Morality, Money, and the Marriage of Minors

The study of Gemara has connected Jewish people across time and space for centuries. Through our learning, we encounter and learn from rabbis living in a time and place that is very different from our own. Properly understood, the Gemara raises important questions that affect our interpretation of the social and cultural worlds in which we live. It does so against the background of generations of texts that serve as the basis for Jewish values and practice, broadening our understanding of Torah and the world. Sometimes, the fusing of these horizons is readily accessible. In some sugyot, the cultural differences described in the Gemara raise significant questions for the yeshiva high school student and the teacher as well. Too often, when this occurs, we are all too ready to attribute this dissonance to an unbridgeable distance between ourselves and the sacred world of the Gemara. We quickly read through those lines until we reach the more readily accessible text. In the Faculty Beit Midrash at Machon Siach, we become purposeful and deliberate when we experience such challenges. The tension embodied in a few difficult lines of Gemara often provides an opportunity to broaden our understanding of the human experience through our learning. To achieve this in our classrooms, teachers must anticipate the questions that our students will ask upon encountering the sugya. Anticipating these questions can shape the way that we, as teachers, learn the Gemara; it shines a light on what we must understand in order to explain the sugya to ourselves and our students.

Learning Masekhet Kiddushin in the high school classroom we encounter Chazal’s perspective on many aspects of Jewish marriage. Sometimes this opens us to aspects of the marital relationship that are less prominent in contemporary culture. For example our students are raised in an environment where love between two people is the most prominent and perhaps the most valid reason for marriage. Chazal’s view pushes us to appreciate for example that marriage also contains an economic component the long term security of the partners to the marriage. Sometimes Chazal’s (or the Torah’s) view challenges our sensibilities in a way that is difficult to comprehend. The small sugya of the parent betrothal of a minor daughter (קידושי קטנה) is such an example.¹ The analysis of the sugya draws on the Kiddushin curriculum developed by Shaul Baruchi and Yeshivat HaKibbutz HaDati commissioned by SAR High School in 2008. The Gemara (Kiddushin 41a) states:

האיש מקדש את בתו כשהיא נערה. כשהיא נערה אין כשהיא קטנה לא; מסייע ליה לרב דאמר רב יהודה אמר רב ואיתימא רבי אלעזר: אסור לאדם שיקדש את בתו כשהיא קטנה עד שתגדל ותאמר בפלוני אני רוצה.

A man can betroth his daughter when she is a young woman. When she is a young woman, yes, when she is a minor, no, This supports Rav, as Rav Yehuda says that Rav says, and some say it was said by Rabbi Elazar: “It is prohibited for a person to betroth his daughter [to a man] when she is a minor, until such time that she grows up and says: ‘I want [to marry] so-and-so.’”

Upon mining the Torah for information regarding Jewish marriage, its requirements and rituals, we are surprised to find that there is no specific unit in Chumash dedicated to explicating the laws of Jewish marriage. That work, therefore, is left to the Rabbis, as we find throughout Midrash Halakha and Masekhet Kiddushin. The pesukim that serve as their sources are located in units focused on divorce, the female Jewish servant, rape, seduction, and libel.² Shemot 21:7-11, 22:15-16, Devarim 15:12-18, 22:13-29, 24:1-5 It is clear in four of those units that the father of the bride has the right to marry off his daughter; he is the legal party in the transaction. In addition, there is no clear delimitation of the age of the bride. The text assumes that a father is permitted to marry off his minor (and perhaps older) daughter to the groom of his choice. The Sifrei derives this from the language of the pasuk and this is codified in Mishneh Torah.³ Sifrei Devarim 235; Rambam, Hilkhot Ishut 3:11 reads:
האב מקדש את בתו שלא לדעתה כל זמן שהיא קטנה. וכן כשהיא נערה רשותה בידו שנאמר “את בתי נתתי לאיש הזה” (דברים כב טז). While this rule challenges our contemporary ethical mindset, it is, nonetheless, the Torah law.

