Menachot 64b ~ Cursed Be He Who Raises Swine

Today we are going to talk about pigs. But before we get into it, here is some important background, courtesy of the Jewish historian of the first century, Josephus.

From here.

Following the death of their father Alexander Yannai in the first century B.C.E. two brothers, Hyrcanus and Aristobulus fought over which would ascend to the Hasmonean throne. Both appealed to Rome (which turned out to be a very bad idea) and in 63 B.C.E. the military leader Pompey turned up to sort things out. He backed Hyrcanus, who was the Cohen Gadol, (high priest) at the time, and who had been originally named as the heir. Pompey captured Aristobulus and took him off to Rome, and he let Hyrcanus remain as the Cohen Gadol. But Pompey refused to Hyrcanus become king. And that is how the Romans came to Jerusalem, or as Josephus put it “we lost our liberty, and became subject to the Romans.” OK. Now here is the relevant part in tomorrow’s Daf Yomi:

מנחות סד, ב 

תנו רבנן כשצרו מלכי בית חשמונאי זה על זה והיה הורקנוס מבחוץ ואריסטובלוס מבפנים בכל יום ויום היו משלשלין להן דינרין בקופה ומעלין להן תמידין היה שם זקן אחד שהיה מכיר בחכמת יוונית לעז להם בחכמת יוונית אמר להן כל זמן שעסוקין בעבודה אין נמסרין בידכם למחר שלשלו להן דינרין בקופה והעלו להן חזיר כיון שהגיע לחצי חומה נעץ צפרניו בחומה ונזדעזעה ארץ ישראל ארבע מאות פרסה על ארבע מאות פרסה באותה שעה אמרו ארור שיגדל חזיר וארור שילמד בנו חכמת יוונית ועל אותה שעה שנינו מעשה שבא עומר מגגות צריפין ושתי הלחם מבקעת עין סוכר

The Sages taught: When the kings of the Hasmonean monarchy besieged each other [in their civil war,] Hyrcanus was outside of Jerusalem, besieging it, and Aristoblus was inside. On each and every day they would lower dinars in a box from inside the city, and those on the outside would send up animals for them to bring the daily offerings in the Temple. A certain elderly man was there [in Jerusalem] who was familiar with Greek wisdom. He communicated to those on the outside by using words understood only by those proficient in Greek wisdom. The elderly man said to them: “As long as they are engaged with the Temple service, they will not be delivered into your hands.” Upon hearing this, on the following day, when they lowered dinars in a box, they sent up a pig to them. Once the pig reached halfway up the wall, it inserted its hooves into the wall and Eretz Yisrael shuddered four hundred parasangs by four hundred parasangs. When the Sages saw this, they said at that time: Cursed is he who raises pigs, and cursed is he who teaches his son Greek wisdom…

“Alongside circumcision and Sabbath observance, the prohibition against pork is considered one of the clearest identifiers of what a Jew does and, as such, who is a Jew.”

— Jordan Rosenblum. ‘Why Do You Refuse to Eat Pork?’’ Jews, Food, and Identity in Roman Palestine. The Jewish Quarterly Review 2011. 100 (1): 95–110

Pig Husbandry in Iron Age Israel - North vs SOuth

It has been long taken as a given that archeologists could use the presence (or absence) of pig remains to distinguish a Philistine from an Israelite settlement. For example, in known Philistine sites from Iron Age I (~950-780 BCE) like Ashdod and Ekron, pig bones account for 7-19% of the animal remains, depending on which strata you are excavating. This is a much higher percentage than is found in Israelite settlements of the same period. But in 2013 this assumption was challenged by a group of top-notch Israeli archeologists (including the controversial Israel Finkelstein) who reviewed the evidence for it. They studied data from 35 sites in Israel, and found a remarkable trend. In the territory of what was once the Northern Kingdom of Israel, pig remains account for 3-7% of all animal remains. But in the Southern Kingdom of Judah, pig remains are almost absent. (The site of Aroer is a bit of an anomaly, with more than 3% pigs. However this site seems to have been a rest stop for many international travelers and so may have served a more international cuisine.) There was a dichotomy between the kingdoms of Israel and Judah that was manifest in whether they ate pork.

