Pilagshut

  • Rav David Brofsky

Introduction

            Last week we discussed the various sources that prohibit sexual relations outside of marriage. We demonstrated that the Talmud clearly prohibited relations between a man and an unmarried woman, either due to the Rabbinic prohibition of yichud from the time of David Ha-Melekh, the Biblical prohibition of kedeisha, or as a violating of the positive mitzva of kiddushin. Interestingly, many of these sources express concern about the promiscuous nature of relationships that are neither monogamous nor bound by financial obligations and responsibility. 

            The Rishonim discuss whether there is another type of relationship, a lower form of “ishut,” within which a man and woman may live together, known as pilagshut. In our first shiur, we mentioned that the Rosh suggested that one can fulfill the obligation of peru u-revu through fathering children with a pilegesh. What is a pilegesh? Is it really permitted to enter into a concubinal relationship, and what are the characteristics of this relationship?

Pilagshut

            We find the term pilegesh numerous times in Tanakh, always referring not to a temporary arrangement, but rather to a wife of some sorts. For example, Ketura, is described as Avraham’s pilegesh (Bereishit 25:6). Earlier, the Torah states that Avraham “took a wife (isha), and her name was Ketura” (ibid. 1). Bilhah, the maidservant of Yaakov who bore two of Yaakov’s children, is described as a pilegesh (ibid. 35:22). David Ha-Melekh’s relationship with his concubines appears to be permanent (II Shmuel 20:2), even after his death, as was Shaul’s relationship with his pilegesh (ibid. 3:7). Even in the story of pilegesh ba-Giv’a, the pilegesh’s father is referred to as “his father-in-law” (Shoftim 19:4). In the Tanakh, the term pilegesh refers to regular women as well as to maidservants, and it appears to indicate a marriage, but of a lower status.

Pilegesh in the Talmud

            We should first note that there is a debate regarding the definition of a pilegesh. The Talmud Yerushalmi (Ketubot 5:2) questions the following verse, “And David took more concubines and wives out of Jerusalem, after he came from Hebron; and there were yet sons and daughters born to David” (II Shmuel 5:13):

And who is a wife and who is a concubine? R. Meir says: A wife has a ketuba, while a pilegesh does not have a ketuba. R. Yuda says: Both [a wife and a pilegesh] have a ketuba; a wife has a ketuba and the extra stipulations of a ketuba (tenai ketuba), and a pilegesh has a ketuba but does not have the extra stipulations of a ketuba.

This passage implies that the sole difference between a wife and a pilegesh is the extent of the husband’s financial responsibilities. However, a woman becomes a pilegesh through kiddushin and is halakhically viewed as an eshet ish. This also emerges from another passage in the Yerushalmi (Yevamot 2:4), which implies that the relatives of a pilegesh are forbidden to her husband, just as if they were formally married. This approach seems to match the Biblical model of a concubine, who is a permanent, lifetime partner – a somewhat “lower level” spouse.

            The Talmud Bavli seems to adopt a different approach. In a similar attempt to explain the verse cited above, the gemara (Sanhedrin 21a) teaches:

Who are wives and who are concubines? R. Yehuda said that Rav said: Wives are with a ketuba and kiddushin; concubines are without a ketuba and without kiddushin.

Although our text of the gemara states that a pilegesh has neither a ketuba nor kiddushin, some Rishonim apparently had a variant text, which implied that even according to the Talmud Bavli, the only difference between a wife and a pilegesh was the ketuba. This girsa is cited by Rashi (Bereishit 25:6), Raavad (Hilkhot Ishut 1:4), Ran (Teshuvot 68), the Rivash (395), and others. Most Rishonim, however, maintain that a pilegesh does not have kiddushin either.

            It is important to note that there is no evidence of concubinal relationships in Talmudic literature, and aside from the passage cited above, there are no discussions relating to its details or nature.

Pilagshut in the Rishonim

            The Rishonim discuss this question and disagree regarding the definition and permissibility of a pilegesh. There appear to be four approaches found in the Rishonim.

            Some Rishonim rule that a concubinal relationship is created through kiddushin, and it is therefore, in essence, not much different than a regular marriage. As mentioned above, aside from Rashi, R. Yitzchak ben Sheshet Perfet (1326–1408), known as the Rivash, rules in accordance with this view.  It would appear that according to this view, a concubinal relationship can only be terminated with a get.

            Others maintain that while a pilegesh does not have kiddushin, only a king, and not a regular person (hedyot), is permitted to enter a concubinal relationship. This position corresponds with the impression given by the Tanakh, although the story of pilegesh ba-Giv’a (Shoftim 19) must then be understood as being against the halakha, or as referring to another type of wife (such as an ama Ivriya). This approach also explains why there is no evidence of concubinal relationships from the Talmudic period.

