Yevamot 8b ~ Ta’amei Hamitzvot in the British Medical Journal: The Deceased Wife’s Sister Controversy: Part II

Last time on Talmudology

In Jewish law, a man may marry his dead wife’s sister, but in Victorian Britain it remained against the law (unless you were a Duke). But many ignored the law, and there was a strong movement to change it. Here’s what happened next, but first a personal revelation...

My own great grandfather married his dead wife's sister!

It's true.  I have skin in this game.  I am the direct descendent of a man who married his dead wife's sister. My great-grandfather, Solomon Bograchov married, moved to London (from Odessa?) and had two children. But his wife died, and, so the story goes, he called for his wife's younger sister to come to London and marry him.  Which she did. They had three children, one of whom was Johnny, born in London in 1913. And Johnny was my zaide.

For clarity, not all family members are shown.  

Now back to our regularly scheduled programming

Hook's Church Dictionary vs the British Medical Journal on Ta'amei Hamitzvot

Hook’s Church Dictionary, first published in 1842, was a wildly successful reference manual for the clergy of the Church of England. But its 1887 fourteenth edition contained a controversial new entry. 

The new edition tackled the key social issue that we have already discussed: should the law be changed to allow a man to marry his deceased wife’s sister? Absolutely not, said Hook’s Church Dictionary. And it supported this opinion by comparing it with what we call Yibbum, that is, the act of levirate marriage, which "was not, properly speaking, permitted by the Jewish law at all." (This is partially true, since marrying a husband's brother was forbidden in Leviticus 18:16.) This prohibition "was a general moral law" and so applied to all mankind, and was only to be overridden in the special case of a married man who died without children. In this instance, The Bible (Deut. 25:5-10) requires levirate marriage so as to "protect those agrarian rights which were at the basis of the Hebrew system.” But at its core, the Bible’s prohibition against marrying a brother’s wife was precisely the same as the Church’s prohibition against a man marrying his deceased wife’s sister.  Precisely the same.  And what would happen if that Church prohibition would be changed? It would lead to the end of society as we know it. Really, I’m not making this up; that’s what it said:

“To legalize marriage with a deceased wife’s sister cannot possibly remain a solitary innovation. We shall have …taken the first step in a revolution of the whole of our domestic and much of our social life.”

Which brings us, at long last, to The British Medical Journal.

Writing in The Journal, an anonymous doctor -“a surgeon of twenty-five years standing” -challenged this entry in Hook's Church Dictionary, and he used the best science of his day to do so.  The reasons for God’s laws, wrote the surgeon,  “will be found closely connected with some physiological law…and …what profound knowledge was possessed by the framer of Mosaic law, because the facts upon which the opinion is based have only recently appeared in the annals of science. “

He stated that the science at the basis of the laws of Yibbum was the laws of heredity.  Since children inherit the “proclivities of their parents,” a marriage of close blood relatives (consanguine marriage) would concentrate any undesirable traits, and “cause the race to deteriorate.” But when a man marries his dead wife’s sister, he is not marrying a close relative. In fact, he not marrying a blood relative at all, and any offspring would not carry the concentrated negative traits of their parents.  As a consequence, these marriages should be permitted. (Remember that the author was writing some six decades before the discovery of DNA, and only a few years after Mendel’s (largely ignored) suggestion that there were recessive and dominant “factors” that carry hereditary characteristics.)

But when a man marries a woman who has fathered children with another husband, something else is at work, scientifically speaking. “The fact may be regarded as well established that…traces of the first child’s father are discoverable in all succeeding children of the same mother, whatever the direct paternity of these may be.”

Got that? When a man impregnates a women, some of his traits are carried to all the future children of that woman, regardless of who the next father may be.  It is for this reason that the Bible prohibited a man from marrying his dead bother’s wife - unless that brother had fathered no children. For if the deceased brother had fathered a child, his traits would be carried by his wife in all her future pregnancies.  If a man would then marry his widowed brother’s wife, she would pass on both his traits and those of her former husband in a concentrated form. The effect on heredity would be exactly the same as marrying a close blood relative, since the undesirable traits (this time from two brothers) would be mixed together and passed on.  

