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Beautiful captive woman

Beautiful captive woman (Hebrew: אשת יפת תואר, eshet yefat to'ar) is a biblical concept, found in the Hebrew Bible (Deuteronomy 21:10–14),[1] allowing for a Jewish soldier who participates in a voluntary war, at a time when the people of Israel dwell in their own land[2] and when the Sanhedrin is in authority,[3] to rape a non-Jewish woman belonging to enemy captives, irrespective if she was a single woman or a woman married to another man. This act, though universally thought-of as being repugnant, is explained in rabbinic literature as being a concession to man's evil inclination, so that Jewish soldiers on the battlefield may remain blameless.[a]

Halacha

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The Hebrew Bible accepts as a given the possibility that a Jewish soldier might encounter a captive woman and wish to have sex with her, something that was common in wars from biblical times to recent times. In response, the Torah permits this with a number of conditions and legal restrictions:

The Jewish soldier is permitted to rape a "beautiful captive woman" who had been made a prisoner of war, when his intent is to marry her.[4] The Talmud (Kiddushin 21b) calls this act a concession to man's evil inclination.[5] Even so, when she is brought to his house, he must shave her head and allow her fingernails to grow out[b] without cropping them and separate himself from her for one-month during her time of mourning, in order to be dissuaded from having sex with her.[6] In addition, the clothes worn by her at the time of her capture are removed and she is given soiled garments to wear.[7] The female captive is given a month in this state, to mourn her fate and to recuperate. If, after all has been done, he still desires to take the woman as his wife, he may do so, on condition that she agrees to adopt the Jewish religion and is immersed in a ritual bath.[8][9] The Law, moreover, enjoins that female captives who were forced to cohabit with their victors and who do not wish to convert to Judaism should not be sold as slaves.[10]

Other details

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The Sefer ha-Chinukh (pericope Ki Teitzei, commandment no. 532) claims that the Jewish soldier must restrain his potential sexual urges, writing that "it is for this reason that the Scripture has shut the door before him, in order to make her disagreeable in his eyes, and it has commanded that he shave her head, so that she would lose the otherwise natural description of her beautiful hair, and for her to grow out her fingernails to make her hands look uncomely, and that he would allow her to cry [for her parents] for the first month in order to make her face look ugly and that her eyes become wasted away with tears... all this, in order to make her look disgusting in his eyes, to the end that he comes in and goes out and looks upon her and sees her in her unkempt state." If the Jewish soldier is repulsed by her appearance, he is forbidden to turn her into a slave and is required to set her free. He is forbidden to make merchandise out of her by selling her to another. Rabbi Abraham ibn Ezra mostly agreed with this interpretation, only that he explained the words "and she shall do her fingernails" as a physical alteration in preparation for the eventuality that the Jewish soldier would indeed take her as a wife.[11]

According to the Talmud (Sanhedrin 59a), the laws relating to a ‘beautiful captive woman’ apply only to the men of Israel, but do not apply to gentile soldiers. Moreover, Gentile nations are not authorized to wage a war of conquest (Hebrew: לאו בני כיבוש נינהו‎), meaning, before they can even consider the performance of this act, they must first realize their limitations to the right of conquest. This is explained by Adin Steinsaltz as meaning, "permission has not been given to the Gentiles to make war for the sake of conquest, while this law concerning the ‘beautiful [captive] woman’ was said only with respect to a war where there was conquest [by Israel] (Deut. 21:1–ff.), and, therefore, the matter is permitted unto a fellow Jew, but prohibited unto a non-Jew."[12]

Soldier's conduct

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Jewish soldiers, although given license to rape a captive during the time of war, were still bound by certain contraints, such that they were only permitted to forcibly have sex with a captive woman once, but must thereafter desist from such acts until such time that a full month had expired from the time of her captivity and she was legally married to him.[13] This was only allowed during the time of war and with a captive woman, but not with other non-Jewish women.[14] It made no difference whether the captive woman was already married to another man or was still single, and whether she was a virgin or not.[14]

