When Should One Divorce?

The Talmud mentions1 several opinions regarding when it is appropriate for a man to divorcehis wife:

The School of Shammai say: “A man should not divorce his wife unless he discovers immodest conduct....”

The School of Hillel say: “[He may divorce her] even if she [intentionally]2 spoiled his food.”

Rabbi Akiva says: “[He may divorce her] even if he finds another one who is more attractive, as it is written:3 ‘If she does not find favor in his eyes....’ ”

Although there are some exceptions,4 the School of Hillel generally rule more leniently than the School of Shammai. For the souls of the School of Shammai stem from the attribute of judgment, which tends toward stringency and view many things as unable to be elevated. Therefore they may not be used in our Divine service.

The souls of the School of Hillel, by contrast, stem from the attribute of kindness, which seeks to find that spark of good in every entity that allows it to be elevated to the realm of holiness.5

On one hand, permission to divorce one’s wife is a leniency. Nevertheless, it is not an expression of the attribute of kindness. Divorce stems from rigor and severity, and leads to distance and division.6 The attribute of kindness, by contrast, is identified with love and opposes divorce. Why then does the School of Hillel make the process of divorce more accessible than the School of Shammai?

A similar question can be asked with regard to Rabbi Akiva. He is also identified with kindness, as reflected in his efforts to seek the merit of the Jewish people.7 Why does he allow for divorce even when a husband finds another woman more attractive than his wife?

These questions become even stronger when we consider that the relationship between men and women is an analogy for the relationship between G‑d and the Jews.8 The opinions of the School of Shammai, the School of Hillel, and Rabbi Akiva thus have implications in our people’s relationship with G‑d.9

With regard to the spiritual counterpart of divorce, the willingness to countenance such a drastic measure is surely an expression of the attribute of judgment. Why then do the School of Hillel rule more stringently than the School of Shammai? And why does Rabbi Akiva, who seeks the merit of the Jewish people, rule that even when there are no shortcomings in a woman’s (i.e. a Jew’s) conduct, her husband (G‑d) may divorce her if He so chooses?

Fulfilling One’s Personal Mission

The relationship between men and women serves as an analogy, not only for the bond between G‑d and the Jewish people, but also for the relationship between the body and soul. The soul is “an actual part of G‑d”10 and therefore is referred to as “a man,” while the body — and by extension, a person’s mission in the world at large — is referred to as a woman.11

Every soul has a mission which it was charged to fulfill in this world.12 And “the steps of man are ordered by G‑d.”13 Wherever a Jew is found, he must realize that he was sent by Divine Providence as part of his or her mission to make the world a dwelling for G‑d.

Even when confronted with difficulties in his path of Divine service, including some that make it appear that another path will enable him to achieve more, a person should not necessarily abandon his original course. It is the path which Divine Providence has granted him; this is his mission.

As mentioned above, a soul and its mission can be described using the analogy of a husband and a wife. On this basis, we can explain the differences of opinion between the Sages mentioned above. The question is: When should one abandon — divorce — one’s mission to refine one’s portion of the world and accept another mission?14

The School of Shammai maintains that “a person should not divorce his wife unless he discovers immodest conduct....” Regardless of the obstacles he faces, one may not abandon the path of Divine service with which he has been charged. He should not be troubled by the obstacles he faces, for if he perseveres, he will ultimately succeed.

When should he change? When there is “immodest conduct” — a clear directive from the Shulchan Aruch that he is forbidden to continue in this path of Divine service (just as when a woman acts immodestly, her husband is forbidden to remain married to her). In such an instance, one must find a different path of service.

(His previous path of service will then be allotted to another soul. This is also alluded to in the Torah, which states15 that the divorced woman “will become the wife of another man.”)

The School of Hillel are more lenient, allowing a person to pick a new path of Divine service when “his food is spoiled.” The implication is that not only is the person not successful in his mission to refine his portion of the world, but “his food,” the spiritual attainments of the soul, have become spoiled. In such an instance, one may accept another path of Divine service.