By the powers of this science, the surgeon then addressed the issue of the day. He argued that no such effect would occur if a man were allowed to marry his dead wife’s sister. “The father has no similar power of transmitting traces of his former wife to the children of her successor, for the diseases which are occasionally contracted by contagion are quite distinct from the collaterally inherited traits referred to.”

Ta’amei Hamitzvot in the BMJ

It’s all very neat and scientific. Levirate marriage was a special dispensation and when understood through the science of heredity, it made biological sense. Since the dead brother had fathered no children, his traits were not carried by his wife, and she could marry her brother-in-law without being worried that there would be a concentration of bad blood. This same cutting edge science also supported a change in the law that would allow a man to marry his dead wife’s sister.

“The effect produced upon the ovaries by impregnation is not only special upon the particular ovum which becomes developed into the particular child begotten, but general upon the entire mass of at least one, if not both…But where impregnation has failed to take place no such effects can follow....”

But we know that no such effect exists. Not remotely.  (And don’t write to me about infectious conditions; we’re not talking about those.)  Today, we know that the science in The BMJ was wrong. Which makes us question the nature of scientific knowledge itself.  It is, as this example shows,  unreliable.  What is true for science today turns out to be wrong tomorrow. And so, when the Torah and Jewish tradition faces a challenge from the scientific community, the correct response is to ignore the science, because hey, in a few years, there will be another scientific theory that comes along and replaces the one that is troubling to us. Right?

Find out in the next installment, on Talmudology. 

Yevamot 8b ~ Science, Torah, and The Deceased Wife’s Sister Controversy: Part I

For the last several pages, the Talmud has been analyzing one phrase in the Torah (Lev. 18:18):

וְאִשָּׁ֥ה אֶל־אֲחֹתָ֖הּ לֹ֣א תִקָּ֑ח לִצְרֹ֗ר לְגַלּ֧וֹת עֶרְוָתָ֛הּ עָלֶ֖יהָ בְּחַיֶּֽיהָ׃

Do not take [into your household as a wife] a woman as a rival to her sister and uncover her nakedness in the other’s lifetime.

The Talmud spends a total of twelve pages proving that this verse means that a man is forbidden to take his wife’s sister’s, even when she falls to him for levirate marriage (yibbum) following the death of her husband. This same verse was at the center of a fierce debate in Great Britain in the nineteenth century, which concerned the legality of a man marrying his dead wife’s sister. In telling the story of this debate, we will have to discuss what we mean when we say that science changes. We are also going to look at some Jewish skeptics of science, and their understandings and misunderstandings of the concept of a science that changes. 

We’re going to do this through the lens of Yevamot, and examine in some depth The British Medical Journal’s understanding of Ta’amei Hamitzvot, the reasons for the commandments in the Torah. We are going to dive deeply. So strap in. (Yes I know. Too many metaphors. Sorry.)

Background – Yevamot 8.

Let’s start by going back to that verse in Leviticus (18:18). The Torah states

וְאִשָּׁ֥ה אֶל־אֲחֹתָ֖הּ לֹ֣א תִקָּ֑ח לִצְרֹ֗ר לְגַלּ֧וֹת עֶרְוָתָ֛הּ עָלֶ֖יהָ בְּחַיֶּֽיהָ׃

Do not take [into your household as a wife] a woman as a rival to her sister and uncover her nakedness in the other’s lifetime.

Based on the word בחייה – “in the other’s lifetime”, the Talmud in today’s page of Talmud (8b) establishes that a man may marry his wife’s sister if, and only if, his wife had died. This is reflected in the Code of Jewish Law, the Shulchan Aruch, which ruled (as did Maimonides) that the prohibition against a man marrying his wife’s sister exists only while his wife is alive. On her death, a man may marry his deceased wife’s sister. 

