The second sugia on our Av Mishna .כתובות – ב: – ז. This commentary shall begin by offering yet another introduction. The primary subject of this Av Mishna address the subject of Jewish courts of law, as viewed through the specific lenses of Ketuba.
The role of the Talmud, the basis for common law courts, enshrines the independence of the Judiciary from Government. Contrast the Star Chamber Court under James I . That tuma Court effectively became the king’s secret police. The king used that Court to suppress dissent and to bypass the necessity for calling parliaments.
The Talmud serves to achieve the separation and independence of the Courts from Government. Common Law Courts assign judges to serve in the opposing roles of prosecutor and defense in all cases.
The Talmud defines the meaning of Halacha as – legal rules attached to prophetic mussar understood from the general perspective of an on-going political discussion. The independence of the judiciary from government control, learns directly from the author of the Mishna and his relationship with Rome.
The Talmud, exists as, in the words of rabbi Asher Dov Kahn, “it records the minutes” of highly edited hearings, debated before the courts. The Mishna absolutely and totally rejects the rule of Rome in all matters that involved judicial jurisprudence.
The Mishna defines the role and function the Great Sanhedrin as a court, similar to but different from the US Supreme Court; its most essential difference, Torah courts enjoys independence in the appointment of its judges. Judicial schools located in the 42 Levitical cities – these schools appoint Sanhedrin judges – no Government authority appoints any judge to sit upon a beit din.
These 42 judicial schools operate totally independent from the Government. The Talmud makes legal משל\נמשל interpretations which define the k’vanna of the Torah – the written Constitution of all bnai brit.
D’varim 17:6 and 19:15 establish the “two witness rule” in all Capital Crimes cases. In point of fact, in Capital Crimes cases, the Talmud interpretations of rights express a liberal view which surpass the vision of the 5th and 6th Amendments within the US Bill of Rights.
The north chambers of the Court, עיין ישעיה נ:ד – ט, called the Chamber of Hewn Stone. In the western part of that chamber convened the Great Sanhedrin. The Nasi sat in the center of the Court. עיין ישעיה נד:יא – יז.
What defines: “Due Process”? “The law of the land”? This commentary suggests that ”due process” refers to common law. The Mishna, codified Jewish common law, and functions as the model for Jewish courts today. The Mishna established as its raison d’être – judicial independence from Roman rule and authority. The Mishna in effect stood toe to toe with Rome and guaranteed the right of trial in all matters of life, liberty or property which Roman governors threatened.
The Mishna rejected the Roman empire. It rejected any attempts made by that empire to abrogate the agreement negotiated between Rabbi Yochanan ben Zakkai and general Vespasian to limit the jurisdiction authority of the Great Sanhedrin. On numerous occasions Caesar or his Roman governors threaten to uproot Torah and Prophetic mussar from Mishnaic common law.
The Mishna rejected any presumption of mandate authority wherein Rome assumed title and ownership over the private property and/or fortunes . Specifically the Mishna of Ketuba sought to protect the dignity of women whom predatory Roman officials sought to rape prior to the marriage of a girl.
To accomplish “constraint”, Jewish courts rejected the Roman assumption of ‘indictment by information’. An indictment: a written accusation of an offense presented under oath, as the suit of the government. Such indictments assume that Roman governors can appoint judges to a court, and they have a right to the virginity of young Jewish girls.
An indictment by information, brought by a prosecutor, a public servant sworn into office by the State, to prosecute according to “information” presented by another officer of the state! Violates and tramples upon due process – the lawful judgement by and through the law of the land. The Mishna established common law as master over the Government/Rome in all matters of judicial sovereignty. .
Mea culpa (confession of guilt) belongs to a man and his God. The Mishna outright abhors the Gods worshiped by both Caesar & Rome. The Mishna detests the assumption, made by Roman governors, of their superiority over Jews. An “indictment of information” compares to British arrogance which preceded the American revolution. The British snobs referred to their injustice as “Admiralty Courts”. In these so called courts, the British government brought charges against a defendant based only upon information provided by an officer of the government.
James Otis, in a famous case decrying “Writs of Assistance” by the British, stated that Admiralty procedures “savour more of…Rome and the Inquisition than of the Common law of England and the constitution of Great Britain”. Leonard Levy, in his book: ‘Origins of the Fifth Amendment’, quoted a different colonial statement which compared the Admiralty Courts to the infamous Star Chamber courts. Universally condemned for their arbitrary abuse of power which resulted in crimes of social and political oppression.