Sapir-Hen, L. Bar-Oz, G. Finkelstein, I. Pig Husbandry in Iron Age Israel and Judah. New Insights Regarding the Origin of the "Taboo." Zeitschrift des Deutschen Palästina-Vereins (1953-), Bd. 129, H. 1 (2013), pp. 1-20.

Why was there a rapid rise in the frequency of pigs being eaten in northern Israelite sites during Iron Age II (the period between 870 and 680 BCE)? Among the answers proposed is that “the pig taboo could have been another Judahite cultural trait that was opposed to the situation in the north, and which the authors [of the Torah] wished to impose on the entire Israelite population.” Alternatively, it may have been a result of the larger population found in the Northern Kingdom of Israel. “This process” wrote the authors of the paper Pig Husbandry in Iron Age Israel and Judah “brought about shrinkage of the open areas that are important for sheep/goat husbandry, and could have forced the Iron Age IIB population to a shift in meat production, breeding smaller herds of sheep and goats and concentrating more on pigs, which could supply large and immediate sources of meat.” In contrast, the population of the Kingdom of Judah was much smaller than that of Israel. Hence they had more open space to raise livestock.

By the way, it was the Philistines who were responsible for importing European type pigs into the Middle East. Dr Merav Meiri of the Department of Zoology at Tel Aviv University analyzed the DNA of ancient pigs in the area, and found that they possessed a European gene signature. This raises the possibility that European pigs were brought to the region by the Sea Peoples who migrated to the Levant around 900 BCE, bringing their pigs with them.

Pigs & Ancient Rome

Whether or not pigs were eaten in some parts of Biblical Israel, there is no doubt that not eating pork became synonymous with Jewish practice. In Rome, things were different. There, eating pork was widespread and enjoyed, and it was one of the most common meats associated with its residents. And as Jordan Rosenblum points out in his 2010 paper Why Do You Refuse to Eat Pork?’’ Jews, Food, and Identity in Roman Palestine swine were one of the four most common animals used for sacrifices in Rome. It was used in the most sacred rite of the Roman religion known as the suovetaurilia, in which a pig, a sheep and a goat were sacrificed to Mars, as part of a ceremony consecrating the land to the gods. According to the Roman philosopher Epictetus “the conflict between Jews and Syrians and Egyptians and Romans, [was] not over the question whether holiness should be put before everything else and should be pursued in all circumstances, but whether the particular act of eating swine’s flesh is holy or unholy.”

Our Passage in the Talmud Yerushalmi

In the Jerusalem Talmud, there is a similar description of the story told in tomorrow’s Daf Yomi, with an important difference. Can you spot it?

תלמוד ירושלמי (וילנא) מסכת ברכות פרק ד

א"ר לוי אף בימי מלכות רשעה הזאת היו משלשלין להן שתי קופות של זהב והיו מעלין להם שני כבשים ובסוף שלשלו להן ב' קופות של זהב והעלו להם שני חזירים לא הספיקו להגיע לחצי חומה עד שנעץ החזיר בחומה ונזדעזעה החומה וקפץ מ' פרסה מארץ ישראל באותה שעה גרמו העונות ובטל התמיד וחרב הבית

R. Levi said: ‘‘Also during the days of that Evil Empire [Rome], they would lower to them two baskets of gold and they would send up to them two lambs. At the end [of the siege], they lowered to them two baskets of gold and they sent up to them two pigs. They did not reach halfway up the wall when the pig stuck [its nails] in the wall and the wall shook and [the pig] jumped forty parasangs from the land of Israel. At that moment, the sins brought about both the suspension of the continual offering and the destruction of the Temple.

Here is the difference: in the Yerushalmi version the substitution of the pig for the lambs is directly linked to the destruction of Jerusalem, and not just to a general ban on the raising of pigs. “Rome’s secret weapon in times of war with the Jews” wrote Rosenblum, “is to deploy the very animal that functions as a metonym for Rome itself.”

So pigs turn out to have played more of a role in our history than would be expected. In biblical times, eating pork may have been a marker of whether you came from Israel or Judea, and pork, or at least its symbolism, played a pivotal role in the onset of the Roman attack on the Second Temple.

“Archaeologists take pigs very seriously.”

— Israel Finkelstein cited in "Who’d Import Pigs to Israel? Ancient Europeans, Researchers Say." New York Times Nov 5, 2014. A7.

Next time on Talmudology: The Chemistry of Chametz.