שולחן ערוך אבן העזר הלכות אישות סימן טו סעיף כו 

אחות אשתו אסורה לו מן התורה כל זמן שאשתו קיימת לא שנא אם היא אחותה מן האב או מן האם ואפי' גירש את אשתו אבל לאחר מיתתה מותר באחותה וכל המגרש אפי' מחמת קול בעלמא נאסר בקרובותיה

His wife's sister is forbidden to him from the Torah, all the while his wife is alive; it makes no difference if (the sister) is paternal or maternal, or even if he has already divorced his wife. However, after her (his wife's) death, he may marry her sister.

Just to be clear – this is not the central focus of Yevamot, which is concerned with levirate marriage, when a man marries his dead brother’s widow. But it is very important since it will touch on issues central to science and Yevamot.  Let’s see how.  

Was Henry illegitimate?

The Duke of Beaufort by Henry Alken. From here.

The Jewish law allowing a man to marry his dead wife's sister was not followed in Victorian England. Quite the opposite - a marriage like this was forbidden. But a debate about this law began with a question about the the legitimacy the Duke of Beaufort. Henry Somerset (d. 1853) the seventh Duke of Beaufort, had married Georgina Fitzroy and had fathered two girls with her. But Georgina died in 1821, and the sad Duke then married her younger half-sister Emily, with whom he had a further six daughters, and a son. (I know this is beginning to sound like a complicated episode of Downton Abbey, but bear with me. It’s worth it.)  That son was Henry Charles FitzRoy Somerset (1824-1899), who later became the 8th Duke of Beaufort. But there was a problem. Perhaps Henry was not a legitimate heir to the House of Somerset, since he was the child of a union of a man and his wife’s sister (or in this case, half-sister.) If the old Duke’s marriage to his dead wife’s (half-) sister was prohibited, then Duke Henry was a bastard child and his inheritance would have to be passed on to other males in the family line. There was a lot at stake.

The solution came with the 1835 Act to render certain marriages valid and to alter the law with respect to certain voidable marriages, introduced by Lord Lyndhurst. This Act retrospectively made any marriage like the old Duke’s valid, but prohibited any such marriages from taking place in the future.  In this way, the present Henry, Duke of Beaufort, was not a bastard child after all; he could inherit the estate, and all was made good.

Except that it wasn’t. The Act did not settle matters at all, and ignited a debate in England that lasted seven decades. 

“In addition to regular parliamentary bills and debates, pamphlets, letters, treatises and statements from all sides were published steadily through this period; major journals carried articles from leading figures in the controversy…and at least five novels took marriage with a deceased wife’s sister as their explicit subject ”

— Wallace, Anne D. “On the Deceased Wife’s Sister Controversy, 1835-1907."

The Chief Rabbi and the Royal Commission

In 1842, and almost every year after that, the British Parliament debated whether to legalize the marriage between a man and his dead wife’s sister. Queen Victoria appointed a Commission to look into the whole thing, and look it did, producing a report of over 150 pages in 1848.  Buried in that report is a letter from the Chief Rabbi Nathan Adler, who made the Jewish position very clear.

“...the marriage of a widower with the sister of his deceased wife… is not only not considered as prohibited, but it is distinctly understood to be permitted, and on this point neither the Divine Law, nor the Rabbis, nor historical Judaism leave room for the least doubt.”

— Chief Rabbi Nathan Adler, Appendix to the Report of the Commissioners appointed to inquire into the state and operation of the Law of Marriage

It didn’t much matter. The law remained the law, though it seemed that the British public ignored their learned lawmakers.  In one 1849 parliamentary debate, it was estimated that there were some 13,000 such marriages. These marriages in turn produced about 40,000 children, all of whom were, by Victorian standards, bastards.

Things became especially heated in the late 1870s when some 3,000 farmers (all, apparently from Norfolk – what was happening in Norfolk?) signed a petition “praying for the legislation of marriage with a deceased wife’s sister.” And so, in May 1879, the Prince of Wales himself introduced a bill to legalize this marriage in Britain’s Parliamentary upper chamber, the House of Lords. Their lordships droned on, and on, and on (the transcript takes up some eight pages of single space font) until the measure was struck down in a vote: “Contents 81: Not-Contents 101”.

But even in England, things do change, and by the beginning of the twentieth century, Parliament was ready to legalize what many women were already doing with their dead sister’s husband. The Deceased Wife’s Sister’s Marriage Act of 1907 was passed, and British law finally caught up with that of the Talmud.

