"Stolen Water is Sweet"

Women and their Stories between Bavli and Yerushalmi

by

Tal Ilan

In this paper I will be reading for gender in some stories of the Yerushalmi.
What does reading for gender mean? It means that one takes seriously gender
differences in the stories one reads and attempts to explain them as an index of
the social world of the storyteller. Naturally, concentration on the text of the
Yerushalmi requires that we characterize its social reality not only over and
against that of its non-Jewish neighbors but also over and against other rabbinic
compositions. The Yerushalmi is a unique composition and reading for gender
in it can teach us about the frame of mind of the rabbis in fourth- and fifthcentury Palestine. It is, however, also a commentary on the Mishnah, which is
a somewhat older compilation, composed and redacted in the same location,
and it contains striking similarities to the Bavli, another commentary on the
Mishnah, compiled more or less at the same time but in Babylonia. The differences and the tensions between these compositions, rather than their similarities, are what reveal the specific historical differences in time and location
between the social realities of the composers of various compilations.
Reading for gender can be done on many levels. The Mishnah and the
Yerushalmi, which comments on it, are legal compilations. Gender differences
play an important role in the formulation of halakhah. Reading for gender on
the halakhic level can be very fruitful. 1
Here, however, I am interested in the stories that accompany the halakhic
discourse. This is because, although these are not necessarily true reports of
events that took place, it is much more likely that a storyteller will relate
something that is probable, or at least familiar to his audience, than invent
something he knows nothing about, or deems impossible. This is particularly
true for stories that are intended to demonstrate or disprove a point of law.

1 For a gender reading on several literary levels, in various rabbinic corpora from a
halakhic perspective, see Judith Hauptman, Rereadi11g the Rabbis: A Wo111a11 's Voice, Boulder CO, 1997.

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Tai Jlan

Therefore I will be looking not just at the stories, but also at the halakhah they
demonstrate or challenge2.
I will be looking at seven stories. Each story will be assessed as to its
message within the Yerushalmi's worldview and then be compared to its parallel in the Bavli. The Bavli often discusses the same mishnayot as the Yerushalmi. Quite regularly it follows the same basic pattern. Frequently the same
stories are brought to demonstrate the same points of law. In my opinion, in the
case of parallel sugyot, which bear a striking similarity one to the other in the
Bavli and in the Yerushalmi, we can assume that the Bavli was acquainted with
some primitive form of the Yerushalmi sugya. 3
If we accept this working hypothesis, than we possess a valuable tool with
which to assess how the rabbis in one social location understood, or misunderstood, approved or disapproved, accepted or rejected the words and deeds of
the rabbis in a completely different social environment. I hope to demonstrate
how a synoptic view of the stories discussed here reveals some of the Yerushalmi rabbis' conceptions and prejudices regarding gender.
I will begin with a detailed and complex reading of one story that, to me,
demonstrates the claim so thoroughly that the case for the other examples will
become almost self-evident.

1. yTerumot 8:5, 45c

The Yerushalmi Sto,y: This story is incorporated within the context of the
halakhic discussion of liquids and foodstuffs left uncovered and unattended.
Such foodstuffs are considered unclean and should not be consumed. Commentators assume that this is because it is likely that a snake passed by them,
partook of them and infested them with his poison. 4 This is the general premise
of chapter 8 in Mishnah Terumot. From here on the halakhic discussion enters
into particulars. The Yerushalmi raises the question, what if the foodstuffs were
not left unattended but the person attending them fell asleep? In order to answer
this question the following story is told: "A woman loved giving charity." The
2 None of these stories, as far as I could tell, has ever been discussed extensively in
secondary aggadic literature, and it is for this reason that I rarely refer to secondary literature.
3 That some of the material in the Bavli was transmitted in written documents is suggested with much hesitation by S. Fraenkel, Introd11ctio11 to the Yernshalmi, Breslau 1870,
p. 5 la [Hebrew]. For a relatively recent and quite convincing argument in this vein see
M. Jaffe, "The Babylonian Appropriation of the Talmud Yerushalmi: Redactional Studies in
the Horayot Tractates," in A. J. Avery-Peck (ed.), New Perspectives 011 Anciellf Judaism 4,
Lanham MD 1989, pp. 3-27.
4 I have not found any tannaitic, halakhic discussion that states this premise outright, but
it is probably assumed, because of the many references to serpents found in direct association with discussions of uncovered liquids; see mTerumot 8:4, 6; tTerumot 7: 12, 13.