Tu B'Shvat ~ A New Year for Health

The opening Mishnah of Masechet Rosh Hashanah includes this:

ראש השנה ב ,א

באחד בשבט ראש השנה לאילן כדברי בית שמאי בית הלל אומרים בחמשה עשר בו

On the first of Shevat is the New Year for the tree; [the fruit of a tree that was formed prior to that date belong to the previous tithe year and cannot be tithed together with fruit that was formed after that date;] this ruling is in accordance with the statement of Beit Shammai. But Beit Hillel say: The New Year for trees is on the fifteenth of Shevat.

 Declaring different kinds of New Years goes back to the Talmud. But this practice was updated in a remarkable way by a Russian Jewish immigrant to the US in the early twentieth century. Tonight, we mark the fifteenth of Shvat, the date that, according to Bet Hillel, is the new year for the tithing of trees, and we will tell his remarkable - and overlooked - story.

“Twice a year on the fifteenth day of Shevat and on the eighteenth day of Iyar all the Jewish children from 3 to 13 years of age should undergo a thorough physical examination by the local Jewish physicians free of charge. ”

— Charles Spivak

Charles Spivak and the fight against tuberculosis

Hayyim Haykhl Spivakovski (1861-1927) immigrated to the US from Russia, where he became Charles Spivak. He graduated from Jefferson Medical College in Philadelphia in 1890 (and his thesis, on talmudic theories of menstruation won a prize), and after his wife contracted tuberculosis in 1896 he moved with her to Denver. There she could take advantage of the high altitude which had been shown to help fight the disease. This began his life-long mission to fight the tuberculosis and improve the care of the many Jewish refugees from eastern Europe who contracted it. 

From here.

Spivak founded the Jewish Consumptives’ Relief Society (JCRS), which provided kosher food and a Sabbath atmosphere, but was open to anyone. “We have in our institution chasidim and agnostics,” he wrote in 1914, “Jews and Christians, republicans and progressives, socialists and anarchists, men of all kinds of religious, political and economic options.” Spivak’s personal philosophy was informed by “a unique blend of Yiddishkeit [Jewish values], secularism and socialism” and his approach to the distribution of funds was sometimes at odds with bureaucratic and impersonal ways that some Jewish charities functioned. “We may not be able to return him [the patient] to his family as a useful working unit,” he reminded his benefactors, “we may actually waste money without any hope for any return, nevertheless, we feel that he or she must receive our care and attention, that whole-souled and whole-hearted charity is, after all, the only true, pure and unalloyed charity.” He estimated that of among the 3.3 million Jews then living in the US about 4,600 died each year from the disease, and ten times that number were chronically infected, or as he put it, were “living tuberculous Jews.” It was therefore the duty of the Jewish community to support the fight for to prevent the spread of tuberculosis and search for a cure. 

Dr. Chales Spivak. From here.

In that opening Mishnah of Rosh Hashanah, we read that are several different dates that mark the beginning of different new years. The first day of the Spring month of Nissan is the new year for kings, which is used to date legal documents. The new year for trees is marked in the late winter month Shevat, which is used to count tithes, and first day of the late summer month of Tishrei is used to count the number of years since creation. In December 1918, Spivak updated this list and gave it a thoroughly modern twist. Writing in the Journal Jewish Charities, he suggested that the rhythm of the Jewish calendar could be used to improve public health and reduce the toll from tuberculosis.

Twice a year on the fifteenth day of Shvat (New Years for Trees) and on the eighteenth day of Iyar (Lag B'Omar) all the Jewish children from 3 to 13 years of age should undergo a thorough physical examination by the local Jewish physicians free of charge.  

In the evening of the respective days all organized societies in the community should hold Health meetings at which the subject of how to maintain good health and prevent disease should be discussed by health officers and physicians.

 A custom should also be inaugurated that all adults should visit their family physicians during the months of Tishre and Nisson [sic] for the purpose of undergoing a physical examination.

 Spivak’s suggestion was of course dependent on a working knowledge of the Jewish calendar, but the dates he suggested would help. The fifteenth of Shevat was often celebrated in schools, and Lag B’Omer, the thirty-third day of the period leading up to the festival of Shavuot was celebrated as a minor holiday; it marked the end of the pandemic deaths of the students of the talmudic giant Rabbi Akiva. Most Jewish adults, even those who had jettisoned traditional Jewish practice when they arrived in America, would be aware of the timing of the other two months.  The festival of Pesach (Passover) is celebrated in Nissan, and Rosh Hashanah, the start of the Jewish New Year that leads into Yom Kippur (the Day of Atonement) is commemorated in Tishrei.