אסור לאדם שיקדש את בתו כשהיא קטנה

It is thus surprising (and perhaps reassuring) to find that Rav states that a father is prohibited from marrying off his minor daughter. According to Rav, the father must wait until the daughter reaches the age of halakhic adulthood, twelve years old.⁴ According to Chazal, the naara period is from 12 to 12 and a half years of age; the independent bogeret stage begins at 12 and a half. Students, of course, will find this to still be extremely young for marriage. The age of majority in halakha is, at 12 and a half years old, still well below our contemporary legal statutes. Two things may be said to respond to this concern. First, marriage at 12 and 13 was not uncommon even a century ago. Ages of maturity can be different during different time periods. Second, Israel’s Marriage Age Law of 1950 prohibited marriage under the age of 17. Chief Rabbis Herzog and Uziel, cited below, prohibited marriage under the age of 16, an acknowledgement of the shifting risks and dangers of premature marriage.
How can Rav proclaim as prohibited that which the Torah and the Gemara explicitly permit?⁵ Ketubot 46b. This question focuses our attention on a textual moment that can serve as a paradigmatic example of halakha and change in the Talmud. As teachers, we are obligated to carefully consider how best to address this question. Too often, it remains unaddressed in class or shiur, as it appears to be peripheral to the content of the sugya itself. In fact, however, it goes to the heart of this small sugya and is of enormous significance to our students.

Let’s begin by considering the complete memra of Rav:

דאמר רב יהודה אמר רב ואיתימא רבי אלעזר אסור לאדם שיקדש את בתו כשהיא קטנה עד שתגדל ותאמר בפלוני אני רוצה.

As Rav Yehuda says that Rav says, and some say it was said by Rabbi Elazar: “It is prohibited for a person to betroth his daughter [to a man] when she is a minor, until such time that she grows up and says: ‘I want [to marry] so-and-so.’’

I ask students, has Rav actually changed the law? Their instinctive reaction is that Rav has changed the law. The Torah permits child marriage and Rav prohibits it. And yet, Rav does not have the power to change Torah law!⁶Although Yevamot 89b-90a teaches that יש כח ביד חכמים לעקור דבר מן התורה בשב ואל תעשה that is not the path taken by Rav. Exploring the parameters of that rule is beyond the scope of this paper and of the high school Kiddushin classroom. Upon further consideration, we realize that, in fact, the marriage is still valid according to Torah law. Rav does not invalidate the marriage; he has changed the practice.⁷ As we will see below Rashi is precise about this distinction. Rashba (s.v. כשהיא נערה) also states that if the father does betroth the minor daughter the marriage is valid according to Rav. Avraham Grossman cites two Geonic sources suggesting that the marriage of minor daughters was not only prohibited but void. See his: Pious and Rebellious: Jewish Women in Europe in the Middle Ages (Jerusalem: Zalman Shazar Center 2003) 67-73 [Hebrew]. It is important to note that, in some definitions of law, changing communal practice without formal legislation is itself changing the law. Jewish law, with its distinctions between Torah and Rabbinic law, de’orayta and derabanan, opens a space between Torah law and actual practice. I thank Shlomo Zuckier for the question of definitions of law. If a father did marry off his minor daughter, she would be married according to the Torah law. Rav does not have the power to overrule that. In legislating that one should not marry off his minor daughter, Rav is limiting a practice that is permitted according to Torah law, but he has not changed the Torah law. In this way, Rav ⁸See Kiddushin 12b where Rav prohibits betrothal in the marketplace, through sexual intercourse or without financial commitment. All of these can be read as attempts to minimize the trafficking or self gratification elements of the betrothal. has found a way to elevate the ethics of Jewish marriage.⁹ Biblical sources clearly assume the father’s rights over his children, including marrying off his daughter, invalidating her vows and receiving certain payments due to her. While the Rambam (Hilkhot Ishut 11:6) interpreted that the father’s right to marry off his daughter was only in the best interest of the daughter, that is a matter of debate among scholars. We should not shield our students from the plain meaning and implications of Tanakh, Mishnah or Gemara. We can help them see the ways that practices have changed and texts have endured through various mechanisms of interpretation and changes of practice, both of which are reflected in this sugya. Drawing on a description of Yehiel S. Kaplan, we might say that Rav changes practice “from the inside,” in effect raising the ethical stance while maintaining the eternity of the Torah.¹⁰Yehiel S. Kaplan, A Father’s Consent to The Marriage of His Minor Daughter: Feminism and Multiculturalism in Jewish Law, Review of Social Law and Justice Vol. 18:2, pp. 393-460. For the internal-external distinction, see pages 398-403. Kaplan describes two approaches to social change in traditional societies, focusing on the example of marriage of a minor daughter in different religious societies. The external approach seeks to change the practice by appealing to universal norms and rights as defined by the dominant culture. From the perspective of the traditional, religious community, this approach is an imperial intrusion from an outside culture. Kaplan favors an internal approach, one that uses interpretation as a mechanism through which religion itself and the interpretation of its texts can be the source of human rights and abolish discriminatory practice. Rav prohibits the betrothal of minor daughters although he has not invalidated the betrothal should it occur. In class, this can serve as an opening for a discussion of how practice can change while maintaining the integrity of the sacred text. As we will see below, textual interpretation also achieved this balance, maintaining the sanctity of the authoritative text while allowing the practice to internally evolve.