John Adams despised these Admiralty Courts for their criminal annulment of the principles of the Magna Carta. Influenced by this tuma ‘shade empire’, James Madison, George Washington, John Adams, Ben Franklin, Thomas Jefferson and his opposing rival Alexander Hamilton, primary author of the Federalist Papers, together with John Jay and George Mason, who refused to sign the Constitution without a clause which permitted the addition of amendments, all these men agreed with the 3rd article of the Constitution together with its 6th amendment.
The Talmud stands upon the foundation: T’NaCH bows solely before the sovereignty of HaShem. Judicial Independence from Roman Governments, defines the bedrock of prophetic and Talmudic jurisprudence. This idea bears a remarkable resemblance to the American revolutionary requirement that disputants stand before their peers. A peer: meaning trial by jury – not some Judge, a servant of the government.
Whereas the American revolution became famous for its ‘separation of church and state’, the Mishna rejected all connections between ‘courts and governments’. The basic requirement of a court composed of 3 sitting judges, testifies to the responsibility of the court to assume the burden of both prosecutor and defense independent from both State and private wealth. The OJ Simpson trial testifies that corruption does not limit itself to the State.
The 5th Amendment has its roots in the Magna Carta. The idea of due process and trial by jury – Article 3, combined with the 5th, 6th and 14th amendments to the Constitution acknowledge the judicial requirement of Court Independence from Government. The first amendment defines the intent of the opening words of the preamble to the US Constitution – ‘We the people’. People, meaning we the folk of this land, its common citizens.
The contrast between the Mishna and the fears of Jeffersonian democrats, the latter rejected any Congressional establishment of a banking monopoly, whereas the former abhorred Roman domination over Jewish common law courts. Today in Israel the beit din stands apart and opposed to beit mishpat courts – on this exact foreign assimilation score.
What role does the beit din play to assist women who must “navigate their way through difficult or bad marriages.”? Currently so many women suffer in limbo due to disgusting hashkafic prejudices and ignorant advice. The Ketuba through נמשל inference obligates the baal to accept the burden of his wife’s financially solvency. Furthermore it obligates the husband to maintain a normal conjugal relationship. The moral requirement within the Ketuba includes the obligation, the baal maintains civil behavior with the parents of his wife.
Infidelity in marriages merits כרת charem. The t’shuva required for infidelity extends to a deathbed regret confession of sorrow; the baali t’shuva permanently counts the Omar throughout the entire year. The charem of the Ge’on Rabbeinu Gershom concerning polygamy merits deep consideration. That tiqqun addresses the issues of jealousy and strife – not the number of wives that a man can marry – a very significant distinction.
It seeks to respect the rights of women and protect them from abuse from their baal, a potentially cruel and merciless lord. A man can more easily abuse his wife, when he can simply marry another woman – without the trouble and expense of a divorce. Hence the issue of the charem of Rabbeinu Gershom centers upon protecting, so to speak, the ‘Bill of Rights’ of women, rather than the number of wives which a man can marry.
Rabbinic authorities acknowledge, [Rema (Even HaEzer 1:10)], that this tiqqun does not apply to a man whose first wife can no longer bear children. That under these conditions a man could marry a second wife, if this second marriage did not increase jealousy and strife within the family.
This commentator rejects the notion of the Beit Yosef who placed a time limit upon the tiqqun of Rabbeinu Gershom; the rejected Shulchan Aruch (Even Ha-Ezer 1:10) declared that the decrees of that Ge’on no longer apply in effect. BUNK. Men bear an eternal Torah obligation to respect the dignity of their wives, family, and relatives. The tiqqun of Ge’on Rabbeinu Gershom amplify the k’vanna of the commandment: love your neighbor as yourself.
Both the Rema and Solomon Luria, known as the Yam Shel Shlomo, the latter wrote in Yevamos 6:41; responsa Maharshal, no 14), also rabbi of Utena, Lithuania, and author of “Pitchei Teshuva”(1:19) wrote that the Rishonim accepted the tiqqun of rabbeinu Gershom. This commentary likewise rejects the chiddush instituted by the Bach – heter me’ah rabbanim – because this notion invalidates the authority of the beit din established by the Talmud.
A woman who refuses to receive her get, this action has no more authority to prevent a second marriage than the baal assuming that he possesses the right to make his wife an aguna; an MIA soldier in no manner compares to a man who arrogantly refuses to return the קדושין acquired nefesh o’lam ha’ba soul back to his ex-wife. The tiqqun of Rabbeinu Gershom does not limit the number of wives that a man can marry – this pervasive error, like so many others, has painted Jews into corners.