Negative aspects

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The Talmud is quick to point out that King David took in marriage a 'beautiful captive woman', from whom were born his son Absalom, and a daughter, Tamar.[8][15] The Talmud goes on to say that the downside of taking in marriage a 'beautiful captive woman' is that, in the end, he will hate her and the offspring born of such union will be a wayward and rebellious son (Hebrew: בן סורר ומורה).[15][16]

International law vs. religious law

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When it comes to traditional laws of armed conflict, these laws often contradict and stand in direct violation of international law. Today, for example, women are protected under the laws of the UN against rape and other forms of sexual violence committed by soldiers of the occupying forces (The Third Geneva Convention of 1949 [in Articles 13 to 16]).[17] In contrast, some religious Jews view the laws bequeathed to them by their forefathers as immutable.[18]

Application

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Whether the laws governing a 'beautiful captive woman' continued to be valid was already disputed by the early rabbis. According to Rabbi Shemuel bar Nahmani, they did not permit a 'beautiful captive woman' except during the first seven years of Israel's conquest of the land of Canaan.[14] Contemporary rabbis and poskim have not made this distinction, but, in fact, speak of King David as having performed the laws governing a "beautiful captive woman".[19] Rabbi Yohanan held the view that these laws did not apply during Israel's first fourteen years of conquest and division of the land, but only applied afterwards.[14][20]

References

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  1. ^ Deuteronomy 21:10–14
  2. ^ HaLevi 1958, p. 318 (§ 526), P. Shofṭīm; HaLevi 1958, p. 319 (§ 527), P. Shofṭīm; Josephus 1981, p. 101 (Antiquities 4.8.41.), quote: "Let all sort of warlike operations, whether they befall you now in your own time, or hereafter in the times of your posterity, be done out of your own borders."
  3. ^ Meiri 2006a, p. 24 (Sanhedrin 16a); Babylonian Talmud, Sanhedrin 2a (corresponding to Mishnah, Sanhedrin 1:5)
  4. ^ Meiri 2006, pp. 57–58 (Kiddushin 21b), s.v. כבר ידעת‎
  5. ^ Eisenstein 1970, p. 229, s.v. מלחמה‎; Babylonian Talmud, Kiddushin 21b–22a; Sifre on Deuteronomy 21:10–14; Maimonides 2016, p. 269 (Hil. Melekhim 8:2); Babylonian Talmud, Sanhedrin 59a (Rashi, s.v. לאו בני כיבוש נינהו‎)
  6. ^ Lehman 1988, pp. 313–316
  7. ^ Zechariah ha-Rofé 1992, p. 418 (Deuteronomy 21:13)
  8. ^ a b Eisenstein 1970, pp. 169–170, s.v. יפת תואר‎
  9. ^ Maimonides 2016, p. 270 (Hil. Melekhim 8:5)
  10. ^ HaLevi 1958, pp. 321–322 (§ 533 and § 534), P. Ki Teitzei
  11. ^ Ibn Ezra on Deuteronomy 21:13
  12. ^ Steinsaltz 1994, p. 255 (Sanhedrin 59a)
  13. ^ Zechariah ha-Rofé 1992, pp. 417–418 (Deuteronomy 21:10–12), cited in the name of the Rabbis of Caesarea.
  14. ^ a b c d Zechariah ha-Rofé 1992, p. 417 (Deuteronomy 21:10)
  15. ^ a b Ginzberg 1938, pp. 100–101; Babylonian Talmud, Sanhedrin 21a, Rashi s.v. תמר‎, ibid., 107a; Zechariah ha-Rofé 1992, pp. 419–420 (Deuteronomy 21:11–13)
  16. ^ Cf. Deuteronomy 21:18–21.
  17. ^ Gardam & Charlesworth 2000, p. 157 (note 55)
  18. ^ Bleich & Jacobson 2012, p. Preface, quote: "Judaism is fundamentally a religion of law, a law that governs every facet of the human condition. Jewish tradition maintains that the Torah – the first five books of the Bible that include the Written Law transmitted by Moses at Mount Sinai as well as the Oral Law accompanying it – contains not merely a set of laws, but also canons of interpretation and principles according to which conflicts among the rules of law may be resolved. Maimonides, the pre-eminent early medieval philosopher and expounder of the Torah, records the doctrine that the Torah will not be altered, either in its entirety or in part, as one of the Thirteen Principles of Faith. The divine nature of the Torah renders it immutable and hence not subject to amendment or modification."
  19. ^ Ginzberg 1938, pp. 100–101; Babylonian Talmud, Sanhedrin 21a, Kiddushin 76b; Zechariah ha-Rofé 1992, p. 420 (Deuteronomy 21:11)
  20. ^ Cf. Midrash Shemuel, chapter 25