מסייע ליה לרב

For Rav, the innovation was legitimate and could stand alone; for the Stam, it is apparently important to find a textual hook that roots the innovation in the Mishnah. When reading quickly, students assume that Rav derived his statement from the language of the Mishnah. It is important to highlight that the proof from the language of the Mishnah is not part of Rav’s statement. Rather, the Gemara, recognizing the extent of Rav’s innovation, suggests that the language of the Mishnah supports Rav’s idea. The Torah permits child marriage. Rav, in practice, prohibits it. The Stam therefore attempts to use our Mishnah as an earlier source in support of Rav’s ruling.

כשהיא נערה אין כשהיא קטנה לא

The Mishnah states that a father can marry off his daughter who is a naara via proxy. Why does the Mishnah single out the naara if in fact the father can betrothe his daughter when she is a minor or when she is a naara? The Gemara infers from the language of the Mishnah כשהיא נערה אין כשהיא קטנה לא that he may do so only when she is a naara. If she is a minor he should not betroth her.¹¹Whether the word אסור connotes that a father ideally should not halakhically should not (לכתחילה) or halakhically can not (בדיעבד) betroth his daughter is explored below.

Is this a reinterpretation of the Mishnah or is this what the Mishnah intended?

The Stam of the Gemara suggests that the language of the Mishnah supports Rav’s idea. I say to students: “let’s return to the text of the Mishnah and read it again.” The Mishnah specifies that a father can betroth his naara daughter either himself or via a proxy. I ask my students to read The Stam of the Gemara suggests that the language of the Mishnah supports Rav’s idea. I say to students: “let’s return to the text of the Mishnah and read it again.” The Mishnah specifies that a father can betroth his naara daughter either himself or via a proxy. I ask my students to read that line in the Mishnah and consider: the Mishnah specifies naara; what do you infer from the text regarding a father marrying off a child younger than a naara? The discussion usually raises two possibilities: 1) if the Mishnah states that a father can marry off his naara daughter, we can infer, as the Gemara does, that this is specific to naara. If she is older, she is independent. If she is younger, she is not ready for marriage. 2) Often, a student will suggest the opposite logic: considered from a responsibility or “ownership” perspective, if the father can even betroth her when she is over the age of bat mitzvah and no longer fully dependent, he can certainly betroth her when she is a minor who is of marriageable age. Which interpretation is correct?

Reading the Rashi on the Mishnah, we find:

כשהיא נערה – וכ”ש כשהיא קטנה אם קבל קידושין מקודשת והאי דנקט נערה אורח ארעא אשמועינן דקטנה לכתחלה לא.

When she is a naara. And certainly when she is a minor, if [the father] accepts kiddushin, she is betrothed. And it specified naara to teach us the way of the land¹²Students are familiar with the Hebrew term derekh eretz. that a minor should ideally not be betrothed.

Rashi explains that the Mishnah intends to say that a father can betrothe his daughter even when she is a naara; this, despite the fact that the Gemara employs the reverse logic. Seemingly, Rashi considers the students’ second option above to be the simple reading of the Mishnah, suggesting that the Gemara’s reading of the Mishnah is not the simple reading of the text; and yet the Gemara chooses to read the Mishnah in that way!