---

Next time:

The scientists weigh in on the Marriage Act as we look at The British Medical Journal and its understanding of Ta’amei Hamitzvot and Yibbum.

Chullin 140b ~ Ornithology, Emotions, and the Reasons for the Commandments

We are just two days away from finishing the long tractate called Chullin, which dealt with all manner of questions about kosher meat and poultry. In the final chapter we are studying the details of a rather different issue: the command to frighten away the mother bird if you wish to eat the eggs she is incubating. This commandment is called שילוח הקן – shiluach haken, (lit. “sending away the nest”). We will discuss some ornithological issues and see how they might impact our understanding of the command.

Here are the details in the Torah:

דברים כב,ו–ז

כִּ֣י יִקָּרֵ֣א קַן־צִפּ֣וֹר ׀ לְפָנֶ֡יךָ בַּדֶּ֜רֶךְ בְּכָל־עֵ֣ץ ׀ א֣וֹ עַל־הָאָ֗רֶץ אֶפְרֹחִים֙ א֣וֹ בֵיצִ֔ים וְהָאֵ֤ם רֹבֶ֙צֶת֙ עַל־הָֽאֶפְרֹחִ֔ים א֖וֹ עַל־הַבֵּיצִ֑ים לֹא־תִקַּ֥ח הָאֵ֖ם עַל־הַבָּנִֽים׃ שַׁלֵּ֤חַ תְּשַׁלַּח֙ אֶת־הָאֵ֔ם וְאֶת־הַבָּנִ֖ים תִּֽקַּֽח־לָ֑ךְ לְמַ֙עַן֙ יִ֣יטַב לָ֔ךְ וְהַאֲרַכְתָּ֖ יָמִֽים׃

If, along the road, you chance upon a bird’s nest, in any tree or on the ground, with fledglings or eggs and the mother sitting over the fledglings or on the eggs, do not take the mother together with her young. Let the mother go, and take only the young, in order that you may fare well and have a long life.

That’s it. Two sentences. But have no fear - there are at least twelve pages of discussion about this in the Talmud, which raises all sorts of questions. Like this one, asked by Rabbi Zeira:

חולין קמ,ב

בעי ר' זירא יונה על ביצי תסיל מהו תסיל על ביצי יונה מהו

If a yonah (pigeon) is resting upon the eggs of a tasil, [a kosher bird resembling a pigeon,] what is the halakha with regard to sending away the mother bird from the nest? Likewise, if a tasil is resting upon the eggs of a yonah (pigeon), what is the halakha?

אמר אביי ת"ש עוף טמא רובץ על ביצי עוף טהור וטהור רובץ על ביצי עוף טמא פטור משילוח הא טהור וטהור חייב דלמא בקורא

Abaye said: Come and hear that which is taught in the Mishna (on 138b): In a case where a non-kosher bird is resting upon the eggs of a kosher bird, or a kosher bird is resting upon the eggs of a non-kosher bird, one is exempt from sending away the bird. One may infer from the mishna that in a case involving a kosher bird and kosher eggs, [e.g., a tasil resting on the eggs of a pigeon, one is obligated to send away the mother bird. The Gemara rejects this:] Perhaps this inference applies only to the case of a koreh, (? female pheasant) , which normally rests upon the eggs of other birds. Since this is its normal behavior, one is obligated to send it away even if it rests upon the eggs of another kosher bird. This may not be the case with regard to a tasil or pigeon.

Let’s try and figure all this out. First, what are the identities of these three birds mentioned: the yonah, the tasil and the koreh?

Male and Female Bird Plumage

The Yonah is fairly easy to identify; there is unanimous agreement that it a dove. Or a pigeon. Confused? They are both members of the species Columbida: The common (or domestic) pigeon is Columba livia domestica, and the mourning dove is Columbidae Zenaida macroura. Moving right along.

