Nobody Is Lashed for an Absence

The Hook

A seaman owes his wife her conjugal rights once in six months. That is the Rambam's own schedule, set down as flatly as a tax table, the most generous allowance in the chapter, made for a man whose work takes him away for whole seasons. Now have that same seaman make a vow that puts intimacy out of reach. He gets one week. After a week he must either have the vow dissolved or divorce her and pay her contract in full.

One week, for the man the law had just excused for six months. The Rambam gives the reason in the same breath. Since he took a vow, he has caused his wife distress, and she despairs. Read it twice, because it rewrites everything above it. The six months were never a measure of how much absence a marriage can hold. They were a measure of how long a woman can wait while she is still expecting him. Take away the expecting and the allowance collapses into seven days.

That is the engine of the chapter, and it runs in both directions. A little further on you meet a man who vows nothing, travels nowhere, provides everything, and announces that he will go on supporting his wife and will not be intimate with her because she has become loathsome to him. The Rambam adds thirty six barleycorns of silver to her contract for every week he keeps it up, lets the arrangement continue as long as she is willing, and rules that he violates a negative commandment of the Torah throughout.

And then a sentence that deserves to be better known. Why is he not punished by lashes for violating it? Because its violation does not involve a deed. There is no act for the court to strike at. The offense is made entirely of an absence, and there is nothing for a witness to describe. A chapter that opens with a timetable is about the one category of wrong that leaves no mark on the record. What does a legal system do with a sin that consists of nothing happening?

Once a Week, Once in Six Months

Begin with the timetable, because there is nothing quite like it in the code. The obligation of conjugal rights, the Rambam says, depends on the strength of each particular man and on the work he does. Healthy men who are pampered and spend the day at home owe their wives every night. Craftsmen working in their own city owe twice a week, once a week if the work is elsewhere. Donkey drivers, once a week. Camel drivers, once in thirty days. Seamen, once in six months. Students of Torah, once a week, because the Torah weakens their strength, and their practice is Friday night.

Then the timetable turns out to be enforceable in a direction most readers would not predict. A wife may prevent her husband from making business trips anywhere but close places. She may prevent him from moving out of a trade that gives her more frequent rights into one that gives her fewer, so that the donkey driver may not become a camel driver and the camel driver may not become a seaman. The exception is Torah study, where a student may leave for two or three years without asking. Everything else in a man's working life is negotiable with whoever lives inside the gap it makes.

The chapter permits a man several wives, even a hundred, provided he can supply each with subsistence, clothing and conjugal rights as befits her, and forbids him to compel them to share a courtyard. Then it does the arithmetic out loud. A worker with two wives owes each once a week. With four, once a fortnight. A seaman with four owes each once in two years. And on the strength of that number, and no other argument, the Sages instructed that a man not marry more than four wives however ample his resources, so that each comes round once a month.

The section on vows is where the chapter shows its temper. A man who vows that his wife must repeat to others the jests and frivolities spoken between them in private must divorce her and pay her contract, because a woman may not be compelled to speak brazenly. A man who vows that she must take steps during relations to prevent conception, or perform acts that are merely foolishness, the same. The law does not weigh how embarrassed this particular woman is. It rules on the vow, which means it decided in advance what a marriage may not be converted into, and it did not ask the couple.

The Rebel, and the Other Rebel

A woman who withholds intimacy from her husband is called a moredet, a rebel, and the court's first move is to ask why she has rebelled. If she answers that she is repulsed by him and cannot voluntarily engage in relations with him, her husband is compelled to divorce her immediately, and the Rambam supplies the reason in a clause that carries the whole chapter. She is not like a captive, to be forced to lie with one she loathes. She goes without the money promised in her contract, keeps what remains of what she brought in, and returns his gifts, itemized down to the shoe on her foot. She loses nearly everything except the ruling itself, which was immediate.

If she answers otherwise, that she is doing it to cause him distress over something he did, the machinery starts turning. A messenger from the court warns her that she will forfeit her contract even if it is worth a hundred maneh. Announcements are made about her in the synagogues every day for four consecutive weeks. Then the forfeiture, and after it twelve months in which she is neither supported nor divorced, and if she dies inside that year her husband inherits from her. The same sequence applies where she is in the niddah state, or too ill for relations at all, which tells you what is being adjudicated. Not intimacy. Its use as an instrument.

And then the mirror, the ruling that makes the chapter honest. A husband can rebel too, and the Rambam describes him exactly. He will support her and provide her subsistence and will not be intimate with her, because she has become loathsome to him. Nobody announces him in a synagogue. His obligation grows by thirty six barleycorns of silver a week, the marriage continues as long as she desires it, and the Rambam states plainly that he transgresses a negative commandment throughout. If the husband hates her, let him divorce her. Causing her anguish is forbidden.

Then the question about lashes, and the answer that there is no deed in it. Read as a technicality it is a rule of criminal procedure. Read where the Rambam placed it, immediately after the sentence about anguish, it describes a category. This is the wrong that cannot be photographed. No moment to point at, no act to describe to a witness, and the law says so and then declines to draw the conclusion everybody expects. It does not conclude that therefore nothing is happening. The absence stays a violation, and the contract keeps growing, week by week, in silver, as the only record anyone will ever have.

