The final lines of today’s daf (Yevamot 36b), continuing onto tomorrow’s daf (Yevamot 37a), raises an oft-overlooked and highly misunderstood approach of halacha which endeavours to enable all parties to ‘have its cake and eat it’. And to explain, I would like to quote from Eliezer Berkovits’ ‘Not in Heaven’ where he provides a good summary of our Gemara:
‘According to biblical law, if a woman gave birth to a child, even though the child died immediately after birth, the mitzva of the levirate marriage (yibum) does not apply. The rabbis, however, insisted that if the child was born before the full time of gestation, it must be fit for life. There are two opinions in the Talmud as to what constitutes life-fitness. According to Rabbi Shimon ben Gamliel, if the child lived for at least thirty days, we are certain that it was fully developed. But if it died within that period, there is a possibility that it was not quite a fully developed embryo. The Rabanan (rabbis) maintain that there is no need for a thirty day period. Assuming now that the widow remarried even though her child did not live for thirty days, Rabbi Shimon ben Gamliel would rule that because of the doubt regarding the child, she would still have to go through the halitzah ceremony in order to be free from the ties to the brother of her former husband. This may lead to very unpleasant consequences, for there is a rule that a Kohen may not marry a woman “rejected” by means of halitzah. Therefore it was decided that in case of a remarriage of an Israelite, we assume that the child was still an embryo. The woman has to undergo halitzah. If she married a Kohen, we assume that the child was completely developed; the mother is free to marry whomever she wants. In one instance we follow the opinion of Rabbi Shimon ben Gamliel, in the other that of the Rabanan. How so? If she is married to an Israelite, “it is possible”; if she is married to a Kohen, “it is not possible”. An Israelite may marry a woman who received halitzah; therefore halitzah is possible. A Kohen must not marry such a woman; therefore, to rule that she needs halitzah is not possible.’
What this basically means is that, both in this case and others, there are rare instances when circumstances prompt halachic decisors to grasp onto two seemingly conflicting halachic perspectives reflecting two alternative halachic realities for the overall benefit of those involved. Admittedly, for critics, this approach is disingenuous and is intellectually dishonest. Yet, as we see in our Gemara and in various other comparable examples, it is precisely given the ambiguity of the situation that allows us to consider the merits of two different halachic approaches and apply them, with caution, in unique situations.
And so, rather than being disingenuous or dishonest, what we see in our Gemara is absolute transparency about the motivation, and the choice, to adopt this approach – which is one that is meant to reduce the further anguish of people who have already suffered enough.