The Tasil is a bit more challenging. Rashi declares that it is “a tahor [ie kosher] bird, similar to the yona.” And that’s how it is translated in the Schottenstein Talmud. Marcus Jastrow wrote in his dictionary that is “a species of small dove.” The Koren notes that the tasil might be “a bird similar to a pigeon, or to a laughing dove, a small dove native to Eretz Yisrael.” So a bit of a mystery.

The identity of the Koreh seems to be easy. At least that what it seems from the translations. The Soncino translates it as a partridge, as is does the Schottenstein. The Koren English translation is even more specific: “This bird is identified as the sand partridge, a desert bird of the genus Ammoperdix in the pheasant family Phasiandae.” Wow. That’s some impressive ornithology.

Actually that specific identification is very important, because there is a debate as to whether this whole business of sending away the bird brooding over some eggs applies only to the female bird, and not to a male that is incubating. Here is a photo of a male sand partridge. It is grey with wavy flanks and beautiful white markings over the beak and behind the eyes. The female is a drab sandy brown color.

Male sand partridge. Note the beautiful white markings behind the eyes.

A lady sand partridge. No white facial markings.

According to the Talmud there is agreement that the command of shiluach haken does not apply to male birds. But there is a dispute about this specific bird, the koreh - our sand partridge. Rabbi Eliezer ruled that when it comes to this particular species, the male bird that is brooding must be frightened away before taking the eggs, just like the female.

תניא נמי הכי זכר דעלמא פטור קורא זכר ר"א מחייב וחכמים פוטרין

With regard to a male bird in general, one is exempt from the mitzva of sending it away, but with regard to a male koreh, Rabbi Eliezer deems one obligated to send it away from the nest, and the Rabbis deem one exempt from sending it away.

This requirement only makes sense if the two are readily distinguishable at a distance, and thanks to these nice photos, we now know they are.

By the way, have you wondered why this bird is called the קורא - koreh, which from the hebrew root ק–ר–א, k-r-h which means to call out? Apparently the bird has a prominent call which is heard long before it can be seen. Which perhaps gave its name: “the one that calls out.” (If you want to hear that call, click here. To be honest, to me it sounds like a slower version of the swish of a baby’s heartbeat heard with ultrasound. But that’s just me.)

Who is sitting on the eggs? Mom or dad?

As we noted, the Talmud rules that the commandment of shiluah haken applies only to the female of the species. Should the father be incubating, no such command applies (except for the sand partridge, as we just discussed). Here, for example, is what the great Maimonides wrote in his code, the Mishneh Torah:

רמב’ם משנה תורה הל׳ שחיטה. יג:י

זָכָר שֶׁמְּצָאוֹ רוֹבֵץ עַל הַקֵּן פָּטוּר מִלְּשַׁלֵּחַ

If a male was found incubating in the nest, there is no obligation to send him away [before taking the eggs or chicks].

This is also the ruling of the Shulchan Aruch, the Code of Jewish Law. Which raises the question - just how common is it for the male of the species to incubate the eggs? This is, of course a very challenging question to answer, because it all depends: which birds (European, American, African)? Birds of prey? Backyard birds? But given that, can we make a generalization?

Yale’s Ornithologist-in-Chief to the rescue

For an answer, Talmudology turned to Richard Prum, who is both the William Robertson Coe Professor of Ornithology in the Department of Ecology & Evolutionary Biology at Yale University, and the Curator of Ornithology, (and Head Curator of Vertebrate Zoology,) at Yale’s Peabody Museum of Natural History, in New Haven, Connecticut. And here is what he told us:

“The brooding behavior of birds has evolved extensively among birds of the world. About 38% of bird species have female only incubation. About 50% of bird species have male and female incubation, and 6% of bird species have male only incubation.”

This certainly came as a bit of a surprise. It turns out then that you will find a male brooding in the nest a lot of the time! Prof. Prum also noted that these behaviors are not randomly distributed among birds. Closely related species of birds tend to have similar incubation behavior, but higher groups may differ extensively. 

