religion,” I prefer more precise terminology in scholarship and in public discourse: theology, spirituality, ritual, belief, ideology, orthodoxy, orthopraxy, customary practice, local culture, and identity.  In focusing on the syncretic and dialectical relationships within Jewish and Islamic legal history, I am also mindful of Roman provincial, Sasanian, and Near Eastern tribal legal traditions.  In so doing, I seek to contextualize (and to broaden) the study of Islamic and Jewish legal history within a shared “proto-Semitic” legal culture.  I often invoke historical evidence from other (i.e, other than Islamic or Jewish) Near Eastern legal traditions precisely in order to substantiate the existence of Near Eastern legal culture.  Legal culture, based in a specific social space and time, is a more effective category of analysis for my work than “religious law.”

Relatedly, the word “religion” does not have a Semitic (and possibly proto-Semitic) equivalent.  “Religion” is a perplexingly problematic term for my research because it is both anachronistic and untranslatable.  In Arabic, the term “din” is translated as “religion,” but the root means “to profess.”  Likewise, in Hebrew, the term “dat” is translated as “religion,” but it means “law.”  The historical usage of both terms does not correspond to modern understandings of religion. This is not mere philological pickiness: if we insist on translating what we observe in Jewish and Islamic historical texts into a discourse about religion (with its modern, Western genealogy), we will stifle more imaginative and unexpected possibilities and interpretations of these texts and their socio-historical contexts.  Historical expressions of Judaism and Islam do not easily correspond to contemporary conventions about religion and it is precisely this complexity that is the basis of my research pursuits.

My commitment to “proto-Semitic” research includes exploring the Islamic legal-intellectual milieu of rabbinic jurists who wrote in Arabic (such as Alfasi and the Rambam) and studying Gaonic legal manuals.  I am working on an article that explores medieval Islamic juristic texts that discuss the possibility of using Jewish law as a source of legal authority.  I plan to contrast these Islamic legal discussions of the ‘other’ with references to Islamic law in Gaonic texts.  In another article, I expect to situate Karaite attacks on rabbinic oral law within debates about the authoritative significance of the legal opinions of late antique Muslim jurists.  As part of my broader endeavor to collaborate with colleagues, Zvi Septimus (Stroock Fellow, Harvard Center for Jewish Studies) and I are formulating a project to explore the intersections between some medieval commentaries of the Bavli and contemporaneous Islamic legal literature.

Recreating “proto-Semitic” is a wide-ranging endeavor that needs institutional groundwork; this is why I complement my research with administrative projects as a coordinator for the Initiative on Muslim-Jewish relations at UC Berkeley’s Center for Middle Eastern Studies.  I am interested in creating a network of scholars and of supporting unrecognized scholarly endeavors.  For example, we are currently trying to find funding to publish an Arabic translation of the Rambam’s Mishneh Torah in order to make this seminal Jewish legal text accessible to scholars of Islamic law who do not read Hebrew.  We are also raising funds to acquire an important collection of Judeo-Arabic midrashic literature from 19th/20th century Morocco, which would supplement UC Berkeley’s previous acquisitions of similar materials from Iraq and Tunisia.  There is much work to be done in the field of Judeo-Islamic legal studies and I have many more ideas and plans for how we can more deeply explore the interconnectedness of Jewish and Islamic legal systems.  I hope we will have opportunities to implement them and to continue rediscovering “proto-Semitic,” as a means of deepening our understandings of Jewish and Islamic legal history.  I invite readers to join me in reconstructing “proto-Semitic.”

Lena Salaymeh is a PhD candidate at UC Berkeley. Her dissertation is titled Late Antique and Medieval Islamic Legal Histories: Contextual Changes and Comparative (re)Considerations.

[Cross-posted at the Immanent Frame]

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