            The Rambam (Hilkhot Melakhim 4:4), in the midst of a discussion regarding the rights of a Jewish king, writes:

Similarly, he may take wives and concubines from the entire territory of Eretz Yisrael. The term “wives” implies women who were married with a ketuba and kiddushin; concubines are women who were not given a ketuba and kiddushin. With the act of yichud alone, the king acquires her, and relations with her are permitted him. A commoner (hedyot) is forbidden to have a concubine.

The Rambam rules clearly that a regular person may not have a concubine. Other Rishonim, including Rabbeinu Yona (Sha’arei Teshuva 3:94), Rashba (Responsa 4:314), and Me’iri (Sanhedrin 21a), concur with the Rambam.

            What is the source of this prohibition? Most commentaries (Kesef Mishna, Hilkhot Melakhim 4:4; Ra’avad, Hilkhot Ishut 1:4; Rema, Even Ha-Ezer 26:1) explain that a pilegesh is prohibited due to the prohibition of kedeisha, "There shall not be a harlot among the children of Israel" (Devarim 23:18), which we discussed last week. Some insist that living with a pilegesh would violate the positive commandment of kiddushin (see, for example, Rivash 395). Others suggest that according to the Rambam, this prohibition is only Rabbinic (see Radak 9:8, Radbaz 4:225), although the text of the Rambam does not support this claim. Incidentally, the Ramban (She’elot U-Teshuvot Ha-Rashba Ha-Meyuchasot Le-Ramban 284) had a different text of the Rambam, which does not mention this prohibition.

            Of course, the question remains why a pilegesh is permitted to a king. The Acharonim offer different explanations. Rabbeinu Yona (Sha’arei Teshuva 3:94) explains that since the fear of the king is upon everyone, even without the formalities of kiddushin and ketuba, the king’s relationship with a pilegesh will be permanent, as there is no fear of her engaging in promiscuous behavior.

            Other Rishonim explain that theoretically, a pilegesh (without kiddushin) would be permitted, but such behavior is Rabbinically prohibited. For example, R. Moshe Ha-Levi Abulafia (Yad Ramah, Sanhedrin 21a, s.v. mai; see also Responsa Binyamin Ze’ev 112), explains that “the rabbis prohibited [this practice] so that the daughters of Israel should not be hefker.” Others suggest that the rabbis feared that concubines, due to their somewhat less public profile, would not properly immerse in the mikve, and they therefore prohibited the entire institution of pilagshut (see Shulchan Arukh, Even Ha-Ezer 26:1).

            Finally, a number of Rishonim rule that there is no fundamental halakhic objection to a concubinal relationship. The Ramban (ibid.), for example, in response to a question from Rabbeinu Yona, wrote that “a pilegesh is certainly permitted.” He continues:

            One who wishes to marry a woman, so that she should be prohibited to others and be considered his [wife regarding] inheritance and to defile himself for her [i.e. a kohen would become ritually impure when burying her], the Torah says he should betroth her, accompany her to the chuppa, and say the birkat chatanim in the presence of ten… And if he wishes that she should be a pilegesh, and not be his [wife] and not prohibited to others, and not betroth her, the choice is his.

            The Ramban appears to present two different models of permitted relationships, ishut and pilagshut. Other Rishonim, including the Raavad (Hilkhot Ishut 1:4), Ran (Teshuvot 68), and Rosh (ibid., see also Teshuvot Ha-Rosh 32:13), agree with the Ramban.

            All of these opinions are referring to a permanent relationship, in which a couple lives together as husband and wife – not to a couple deciding whether to formalize their relationship, and certainly not to a couple living with each other for an undefined period of time. As we shall see, R. Yaakov Emden was the only authority to suggest the permissibility of a concubinal relationship for a short, defined period of time, “le-zman katzuv.” Furthermore, the Ramban himself concludes, “And my teacher… in your place warn them to stay far from the pilegesh, because if they were to know of this permissive ruling they would stray, and break boundaries, and lie with them during their time of niddut.”

            R. Yosef Karo rules in the Shulchan Arukh (Even Ha-Ezer 26:1):

A woman is not considered to be a married woman unless she is properly betrothed. Even if he lies with her in a promiscuous manner, without the intent of marriage, she is not considered to be his wife … and even if he designates her for him, we force him to release her.