Helping others, even after his death

Spivak, a member of the Denver Hebrew Speaking Society, developed liver cancer and died in 1927 at the age of 68. His generous spirit is evident in his last will and testament, where he asked that

…my body be embalmed and shipped to the nearest medical college for an equal number of non-Jewish and Jewish students to carefully dissect. After my body has been dissected, the bones should be articulated by an expert and the skeleton shipped to the University of Jerusalem, with the request that the same be used for demonstration purposes in the department of anatomy.

Apparently his request was fulfilled, and somewhere on the campus of the Hebrew University of Jerusalem is his skeleton.

Denver’s National Jewish Hospital

Spivak was not the only Jew who helped Denver’s many “consumptives.” He had traveled to Denver because of its high altitude, and in there in the 1880s a woman by the name of Frances Wisebart Jacobs raised funds to open a new hospital to treat the many “consumptives” who had traveled to the mile high city. She found support from the Jewish community, which agreed to plan, fund and build a nonsectarian hospital for the treatment of respiratory diseases, primarily tuberculosis. That hospital opened in 1899 as The National Jewish Hospital for Consumptives, and after several name changes it is now known as National Jewish Health. Today, it remains a major center for the care of patients with lung and respiratory illnesses.

““…[Pain] knows no creed, so is this building the prototype of the grand idea of Judaism, which casts aside no stranger no matter of what race or blood. We consecrate this structure to humanity, to our suffering fellowman, regardless of creed.” ”

— Rabbi William Friedman at the laying of the cornerstone of the new hospital. From Tom Sherlock. Colorado's Healthcare Heritage: A Chronology of the Nineteenth and Twentieth Century Healthcare, volume 1, p374.

While the Talmud declared four kinds of new year, Spivak declared a fifth. His new year for health was to be commemorated together with Tu B’Shavt, the new year for trees. In this way, he tied it to the Jewish calendar, and his memory is a reminder of the importance of getting a routine physical exam from your doctor. It might save your life.

Zevachim 112a ~ Caesarean Section in Cows and Ewes

Since its construction in Jerusalem, it was prohibited to offer a sacrifice outside of the Temple.  However, in today's page of Talmud there is a list of animals which, even if offered outside of the Temple, incur no penalty to their owner.  Among these are an animal that was born by caesarean section:

זבחים קיב, א

ויוצא דופן שהקריבן בחוץ פטור

One who sacrifices an animal born by caesarian section, outside of the

Temple, is exempt from punishment.

The term יוצא דופן literally means "brought out through the wall", the wall in question being the abdomen. Animals born by c-section may not be used as sacrifices in the Temple. There is something different, not quire right, perhaps not normal, about them. That's why these same c-sectioned animals may be offered outside of the Temple without penalty.  Or as the Mishnah on today's page puts it, "whatever is not fit to come as a sacrifice in the Tabernacle [used in the wilderness], carries no liability if offered as a sacrifice outside of it."

The indications for a caesarean section in a cow

Before we go further, a clarification. The surgical procedure about which we are discussing can be spelled in various ways: caesarean, Caesarean, cesarean or just plain "c." Take your pick. Anyway, according to the American College of Veterinary Surgeons, there are several indications for performing a c-section in a cow:

• Inadequate cervical dilation (not enough relaxation of the cervix muscles)

• Abnormal pelvic bone conformation (shape) in the cow

• Rupture of the cow's abdominal musculature

• Problems with uterine position or uterine function

• Abnormalities of the cow's uterus or vagina

• Abnormal calf position that is not correctable through the vagina

• Fetal monsters (congenital defects)

• Presence of a dead fetus

Standing left oblique celiotomy approach. The placement of the incision is indicated by the dashed line. From Schultz L.G. et al. Surgical approaches for cesarean section in cattle. Can Vet J 2008;49:565–568

Having decided that your cow needs a c-section, there are no fewer that eight different ways you could operate on her to pull this off. Eight! Here they are: (The positions described are that of the cow, not that of the surgeon.)

