Our Gemara discusses the marriageability status of anusas aviv, that is a woman whom one’s father was sexual with, but did not marry. One is forbidden to marry or be sexual with a woman who was wedded to his father, even if not his mother. However, there is a dispute between Rabbi Yehuda and the sages regarding a woman who was sexual with one’s father outside of wedlock, either via rape or mutual interest (see Mishna on 97a).  Rabbi Yehuda prohibits marriage to this woman and the Sages permit it.

The argument revolves around how to interpret the metaphoric phrase in Devarim 23:1, to not “reveal his father’s wing”. It could mean like a cloak, and thus a reference to shaming the father by engaging with the same woman as he. In effect, stripping him naked, thus revealing his “wing”. That is how Rabbi Yehuda understands the verse. The Sages interpret the metaphor of “wing” to be referring to someone who is on the verge of entering under his care. This is referring to a shomeres yavam, that is a woman to whom the father is obligated to perform Yibum or chalitza. This woman is “under his wing”, and the verse prohibits the son to be sexual with her. (See Haksav BeHakabbalah ibid.)

While we are discussing anusas aviv, we know that Reuven was distanced by his father because he sinned with his father’s concubine, Bilha (Bereishis 35:22 and 49:4). While the verse states Reuven lay with Bilha, the Gemara (Shabbos 55b) maintains he did not actually sin, but rather the verse judges Reuven harshly for mixing into his father’s marital affairs, and thus considers it as if he actually slept with her. Other commentaries still understand the verse literally, such as Radak, but mitigate Reuven’s sin because Reuven thought Bilha not to be a true wife, because she was a concubine. If so, then Bilha would have the status of anusas aviv, and technically be permitted. 

The Parashas Derachim 1:23 (Rabbi Yehuda Rosanes 1657-1727, also known as the Mishna Lamelech) explains Reuven’s actions with an interesting Midrash that hinges on this prohibition. 

The Midrash Rabbah (98:8) tells us that Yaakov was ambivalent about Reuven and says, “I will neither distance you nor draw you near. I will hold the matter in abeyance until Moshe comes along, and he will do with you as he decides.” In the end Moshe drew Reuven near, as the verse states (Devarim 33:6), “Let Reuven live.”

The Midrash can be understood as cleverly referencing the prohibition of anusas aviv. If Yaakov and his son’s had a status of Jews, then Bilha, who was a concubine, would not be considered married to Yaakov. There was no Kiddushin. Therefore, Bilha would only be anusas aviv, not the eshes aviv. However, if Yaakov and Reuven were considered to be Gentiles, Bilha was as married to Yaakov as Rachel was, and the prohibition on Bilha was that of his father’s wife. For gentiles, marriage is not accomplished through kiddushin, bit rather an agreement for monogamy and exclusivity. A concubine and wife are therefore of the same status. So Yaakov could be seen as shrugging, telling Reuven, “Once we get to Moshe’s time, he will determine us to be Jews and then you can be let off the hook.” 

That is one possible peshat, but Parashas Derachim takes it further in an even more clever way. There is another Midrash (Shemos Rabbah 1:33) where Moshe consults with the angels to determine if he is permitted to slay the Egyptian who was hitting the Jew. What was the discussion? According to the Parashas Derachim, the issue is what status did the Jews have prior to the receiving of the Torah. If the Jewish people were considered as Gentiles, then the Egyptian did not deserve such a severe punishment of death. But if the Jews were already considered Jewish even before the Torah was given to them, this extra status worsened the crime of the offender and thus he incurred the death penalty. The Angels gave Moshe the green light and authorized the kill, in fact stating that since Avraham’s time, the Jews had a status of Jews.

Having said that, we now understand why Yaakov deferred a determination of Reuven’s status until Moshe’s time. Moshe himself would be the one to bring to light this idea that Kedushas Yisrael was active even from Avraham’s time because his killing of the Egyptian also hinged on this idea. If so, Bilha was not a wife, and though Reuven acted inappropriately, technically it was not the sin of adultery nor sleeping with the father’s wife.

These kinds of pilpul may seem tortured defenses for what in the end was still inappropriate behavior. Yet, you do have to marvel at the incredible lomdus and legal sophistication involved in these discussions. The ultimate question is how does it make us better people? According to the Jewish tradition, delving into deep analysis of the roots of the law bring us closer to God. How does this work? Perhaps we take for granted what it takes to maintain the sanctity and observance of the Torah for millennia. Deep analyses, even pilpulistic explanations of seemingly simple stories breathe life and greater dimensions to the Torah. In tomorrow’s Daf, we shall see even more breathtakingly clever pilpul and derash. 

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

Do you like what you see? Please subscribe and also forward any articles you enjoy to your friends, (enemies too, why not?)