Neither Sad Nor Angry

The Hook

A couple has been married ten years and there are no children, and the court has to decide whose body is the reason. He says it is hers. She says it is his, and gives a physical reason for saying so. Her word is accepted, and the Rambam explains why in one sentence that does not appeal to compassion or to the credibility of women in general. Her word is accepted because she can feel whether or not it happens, and he cannot make the distinction. The evidence exists. Only one person in the room has access to it. The law goes and stands where the evidence is.

Then the same halacha takes it straight back. If she says she does not know whether the difficulty is his or hers, she does not collect the essential sum of her marriage contract, and the reason given is that money stays with the one who holds it until she makes a definite claim. Believed for what she can feel. Not believed for what she is guessing at. The chapter is generous with her testimony and completely unsentimental about it.

And then the chapter, which has spent seventeen halachot counting children and counting years and counting miscarriages, arrives at its last four rulings and stops counting altogether. A man must never compel his wife. Relations are to be by agreement, preceded by conversation and a spirit of joy. He is to honor her more than his own person and love her as he loves himself, and to speak with her gently, neither sad nor angry. That is where the arithmetic lands. Why would a chapter this arithmetical end on tone of voice?

A Count, and Everyone Exempt From It

The chapter opens by permitting something startling. A woman may release her husband from his conjugal obligation to her, and the release holds. But only if he already has children and has fulfilled the commandment to be fruitful and multiply. Where he has not, the obligation is not hers to waive, because the duty he owes is not only to her.

Then the Rambam sets the clock. The obligation falls on the man and not on the woman, and it begins at seventeen. At twenty, a man who has not married is regarded as having transgressed and nullified a positive commandment. That is severe and it is stated plainly, and then the exception is granted in the very next sentence to almost anyone who wants it. A man occupied with Torah study, absorbed in it, who hesitates to marry because he would then have to work to support a wife and be kept from study, is permitted to delay, since one occupied with a commandment is exempt from another, and all the more so where the occupation is Torah.

Then the case of ben Azzai, who never married at all, whose soul desired Torah at every moment and who clung to it his whole life. He has not transgressed. And then the qualification, which is the sharpest thing in the passage: provided that his nature does not overcome him. If it does, he is obligated to marry even if he already has children, so that he not be drawn into thoughts he should not be having. The exemption is not granted to a category of person. It is granted to a condition, and the condition can lapse at any hour of any day, and the man himself is the only one who can tell.

The count itself turns out to be modest and precise. One son and one daughter, from the verse that says male and female He created them. If the son is a saris or the daughter an aylonit, it has not been fulfilled. Grandchildren count in place of children, so long as they are male and female and come from two different children, and the Rambam works through the permutations without comment. A convert who fathered children as a gentile has fulfilled it, and a freed slave who fathered children as a slave has not, because a slave has no paternal lineage and so, in the reckoning of the law, those were never quite his children to count.

Ten Years, and the Only Person Who Knows

Then the ten years, and the chapter turns hard. A man married ten years to a woman who has not given birth must divorce her and pay what her marriage contract requires, or else marry another woman capable of bearing children. If he refuses, he is compelled. The Rambam writes that he is beaten with a rod until he divorces her. And he forecloses the obvious compromise before anyone can propose it. Even where the husband offers to abstain and to live with her only in the presence of witnesses so that they are never alone, the proposal is refused, and it is refused whether he offers it or she does. Both of them want to stay. Neither of them is permitted to arrange it.

Then the accounting of fault, and with it the physical test the chapter keeps returning to. Where the man releases as one shoots an arrow, the presumption is that the difficulty is hers, and he divorces her without the essential sum, though she keeps the additional amount, since she should not be judged more harshly than an aylonit whose husband did not know her condition. Where he does not, the difficulty is his alone and he pays the whole contract, the essential requirement and the addition together.

And that is where he hands her the verdict. She is believed against him, because the knowledge lives in her body and not in his. He is left with one remedy, which is to have a conditional ban of ostracism proclaimed against anyone who makes a claim she does not definitely know to be true, and then he pays. The law does not pretend it can see. It finds the person who can and asks them, and then it holds that person to the standard of actual knowledge, which is why the woman who says she is not sure walks away without the essential sum.

Then the clock is unwound in every direction. Years when he was away on an extended business trip do not count. Years when either of them was ill, or imprisoned, do not count. A miscarriage restarts the ten years from the day it happened. And where they disagree about whether there was a miscarriage at all, she is believed, on the reasoning that no woman would falsely describe herself as barren; and where she claims three miscarriages against his two, she is believed again, since no woman would falsely describe herself as one who miscarries. She may be made to take a rabbinic oath, because her claim obligates him to pay. The Rambam finds a way to believe her that does not require anyone to be naive.

