Pilagshim -- continued from yesterday:
Rav Yakov Emden, fully accepts the Ramban’s main arguments for permitting pilagshim. However, he believes the proofs from biblical characters are inadequate and the distinction between kings and others is not entirely arbitrary. But mostly, RYE seems offended by the Ramban’s bout of frumkeit in his advice to Rabbeinu Yonah at the end of the teshuvah. Let’s follow his arguments in some detail.
The main additional text that RYE brings to the table is Yoma 18b:
When Rav would visit Darshish he would announce, “Which [woman] is [available] for a day?” When Rav Nachman would visit Shkhantziv he would announce, “Which [woman] is [available] for a day?”
The gemara then asks why this is not in violation of the dictum of R. Eliezer b. Yakov that a man should not have wives in various cities lest his children come to marry each other. To this the answer is
[Regarding the identity of the children of] Rabbis, the word goes out.
RYE regards this text as significant for several reasons. First, because it offers, in his view, post-biblical examples of pilagshus. RYE regards it as self-evident that Rav and Rav Nachman were not offering kiddushin and kesubah to the women involved in these brief relationships. Rather, the relationship must have been one of pilagshus in which the critical constraint is simply that for the specified period the relationship be an exclusive one for the woman. (This understanding, while sensible, requires an interpretation of the phrase yechudi havei meyachdei that is different from that of virtually all Rishonim.) By positing this post-biblical example of permitted pilagshus, RYE defuses a possibility raised by the Rivash (Teshuvos HaRivash 395) and the Radbaz (Teshuvos HaRadbaz 1296) that (almost) all biblical cases of pilagshim preceded the decree of Dovid HaMelech on yichud penuya and that from that time forward pilagshim were forbidden as well.
The text is significant for a second reason. It offers RYE a possible explanation for the Rambam’s distinction between kings and others, while at the same time rendering that distinction irrelevant for practical purposes. RYE argues on the basis of the gemara’s question and answer that an essential element in allowing pilagshus is the avoidance of ambiguous paternity (as per R. Eliezer b. Yakov). Therefore the gemara permits the pilegesh relationship only for a significant personage where the children’s paternity is likely to be well known. The Ramabam’s heter for kings, suggests RYE, is based on the same principle. But, he argues, the gemara’s limitation of the heter to significant personages is an artifact of the story in which Rav and Rav Nachman were just passing through the towns in question. In an ordinary case where a couple were living together, R. Eliezer b. Yakov’s problem would never arise and the limitation would not apply. (Of course, this begs the question again of the Rambam’s limitation of the heter to kings; eventually RYE comes around to Rabbeinu Yonah’s explanation: only monarchs can truly enforce an exclusive relationship in the absence of a formal contract. He recognizes that this, too, is forced and ultimately resorts to dismissing the Rambam’s limitation of the heter to kings as divrei nevius.)
RYE concludes that as long as there is no threat of ambiguous paternity – that is, the woman is committed to the exclusivity of this relationship and will wait three months before entering another relationship – pilagshus should be permitted for non-kings as well as for kings.
RYE is at his indignant best when attacking the view expressed by the Ramban at the end of his teshuva to Rabbeinu Yonah in which he advises against permitting pilagshim since this could lead to promiscuity and, more specifically, to sex with nidot. Rabbenu Yonah (Shaarey Teshuva 3:95) understands that this is a consequence of the fact that a pilegesh can be presumed to be embarrassed to go to the mikveh so as not to expose the relationship. This presumption is then picked up by the Radbaz, and then the Rosh (Teshuvos HaRosh 32:13), who adds that beis din should force the couple to separate. The Tur (Even HaEzer 26) continues this line, which then is cited in the Shulkchan Aruch but without specifically mentioning the nida presumption. However, Rema mentions the source of the forced separation as the presumption of the pilegesh not going to the mikveh, adding that in the event the pilegesh does go to the mikveh, there are some who permit the relationship.
RYE picks up on the self-fulfilling character of forbidding pilagshus on grounds that people are ashamed of it and concludes:
[This is] an unheard of hedge. On the contrary, for precisely this reason, he should permit [pilagshut], so as not to come to an issur kareis… If only the heter of pilagshim would be publicized, they wouldn’t stumble on serious offenses. Therefore, I should think that it should be declared publicly that pilegesh is permitted.
Ad kan. Some of you might be wondering what the point of all this was. I will not say. But I will say what the point was not. This has nothing to do with chakira's recent posts on this issue. Also, I have no personal stake in this. Furthermore, I'm not one of those I'm-OK-you're-OK rabbis who needs the admiration of those he makes feel good about themselves. In fact, I'm not a rabbi at all. I also have no need to shout The Truth from the hilltops. As I've said before, I'm a big fan of hypocrisy. If you've got cheatin' on your mind, gezinterheit, but leave me and Rav Yakov Emden out of it.