In fact, Rashi allows for both interpretations to stand. Despite Rashi’s acceptance of the simple interpretation of the Mishnah, he still explains the Gemara according to its reverse logic. Can we legitimately maintain two contradicting logics to explain the same line in the Mishnah? This question will help us understand Rav’s ruling and the agenda of the sugya. By maintaining the simple reading of the Mishnah as well as the Gemara’s reading of the Mishnah, Rashi opens us to a possibility that we must always carry when reading sugyot. The Gemara’s interpretation of a Mishnah need not preclude the legitimacy of the simple reading of the Mishnah.¹³. We see from Rashi that we can be interested in maintaining the basic interpretation of a text as well as providing the legal textual grounding for an innovation.

אורח ארעא אשמעינן

We return to Rashi’s interpretation of the Gemara’s inference:

והאי דנקט נערה אורח ארעא אשמועינן דקטנה לכתחלה לא.

And it specified naara to teach us the way of the land that a minor should ideally not be betrothed.

According to Rashi Rav teaches us אורח ארעא the way of the land. The best practice is that a father should not betrothe his minor daughter. Rav used the word אסור and Rashi interprets it as אורח ארעא and לכתחילה!¹⁴Similarly Rambam (Hilkhot Ishut 3:19) states: “אין ראוי לעשות כן אלא מצות חכמים שלא יקדש אדם בתו כשהיא קטנה עד שתגדיל ותאמר לפלוני אני רוצה.” Despite the Gemara’s use of the word אסור Rambam describes this as inappropriate rather than prohibited. The Tashbetz (שו”ת תשב”ץ חלק ד חוט המשולש טור א סימן יט) writes:
ואם כן היאך אין אנו חוששין בזמן זה לאיסור זה שהרי אנו רואים כי רוב בני אדם משיאין בנותיהם בקטנותם ואין מוחה בידם? ויש לומר בזה כי מה שאמר רב “אסור לו לאדם שיקדש וכו'” לאו דוקא אסור אלא רוצה לומר שאין ראוי לעשות כן.
From a textual perspective, since Rashi maintained the pshat reading of the Mishnah, he interpreted Rav’s statement as recommended ethical behavior¹⁵Here again we note that אורח ארעא as an ideal behavior might also be categorized as legal i.e that the ethical recommendation is itself legal. See above note 7. that can be dependent on social context, rather than an unwavering legal ruling.¹⁶For more on the social context of Jewish child marriage, see Avraham Grossman, “Child Marriage in Jewish Society in the Middle Ages until the Thirteenth Century,” Peamim: Studies in Oriental Jewry 45 (Autumn 1990): pp. 108-125 [Hebrew]. In this subtle fashion, Rashi makes us aware of the interpretive move that the Gemara is making.

As a result of Rashi’s inclination to maintain the pshat reading of the Mishnah he interprets the word אסור in the Gemara to mean “not recommended” or “not ideal.” This is a soft reading of the word one that might be surprising to students. This raises questions of how we justify interpreting the word loosely and when it is appropriate to do so. When students are sensitized to this interpretive possibility they can read other sugyot where the word אסור is used with a newly acquired sensitivity.¹⁷Tashbetz cited above records other instances where the word אסור means ‘that which is recommended’ or ‘that which is most appropriate.’ Rambam cited at note 7 above similarly uses the language of אין ראוי לעשות כן. Of course, there is no simple rule to follow in order to answer this question. In fact, it is precisely the interpretive possibility that makes the sugya dynamic. As we find in this instance, the interpretation of the word can be subject to a debate among the Rishonim.

