April 28, 2022

Yevamot 44

Throughout my posts on Massechet Yevamot I have emphasised how the mitzvah of Yibum is fraught with moral and ethical challenges, how the choice to perform yibum should be לשם שמים (i.e. with good intentions), and how the decision to transform the automatic relationship established upon the death of a man between the female yevama (his wife) and a male yavam (his brother) into a marriage – or the choice not to do so and thereby elect to perform halitzah – needs to be understood within the context, and with an understanding of, the emotional turmoil of two people mourning their spouse and sibling respectively.
With all this in mind, the question addressed in today’s daf (Yevamot 44a) deals with a situation which I’d like to distil as follows: what happens when it seems that both the yavam and yevama seem interested in fulfilling yibum, but all those around them think that this union is not a good idea. For example (and it is important to stress that this is just one example of what could be many): what if the yavam is very very old and the yevama is very very young? Or the yevama is very very old and the yavam is very very young?
On first glance we might think that the Gemara is making an absolute statement here about the requirement that a husband and wife be close in age. But my understanding is that what is being said here is far more nuanced, and that though yibum should be performed לשם שמים, there should nevertheless be some form of emotional intent, connection, or ‘chemistry’, between the couple for them to choose yibum over halitzah.
Still, as mentioned, both the yavama and the yavam are making these decisions soon after the death of their spouse or sibling, which means that they may feel either social pressure (emerging from those around them), or ‘mitzvah’ pressure (emerging from their inner desire to do what they understand to be the right thing to do), to fulfil yibum over halitzah.
It is at this point that our daf steps in and presents a powerful interpretation of a verse whose impact continues to be felt till today. Specifically, when speaking about the choice to fulfil halitzah, the verse (Devarim 25:8) says: וְקָרְאוּ לוֹ זִקְנֵי עִירוֹ וְדִבְּרוּ אֵלָיו – ‘the elders of the town shall summon him and they must talk to him’, which is explained in our daf to mean, שמשיאין לו עצה הוגנת לו – ‘that the elders give advice that is appropriate to him’.
True, the verse speaks of someone who has already decided to perform halitzah. But the way this verse is explained is to teach us that there may be instances when the yevama or the yavam feel obliged to fulfil yibum while all those around them think that this union is not a good idea – at which point the religious leadership speaks up and says to them (and here I am summarizing what they may have said): “we admire how you wish to fulfil the mitzvah of yibum and, having spoken to you, it seems that you wish to do so for the best of intentions. But we would not be doing our job were we not to advise you and say that our understanding of your situation suggests that it is not advisable. True, we should all pursue and fulfil mitzvot. But at the same time, the pursuit and fulfilment of mitzvot needs to be done within a context of living a balanced and healthy life, and we suspect that the fact that you are currently wishing to fulfil yibum notwithstanding some glaring issues which so many others can see but which you seem to be overlooking suggests that you are doing so due to social pressure, or mitzvah pressure, or because you are making this decision while overcome by the feeling of loss of your spouse or sibling. Given this, please take our advice which is reflective of those around you who care deeply about you, that this union is not a good idea.”
What we see from here is the invocation of what we call עצה (advice) can be either a counterbalance to – and might even include a conflicting message to – what is often simply referred to as ‘the mitzvah’ or ‘the halacha’.
Personally, I have been fascinated by – and I have endeavored to become a thoughtful practitioner of – the intertwining of עצה in halacha for many years (which is why I often emphasise how almost every halachic consultation that I have with people includes spiritual coaching), with my appreciation of this concept emerging from my contact with great poskim, and my awareness of this particular teaching from Massechet Yevamot emerging around 15 years ago when, in his essay reflecting upon Rabbi Joel Wolowelsky’s examination of ‘Religious Counselling and Pesak Halacha’ (published in ‘Wisdom from all My Teachers’), Rabbi Yigal Shafran cited the statement of משיאין לו עצה הוגנת לו – ‘that the elders give advice that is appropriate to him’, and then subsequently suggested a range of situations where עצה should be preferred over, or incorporated within, classic psak.
Yet what is important to understand is that the factors underpinning עצה aren’t always found in books. Instead, they are in what is often affectionately referred to as the unwritten 5th chelek of the Shulchan Aruch, and if we only determine what is right in terms of mitzvah observance or halachic living by what is written in books, then we ignore the essential realm of עצה.
One of my great concerns within Modern Orthodoxy, although by no means exclusive to it, is the overemphasis on text and the underemphasis on עצה. Of course texts are crucially important – and my study is lined with texts that I spend much time learning. At the same time, equally crucial – as emphasised in our daf – is the kind of advice deduced from the words וְקָרְאוּ לוֹ זִקְנֵי עִירוֹ וְדִבְּרוּ אֵלָיו and reflected by the phrase שמשיאין לו עצה הוגנת לו. And I personally believe that some of the greatest challenges faced by contemporary Orthodoxy will be best addressed by acknowledging the place and role of עצה within and alongside psak, rather than exclusively relying on texts.
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