The Ethical has been Considered More Important than the Holy
Until this
point, we have seen that hukkim are as readily explicable as the other
ritual Halakhot. They are about
maintaining personal dignity. We will
now test that explanation by examining whether such norms can be overridden by
an ethical demand. To be specific, we
will examine the law of modesty during sex.
Holy Sex versus Ethical Sex
In the Babylonian Talmud, the main passage
discussing the avoidance of sex during the day (b. Nidda 17a) cites the
“ascetic” opinion of the Babylonian amora, Rav Huna (3rd century
CE), who follows Leviticus and the Israeli rabbinic tradition in viewing sex
during the day as unholy. The
discussion then continues with a citation of the later amora, Rava (270-350
CE), who focused the issue away from a restriction on the time of day to a
demand for modest sex in darkness. Up
to this point the discussion can be read as being about holiness through
restrain and dignity. However, the Talmudic
passage then cites a different 3rd century CE Babylonian amora who
forbids sex during the day for ethical reasons. R. Huna’s contemporary, R. Hisda, paralleled R. Huna in
forbidding sex during the day, but he raised an ethical argument that a man should
not have sex with his wife in the day lest the man violate the Biblical
commandment to “Love your fellow as yourself” (Leviticus 19:18), lest the wife
be emotionally hurt by such conduct.
This conduct could hurt in several ways in a culture of modest
dress. For example, women can feel
degraded if they are treated as visually owned sexual objects instead of as
dignified people (b. Yevamot 63a) or if they are treated as sexual objects
instead of as self-occupied respected mistresses of the house (b. Bava Metzia
59a). Similarly, Rava’s contemporary,
Abbaye, paralleled Rava’s position by focusing on the issue of light instead of
on the question of day or night.
However, Abbaye explained in most basic ethical terms that a woman could
be concerned that her husband might come to see that she is not physically
flawless.
This second concern with the ethical is in
fact so significant that the Talmudic passage closes the discussion by
modifying the rules against having sex during the day. It cites a source that praises those people
who do in fact have sex during the day, in order that the marital bond should
not be lost due to tiredness at night.
It then explains this anomalous source by pointing out that limiting sex
to night can lead to a loss of the marital bond due to fatigue. As Rashi (ad locum) explains it, limiting
sex to the night could cause the husband to come to view sex with his wife as
an annoying burden instead of viewing it as a shared sensual experience of
relationship.[1] In fact, the Talmud’s editors structured the
material to make an ethical argument: The passage begins with R. Hisda’s
ethical concern (to forbid sex during the day), continues with R. Huna’s
holiness concern (to forbid sex during the day), limits both positions to be
about not having sex in the light as opposed to not during the day, and
concludes with praise for the ethical position of the House of Munbaz who had
sex during the day due to the considerations of a loving relationship. To wit, the passage indicates that the desire for holiness
in one’s biological activities may be added to ethics and reinforce them, but
it must never override ethical considerations.[2]
This Talmudic passage’s focus on the ethical
finds culmination in a halakhic ruling by the leading medieval Provencal
Halakhic sage, R. Avraham ben Dovid (RAVa”D, Posquires - d. 1197) that was codified in
later generations by R. Yaakov b. Asher (Cologne–Toledo, 1269–1343), R. Yosef Caro (1488-1575), and others.
These rabbis ruled that the ideal, holiest, conscious motivation for a
man to have sex – in spite of the obvious necessity for his own arousal without
which intercourse would not be possible – is for the sake of the other person,
for the sake of his wife and for the sake of his future God-fearing children (Tur
OH 240 and Shulhan Arukh EH 25:2).
[1] . It is also possible that the
stama means that the man will become disgusting to the wife in his tired
performance and possibly in falling asleep after sex. After all, Babylonian rabbis followed their Sassanian
counterparts in being concerned about the demon that is drawn to both death and
to semen released, especially at night, (Elman 2007, 146-149); in other words,
they were concerned about male tiredness following and even during sex – in contrast to the ideal valorization
of the sexually energetic man who has a vigorous sexual relationship with his
wife. Thus the same R. Hisda who called
for holiness by abstaining from sex during the day, still called for sex in
which a husband engages in serious foreplay and clitoral stimulation until both
parties crave intercourse (b. Shabbat 140b [Note: Rashi and Boyarin translate
“pearl” as breast and “furnace” as the vulva, but a simpler translation would be
clitoris and vagina respectively]).
[2] One might find a direct Biblical parallel for prioritizing the ethical
over the aesthetic if one understands that the Torah’s opposition to violent
unaesthetic behavior such as modifying the body with tattoos “yields to” the
“hygienic (hence) ethical concern” of circumcision (Goodman 1996, 234). However, I understand the Biblical
opposition to tattoos and preference for circumcision differently.
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