הגלות מתגבר עלינו

Tosafot note that, in their day, fathers would betrothe their minor daughters in violation of Rav’s instruction. Tosafot must explain how the accepted practice in the community at that time could be in violation of Rav’s teaching. From the classroom perspective, students see that female child marriage has a complex history. It is Biblically permitted, prohibited or at least strongly discouraged in the Talmud and then permitted again in the medieval period of the Tosafot. This runs counter to their absorbed expectation that the Torah is eternal and the halakha doesn’t – or is not supposed to – change based on historical or cultural circumstances. Tosafot (on 41a) write:

ועכשיו שאנו נוהגים לקדש בנותינו אפי’ קטנות היינו משום שבכל יום ויום הגלות מתגבר עלינו ואם יש סיפק ביד אדם עכשיו לתת לבתו נדוניא שמא לאחר זמן לא יהיה סיפק בידו ותשב בתו עגונה לעולם.

At present our custom is to betroth our daughters even when they are minors. Since everyday the [harsh reality of] exile becomes a significant burden upon us; and if the father is able to provide a dowry to his daughter at present, perhaps in the future he will not be able to do so, and his daughter will remain unmarried forever.

Tosafot explain that the difficulties of living in the Diaspora in 12th or 13th century Ashkenaz created financial uncertainty.¹⁸ Grossman, Pious and Rebellious, 82-85 Out of concern for the best interests of their children, parents married off minor daughters in order to ensure their safety and financial security. These lines in Tosafot offer us a rare window into the lived lives of these rabbis whose words we learn every day. It is certainly unsettling to read of the difficulties of their lives. Marrying off children at that age is against the law in Israel and the U.S., and contemporary poskim would not permit such action. At the same time, learning Gemara and its commentaries offers us the opportunity to learn across cultures and times. Tosafot encourage the reader to imagine another world; one in which security was as significant a reason for marriage as love. Confronting this sugya with historical understanding and contextual awareness also allows us to see how the halakhic community has changed. I have been surprised to find that, in my classroom experience, high school students have sympathized with the life circumstances described by Tosafot. Learning across culture and time allows us to realize that we are blessed to be able to marry for love, a relative luxury that not every community or time period is afforded. Students can then begin to understand that marriage, even today, is multifaceted. It is about love; it is also about security, economics and partnering for overall well being,

Rabbeinu Tam (RT), however, resolves the challenge presented by the communal practice in his time using a different strategy:

ור”ת ז”ל כתב דלית הלכתא כותיה דרב דאמר “אסור לו לאדם שיקדש את בתו וכו'” שהרי בפרק עשרה יוחסין (פא ע”ב) אמרינן דרב חסדא קדש לבתו קטנה ולא חש לה לההיא דרב.

And Rabbeinu Tam Z”L wrote that the halakha is not in accordance with Rav who said, “it is prohibited for a man to betrothe his daughter, etc” for in chapter Asarah Yochasin (81b) we say that Rav Chisda betrothed his minor daughter and was not concerned with the view of Rav.¹⁹ Tashbetz, cited above, explaining the view of Rabbeinu Tam.

Tosafot had appealed to necessity as the basis for the change in practice. For RT, that appears to be inadequate without textual justification. To solve this problem, RT cites an aggadic exchange from the end of Kiddushin which reveals that Rav Chisda, a student of Rav himself, betrothed his own minor daughter, apparently not accepting the ruling of Rav. RT suggests that 12th century communities of Ashkenaz relied on this divergent view as a basis for their practice.

The view of RT prompts a number of questions: 1) why does RT require a textual basis to justify the practice in contrast to the approach of Tosafot? Does he view Rav’s ruling differently than Rashi, Rambam, and perhaps Tosafot, as more restrictive and binding ? Or does RT’s view derive from a view of what is necessary to justify the change in practice? 2) Our sugya clearly supports the view of Rav, seeking evidence for his view in the language of the Mishnah and not citing any disagreement on the issue. Given this context, is it acceptable to rely on an aggadah elsewhere from which we can infer the existence of a different view on the betrothal of one’s minor child that runs contrary to an explicitly stated rule in a halakhic sugya?

