were accused by their husbands of extramarital affairs were subjected to an or-
deal that included the drinking of “bitter waters” (Num. 5:27). According to
the Mishna, however, pregnant women and nursing mothers should not drink
this water.^157 R. Tam deduces from this that since a pregnant woman and a
nursing mother are placed in the same category, the same rules should apply
to both. Therefore, divorcées and widows should be bound by the same legal
obligations concerning remarriage and should be treated in the same way from
a legal point of view.
The more central reason R. Tam gives for his ruling is related to his fear that
if the child’s mother remarries, she may become less devoted to ensuring the
child’s well-being, and consequently, the child may die. This concern concurs
with his ruling discussed above, concerning contraception. He explains this
fear in two ways—one worry is, as discussed above, that if the mother becomes
pregnant again she will not be able to nurse her child. The other concerns the
talmudic understanding of how a divorced or widowed woman ensures her
own financial support. According to the Talmud, a widow is embarrassed to
claim her welfare in front of the court, and because she is afraid to appear in
front of the court, her embarrassment can lead to the death of her child.^158 R.
Tam argues that if a widow has this fear, then surely a divorcée, whose husband
is alive, shares this feeling.^159 Since, as we saw above, there is no expectation
that the new husband provide for the child’s needs, it is imperative not to allow
the mother to become part of a relationship that might lead to her neglect of
the child’s welfare.
This argument is presented in the Tractate Yevamot to explain why a widow
must wait before she remarries.^160 Yet these reasons do not make sense in the
medieval context, where women frequently went to court, and so one would
not expect them to be embarrassed to sue anyone.^161 In addition, not only did
Jewish law allow divorce, but, as marriages were arranged and children were
often wed at an early age, many seemed to have chosen divorce. Some schol-
ars have recently estimated that the rate of divorce in medieval Ashkenaz was
high.^162 In this cultural setting, women were not embarrassed to confront their
ex-husbands in court. R. Tam’s position presented a tremendous obstacle to
young divorcées with children under age two who wished to remarry. His opin-
ion became the dominant one in both Germany and northern France during
the century that followed,^163 although other opinions, such as that of R. Sam-
son of Falaise discussed above, were still considered.^164
One issue, however, remained unresolved. What should be done in a case
where a widow or divorcée remarried without seeking permission? Should they
be forced to divorce or was their marriage validated post factum? One of
R. Tam’s students, R. Joseph Bekhor Shor, quoting a ruling by R. Tam, claimed
that the couple need not divorce; they were merely obliged to live separately
until the waiting period was over; others did not agree.^165 In the thirteenth cen-
tury, attitudes toward women who remarried became even stricter. A famous
rick simeone
(Rick Simeone)
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