A common practice in writing a Ketuba today, the sofer includes an explicit stipulation which forbids the husband to marry another woman. Before Torah courts of law can merit Judicial Independence, and the restoration of the Sanhedrin, both Great and small Federal Courts ruling from within Jerusalem and the 6 cities of refuge – a Torah fundamental within our Constitutional Republic – the obtuse rabbinic courts, their prejudice and abuse of women must cease.
If a couple – one side or the other demands a divorce – no rabbi has authority to arrogantly poo poo their demand. Aside from infidelity and disloyalty in a marriage, divorce stems from economic pressures, or family pressures etc. To quote the words of President elect Trump: “sorry for the delay, complicated business.”
Divorce represents a total bitter disaster to everyone within that family. Rabbinic arrogance which presumes to offer unrequested free council to delay the divorce, not only increases hatred to Torah institutions within that fractured family, but its tuma defiles the souls of the children and extended family members.
Like ‘fear of heaven’, so too חילול השם, ignoramuses misuse and abuse. Something comparable to Arab propaganda which seeks to compare the status of Arab refugee populations in Israel to the Shoah. That said, the disgrace of the beit din judges in matters of divorce causes the Shekina to depart from living within the hearts of the Jewish people.
What defines the mitzva of get? When a man gives his ex-wife her get, he closes the door to ערוה, as expressed through either יבום or ממזרים. The mitzva of קדושין, most rabbinic authorities do not understand. Why? Halacha does not exist independent of the mensch code. Alas halachic codes divorce Orthodox Judaism from this mensch code; Torah faith can not exist when stored in neat tidy halachic boxes. The 3 erroneous codes perverted the meaning of halacha. Halacha does not exist as some collage of Rishonim opinions.
This commentary denounces both the ארבעה טורים ובית יוסף for promoting their false sh’itta, first introduced through the code of that מין – the Rambam. The rabbinic mitzva of Ketuba derives from multiple דאורייתא mitzvot sources, starting most obviously from get. The rabbinic mitzva of making a blessing before eating learns from the דאורייתא mitzva of Bentching etc. Both mitzvot of get and ketuba require משיכה – a formal act of acquisition.
The lack fear of heaven, its a curse not limited only to men. Some loose women also defiantly refuse to receive their get. Because rabbinic instruction leans so heavily upon these collage codifications of halacha, most rabbinic authorities do not even know what the mitzva of קדושין acquires. Rabbinic authorities fail to develop the required skill of defining the intent of a mitzva through other mitzvot. The erroneous codes promote reactionary superficial pilpul learning. A human being does not exist as some sort of halachic טפש robot, that behaves like a parrot – continually asking מה הפשט?
Obviously pilpul learning qualifies as a rigorous discipline? No. Young scholars who dedicate their lives to learn Torah, when they come home on shabbot, virtually never discuss their learning at the shabbos table with their parents and siblings. Splitting hairs over the fine distinction between how this and that Rishon scholars; the subtle differences in their נתוח/analysis on a specific clause of a line of Gemara – hardly qualifies as an interesting, enthralling, conversation at a shabbos meal. Bluntly speaking, pilpul fails to teach the mensch code. Specifically, pilpul fails to learn the ideas contained within a complete sugia of Gemara.
Independent Courts does not just mean a court containing 3 judges. Rather it means that the Court has the obligation to assign a judge to argue for each side of the disputants before the Court. The idea that a Court would approach the man and ask him what he wants?
Logic stands as the יסוד of Order. Hence the name of the סידור. Rabbi Yaakov Pollack from Poland initiated the pilpul line of “scholarship”. Polish rabbis adored the Shul’chan Aruk like Eva Gabor sang the theme song of ‘Green Acres’:
“New York is where I’d rather stay.
I get allergic smelling hay.
I just adore a penthouse view.
Dah-ling I love you but give me Park Avenue.”
“New York is where I’d rather stay.
I get allergic smelling hay.
I just adore a penthouse view.
Dah-ling I love you but give me Park Avenue.”
The sh’itta of pipul follows a method of mental gymnastics, tracing relationships between things widely divergent or even contradictory and of propounding questions and solving them in unexpected ways.