And when she is the one bringing the claim, the court slows everything down. She comes saying he cannot perform in the ordinary way, and the judges are instructed to seek a compromise and to say to her that it is fitting for her to stay ten years and come back if there is no child. The negotiation is protracted deliberately. She is not required to go on living with him and she is not judged a rebellious wife, and the dealings simply continue until the two of them arrive somewhere together. It is a court declining to issue a ruling it is fully entitled to issue.

What the Chapter Says Last

The final five halachot are the reason the chapter exists. A man who has already fulfilled the commandment is nevertheless bound by rabbinic obligation not to desist while he is still able, because whoever adds a soul to Israel is regarded as having built an entire world. A man should not live without a wife, and a woman should not live without a husband, and the reasons the Rambam gives for each are frankly different and he does not smooth them over.

Then the instructions on conduct, and they are astonishing in a legal code. A man is obligated to admonish his wife, and the Sages said that a man does not admonish his wife unless a spirit of purity has entered him; and he is not to admonish her more than is necessary. He is never to compel her, and relations are to be by her agreement, preceded by conversation and a spirit of joy. She is to conduct herself modestly, not to withhold in order to cause him anguish so that his love will increase, to keep her distance from his relatives, to avoid even the trace of scandal.

And then, at the end, the two commands that are almost never quoted together. He is to honor her more than his own person and love her as he loves himself, and if he has the means, to benefit her according to those means; he is not to cast excessive fear over her, and is to speak with her gently, being neither sad nor angry. She is to honor him exceedingly and to be in awe of him, to conduct her affairs according to his word, to regard him as an officer or a king. The Rambam sets them side by side and calls this the way of holy and pure Jewish women and men in their marriages, and says these ways will make the marriage pleasant and praiseworthy.

The Unifying Principle

Every hard ruling in this chapter is decided by locating the person who actually knows. Ben Azzai is exempt until his nature overcomes him, and no court can measure that; he is the only witness and the exemption is placed in his hands. The woman is believed about her husband because she can feel and he cannot. She is believed about a miscarriage because nobody would say that of herself falsely. And where she does not know, the chapter does not give her the benefit of anything, because there is nothing to be believed about. Then the chapter closes by instructing a man on how to speak in a room where no court will ever be present.

The Alter Rebbe writes in Tanya that the commandment to love a fellow as oneself is only possible if the body is treated as secondary and the soul as primary, because bodies are separate by nature and divide people from one another, while souls do not divide. Read this chapter's last halachot in that light and the sequence stops being strange. The whole chapter before them is about bodies, counted and measured and disputed over for ten years, and it has just demonstrated how much bodies can conceal from each other. Then it turns and rules that the man is to honor her more than his own person. Not equally. More. The instruction goes past what the body can be argued into.

The Baal Shem Tov taught that a soul may descend into this world and live seventy or eighty years in order to do another person a single favor. That teaching is usually applied to strangers, and it is harder and more accurate applied to the person sitting across the table who has been sitting there for a decade. Whoever adds a soul to Israel has built a world, says the chapter, and it is not only speaking of children. The Rebbe pressed constantly on the point that the home itself is the sanctuary and that what is built there is built with speech, and this chapter agrees so completely that it legislates the tone.

Which is why the last practical thing the Rambam says is about a voice. Everything up to that point could be adjudicated. The count could be checked, the years could be reconstructed, the testimony could be weighed and an oath imposed. And then the chapter arrives at what no court can reach, and instead of falling silent it gives an instruction: gently, neither sad nor angry. The Sfat Emet observes that what a person builds in private is what the year is actually weighed on, and here the halacha has walked as far as its own instruments go and then kept walking.

Modern Application

The believability rulings are the ones to take out of the chapter. She is believed where she has access and disbelieved where she is guessing, and the second half is what makes the first half serious rather than sentimental. Most arguments in a house are conducted by two people each testifying confidently about what is happening inside the other one. The Rambam does not allow it in a courtroom and there is no reason to think it works better at a kitchen table.

And the court that stalls. A woman brings a claim that would win, and the judges are told to protract the negotiations, not to compel her to stay, and not to call her rebellious. Somebody with the authority to end the matter chooses instead to keep the room open. There are weeks in a year when that is the whole of what is required of a person, and this is one of them.

The Closing

This chapter is learned on the twenty ninth of Elul, the last day of the year. Tomorrow at nightfall the books open, and the traditional accounting is a count: what was done, how many times, how much was left undone. The chapter has been doing exactly that for seventeen halachot, and then it puts the ledger down and rules on how a man is to speak to his wife.

He is to honor her more than his own person, and to speak gently, being neither sad nor angry. That is the last thing the Rambam says before the year ends, and it is worth noticing that he did not put it in the section on piety or on character. He put it at the end of the chapter about counting, in the place where the counting stops working. The year that is being weighed tomorrow will be weighed partly on things nobody can measure and nobody witnessed and no court could have compelled. So before the sun goes down on it, one question is worth sitting with. In the room where nobody is judging you, what has your voice been doing all year?