Taking Precedent Seriously 43
Rav Nachman responded:“In a case such as this, we certainly require the divorce.”
The woman argues that although the commandment to“be fruitful and multiply” does not apply to her, there are other good and legitimate reasons for her to want children. A child will serve her as a“staff,” as a support in her old age, and will see to her burial when the time comes.!?® Rav Nachman’s answer, meanwhile, is more than just a sympathetic response to an emotional plea. By listening to the“woman’s voice” in this case, he redefines the law, re-ordering the conceptual framework within which it adjudicates her claim. Until now, the relevant issue in evaluating the claim for divorce in cases of childlessness was the mitzvah of procreation. A husband may divorce an infertile wife, because her infertility frustrates his performance of that mitzvah. A wife is not entitled to a divorce from an infertile husband, because“you are not obligated”; she has no such mitzvah to perform and hence cannot demand a divorce. Here, however, the court accepts her desire for children as in and of itself a legitimate justification for divorce, even though she is under no halakhic requirement to procreate.
Rivash , too, expands the existing law beyond its explicit limits. Rav Nachman’s ruling concerns a woman's desire for offspring; it says nothing about a woman's“right” to a husband apart from the possibility that she may bear children from him. The phrase“a staff for support and a hoe for burial” refers in the Talmud to children and not to a husband. By citing that phrase here, applying the Talmud ’s language to the present case, Rivash removes it from its original context and lends it a more general meaning. If a woman is entitled to a“staff” and a“hoe” in her old age, it now follows that this support may come from a spouse as well as from children. Her“right”to children now includes her“right” to a husband, even when she is too old to bear children from him. This“right,” moreover, is sufficient to permit the marriage even though the union will frustrate the husband’s fulfillment of the mitzvah of procreation. Rav Nachman’s ruling, of course, says none of this, yet Rivash presents his conclusion as a logical derivation from it. His conclusion provides a legal justification for the practice of the courts to allow marriages such as that contemplated in our case. This marriage is acceptable, in other words, not simply on the grounds of min