Placing Jews into charem channels destructive spirits which can destroy entire communities. Rabbi Minz from Italy placed rabbi Pollak into charem and according to tradition on the same day rabbi Pollack died. The 1648 Cossacks revolt obliterated Polish Jewry.
The Vilna Gaon created a new process for researching the Bible (Mikra), the Mishna and the Talmud, introducing new philological methods. The ‘Minhag ha-Gra’, particularly in Jerusalem, casts a huge shadow on prevailing Ashkenazi traditions. But his charem ban did not up-root the growth and spread of the nascent Hasidic movement lead by Baal Shem Tov and the Alter Rebbe: Reb Schneur Zalman.
During this period of Jewish history the ‘Kehilla’ functioned as a “state within a state,” containing its own system of courts led by rabbis, and providing the required basic social services, such as education and support for the sick and elderly. But the legal emancipation of European Jewry, a consequence of the French revolution, caused the ‘Kehilla’ to collapse.
The 19th century, autonomous Jewish communities legally ceased to exist in Western Europe. The Industrial revolution witnessed the rise of the ‘Haskalah’/Enlightenment movement. The response to both this and the Reform movement, which challenged the foundations of traditional Judaism, witnessed the rise of people like the Chatam Sofer (1762 -1839) and other impressive traditional rabbinic authorities.
But in all this vigorous and amazing hullabaloo, perhaps comparable to the anarchy which prevailed during the Weimar Republic, the Independence of courts, this specific vision of the Mishna and Talmud became muddled and lost.
מאי שקדו? דתניא מפני מה אמרו בתולה נשאת ליום הרביעי? שאם היה לו טענת בתולים היה משכים לב”ד
Independent Courts does not just mean a court containing 3 judges. Rather it means that the Court has the obligation to assign a judge to argue for each side of the disputants before the Court. The idea that a Court would approach the man and ask him what he wants?
As if the decision of his giving a get exists as an option which rests solely in his hands alone … what a total disgrace of justice. Rabbinic leaders the like of this, which sit upon such divorce courts – lack fear of heaven. These men defile the Good Name of rabbinic courts of law.
Lateral justice contrasts with verticle justice, just as natural wealth completely differs from monetary wealth. Living in harmony with nature stands opposed to rule from the top, the latter thrives on expropriation of other people’s labor, commonly known as the pyramid schemes.
The concept wherein the sages justified Ester as קרקע עולם היתה, refers to when a Goy rapes a woman, and not to a Jewish beit din, who treats a woman like dirt. Talmudic common law by definition challenged the Roman verticle hierarchy rulership system; the latter supported Ceasars’ domination over conquer subjects.
Organic farmers well respect the requirement, that functional ecosystems depend upon renewable biomass produced from worm and insect populations. The latter serve as the biological foundation, which breath life into desert dunes. Samaria does not become truly Jewish till trees and grass grows once again upon its infertile soils. Sprouting natural vegitation from the current sparse bald hills of Samaria, takes priority over building settlements.
תקע בשופר גדוך לחרותנו, ושא נס לקבץ גליותינו, וקבצנו יחד מארבע כנפות הארץ לארצנו: ברוך אתה ה’, מקבץ נדחי עמו ישראל.
מיכה א:יד – וצוה עליך ה’ לא יזרע משמך עוד מבית אלהיך אכרית פסל ומסכה אשים קברך, כי קלות.
The snare of Jewish avoda zara, the genesis of our g’lut, when the rule of law becomes a government top/down corruption. Milton Friedman once declared: “If you put the federal government in charge of the Sahara Desert, in 5 years there’d be a shortage of sand.”
ישעיה טז:יג,יד – זה הדבר אשר דבר ה’ אל מואב מאז. ועתה דבר ה’ לאמר בשלש שנים בשני שכיר, ונקלה כבוד מואב בכל ההמון הרב ושאר מעט מזער לוא כביר.
Marie-Antoinette lived a vain and frivolous lifestyle. This top/down corruption ended the Divine Right of Kings, after Louis XVI lost his head. Compare the vision of mussar quoted above with ישעיה כא:ו – יז, mark the similarity of language. When Man gets to big for his britches, pride preceeds the fall. עיין ישעיה כז:ב – יב, the amazing similarity of mussar which the prophet commands.
Contrast the vision of ישעיה מג:יד,טו, this commentator interprets the mussar commandment given by the prophet, as it refers to the establishment of common law “lateral” courts. Hence the name of this commentary: Lateral Learning.
Where does HaShem choose to place his Name? In a Temple constructed of wood and stone or within the אלהים?