In addition, most of the species with substantial eggs have female only incubation. These groups include most game birds and waterfowl like chickens, quail, francolins, guineafowl, ducks, geese, etc. In most of these species, the male takes no part in parental care.  That last bit is really important, because it is just these kinds of kosher wild birds that are subject to the law of sending the mother-bird away. In most of these species the male takes no part. So the Talmud was spot on, so to speak, in limiting the commandment to these kinds of fowl. But there is another complication. Prof. Prum also wrote that “in many species with shared incubation, it is impossible to distinguish the male from the female by plumage.”

reasons For the Commandments

There is a well-known philosophical debate about whether it is appropriate to give reasons behind the 613 mitzvot (commandments) found in the Torah. Much has been written and many fine minds were engaged with this question as it pertains to the commandment of shiluach haken. Perhaps it is an example of imitatio dei:God is kind, so you should be kind to his creatures. Therefore send the mother bird away so she cannot get upset when you remove her eggs. As an example of this train of thought (and there are many) here is the commentary of the famous Moshe ben Nachman, (1194-1270), better known as the Ramban:

הטעם לבלתי היות לנו לב אכזרי ולא נרחם, או שלא יתיר הכתוב לעשות השחתה לעקור  המין, אע"פ שהתיר השחיטה במין ההוא. והנה ההורג האם והבנים ביום אחד, או לוקח אותם בהיות להם דרור לעוף, כאלו יכרית המין ההוא

If the nest of a bird chances to be in front of you: Also this commandment is explained by "it and its son do not slaughter on one day" (Leviticus 22:28); since the reason in both of them is that we should not have a cruel heart and [then] not have mercy, or that the verse should not permit us to be destructive to destroy the species, even though it allowed slaughter within that species. And behold, one who kills the mother and the children on one day or takes them when they are 'free to fly' is as if he cuts off that species.

A similar reason is cited by the French French commentator Rashbam Samuel ben Meir (1085 – c. 1158). It it prevents cruelty (שדומה לאכזריות ורעבתנות). So too the Spanish commentator R. Bechayei (1255-1340):

שלח תשלח את האם, טעם המצוה ללמדנו על מדת הרחמנות, ושנתרחק מן האכזריות שהיא תכונה רעה בנפש, וכעניין שאסרה תורה (ויקרא כב) לשחוט אותו ואת בנו ביום אחד, וכעניין שנצטוינו בתורה שבעל פה דרך רחמנות לא דרך אכזריות בשחיטה בצואר ולא מן העורף, והוא דעת הרב בספר המורה, וכבר הזכרתיו למעלה" 

The reason for the command is to teach us the quality of mercy, and to distance us from cruelty…just as the Torah prohibited the slaughter of a mother and its calf on the same day…

Maimonides, in his Guide for the Perpexled, also weighed in on the reason for this command, and decided it was all about kindness:

Guide to the Perplexed, Vol. 3 chap 48:

The same reason applies to the law which enjoins that we should let the mother fly away when we take the young. The eggs over which the bird sits, and the young that are in need of their mother, are generally unfit for food, and when the mother is sent away she does not see the taking of her young ones, and does not feel any pain. In most cases, however, this commandment will cause man to leave the whole nest untouched, because [the young or the eggs], which he is allowed to take, are, as a rule, unfit for food. If the Law provides that such grief should not be caused to cattle or birds, how much more careful must we be that we should not cause grief to our fellowmen.

On the other hand…

There are a few sources that criticize the entire enterprise of ascribing reasons for any of the commandments in general, and of shiluach haken in particular. Like this one in the Mishnah itself:

ברכות לג,ב

משנה :האומר על קן ציפור יגיעו רחמיך …משתקין אותו

If a person adds in his prayers: “Your mercy is extended to a bird’s nest, so too extend Your mercy to us…he is silenced

Why such drastic action for reciting such a nice prayer? Here is the talmudic discussion:

פליגי בה תרי אמוראי במערבא רבי יוסי בר אבין ורבי יוסי בר זבידא חד אמר מפני שמטיל קנאה במעשה בראשית וחד אמר מפני שעושה מדותיו של הקדוש ברוך הוא רחמים ואינן אלא גזרות

Two amora’im in Eretz Yisrael disputed this question; Rabbi Yosei bar Avin and Rabbi Yosei bar Zevida; one said that this was because he engenders jealousy among God’s creations, [as it appears as though he is protesting the fact that the Lord favored one creature over all others]. And one said that this was because he transforms the attributes of the Holy One, Blessed be He, into expressions of mercy, when they are nothing but decrees of the King that must be fulfilled without inquiring into the reasons behind them.