The tension that we have discovered on the page of the Gemara regarding betrothal of minor daughters continued throughout Jewish history through contemporary times, as described by Kaplan.²⁰ Kaplan, cited above, note 10. On January 8, 1950, the State of Israel passed the Marriage Age Law, which considered marriage of a man or woman under seventeen years old to be a criminal act. Chief Rabbi Isaac A. Herzog sought to establish the law of a new Jewish state grounded on principles of halakha. Regarding the betrothal of minors, the newly appointed Chief Rabbis Herzog and Uziel declared that

No Jewish man may betroth a woman who is younger than 16 years and one day old, since a woman younger than this age endangers herself in pregnancy, and there is risk of death for the mother and the fetus, in our times when the generations have declined and the powers have weakened; and also because these marriages are liable to lead to mishaps and to cases of desertion of wife by her husband (igun), as has been proven in many cases. This prohibition applies to the father of the girl, who may not betroth his daughter while she is under [the minimal] age.²¹Rabbi Yitzchak A. Herzog, Techuka LeYisrael Al Pi HaTorah, vol. 3 (Jerusalem: Mossad Harav Kook, 1979), 168 [Hebrew].

Conclusion

In his essay, Yechiel Kaplan sought to bring to light the way that feminist considerations and the responsibilities of government to protect and preserve the rights of each individual can conflict with multicultural considerations that make governments responsible to protect minority communities and their particular practices. This is a fascinating dilemma that affects societies in many different ways. In fact, it is an aspect of the current tension in Israel as the country attempts to balance Haredi cultural values with those of liberal democracy. Kaplan suggests that Jewish Talmudic interpretive dynamism can serve as a meaningful model through which other religions and cultures might imagine balancing commitment to grounding texts and shifting values. In the case of the marriage of minors, Jewish practice has shifted in ways that other religious communities have not. Kaplan attributes that to our capacity for dynamic interpretation that opens a space for internal change.

This small sugya thus presents us with a powerful example of the vibrancy and dynamism of a Jewish community committed to its sacred texts and the values of shifting cultures across time and place. The ruling of Rav effected significant change in the institution of Jewish marriage without resorting to the “external approach” that suggests that the Torah is antiquated or to be dismissed. In this sugya we see how interpretation of the Mishnah allows for both innovation in practice and preservation of the law, the legitimation of a dialogue between ethics and halakha, and the capacity to root new practice in traditional text through interpretive possibility.

The reader of the sugya must remember: in order to uncover the layers of meaning in the sugya, we need to be open to what the sugya is saying. That requires us to slow down when we encounter a text that makes us uncomfortable. While a natural response to the discomfort could be to move through the text quickly and avoid the questions and challenges that come up, we can reap the rewards of the sugya when we resist the inclination to speed up, when we instead slow down and explore the sugya with persistence and determination.

• 1
  The analysis of the sugya draws on the Kiddushin curriculum developed by Shaul Baruchi and Yeshivat HaKibbutz HaDati commissioned by SAR High School in 2008.
• 2
  Shemot 21:7-11, 22:15-16, Devarim 15:12-18, 22:13-29, 24:1-5
• 3
  Sifrei Devarim 235; Rambam, Hilkhot Ishut 3:11 reads:
  האב מקדש את בתו שלא לדעתה כל זמן שהיא קטנה. וכן כשהיא נערה רשותה בידו שנאמר “את בתי נתתי לאיש הזה” (דברים כב טז).
• 4
  According to Chazal, the naara period is from 12 to 12 and a half years of age; the independent bogeret stage begins at 12 and a half. Students, of course, will find this to still be extremely young for marriage. The age of majority in halakha is, at 12 and a half years old, still well below our contemporary legal statutes. Two things may be said to respond to this concern. First, marriage at 12 and 13 was not uncommon even a century ago. Ages of maturity can be different during different time periods. Second, Israel’s Marriage Age Law of 1950 prohibited marriage under the age of 17. Chief Rabbis Herzog and Uziel, cited below, prohibited marriage under the age of 16, an acknowledgement of the shifting risks and dangers of premature marriage.
  