"Stolen Water is Sweet"

187

London MS of the Yerushalmi continues with the words "and her husband
hated giving charity." Whether this is part of the original story in Terumot or a
later interpreter's addition, is beside the point, because, in a parallel tradition to
this one (yAvodah Zarah 2:3, 4 la) this addition is an integral part of the story.
The version in Avodah Zarah is to be preferred to the version in Terumot, even
though the sugya in Avodah Zarah is secondary. As we shall see presently, the
versions in the secondary location of the sugyot in the Yerushalmi are, as a rule,
to be preferred to the primary ones. 5 "One time" the story goes on, "a certain
beggar came to her. She put food in front of him. While he was eating she
noticed her husband (was returning). She hid (the beggar) up in the attic. (Then)
she placed before (her husband) food. He ate, grew tired and fell asleep. A
serpent came, ate from what was before him and (the beggar) was watching.
When (the husband) woke up, he wished to continue eating from (the food) in
front of him. (The beggar) spoke to him and warned him (against the snake)."
This is how the story ends. We do not know how the husband reacted, when he
found out that the man was a beggar his wife was feeding, or what he told or did
to his wife.
The Yerushalmi tells this story to make a halakhic point - since the serpent
was undeterred by the presence of the sleeping man, foodstuffs that were left
uncovered in his presence should be forbidden for consumption. It states
clearly, "This means that if asleep - it is forbidden." However, the story just
told is disturbing from a completely different point of view, and the editors feel
it is their duty to dwell on this point as well. After all, the husband is warned by
a strange man found within the confines of his house under suspicious circumstances. As in all bad jokes and most people's minds, the Yerushalmi, too,
suggests that the husband should immediately suspect this man of having slept
with his wife. However, it now puts our minds at rest - "since (this man) is not
suspected of (wishing to kill the husband) he is likewise not to be suspected of
having committed adultery, since it is written 'they have committed adultery
and blood is in their hands' (Ezekiel 23:37)." This means that since the beggar
wishes the master of the house no ill, he should not be suspected of adultery.
The Yerushalmi clearly does not see this story in any sexual light. Rather the
issue is the efficacy of charity.

5 The parallel tradition does not place the story in another halakhic context, but rather the
entire sugya is transported from Terumot to Avodah Zarah. This often happens in the
Yerushalmi and we will have occasion to encounter this phenomenon again presently; on this
see Fraenkel, Introduction, pp. 39a-b; S. Lieberman, The Talmud of Caesarea (Supplement
to Tarbiz II), Jerusalem 1931, pp. 21-23. For a full discussion of the phenomenon with
bibliography, see B.M. Bokser, "An Annotated Bibliographical Guide to the Study of the
Palestinian Talmud," ANRW 19.2, II, Berlin 1979, pp. 178-182. The stories here are not
linguistic doublets, but they are close enough for this to be the only substantial difference
between them.