So there are two opinions as to why this prayer is forbidden: the first, because it is inherently unfair to single out the incubating bird for a dose of extra divine mercy. What about the rest of the animal kingdom? And the second, because in general, the commands have nothing to do with mercy. They are just the commandments of God. And if they are kind, well that’s an added benefit; but even if they were cruel they are there to be obeyed.

Ornithology and today’s daf

Now back to the observations of Prof. Prum, and today’s page of Talmud. If it is indeed the case that:

1) male and female birds are often equally likely to be incubating and

2) in many species with shared incubation, it is impossible to distinguish the male from the female and

3) that male incubators are exempt from commandment of shiluach haken,

then what becomes of the school of thought that ascribes mercy to the reason for it in the first place? Don’t male incubators, who have built the nest and are just as invested in the project as are the females, don’t they deserve some mercy too? And why exempt male birds when male and females are so often indistinguishable?

There is increasing evidence that all kinds of animals experience emotions just like we do. And it’s not only playful chimps and depressed dogs. Elephants mourn. Pigs kept in boring pens show behavior that in humans we would call depression. Rats enjoy being tickled.

And birds? Well, some birds like to surf at the beach, a behaviour that does not “seem to provide any obvious function apart from enjoyment — they look like they are having fun.” And birds have self-control. Really. Remember the Marshmallow test? (We reviewed it back in April 2015 when we learned Ketuvot 83. If you’ve forgotten, read this and then come back….) Well it turns out that when a (particularly smart and cooperative) parrot was given the bird equivalent of the test, he was successful 90% of the time, enduring delays of up to 15 minutes. The researchers noted that to do this “the parrot had to postpone the immediate available reward to gain more desirable future rewards, maintaining the choice to delay, and tolerate the frustration of this self-inflicted delay.” So, yeah, birds have self control. The more we study, the more we realize that animals too, have emotions. So if sending away the mother bird might reduce her grieving, let’s do it.

“Pairs of bluebirds in my backyard, getting ready to build their nest, visit every empty nestbox, hoping in and out multiple times, the male alternating with the female...After weeks of scouting, the male puts a few branches or grass sems into one of the boxes, then lets the female guard the actual nest, while he guards the site. The drawn out decision process has reached its conclusion. Do bluebirds have free will?”

— Frans de Waal. Mama's Last Hug: Animal emotions and what they tell us about ourselves. W.H. Norton 2019. p222

Ta’amei Hamitzvot in the British Medical Journal: The Deceased Wife’s Sister Controversy: Part II

Last time on Talmudology

In Jewish law, a man may marry his dead wife’s sister, but in Victorian Britain it remained against the law (unless you were a Duke). But many ignored the law, and there was a strong movement to change it. Here’s what happened next, but first a personal revelation...

My own great grandfather married his dead wife's sister!

It's true.  I have skin in this game.  I am the direct descendent of a man who married his dead wife's sister. My great-grandfather, Solomon Bograchov married, moved to London (from Odessa?) and had two children. But his wife died, and, so the story goes, he called for his wife's younger sister to come to London and marry him.  Which she did. They had three children, one of whom was Johnny, born in London in 1913. And Johnny was my zaide.

For clarity, not all family members are shown.  

Now back to our regularly scheduled programming

Hook's Church Dictionary vs the British Medical Journal on Ta'amei Hamitzvot

Hook’s Church Dictionary, first published in 1842, was a wildly successful reference manual for the clergy of the Church of England. But its 1887 fourteenth edition contained a controversial new entry. 