Rabbi Akiva maintains that divorce is possible “even if he finds another one who is more attractive.” Even when there is no lack in a person’s service, nor a deficiency in his internal powers, if his path of Divine service “no longer finds favor in his eyes,” i.e., he has lost his zeal for it, he may accept another. (חן, translated as favor, relates to the attribute of pleasure, and refers to a person’s encompassing powers.16 )

Rabbi Akiva’s rationale is that a Jew must carry out his Divine service with joy.17 Therefore when he lacks zeal, he can exchange his previous path for one which he finds more attractive.

Beyond the Measure of the Law

The halachah follows the opinion of the School of Hillel.18 This means that when a person’s Divine service does not lack anything, but he has lost his zeal for it, he may not abandon his path. But if “his food is spoiled,” and his previous attainments are being marred, the law allows him to seek another path.

This, however, reflects merely the letter of the law. Our Sages state:19 “Whenever a man divorces his first wife, even the altar sheds tears for him,” and20 “How difficult is divorce!” The implication is that a person should persevere in the path of Divine service with which he was charged21 to the limit of his endurance.

Even if he has divorced his wife (that is, if he abandoned his previous path of Divine service) he should remarry her, returning to take up his burden again.22

Moreover, even if “he discovered immodest conduct,” it is not fitting for him to hurry to divorce his first wife.23 Instead, he should investigate the matter thoroughly to see whether or not there was in fact immodest conduct.

In the analog, this means that even if it appears to him that Torah law requires him to abandon his previous path of Divine service, he should not make the decision hastily. Perhaps he is being influenced by self-love, and it only appears to him that another path of Divine service would be easier. When he investigates the matter, he may realize that it is preferable for him to persevere. And when he dedicates himself to the matter with all the powers of his soul, then as a result — “when a man and a woman merit, the Divine Presence will rest between them,”24 in the analog, the soul will merit the consummation of its service, the establishment of a dwelling for G‑d in this world.

(Adapted from Sichos Chof Menachem Av, 5719)

An Insight Into the Alter Rebbe’s Shulchan Aruch

Parshas Ki Seitzei also contains the command:25 “Do not muzzle an ox while it is threshing,” which prohibits preventing an ox — or any other animal26 — from eating the grain it is threshing.

The Alter Rebbe’s Shulchan Aruch (printed by the Mitteler Rebbe and his brothers) spells out the laws involved in this prohibition. The last law states:

When cows are passing over grain while taking a shortcut [to another field], a person does not transgress the prohibition “Do not muzzle” if he muzzles them. Although as a matter of course, the grain is threshed as they pass over it, since this is not his intent, [no prohibition is involved]. The same applies in other similar instances.

As mentioned on several occasions, the wording used by the Alter Rebbe in his Shulchan Aruch is very precise. By carefully analyzing his phrasing, it is possible to gain new insights.

The source for the Alter Rebbe’s ruling is a teaching of the Rambam which states:27 “When cows are passing over grain while taking a shortcut, a person does not transgress the prohibition ‘Do not muzzle’ [if he muzzles them].” The Alter Rebbe, however, makes several measured additions to the Rambam’s wording.

a) The phrase “although as a matter of course, the grain is threshed as they pass over it” is not found in the Rambam’s words. The reason for the addition can be explained as follows: It is possible to interpret the Rambam’s words as meaning that the leniency is granted only when the cows do not thresh as they passed over the grain.28 (Even this would be considered a leniency; since the cattle are going to thresh in another field, one might think that passing through this field would also be considered part of the task of threshing, and it would be forbidden to muzzle them.) The Alter Rebbe makes the above addition29 to make it clear that the leniency includes even an instance when grain is threshed as they pass.

b) The rationale the Alter Rebbe gives — “since this is not his intent” — is not mentioned by the halachic authorities of previous generations. For example, the Ramban30 quotes the Jerusalem Talmud,31 which states that the prohibition applies “while ‘threshing,’ and not while passing through.” It appears that the Alter Rebbe considers the prohibition, not as a “Scriptural decree,” but as a teaching motivated by a rationale, “since this is not his intent.”

c) The Alter Rebbe concludes with the phrase: “The same applies in other similar instances.” Apparently, these words come to complement the concept mentioned previously: that the leniency does not come about because of a “Scriptural decree,” but because the person acted unintentionally. And so, the Alter Rebbe continues, whenever a person acts unintentionally, he is not held liable.