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Tai Ilw1

Intertextual Location of the Yerushalmi Story: The story itself seems to

derive from a complex midrashic formulation, based on the biblical verse:
"Charity (i1p1~) delivers from death" (Proverbs 10:2, 11 :4). The verse is
double-edged. Charity will certainly deliver its receiver from death by poverty
and starvation. But the biblical verse implies, and this idea was adopted by the
rabbis, that charity also saves the donor from death. The idea is best exemplified in the following story found in the Bavli: "Rabbi Aqiva had a daughter to
whom a Chaldean prophesied that on her wedding day she would encounter a
serpent and die. (Aqiva) was very worried over this. On that (wedding) day she
took a pin and stuck it in the wall and it lodged itself in the eye of a serpent. Next
morning when she pulled the pin out, the serpent trailed after it. Her father
asked her: What did you do (to save yourself from the serpent in this way)? She
said to him: Last evening a pauper came to the door and called and all were busy
with the (wedding) feast and no one heard him. I took the portion that was given
to me and gave it to him. He said to her: You have done charity. Rabbi Aqiva
went forth and expounded 'Charity delivers from death.' Not from an unnatural
death (i1JliVQ i1n'Q) but from death itself' (bShabbat 156b).
The similarities between this story and the story in the Yerushalmi are great.
In both stories a woman gives charity to a beggar when others, who are perhaps
in a better position to do so, neglect the duty. In both cases death by snakebite
is averted. In the Bavli the woman herself is saved; in the Yerushalmi she saves
her husband. This similar story in the Bavli highlights the idea embedded in the
Yerushalmi story, but which is not elaborated, namely that the man is stingy and
thus deserves to die. It is his wife's generosity that saves his life. It is ultimately
a story about the importance of charity, and should perhaps have been incorporated into the collection of stories on this topic found in yPeah I: l, l 5b-c.
From a formal literary point of view a woman figure is not important for the
storyteller. It is true that the two stories presented above (our Yerushalmi story
and the one about Rabbi Aqiva's daughter in the Bavli) may suggest that the
rabbinic stereotype of women was that they gave charity. Indeed this premise is
supported by other stories as well. In the Yerushalmi, a man who has lost his
wealth is urged by his wife to nevertheless give charity to the sages (yHorayot
3:7 48a). Also in the Bavli we find, for example, Abba Hilqiah exalting his wife
as having constantly dispensed charity (bTaanit 23b). Imma Shalom, Rabbi
Eliezer's wife, is also reputed as having given charity (bBava Qama 59b).
However, this stereotype is not exclusive. Men are also reputed to do the same.
This is particularly obvious from a complex story in the Bavli (which I shall not
address here) that begins with the words: "One time a Hasid gave a poor person
a dinar on the eve of the festival and his wife derided him so that he left home
and slept in the cemetery" (bBerakhot l 8b ). Here the gender division suggested
in our Yerushalmi story is completely reversed. The husband is charitable; the
wife is mean.

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"Stolen Water is Sweet"

Thus, we may conclude that a woman is necessary for the story in the
Yerushalmi only insofar as it requires such a close partnership between two
persons, that the actions of the one have consequences for the other. A wife and
husbaud is such a partnership but two disciples of the rabbis could equally be its
heroes. From another literary angle, the story may also require a relationship of
subordination, where, ironically, the actions of the subordinate member, defying the master's explicit wish, save the latter's life. Such a story could, however, likewise be told about a son and father or even a slave and master. Gender
is of little importance for the storyteller. It only becomes important for the
editors of the Yerushalmi when the consequences of the way the story is told
become evident.
The Bavli Parallel: It is interesting to note that gender differences are the
only issue in this story that seems to interest the Babylonian editors when
incorporating it into the Bavli. First we should note the halakhic context in
which the story is told. It is found in tractate Nedarim, in the context of a
mishnah which lists women who are divorced with compensation (111Nedarim
11: 12). One such woman is an adulteress by her own admission. The story is
told together with other stories about women who claim to be unfaithful to their
husbands. It begins with the words: "Once an adulterer came to a woman." At
first glance there is no way of identifying this story with the one in the Yerushalmi, but as it goes on the parallel becomes clear: "The husband came (back).
The adulterer went up and sat behind a curtain. There was some cress there and
a serpent tasted it. The master of the house wanted to eat that cress without his
wife's knowledge. The adulterer said to him: You should not eat from it, since
a serpent tasted it" (bNedarim 90b). This, then, is the story. The context is not
charity anymore, but rather premeditated adultery.
The discussion that follows only reinforces this point. The Babylonian editors take up the Yerushalmi's assumption that, since the man in hiding had
saved the husband from death, he probably did not sleep with his wife. However, having already labeled the man an adulterer, they can either assume
adultery was intended but not perpetrated because of the husband's timely
arrival, or suggest another possibility, namely that "he did commit an offence,
and he preferred the husband not to die so that the wife will be unto him as
'stolen water is sweet' (Proverbs 9: 17)." The woman plays no role in the story
except as the passive, unfaithful wife. A thoroughly positive woman figure of
the Yerushalmi is transformed into a thoroughly negative one. A thoroughly
complex story in the Yerushalmi is changed into a cheap joke in the Bavli.
yTerumot 8:5, 45c

bNedarim 90b

(cf. yAvodah Zarah 2:3, 4la)