• 5
  Ketubot 46b.
• 6
  Although Yevamot 89b-90a teaches that יש כח ביד חכמים לעקור דבר מן התורה בשב ואל תעשה that is not the path taken by Rav. Exploring the parameters of that rule is beyond the scope of this paper and of the high school Kiddushin classroom.
• 7
  As we will see below Rashi is precise about this distinction. Rashba (s.v. כשהיא נערה) also states that if the father does betroth the minor daughter the marriage is valid according to Rav. Avraham Grossman cites two Geonic sources suggesting that the marriage of minor daughters was not only prohibited but void. See his: Pious and Rebellious: Jewish Women in Europe in the Middle Ages (Jerusalem: Zalman Shazar Center 2003) 67-73 [Hebrew]. It is important to note that, in some definitions of law, changing communal practice without formal legislation is itself changing the law. Jewish law, with its distinctions between Torah and Rabbinic law, de’orayta and derabanan, opens a space between Torah law and actual practice. I thank Shlomo Zuckier for the question of definitions of law.
• 8
  See Kiddushin 12b where Rav prohibits betrothal in the marketplace, through sexual intercourse or without financial commitment. All of these can be read as attempts to minimize the trafficking or self gratification elements of the betrothal.
• 9
  Biblical sources clearly assume the father’s rights over his children, including marrying off his daughter, invalidating her vows and receiving certain payments due to her. While the Rambam (Hilkhot Ishut 11:6) interpreted that the father’s right to marry off his daughter was only in the best interest of the daughter, that is a matter of debate among scholars. We should not shield our students from the plain meaning and implications of Tanakh, Mishnah or Gemara. We can help them see the ways that practices have changed and texts have endured through various mechanisms of interpretation and changes of practice, both of which are reflected in this sugya.
• 10
  Yehiel S. Kaplan, A Father’s Consent to The Marriage of His Minor Daughter: Feminism and Multiculturalism in Jewish Law, Review of Social Law and Justice Vol. 18:2, pp. 393-460. For the internal-external distinction, see pages 398-403. Kaplan describes two approaches to social change in traditional societies, focusing on the example of marriage of a minor daughter in different religious societies. The external approach seeks to change the practice by appealing to universal norms and rights as defined by the dominant culture. From the perspective of the traditional, religious community, this approach is an imperial intrusion from an outside culture. Kaplan favors an internal approach, one that uses interpretation as a mechanism through which religion itself and the interpretation of its texts can be the source of human rights and abolish discriminatory practice.
• 11
  Whether the word אסור connotes that a father ideally should not halakhically should not (לכתחילה) or halakhically can not (בדיעבד) betroth his daughter is explored below.
• 12
  Students are familiar with the Hebrew term derekh eretz.
• 13
  .
• 14
  Similarly Rambam (Hilkhot Ishut 3:19) states: “אין ראוי לעשות כן אלא מצות חכמים שלא יקדש אדם בתו כשהיא קטנה עד שתגדיל ותאמר לפלוני אני רוצה.” Despite the Gemara’s use of the word אסור Rambam describes this as inappropriate rather than prohibited. The Tashbetz (שו”ת תשב”ץ חלק ד חוט המשולש טור א סימן יט) writes:
  ואם כן היאך אין אנו חוששין בזמן זה לאיסור זה שהרי אנו רואים כי רוב בני אדם משיאין בנותיהם בקטנותם ואין מוחה בידם? ויש לומר בזה כי מה שאמר רב “אסור לו לאדם שיקדש וכו'” לאו דוקא אסור אלא רוצה לומר שאין ראוי לעשות כן.
  
• 15
  Here again we note that אורח ארעא as an ideal behavior might also be categorized as legal i.e that the ethical recommendation is itself legal. See above note 7.
• 16
  For more on the social context of Jewish child marriage, see Avraham Grossman, “Child Marriage in Jewish Society in the Middle Ages until the Thirteenth Century,” Peamim: Studies in Oriental Jewry 45 (Autumn 1990): pp. 108-125 [Hebrew].
• 17
  Tashbetz cited above records other instances where the word אסור means ‘that which is recommended’ or ‘that which is most appropriate.’ Rambam cited at note 7 above similarly uses the language of אין ראוי לעשות כן.
• 18
  Grossman, Pious and Rebellious, 82-85
• 19
  Tashbetz, cited above, explaining the view of Rabbeinu Tam.
• 20
  Kaplan, cited above, note 10.
• 21
  Rabbi Yitzchak A. Herzog, Techuka LeYisrael Al Pi HaTorah, vol. 3 (Jerusalem: Mossad Harav Kook, 1979), 168 [Hebrew].