This concept is a matter of debate among the halachic authorities. The Sheiltos D’Rav Achai Gaon states32 that only with regard to the laws of Shabbos is a person not held liable for committing a transgression unintentionally. With regard to the Shabbos laws, we find the principle:33 “It is thoughtful labor which the Torah prohibited.” When a person performs an act unintentionally, he has not performed “thoughtful labor,” and therefore is not held liable.34 With regard to other prohibitions, by contrast, even when a person does not perform an act with the intent of violating a Torah prohibition, if such a violation occurs, he is held liable.

Most halachic authorities maintain that even when a person violates other prohibitions unintentionally, he is not liable. This is the intent of the Alter Rebbe’s phrase “The same applies in other similar instances.”

What Constitutes an Unintentional Activity

A person is not held liablefor an action performed unintentionally only when that action does not necessarily cause the prohibition to be performed. When, however, he intentionally performs an act which will inevitably cause a prohibition to be transgressed, he is held liable. To cite the classic example employed by the Talmud:35 It is forbidden to slaughter an animal on the Shabbos. Even when one does not desire to slaughter a chicken, but wants to cut off its head for another reason, one is liable for slaughter. For when its head is cut off, it will surely die. It thus cannot be said that it was slaughtered unintentionally.

According to this principle, a difficulty arises. In the instance cited by the Alter Rebbe, although the person who causes the cows to pass over the field did not intend that they thresh the grain, it is inevitable that the grain will be threshed. Should he not therefore be held liable for muzzling his cows?

This leads to a redefinition of the above concept. When is a person who does something that inevitably leads to a violation of the law liable? When the activity he himself performs causes the violation. For example, when a person drags heavy furniture over the ground, it will surely leave a groove. Although he did not intend to dig that groove, it is inevitable that the activity will cause the groove to be dug, so it is considered as if the groove was dug intentionally.36

Similar concepts apply to other prohibitions. For example, it is forbidden for a person afflicted by tzaraas37 to remove a mark of that malady. If such a person has such a mark on his shoulder, and carries a rod which will certainly remove that mark, one might think that he is liable, even though he did not intend to remove the mark. Therefore a special teaching is necessary38 to tell us that carrying a rod is permitted in such an instance. Although his intention was not to remove the mark, since carrying the rod would inevitably bring about the mark’s removal, it cannot be said that he did not intentionally remove it.

A distinction can thus be made with regard to the muzzling of cows mentioned above. In this instance, the activity which will inevitably be performed does not involve muzzling (which constitutes the prohibition), but rather threshing. The threshing itself is permitted; the Torah merely tells us not to muzzle an animal while it is threshing. Since the threshing itself is not prohibited, the conception of an inevitable activity does not apply, and the threshing is considered unintentional. Therefore the prohibition against muzzling is not violated.39

The above leads to a new definition of the Alter Rebbe’s words. To explain: Just as there is a prohibition: “Do not muzzle an ox while threshing,” there is also a prohibition: “Do not thresh with a muzzled ox.”40 Based on the above, it would appear that only when a person muzzles his cows as they are passing over grain is he not liable for threshing with a muzzled cow, because the cows are passing over the grain without an intention to thresh it. For then the cows are walking on their own initiative, [it is not he who is causing them to walk]. But if he muzzled the cows beforehand, and then caused them to walk over grain, it is inevitable that a forbidden activity will be performed. Therefore one commits the transgression even though one had no intention to thresh.

One might ask: why doesn’t the Alter Rebbe spell this concept out explicitly? Why doesn’t he say that it is only when one muzzles the cows afterwards that one is not liable?

It is possible to explain that in his Shulchan Aruch, the Alter Rebbe follows the pattern established by the Rambam in the Mishneh Torah. Rarely — except in the relatively few instances which he states “It appears to me” — does the Rambam mention laws at which he arrived through his own deductive reasoning. It is true that the Alter Rebbe, unlike the Rambam, adds the motivating principles for the laws, and this allows for several new laws to be derived. He does not, however, mention those new laws explicitly.