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190

Tai I/an

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:~m

2. yShabbat 14:4, 14d6

lntertextual Location of the Yerushalmi St01y: One topic that arose at the end of
my discussion of the previous Yerushalmi story was the importance of women
characters for a narrative. In a previous work I claimed7 that if a female
character is unnecessary for the literary construction of a narrative, she is
probably the residue of an early, historical stratum on which the story is based.
Obviously, the previous example, in which the woman's womanhood is not a
prime factor in the story, but which is clearly a literary composition, demonstrates that, while this criterion is still valid, it should perhaps be formulated in
more sophisticated terms.
Having formulated this principle, I had discovered that the Yerushalmi, of all
rabbinic corpora, lends itself easily to its application. The best examples of
stories in which women function in domains that are not specifically gendered
are found in this compilation. I will mention here just two to demonstrate what
I mean.
In yMeasrot 5:7, 52a we are told of a woman who had on her roof some
vegetables (p1J1' - strawberry blite or asparagus according to Jastrow 8) which
were intended as terumah. Seeds fell from them into her garden and new plants
grew. We are told that Rabbi Yohanan allowed the woman to eat from the new
6 This is the only story analysed in this study for which I have found a literary discussion
on the Bavli and Yerushalmi parallels. See: S. Valler, Women in Jewish Society in the
Talmudic Period, Israel 2000, 172-7 (Hebrew).
7 Tai Ilan, Mine and Yours are Hers: Retrieving Women s History from Rabbinic Literature, Leiden 1997, pp. 237-277.
8 M. Jastrow, A Dictionary of the Targumim, the Talmud Bab/i and Yerushalmi and the
Midrashic Literature, New York 1926, p. 593.

"Stolen Water is Sweet"

191

plants even though the source plant had been dedicated to the priesthood
(terumah). Nothing in this story requires a woman protagonist. The halakhah
itself, which this story follows, is formulated in male language. If the story were
told of a man it would sound just as convincing. The facts, therefore, appear to
be authentic. They tell an insignificant episode in order to demonstrate a point of
halakhah. The woman is a residue from the authentic event recorded.
Another example is found in yBava Batra 2:2, I 3b. This sugya deals with the
regulation of ovens in the interest of the general public. It is interested in the
danger of fires and in the hazards of smoke pollution. A story is then told of a
woman who once burnt some unconsecrated agricultural produce (1'?1n) in
front of her house and a neighbor complained to the rabbis about the smoke.
They, however, ruled in her favor since it was a one-time event and not a
repeated polluting. What was said of the previous story can be said for this one.
Nothing in it requires a woman protagonist. The halakhah itself, which this
story follows, is formulated in male language. Again, the story is probably
authentic and tells an insignificant episode in order to demonstrate a point of
halakhah. The woman in it is a residue from an authentic event.
Note, however, that both these stories, while probably telling real events, are
not very significant for women's history, and much less rewarding for anyone
reading for gender. If they tell us that real women dried vegetables on their
roofs or lit fires outside their houses, their presence in history, even in social
history, remains marginal. However, the next story I wish to discuss, is the one
I took in my earlier study as a prime example of the kind of significant women's
history one may learn from such episodes.
The Yerushalmi Story: The story runs as follows: "Rabbi Yohanan had (an
illness) and was receiving treatment from Timtinis 9 in Tiberias. On Friday he
went to her. He said to her: Do I need to be treated tomorrow? She said to him:
No. But if you should need something, take seeds of palm dates (and some say
Nicolaus dates) split in half and roasted and pounded together with barley
husks and the dry excrement of a child and apply the mixture. Do not reveal this
to anyone. The next day he went and expounded it in public. Some say she
choked herself (i.e., committed suicide). Some say she converted to Judaism"
(yShabbat 14:4, l4d) 10
I am still of the opinion that there is probably a historical kernel behind this
story, and have discussed it in great detail in three other places. 11 Here, how9 The name in yShabbat is Bat Domitianus. In a previous discussion of this text in my
"Women Studies versus Jewish Studies: The Case of Timtinis," Finding a Home: Jewish
Women s Studies in the Academy (JTS Conference 1999) (in press)" I had shown that the
name in the parallel Al'odah Zarah version is Timtinis and should be preferred.
10 See my discussion of this story in Mine and Yours are Hers, pp. 263-5.
11 Tai llan, "In the Footsteps of Jesus: Jewish Women in a Jewish Movement," in Ingrid
Rosa Kitzberger (ed.), Transformatil'e Encounters, Leiden 1999, p. 129; "Women's Studies