The Rema adds:

She is certainly embarrassed to immerse [in the mikve], and he will lie with her in her state of niddut. But if he designates her and he immerses in the mikve for him, some say that this is permitted, and that this is the pilelgesh mentioned in the Torah, and some say that this is prohibited and that he receives lashes for violating "There shall not be a harlot …"

Both R. Yosef Karo and the Rema seem to agree that concubinal relationships are forbidden, although they appear to disagree regarding the source.

Pilagshut in the Acharonim

            There have been occasional attempts in the modern era to implement pilagshut. For example, in response to the challenges of his day, R. Yaakov Emden, (1697–1776) suggested instituting the practice of pilagshut. In a shocking responsum (Responsa Ya’avetz 2:15), he examines the sources and rules that if the woman will immerse in the mikve and will remain faithful to her “husband,” the concubinal relationship is not only permitted, but may also be beneficial:

            And regarding the fact that our communities has refrained from the practice of pilegesh, they have done so of their own volition and out of the assumption that it is prohibited… The truth is that the [concubinal relationship] is permitted and no prohibition was ever enacted against it, even as a safeguard… On the contrary, pilagshut itself is a safeguard around the Torah, because it can keep one from promiscuous and licentious behavior, and sexual liaisons and relations with one’s wife during her menstrual period, and the wasting of seed by men who are not married, and even by those who are married when their wives are not available to them. [Moreover, pilagshut is beneficial] also towards the great mitzvah of peru u-revu

            And so, regarding these rabbis who follow in the Ashkenazic customs… they have wrought all sorts of destructive stumbling blocks upon the people, compelling many to transgress what is indeed forbidden by the Torah. Therefore, in my opinion, it is a great mitzva to publicize that [pilagshut] is permitted. Especially so in our generation, when the “Canaanites dwell in the land” who so love sexual licentiousness, in particular the spreading among our people of the immoral cult of Shabbatai Tzvi, prince of the adulterers…

            Nonetheless, I do not want that one should rely exclusively on my opinion about this subject, unless it is endorsed by the Greats of the generation… Anyone who wants to rely upon my ruling on this matter should first seek the involvement of a Rabbinic authority … that it is permissible and clean of any hurdles and that there be an exclusive relationship.

            A similar suggestion was made by R. Yitzchak Toledano (Ha-Yam Ha-Gadol 75) in the 20th century. It should be noted that aside from the objections described below, R. Emden is the first to view the concubinal relationship as “temporary,” and not as a form of ishut.

            Although R. Emden never implemented his proposal, it sent shockwaves throughout the Rabbinic world. His view was met with halakhic and moral objections. As we demonstrated, the majority of Rishonim reject the option of pilagshut for either halakhic or practical reasons. Furthermore, he does not take into account the standing and welfare of the women (i.e. the pilegesh and the wife), and he does not relate to the impact this practice may have on the institution of marriage or to the larger moral and societal ramifications of his suggestion. R. Chaim Soloveitchik reportedly described one who acts upon this proposal as “naval bi-reshut Ha-Torah.”

            Although the Acharonim either reject or discourage the practical implementation of pilagshut, at times, halakhic authorities invoke pilagshut in order to solve difficult halakhic quandaries in areas such as giyur, pesulei chitun, and agunot.

            In recent years, Prof. Zvi Zohar (Akdamut 17) suggested encouraging young religious singles to adopt the model of pilagshut as a means of permitting pre-marital sexual relationships. He claims that a high percentage of young Orthodox single are sexually active but do not keep the laws of family purity, and it is therefore proper to bring this halakhic model to their attention. He suggests that young religious Israelis who are not married but who are sexually active should maintain one partner and define their relationship as “pilagshut.” His article was widely criticized, both for its poor and misleading scholarship and for its morally and spiritually problematic content.  

            As mentioned above, many object not only on halakhic grounds, but also out of concern for women and their status in society and the impact of such proposals to the institution of marriage. R. Ben-Zion Meir Chai Uziel (1880-1953), the first Sephardic chief Rabbi of Israel, raises a broader concern (Piskei Uziel Be-She’elot Ha-Zeman 75):

            This is a great breach not only in the married and family life of the Jewish People, but also in the entire Torah, as [the Torah] is one organized and protected package, and any violation of it cause destruction to the entire [package]. Not recognizing “He who sanctifies the Jewish People through chuppa and kiddushin” transforms the Jewish People into a secular [nation], and from there secularism spreads to all aspects of [our] lives.

            Recognizing and encouraging non-marital sexual relationships not only weakens the sanctity of marriage, but also threatens to undermine the Torah’s ideal of infusing all aspects of our lives with kedusha