More on the schools of R. Ishmael and R. Akiva.

When thou goest forth to battle against thine enemies, and HaShem thy G-d delivereth them into thy hands, and thou carriest them away captive,

and seest among the captives a woman of goodly form, and thou hast a desire unto her, and take her to thee to wife;

then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;

and she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast pained her (Devarin 21, 10-14).

The book of Devarim contains an unusual law – that of a captive woman who is taken by a victorious solder to be his wife. The passage above is duplicative in that seems to present two different time periods when the marriage takes place.

• … and thou hast a desire unto her, and take her to thee to wife;

• … and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

One can take the first statement as an introduction and the subsequent sentences as a list of steps that flesh out the introduction. Alternatively, the first statement is the command and the last one is a summary or conclusion. The difference between these two approaches is that according to the second one, the decision to take the captive woman as a wife is taken at the outset; according to the first one it is taken only after she is brought into the house and the procedures are all completed.

The marriage is effective through intimacy. According to the second approach, the soldier may take the woman at the very beginning. If he chooses to continue, he brings her into the house and then follows the outlined procedure. After that, he can be intimate with her on a long term basis as man and wife. According to the first approach, intimacy must be postponed for a month until the point of the decision, after all the steps have been taken. It is at that point, that he decision is made and the marriage becomes effective through the intimate act or the women is sent out to freedom.

What makes the job of the interpreter more difficult is Torah's delicacy in describing intimacy. Several euphemisms appear in the passage, desire, take, becoming a husband, bringing into the house, going unto her, and it is not clear which ones refer to what.

It is not surprising then that the Sages disagree about this point. We find a number of contradictory statements about it in the two Talmuds, Mekhilta, Sifri and Targumim. On careful reflection, it becomes apparent that the two approaches stem from the two Tannaitic schools that we have discussed on several occasions, that of R. Ishmael and that of R. Akiva, and that the approaches of these two schools are consistent with their general approach to interpretation.

The seminal passage is this one from the Yerushalmi Makos 2, 6.

R. Yochanan sent a message form there: ‘Two things you say in the name of Rav and it is not so… You say in the name of Rav that only the first act on intimacy is permitted with the captive woman but I say – not the first and not the second but only after all the thnigs in our passage are done. Then, “and he shall come unto her and become her husband”[1].

Talnud Bavli Kiddushin 21b expectedly follows the view of Rav whereas in the Mekhilta (Midrash Tannaim 128) R. Yoshia and R. Yonason diagree whether the prohibition to not “deal with her as a slave” becomes operative after the month waiting period and before intimacy or only after intimacy. They both represent the view of R. Yochanan, who, after all, was their student.[2] Rebbi, on the other hand maintains that intimacy is permitted at the first encounter [3].

R. Dovid Tsvi Hoffman in his commentary to Devarim points out that this dispute divides nicely along the lines of the schools of R. Ishmael and R. Akiva. R. Yoshia and Yonason were students of R. Ishmael whereas Rebbi belonged in the school of R. Akiva [4]. As we had pointed out previously the two Tannaim disagree in their approach to interpretation. To R. Ishmael one must “listen” to the text through the prism of received methods of interpretation. He is generally content to leave received traditions unconnected to the text. R. Akiva tends to use the text as textual support of the received traditions, even at the expense of literal interpretation.

We thus again see how understanding these two great interpretative tradition can assist as in understanding the exegetical problems and to clarify disparate Rabbinic texts.