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Tai Ilan

ever, I would like to explore the literary role of the woman in it, and then
observe its transformation on the way to the Bavli. First we may note that,
again, this story is presented in order to demonstrate a point of halakhah - what
form of illness constitutes a fatal disease (i1J::l0) that may be cured on Shabbat
and what does not. Then a story is told about the sort of disease that is apparently life-threatening and of a woman doctor. Obviously, there is nothing in the
halakhah that requires the doctor to be a woman. Thus she may represent the
memory of a real-life woman doctor. This doctor makes a distinction in the text
between the regular course of treatment of Rabbi Yohanan 's disease on Shabbat
and an unforeseen complication. In the case of the former, no treatment is
required, in order not to interfere with Shabbat observance, but in the later, if a
life-threatening development should take place, she supplies Rabbi Yohanan
with a recipe to cure himself.
The last line, which mentions two possible outcomes of the story, is commentary; i.e., it is not part and parcel of the original story. Thus we do not really
know how Timtinis reacted to her secret being divulged. Some speculate that it
was so disastrous, it required nothing less than suicide. Others suggest that, on
the contrary, such an action of Rabbi Yohanan so impressed the woman that she
chose to join his fold and embrace Judaism. However, if this addition were
absent from the story we would have had no cause to suspect that the woman
was not Jewish to begin with. After all, she seems to know that healing is
forbidden on Shabbat, except in life-threatening situations. This is clearly
knowledge that comes from intimate acquaintance with Judaism. Furthermore,
one may note that she does not suggest coming to attend Rabbi Yohanan
herself, were his condition to deteriorate - perhaps an indication that she, too,
was observing Shabbat. A parallel to this tradition in yAvodah Zarah 2:2, 40d
tells a similar story, but one should draw attention to an important difference. It
ends with the words: "The next day he went and expounded it in the house of
study. She heard and choked herself. Some say she converted to Judaism." This
ending suggests that the suicide of the woman was part of the original story, but
that the suggestion of the woman's conversion to Judaism is a later addition.
The logic of the story itself suggests that this is a better version, because
without the suicide, the ending of the story seems too abrupt. 12 Thus we see that
in a better-construed story the non-Jewish character of the woman is even less
necessary.
However, within the context of Avodah Zarah this story is told in connection
with a discussion of the permissibility of being healed by gentiles. We could
assume that within this context the woman's non-Jewish identity is crucial to
vs. Jewish Studies"; and also book review of Guiseppe Veltri, Magie und Halakhah, in
Scripta Classica Israelica 18 (1998), p. 260.
12 On parallel traditions in parallel sugyot in the Yerushalmi see above, n. 5.