The new edition tackled the key social issue that we have already discussed: should the law be changed to allow a man to marry his deceased wife’s sister? Absolutely not, said Hook’s Church Dictionary. And it supported this opinion by comparing it with what we call Yibbum, that is, the act of levirate marriage, which "was not, properly speaking, permitted by the Jewish law at all." (This is partially true, since marrying a husband's brother was forbidden in Leviticus 18:16.) This prohibition "was a general moral law" and so applied to all mankind, and was only to be overridden in the special case of a married man who died without children. In this instance, The Bible (Deut. 25:5-10) requires levirate marriage so as to "protect those agrarian rights which were at the basis of the Hebrew system.” But at its core, the Bible’s prohibition against marrying a brother’s wife was precisely the same as the Church’s prohibition against a man marrying his deceased wife’s sister.  Precisely the same.  And what would happen if that Church prohibition would be changed? It would lead to the end of society as we know it. Really, I’m not making this up; that’s what it said:

“To legalize marriage with a deceased wife’s sister cannot possibly remain a solitary innovation. We shall have …taken the first step in a revolution of the whole of our domestic and much of our social life.”

Which brings us, at long last, to The British Medical Journal.

Writing in The Journal, an anonymous doctor -“a surgeon of twenty-five years standing” -challenged this entry in Hook's Church Dictionary, and he used the best science of his day to do so.  The reasons for God’s laws, wrote the surgeon,  “will be found closely connected with some physiological law…and …what profound knowledge was possessed by the framer of Mosaic law, because the facts upon which the opinion is based have only recently appeared in the annals of science. “

He stated that the science at the basis of the laws of Yibbum was the laws of heredity.  Since children inherit the “proclivities of their parents,” a marriage of close blood relatives (consanguine marriage) would concentrate any undesirable traits, and “cause the race to deteriorate.” But when a man marries his dead wife’s sister, he is not marrying a close relative. In fact, he not marrying a blood relative at all, and any offspring would not carry the concentrated negative traits of their parents.  As a consequence, these marriages should be permitted. (Remember that the author was writing some six decades before the discovery of DNA, and only a few years after Mendel’s (largely ignored) suggestion that there were recessive and dominant “factors” that carry hereditary characteristics.)

But when a man marries a woman who has fathered children with another husband, something else is at work, scientifically speaking. “The fact may be regarded as well established that…traces of the first child’s father are discoverable in all succeeding children of the same mother, whatever the direct paternity of these may be.”

Got that? When a man impregnates a women, some of his traits are carried to all the future children of that woman, regardless of who the next father may be.  It is for this reason that the Bible prohibited a man from marrying his dead bother’s wife - unless that brother had fathered no children. For if the deceased brother had fathered a child, his traits would be carried by his wife in all her future pregnancies.  If a man would then marry his widowed brother’s wife, she would pass on both his traits and those of her former husband in a concentrated form. The effect on heredity would be exactly the same as marrying a close blood relative, since the undesirable traits (this time from two brothers) would be mixed together and passed on.  

By the powers of this science, the surgeon then addressed the issue of the day. He argued that no such effect would occur if a man were allowed to marry his dead wife’s sister. “The father has no similar power of transmitting traces of his former wife to the children of her successor, for the diseases which are occasionally contracted by contagion are quite distinct from the collaterally inherited traits referred to.”

Ta’amei Hamitzvot in the BMJ

It’s all very neat and scientific. Levirate marriage was a special dispensation and when understood through the science of heredity, it made biological sense. Since the dead brother had fathered no children, his traits were not carried by his wife, and she could marry her brother-in-law without being worried that there would be a concentration of bad blood. This same cutting edge science also supported a change in the law that would allow a man to marry his dead wife’s sister.

“The effect produced upon the ovaries by impregnation is not only special upon the particular ovum which becomes developed into the particular child begotten, but general upon the entire mass of at least one, if not both…But where impregnation has failed to take place no such effects can follow....”

But we know that no such effect exists. Not remotely.  (And don’t write to me about infectious conditions; we’re not talking about those.)  Today, we know that the science in The BMJ was wrong. Which makes us question the nature of scientific knowledge itself.  It is, as this example shows,  unreliable.  What is true for science today turns out to be wrong tomorrow. And so, when the Torah and Jewish tradition faces a challenge from the scientific community, the correct response is to ignore the science, because hey, in a few years, there will be another scientific theory that comes along and replaces the one that is troubling to us. Right?

Find out in the next installment, on Talmudology.