We live in a time where we fundamentally believe that each situation should be addressed and determined on its individual merits. However, Jewish law is lived both individually and collectively, which means that, in some instances, the unique circumstances of an individual can be overlooked for the sake of maintaining a consistent rule or decree for the collective.
A case in point is found in today’s daf (Ketubot 60b) which discusses a situation where a couple divorce or the husband dies in which case the woman must wait 90 days before remarrying to verify whether she is pregnant from her first husband and, consequently, ‘to distinguish between the seed of the first one and the seed of the second one’ (i.e. to confirm the paternity of the child).
However, we are then taught a beraita which discusses a variety of situations such as where the couple are living separately in the months prior to his death or their divorce, or where the husband is in prison during this period, or where the husband is overseas, or where the husband is too old or sick to engage in conjugal relations etc. In such a case, Rabbi Yossi rules that the 90-day rule does not apply, whereas Rabbi Meir rules that, notwithstanding these unique individual cases, the 90-day rule still applies to all these women. Significantly, and notwithstanding the fact that the commentaries recognize how the reasoning of this decree does not apply in the cases listed in the beraita, the halacha follows Rabbi Meir who asserts that this 90-day decree applies in all cases (see Shulchan Aruch, Even HaEzer 13:1).
For many of us who are of the belief that each situation should be decided on its individual merits, this concept of לא פלוג – that we don’t distinguish between exceptional cases where a rule seemingly shouldn’t apply, and more general cases where it should – is hard to make sense of. Simply put, it seems that by applying this law in all cases, it shows a lack of sensitivity in at least some cases. Yet such a claim is predicated on us presuming that the only reasons for rabbinic decrees are those that are explicitly stated in the Gemara. However, it is possible that things are more complex than they appear.
Recent research suggests that when a couple breaks up it takes, on average, three months (i.e. 90 days) to mourn that relationship and to be able to move forward – meaning that during this 90 day period, even if you begin one relationship it is likely that you are thinking of your previous relationship. Moreover, Jewish law is very firm on the point that it is prohibited to marry one person while thinking of another (see Rambam, Issurei Biah 21:12).
Given all this while, on face value, the fact that the halacha as recorded in our daf does not distinguish between general and exceptional cases may seem unfair, it is possible that there was a secondary consideration for the 90-day rule – which was to prevent a woman from marrying a second husband while thinking about her first. And if that is so then little difference exists between the average case, and those listed in the beraita, because in addition to the 90-day delay being ‘to distinguish between the seed of the first one and the seed of the second one’, it may also be to ensure that someone is not thinking of the first one while they are with the second.