For this reason, he does not explicitly state the implications of muzzling cows before they start walking or afterwards;41 he merely states the reason one is not liable — because one’s act is performed unintentionally.

Together with the motivating principle, the Alter Rebbe also adds the phrase: “The same applies in other similar instances,” teaching that whenever one violates a transgression unintentionally, one is not liable. This statement allows for inferences to be drawn in both directions. Just as it teaches that a person who unintentionally violates other transgressions is not liable, it implies that the definitions of unintentional activity as applied to other prohibitions also apply to the prohibition against muzzling oxen. And thus we can understand that whether or not the prohibition applies depends on whether the cows were muzzled before they tread on the grain or afterwards.

The Advantage of Analytic Study

As mentioned above, we must study the Alter Rebbe’s Shulchan Aruch in detail, thinking deeply about the wording he uses42 and assessing the meaning of his phrasing. This will lead to many new insights both regarding the halachah at hand and other related — and seemingly unrelated — concepts. For example, in the law mentioned above, the Alter Rebbe conveys several concepts in the measured words he chose:

a) The person does not transgress the prohibition despite the fact that the grain is threshed.

b) The reason he is not liable is because the act was performed unintentionally.

c) He is not liable only when it is not inevitable that the grain will be threshed.

d) The concept that one is not liable for a transgression violated unintentionally applies, not only with regard to the laws of Shabbos (asstated in the Sheiltos), but also with regard to all the prohibitions in the Torah.

May G‑d grant that we study the Alter Rebbe’s Shulchan Aruch and the Tanya in depth, particularly in the present year, the 150th anniversary of his passing. This applies to the study of Nigleh, the revealed dimension of Torah law, and Chassidus. May we labor in Torah study, employing our three intellectual faculties: Chochmah, Binah, and Daas. And then we will merit the fulfillment of our Sages’ promise:43 “If you labor, you will discover.”

The word “discover” implies that a person will receive incomparably more than he invests. For a discovery cannot be attained through effort. Instead, “a discovery comes when one’s attention is diverted.”44

Indeed, the Torah will then be granted to the person as a present, and become his eternally. In this vein, we find a teaching of our Sages:45 Before G‑d gave Moshe the Torah as a present, he would forget. Once He granted him the Torah as a present, however, he did not forget.

Tying the End to the Beginning

It is Jewish custom to connect the end of a Torah text46 with its beginning.47 The Alter Rebbe’s Shulchan Aruch begins with the laws of rising in the morning, stating:48

Yehudah ben Teima says:49 “Be bold as a leopard, light as an eagle... to carry out the will of your Father in Heaven.”

Herein lies a connection to the conclusion of the Alter Rebbe’s Shulchan Aruch. As mentioned above, the last words, the phrase “the same applies in other similar instances,” teaches that a person’s freedom from liability for an unintentional violation is not a Scriptural decree applying only to muzzling an animal, or only with regard to the laws of Shabbos, but rather is a general principle applying to all Torah prohibitions.

There is a difference of opinion among our Sages as to whether having the proper intention when fulfilling mitzvos is an absolute imperative, or if it is acceptable, after the fact, that mitzvos are fulfilled without the proper intent.50

According to most authorities,51 there are certain types of mitzvos which — after the fact — do not require52 an intention to fulfill the mitzvah.53 Furthermore, there are some mitzvos which a person fulfills even when compelled to perform them against his will.

This indicates that there is a fundamental difference between a mitzvah and a transgression. When a person violates a prohibition unintentionally, he is not considered to have transgressed, while when he performs a mitzvah unintentionally, he is still considered to have fulfilled the mitzvah.

Why is there a difference? Moreover, if a difference exists, one would think that the opposite would be true. Mitzvos areacts of connection to G‑d, binding both the person who fulfills them and the physical objects employed. A transgression, by contrast, separates the person and the objects involved from G‑d.