Notes

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  1. ^ The concession was made only after the fact that, in warfare, a soldier would have raped anyway, whether he was allowed to do so or not, and the Torah wanted the men of Israel to be blameless, therefore, it excused the first instance.
  2. ^ "must allow her fingernails to grow out," this interpretation follows the Aramaic Targum on Deuteronomy 21:12, Maimonides (Hil. Melekhim 8:1–3), Rashi's commentary on Deuteronomy 21:12, as well as the author of Sefer ha-Chinuch (§ 532), unlike the popular English translations for the same verse. Nachmanides, in his commentary on Deuteronomy 21:12, mentions that the interpretation is disputed, some rabbis (Sifra) holding that the sense is for her to pare her fingernails. Cf. Talmud, Yebamot 48a.

Bibliography

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  • Bleich, J. David; Jacobson, Arthur J. (2012). "The Jewish legal tradition". In Mauro Bussani; Ugo Mattei (eds.). The Cambridge Companion to Comparative Law. Cambridge University Press. pp. 278–294. doi:10.1017/CBO9781139017206.017. ISBN 978-0-521-89570-5.
  • Eisenstein, Judah D. (1970). A Digest of Jewish Laws and Customs - in Alphabetical Order (Ozar Dinim u-Minhagim) (in Hebrew). Tel-Aviv: Ḥ. mo. l. OCLC 54817857. (reprinted from 1922 and 1938 editions of the Hebrew Publishing Co., New York)
  • Gardam, Judith; Charlesworth, Hilary (2000). "Protection of Women in Armed Conflict". Human Rights Quarterly. 22 (1). The Johns Hopkins University Press: 148–166. doi:10.1353/hrq.2000.0007. JSTOR 4489270.
  • Ginzberg, Louis (1938). The Legends of the Jews. Philadelphia: The Jewish Publication Society of America.
  • HaLevi, Aharon (1958). Sefer ha-Chinuch on the 613 biblical commandments (in Hebrew). Jerusalem: Eshkol. OCLC 762447043.
  • Josephus (1981). Josephus Complete Works. Translated by William Whiston. Grand Rapids, Michigan: Kregel Publications. ISBN 0-8254-2951-X.
  • Lehman, Menashe Raphael (1988). "A beautiful woman and other laws in the Temple scroll (אשת יפת-תואר והלכות אחרות במגילת המקדש)". Beit Mikra: Journal for the Study of the Bible and Its World (in Hebrew). 33 (3). Bialik Institute, Jerusalem: 313–316. JSTOR 23505022.
  • Maimonides (2016). Mishneh Torah by Moses Maimonides (Book of Shoftim) (in Hebrew). Vol. 14. Jerusalem; Bnei Brak: Shabse Frankel. OCLC 989980005.
  • Meiri (2006). Daniel Bitton (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). Vol. 5. Jerusalem: Hamaor Institute. OCLC 181631040.
  • Meiri (2006a). Daniel Bitton (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). Vol. 7. Jerusalem: Hamaor Institute. OCLC 181631040.
  • Steinsaltz, Adin (1994). Talmud Bavli – Mesekhet Sanhedrin (in Hebrew). Vol. Sanhedrin. Jerusalem: The Israel Institute for Talmudic Publications. ISBN 9789653014435. OCLC 232954939.
  • Zechariah ha-Rofé (1992). Havazelet, Meir (ed.). Midrash ha-Ḥefetz (in Hebrew). Vol. 2. Jerusalem: Mossad Harav Kook. OCLC 23773577.
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