1. standing left paralumbar celiotomy,

2. standing right paralumbar celiotomy,

3. recumbent left paralumbar celiotomy,

4. recumbent right paralumbar celiotomy,

5. recumbent ventral midline celiotomy,

6. recumbent ventral paramedian celiotomy,

7. ventrolateral celiotomy,

8. standing left oblique celiotomy

According to this helpful paper published in the Canadian Medical Journal, it is the left oblique approach that is preferable under most circumstances. This is because the uterus is readily removed from the abdominal cavity limiting contamination of the abdominal cavity.  

...and in sheep

In sheep, things are only slightly different. The most common cause for performing a c-section is a fetal lamb in the wrong position, one which cannot be safely corrected by manipulation. This is the cause of about 50% of all sheep c-sections.  The cause of about another third is incomplete or non-dilation of the cervix which has failed to respond to medical treatment.  Feto-pelvic disproportion, in which a single large lamb is too big to pass through the maternal pelvis account for another 5%.  There are generally three approaches to the c-section: through the flank, through the midline, and through an incision parallel to the midline, which is called the paramedian approach. Today the midline approach is not recommended, because it requires a general anesthetic, as opposed to a local injection. (You can read more about c-sections in the ewe in this helpful article.)

Exceptional animals with exceptional births

In modern Hebrew the phrase meaning a caesarean section, יוצא דופן, has another meaning: exceptional. Which certainly describes these animals born by c-section. In the pre-modern era, when there were neither local anesthetics nor antibiotics, there would have been only one survivor of a c-section if you were lucky, and it wasn't the mother.  For these animals who, but for the intervention of a skilled vet would otherwise have died in-utero, perhaps being spared from sacrifice was rather fitting.  If their birth was abrupt, bloody and at the hands of a human, perhaps their deaths could be different.  

“בהמה המקשה ללדת ויש סכנה לחייה, כי הוולד מת, והרפתנים קובעים שצריכים לחתוך את הוולד ולהוציאו דבלי זה הפרה תמות. אם מותר לעשות זה בשבת. אם צער בע”ח דוחה איסור מוקצה. הב”ח בסימן שח סעיף כג, מדבריו משמע דמשום צער בע”ח שרי טלטול מוקצה. וכנראה שהמחמירים לא ראו דברי הב”ח ולכן יש להתיר וכדאי הוא הב”ח לסמוך עליו 

The question of performing an emergency caesarean section on animal on Shabbat: 

...Does the prohibition of not causing pain to animals override the prohibition of מוקצה muktzeh [not touching certain items on Shabbat]?...Those who are strict in this matter [and prohibit the c-section] have not seen the words of the Bach [R. Yoel Sirkis 1561-1640]. It is permissible [to perform the surgery] and appropriate to rely on the opinion of the Bach”

— Rabbi Tzvi Pesach Frank [1874-1960]. Har Tzvi Tal Harim Shvut 3.

From the Talmudology Chanukah Archives: Rashi and Why Women Light the Menorah

Don't Share This With Your Young Children

Ask a well-educated Jewish child about the origins of Chanukah, and she will likely tell you about the wicked Greeks who defiled the Temple, about the brave Maccabees who fought them, and about the miracle of the oil.  But in Rashi's commentary to the Talmud there is another part of the story. Here it is:

דאמר רבי יהושע בן לוי: נשים חייבות בנר חנוכה, שאף הן היו באותו הנס

 רש"י שם:  שגזרו יוונים על כל בתולות הנשואות להיבעל לטפסר תחלה  

Rabbi Yehoshua ben Levi said: Women are obligated to take part in the lighting, for they were included in that miracle...

Rashi: For the Greeks made an edict that all virgins who were about to marry must first have intercourse with the Prefect...

The great French exegete Rashi (d.1105) is referencing the Law of the First Night - Jus Primae Noctis, also known more graphically as The Right to the Thigh - Droit du Cuissage. We first encountered this when studying Ketuvot 3a. So let's go back to that daf.  

MAZAL TOV; WHEN'S THE WEDDING?

Today, when a bride and groom wish to secure a wedding day, it will depend on their budget and the availability of the caterer. My, how things have changed. In the times of the Mishnah, the wedding day was decided by the availability of the local rabbinic court, the Bet Din. Then, a wedding (of a virgin) could only take place on the night before the Bet Din convened.  This would ensure that if, after their magical first night, the groom suspected that his bride had not been a virgin, he could take his claim to court the very next day.  