דברים יב: רק קדשיך אשר יהיו לך ונדריך תשא ובאת אל המקום אשר יבחר ה’.
Another example, עיין יג:יג – יט, what caused the hearts of the people to abandon the brit faith? They permitted favored verticle justice over lateral common law justice. Verticle justice defines the courts of Europe, when did Jews ever receive justice from any of these verticle courts?
Arrogant Goyim throughout history, have assumed they have a right to take the virginity of young Jewish women prior to their marriage. Herein defines tuma verticle justice in all its puffed up superiority and pride. For Goyim menstruation and sex, the one does not interfere with the other.
דף ד. ובועל בעילת מצוה, ופורש ונוהג שבעת ימי המשתה, ואח”ך נוהג ז’ ימי אבילות.
Honor the living before the dead because mitzvot apply only unto the living. The 7 branches of the menora, teaches the kabbala, the dedication of the 6 Yom Tov and Shabbot. Each Yom Tov dedicates a different face of the soul. Each face has its own Divine Name by which a Man dedicates, within his heart, his house to the tohor mensch code.
Honor the living before the dead because mitzvot apply only unto the living. The 7 branches of the menora, teaches the kabbala, the dedication of the 6 Yom Tov and Shabbot. Each Yom Tov dedicates a different face of the soul. Each face has its own Divine Name by which a Man dedicates, within his heart, his house to the tohor mensch code.
A man does the mitzva of קדושין, when he dedicates himself unto his new wife to marry her for torat ha’biet, children, and the education of those children in the brit faith. He commits, holy unto HaShem, to stop at the mezzuzza and judge his wife and children on the side of merit rather than guilt. Upon this foundation does a Man build the dignity and good name of his house.
דאמר רבי יוחנן, אע”פ שאמרו אין אבילות במועד אבל דברים של צינעא נוהג.
Modesty and humility exist as two completely different middot. The latter concerns making oneself בטל, meaning: to reduce the pressure of ones’ “imprint” during a dispute; whereas the former works to respect the dignity of others. Both require lots of work in emotional development.
Our Gemara on :דף ד, emphasizes that the mitzva of קדושין unites families. The new family has obligations to honor and respect the parents on both sides of the family. The mensch code involves moral obligations. Common law judges equally have these same moral obligations. Divorce damages the good name of two families; it does not limit itself only to a dispute between a man and a woman.
Respect for extended family members, their reputations and good name, compares to keeping shabbot or giving charity to the poor.
דף ה. אמר רבי זירא גזירה שמא ישחוט בן עוף.
The entire discussion which preceeds this opinion learns by requiring the logical inference. In the above case if a person might forget the shabbot while thinking about the Yom Tov. The inference, judges should not forget other family members when the man and woman come to the divorce court.
The mensch code burdens the divorce court judges to ‘watch over’ the dignity of families confronted by the disaster of the rupture of a house. Comparable to a Cohen entering into a house and to determine if it has נגע צרעת בבית…ולא יטמא כל אשר בבית. To what does divorce compare? עיין מלכים א יב:כה – לג. The divorce which split the kingdom of Yechuda from the kingdom of Israel, with its ensuing avoda zara.
Ketuba learns from get, this fundamental defines the משל\נמשל learning of our Av Mishna. Our gemara addresses the Creation story, the inference נמשל weeps over בראשית ו: ה — וירא ה’ כי רבה רעת האדם בארץ וכל יצר מחשבת לב רק רע כל היום. The destruction of a man’s House directly compares to the floods in the day of Noach. G’lut exposes tremendous bitterness.
דף ה: תנא דבי רבי ישמעאל מפני מה אוזן כולה קשה והאליה רכה? שאם ישמע אדם דבר שאינו הגון, יכוף אליה לתוכה.
This learning directly applies to divorce court judges. The mitzva of קדושין compares to acceptance of the yoke of heaven in the evening. As previously learned in the Av Mishna of ברכות that mitza a person accepts all the curses of the Torah upon both himself and his house. The mitzva of קדושין defines the fear of heaven of that man.
This learning directly applies to divorce court judges. The mitzva of קדושין compares to acceptance of the yoke of heaven in the evening. As previously learned in the Av Mishna of ברכות that mitza a person accepts all the curses of the Torah upon both himself and his house. The mitzva of קדושין defines the fear of heaven of that man.
Herein concludes the learning on this the 2nd sugia of our Av Mishna כתובה.
Conflict Resolution 