Physical entities — and the body and animal soul of a Jew54 — are under the dominion of kelipas nogah, the spiritual gestalt dominating our world, which is primarily — so much so that one can almost say entirely — entirely evil.55 Thus the body and material existence are closer to evil than to good.

It would appear that to separate material entities from G‑dliness is far easier than to establish a connection with Him. Why is it that to create separation an intent is necessary, while a connection with G‑d can be established without having any intention?

This question is resolved by the Alter Rebbe’s words at the beginning of the Shulchan Aruch: “The Laws of Rising in the Morning: Be bold as a leopard... to carry out the will of your Father in heaven.” When a Jew begins his day by reciting Modeh Ani and thus establishing a connection with G‑d, he causes that connection to encompass the entire day. Therefore even if he does not intend to perform a mitzvah at another time during the day, the bond with G‑d established through the performance of the mitzvah is effected by the commitment he made at the beginning of the day.

To cite a parallel: Before consecrating a woman, a man must declare his intent, telling her that he is consecrating her by giving her a coin (or an article worth money). If, however, a man and a woman were discussing marriage before he gave her the coin, and he gave it to her without making an explicit statement, the consecration is effective.56 We assume that his act is an expression of the statements made previously.

This motif does not apply with regard to transgressions. As long as a person does not intend to perform the transgression, he is not considered to have sinned. Firstly, his deed lacks the intent that causes it to be considered a sin; it is like a body without a soul.57

Moreover, since the person began his day by saying Modeh Ani or the like, there is a subconscious motivation leading him away from sin all day. For this reason, an unintentional act cannot be considered a sin. To cite a parallel: Even those opinions which maintain that after the fact it is not necessary to have the intention of performing a mitzvah agree that if one has the opposite intent — i.e., if one intends to not perform the mitzvah while in fact performing it — one has not fulfilled his obligation.58

To apply the above concept with regard to a transgression: The commitment to serve G‑d made at the beginning of the day continues throughout the day. Thus if one unintentionally transgresses, it is not considered a sin, because the underlying intent of all one’s actions is to serve G‑d.

Of Universal Relevance

A question, however, arises: The laws that state that by performing the deed, one is considered to have fulfilled a mitzvah even though one did not intend to do so, and that one is not liable for a transgression which is performed unintentionally apply to all Jews, even those who do not begin their day by making a commitment to serve G‑d. How can we explain the difference between mitzvos and transgressions for such individuals?

We can understand why such a person is not liable for performing a transgression unintentionally. Although his general approach is that of rejecting the yoke of G‑d’s mitzvos, that underlying approach is not considered to motivate any particular act (as explained above with regard to the consecration of a woman). For there is no unity in the realm of kelipah, and every action is considered isolated from every other.59

Why, however, is a person whose general approach is not to accept G‑d’s will considered to have fulfilled a mitzvah when he performed the deed without any such intent? Seemingly, it is inappropriate to say that his underlying intent is to fulfill G‑d’s will.

Such a perspective fails to recognize the true nature of a Jew. The inner desire of every Jew is to do good.60 Although this desire may be hidden in the subconscious, it still motivates the person’s conduct.61 Therefore, the motif described above with regard to the consecration of a woman can be said to apply here as well.

To cite an example: When a priest offers a sacrifice without the proper intent, the sacrifice is acceptable because “the heart of the court has their intent in mind.”62 Since every Jew shares a connection to the court and its rulings, the intent of the court is sufficient, and it is considered as if the priests had this intent themselves.63

Following this pattern, it can be explained that proper intent is not necessary when performing a mitzvah becauseevery Jew shares a connection to his spiritual core. Therefore even when he performs a mitzvah without proper intent, he is giving over his inner will to G‑d and establishing a connection between Him and his body.

To state the most cosmic expressions of this motif: At present, we are consecrated to G‑d. This bond will have a continuing effect, leading to the ultimate marriage, the fulfillment of the prophecy:64 “On that day... you shall say ‘My Man,’ and you will no longer say ‘My Master,’” with the coming of Mashiach in the immediate future.

(Adapted from Sichos Chof Daled Teves, 5723)