“מפני מה אמרו בתולה נשאת ליום הרביעי שאם היה לו טענת בתולים היה משכים לב”ד

Why did they teach that a virgin must only marry on a Wednesday? So that if the groom questioned her virginity, he could hurry to the Bet Din...
”

— Ketuvot 3a

The Talmud (Ketuvot 3a) explains that this happy custom changed during a period of persecution. Rabbah, a forth century Babylonian sage, explained what this is all about: "[The authorities] said, "a virgin who gets married on Wednesday will first have intercourse with the governor" (הגמון). In order to avoid this awful legal rape, the wedding was moved a day early, to fly, so to speak, under the radar of the local governor. 

JUS PRIMAE NOCTIS IN THE TALMUD & MIDRASH

The law that Rabbah referenced is the same one that Rashi claims was imposed on Jewish brides by the Greeks. Its origins are further explained in the Talmud Yerushalmi, which dates it to the time of the Bar Kochba revolution:

 תלמוד ירושלמי כתובות פרק א הלכה ה  

בראשונה גזרו שמד ביהודה שכן מסורת להם מאבותם שיהודה הרג את עשו...  והיו הולכין ומשעבדין בהן ואונסין את בנותיהן וגזרו שיהא איסטרטיוס בועל תחילה התקינו שיהא בעלה בא עליה עודה בבית אביה 

In the beginning, they [the Romans] decreed destruction in Judea (for they had a tradition that Yehuda killed Esau) ... and they enslaved them and raped their daughters, and decreed that a soldier would have intercourse [with a bride] first. It was then enacted that her husband would cohabit with her while she was still in her father's house. 

A reference to Primae Noctis also appears in the Midrash Rabbah, a collection of rabbinic homilies edited sometime in the forth or fifth century. As told in Genesis 6, “the sons of God saw that the daughters of man were beautiful (tovot), and they took wives from whoever they chose.” The Midrash focuses on that word beautiful, and explains:

בראשית רבה (וילנא) פרשת בראשית פרשה כו 

אמר רבי יודן טבת כתיב, משהיו מטיבין אשה לבעלה היה גדול נכנס ובועלה תחלה, הדא הוא דכתיב כי טבת הנה, אלו הבתולות ויקחו להם נשים מכל אשר בחרו, אלו נשי אנשים, 

“Rabbi Judan said the word tovot (טבת) – beautiful – is written in the singular, [but read as a plural]. Meaning that the bride was made beautiful for her husband, but the lord of the nobles had intercourse with her first...”

JUS PRIMAE NOCTIS...IN THE MOVIES

There are numerous references to Primae Noctis in ancient and modern literature, from the Epic of Gilgamesh to The Marriage of Figaro. One recent example can be seen in the movie Braveheart, when the evil King Edward gallops into a village, to interrupt a wedding celebration. “I’ve come to claim the right of Primae Noctis. As lord of these lands, I will bless this marriage by taking the bride into my bed on the first night of her union.”  And as the groom is restrained by Edward's henchmen, Edward reminds the peasants “it is my noble right.”  

Jus Primae Noctis. Is there a more fearsome example of feudal barbarism? Of what one scholar called “a male power display…coercive sexual dominance…and male desire for sexual variety”?  But the legend, despite its appearance in many guises, is, fortunately, likely to be nothing more than just that: a legend.  

JUS PRIMAE NOCTIS...IS A LEGEND

Perhaps the most comprehensive investigation of the legend of Primae Noctis is The Lord's First Night: the Myth of the Droit de Cuissage, by the French social scientist Alain Boureau. His careful analysis is particularly important since, as we have seen, Rashi, our favorite French commentator, cites this legend twice. After a meticulous two-hundred page review of every alleged appearance of the legend, Boureau is clear:

“[T]he droit de cuissage never existed in medieval France. Not one of the arguments, none of the events insinuated, alleged or brandished, holds up under analysis.
”

— Alain Boureau, The Lord's First Night.