What He May Not Buy His Way Out Of

The last part of the chapter is about money, arranged so that almost every ruling closes a door a wealthy man would like open. When a wife becomes ill, her husband must provide medical treatment until she recovers. If he sees the illness stretching out and the costs mounting, he may hand her the money due by virtue of her contract and tell her to pay for her own treatment out of it, or be divorced with the money and abandoned. The Rambam grants the prerogative and then, in the same halacha, adds that it is not ethical to act this way. A code of law does not usually do that.

Captivity is where the door shuts hard. He must redeem her, and is not obligated beyond her worth, since the question of ransom treats her like any other captive. But he may not say that he will divorce her, pay the contract, and leave her to redeem herself when the ransom runs higher than the contract is worth. He is compelled to redeem her even if the ransom is ten times her contract, even if it comes to everything he owns. If he is a priest, and the captivity has made her forbidden to him, he must redeem her anyway and provide for her until she is home. If he is abroad, the court sells his assets and redeems her as he would have been required to.

The law knows its own edges. A second captivity is different, and a woman redeemed once and taken again may be divorced with her contract and left to redeem herself. A woman already forbidden to her husband by a Torah prohibition before she was taken is not his to redeem, and the Rambam raises the objection against himself, that a priest's wife is forbidden too and is redeemed all the same, and answers it. She was not forbidden beforehand. The captivity itself forbade her. The obligation fastens to the marriage a man actually has.

The final rulings concern a wife who has died. He must bury her and provide eulogies and lamentations according to local custom, and even a poor Jewish man must provide at least two flutes and one woman to keen. And if her social standing exceeded his, he must bury her according to hers, because a woman ascends to her husband's standing and does not descend to it, and the Rambam adds three words that hold the chapter shut. This applies even after death. If he refuses, and somebody else buries her, the cost is expropriated from him against his will, so that the body of a Jew is not thrown to the dogs.

The Unifying Principle

Set the rulings side by side and the chapter has one subject. All of it is an attempt to legislate presence, the only thing a man cannot substitute for. He can be scrupulous about her food and clothing and the law will still call him a transgressor. He can be a seaman with a lawful six month absence and forfeit the whole allowance the moment he says a sentence that ends her expectation. And where money genuinely could stand in, the ransom and the burial, the law refuses to let him calculate. Not ten times the contract. Not the gap between her standing and his. Not even after she has died.

The Alter Rebbe builds the Tanya around a distinction this chapter is quietly using. There is service performed by a man whose heart is not in it, which the Tanya takes seriously and never confuses with the other thing, and there is the presence of somebody actually there. What Chassidus insists on is that the second cannot be assembled out of more of the first. A hundred obligations discharged correctly do not add up to one person in the room. The Rambam legislates along that seam, which is why he arrives at a prohibition carrying no lashes. The law can compel a man to pay, to redeem, to bury. It cannot compel him to be present, so it names the absence a violation and lets it stand with no punishment attached.

The Baal Shem Tov taught that a person is entirely wherever his thought is, and the chapter takes that literally in both directions. It is why the Rambam refuses to let the ruling about the sick wife stand without saying a man should not behave that way, and why the woman who says she is repulsed is released on the spot. A body present with nobody inside it is what the law is working to prevent, and it will not order a woman to supply one.

Modern Application

The recognizable version of this has nothing to do with polygamy or seafaring. It is the provider's argument, nearly always sincere and usually true, that the work is for them. The Rambam does not dispute it. He rules that the wife may block the promotion, and specifies the case with a precision that is almost comic. The donkey driver may not become a camel driver, because a camel driver is gone for a month. The raise is real. The absence is real. And whoever will live inside the absence gets a vote beforehand, not the kind taken after the offer has been accepted.

The other half is harder, because there is no legislation in it at all. A man can meet every obligation on the list and be gone. The Rambam saw that clearly enough to write it into a code of law, note that there is no deed to punish, and record the offense anyway. Some of the worst things a person does to somebody close to them will never contain a moment, never produce a scene to apologize for, never yield anything describable as an event. And the law says such a thing is still being done. It is being done today. The count is running.

The Closing

The twenty eighth of Elul, and Rosh Hashanah comes in tomorrow night. Almost all the accounting people do in these days is made of deeds, because deeds are countable and can be regretted with precision. What this chapter has been describing from its first line is the other category, the one with no act in it, no witness, no scene and no lashes, which by the Rambam's own reasoning is not the same thing as no violation.

The Rebbe returns every year to the teaching that the King is in the field throughout Elul, out where ordinary people are working, available without an appointment, which is a description of presence and not of power. What that has to do with conjugal timetables is nothing at all until you notice that presence is exactly what the chapter says a man owes and cannot discharge by any other means. Before tomorrow night, then, one question, and it does not concern anything you did. Who has been waiting for you, and what have you been sending instead?