Others scholars agree with Boureau. In 1881, the German historian Karl Schmidt concluded that the right never existed.  In 1973, the historian J.Q.C. Mackrell noted that there is "no reliable evidence" that it existed. And Prof. Tal Ilan, now at the Free University of Berlin, addressed the myth of Primae Noctis in a magnificently titled 1993 paper: Premarital Cohabitation in Ancient Judea. Prof. Ilan noted that that “all medieval literature that evokes the custom of Jus Primae Noctis has been proven to be folkloristic and has no historical basis.” But what about the evidence from the Talmuds, and the Midrashim? Don’t they provide evidence that Primae Noctis was indeed practiced in the time of the Talmud? Not so, claims the professor:

If a motif of this sort could have appeared in a sixteenth-century document and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have cropped up in the fourth -or fifth-century Palestinian Talmud, falsely describing events of the second century.

Instead, Prof Ilan suggests that the Talmud used the myth of Primae Noctis to excuse the behavior of some prospective couples, who would engage in sexual relations before they married.  “the jus primae noctis was conveniently drawn in order to explain and justify a custom that seemed to the rabbis to undermine their view of proper conduct in Jewish society.”

“Some events do take place but are not true; others are—although they never occurred.”

— Elie Wiesel, Legends of Our Time

There is some further support to the claim that primae noctis never existed, and it is not one I have seen suggested before.  It is a claim from silence.  I've checked over 100,000 responsa, and there is not one on this topic. Not a single one.  If primae noctis really was a law of the Greek and Roman empires, and a feudal right across medieval Europe, then why were its implications for the Jewish community never discussed in the responsa literature?  This silence supports the conclusions of work done by Boureau, Ilan and others: it never existed. In fact Boureau wonders what muddled thinking would lead anyone to believe it existed in the first place: 

It has been clear from the start that no matter what social restrictions were put on conduct and the management of wealth, and no matter how violent mores became, the principle of free choice of an unfettered matrimonial life was the most sacred area of individual liberty in medieval Europe. The Church, European society's principal normative center, very early removed all restrictions on the marriage of dependents, and it imposed consent as a sacramental value. No juridicial form, no custom, could attack that principal...sanctified in the twelfth century by the establishment of the sacrament of matrimony.

HISTORY AND HERITAGE

The historian David Lowenthal has explained the differences between history and heritage. While history "seeks to convince by truth," heritage "passes on exclusive myths of origin and endurance, endowing us alone with prestige and purpose." Heritage, continues Lowenthal, commonly alters the past: sometimes it selectively forgets past evils, and sometimes it updates the past to fit in with our modern sensibilities. Sometimes it upgrades the past, making it better than it was, and sometimes it downgrades the past, to attract sympathy.  And so, how we read the Talmud will depend on whether we see it as a work of history or as a book of our heritage.  

“There you have it...some of it fact, and some of it fiction, but all of it true, in the true meaning of the word”

— Miles Orvel, The Real Thing: Imitiation and Authenticity in America

There are stories both wonderful and terrible from our Jewish past. Some are factual, and some are not, and a measured approach to how we might approach these stories has been suggested by Judith Baumel and Jacob J. Schacter. They explored the claim (published in The New York Times) that in 1942, ninety-three Beis Yaakov schoolgirls in Cracow committed suicide rather than face rape by their German captors. They concluded that the evidence to support the truth of the story is not conclusive one way or the other. 

Whether or not it actually happened as described is difficult to determine, but there is certainly no question that it could have happened...in response to those claiming that the incident was "unlikely" to have occurred, let us remind the reader that the period in question was one during which the most unlikely events did occur, when entire communities were wiped out without leaving a single survivor...Maybe it did happen. But maybe again it didn't. Could it have happened? Of course.

So Why Should Women Light the Menorah?

It seems very unlikely that Rashi's explanation for why women should light the Menorah has any factual basis; the legend of Primae Noctis is not likely to have been true. But some stories are true, even though they never happened. Ask yourself, from what you know about Jewish history, could it have been true? Yes. And that's what makes it all the more terrifying. Sadly, we have plenty of tragic stories from our Jewish history, and there is no need to create one that probably never happened. 

But if Rashi's reasoning was based on a myth, why should women - who according to traditional teaching are exempt from a positive time bound command - why should they light?  For an answer that should satisfy moderns, we need look no further than the Code of Jewish Law - the Sulchan Aruch (written about 460 years after Rashi's death).   

שולחן ערוך אורח חיים הלכות חנוכה סימן תרעה סעיף ג 

 אשה מדלקת נר חנוכה, שאף היא חייבת בה

 A women should light a light on Chanukah, for she is obligated to do so...

So there you have it. Women should light...because they should light. We need no more of a reason than that.

Happy Chanukah