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193

the story, and that perhaps, since it retains a better version of the story, this is its
original setting, from which it was transferred wholesale to tractate Shabbat.
Nevertheless, a closer look reveals exactly the opposite, namely that the story
in Avodah Zarah is embedded within an entire sugya which was taken wholesale from tractate yShabbat. It begins by discussing healing on Shabbat and
then moves on, at the very end, to discuss healing by gentiles. The story we are
interested in is found in the section of the sugya still involved with issues of
healing on Shabbat. In tractate Avodah Zarah the speculation of the rabbis
about the doctor's possible gentile background allows a transition to the other
topic under discussion in this sugya, namely the permissibility of gentile healing. In the Shabbat version, however, it is followed by another story about
healing on Shabbat and only then moves on to the issue of healing by Christians
and then gentiles. As already mentioned in the previous story, the version told
in the secondary location of the story retains the better form.
The Yerushalmi 's seemingly disinterested stance toward the tragic death of
the woman doctor in this story may seem flagrant. It makes no further comment on it. Rather, it goes on to elaborate on the halakhic issues one may learn
from this story: "You learn from this three (things): You learn that scurvy
(i1J1E:l'~) is considered life threatening; you learn that healing external (diseases) is permitted on Shabbat; you learn, in the name ofYaakov bar Aha in the
name of Rabbi Yohanan, ifhe were an expert doctor, it is allowed (to be healed
by him on Shabbat, or perhaps to be healed by a gentile?)." This suggests that,
even if the story is not clear on whether the woman was a gentile or not, it has
no problem with identifying her as an expert doctor qm~ ~811). However, the
Yerushalmi, even when not commenting on the story, presents us with a moral
dilemma. Here we have a thoroughly moral person, albeit an outsider - a
doctor and a woman - who compromises her professional career in order to
help someone, and on the other side we have the ultimate insider of rabbinic
literature - the rabbi - behaving immorally. Furthermore, the moral person is
punished for her moral behavior while the immoral rabbi comes out of the
story unscathed. It is this moral dilemma that makes this story so powerful. No
further comment is required in order to draw conclusions about the rights and
wrongs of the story. When the Yerushalmi brings such a story it obviously
takes a moral stand about the rabbis' arrogant attitude to outsiders, including
women.
The Bavli Parallel: The story, as it is told in the Bavli, is not so strikingly
different, and yet the subtle changes it has undergone make it an interesting
case for observation. First, the halakhic context in which it is related is important. In the Yerushalmi we were able to observe that the primary location of the
story should be understood as tractate Shabbat and the permissibility of healing
on that day. Its location in tractate Avodah Zarah, where it is presented within
the discussion of the permissibility of gentile healing, is secondary. In the

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Tai /Ian

Bavli, however, the story appears only in the latter context, making the healer
clearly a gentile. Furthermore, she is not named. Rather she is described merely
as a "matronita" - a Babylonian terminus for aristocratic gentile women. 13 The
story runs as follows: "Rabbi Yohanan had scurvy (~J'1~::). He went to a
matronita to be healed. She healed him on Thursday and Friday. He said to her:
What about tomorrow? She said to him: It is unnecessary. And if it were to
become necessary? She said to him: Swear to me that you will not tell. He
swore to her to the God of Israel he will not tell. The next day he expounded it
in the pirqa (=study session in the Babylonian study house)" (bAvodah Zarah
28a).
Thus far the story. Let us discuss the differences. Note that in the Yerushalmi
the doctor's secret recipe for curing scurvy is related as part of the story,
perhaps indicating that the rabbis indeed know it, since Rabbi Yohanan had not
kept it a secret. The Bavli, while telling us that Rabbi Yohanan revealed the
secret to his congregation, refrains from disclosing it to us. Further down the
rabbis discuss various recipes that she might have suggested - none of them
remotely similar to that of the Yerushalmi. Obviously the Babylonians had
other lotions and potions to cure this ailment.
The story also has no end - the woman neither commits suicide, nor does she
convert to Judaism. She is not important. Rabbi Yohanan, however, is, and thus
the editors discuss his actions in some detail. They inquire "But had he not
sworn to her that he will not tell?" Since the story has no tragic ending, the only
problem with it is the possibility of the rabbi having lied and the Bavli solves
this with a punch-line that is both a play on words and a joke "He swore that to
the God oflsrael he will not tell. To the people oflsrael, however, he will tell." 14
The rabbi had told no lie. One need only listen to his words carefully in order to
hear that he has acted accordingly. Thus he is vindicated. The Babylonian
editors are, however, still worried for they continue the discussion: "But isn't
the name of God blasphemed (anyway)?" they ask, and end the discussion with
a definite statement: "He had (initially) explained it to her" (~1p'.!iQ i1'? '?)1).
After a short diversion, in which the Bavli discusses the various recipes the
woman may have suggested for scurvy, it returns to the main issue again, and
raises the halakhic question which produced this story in the first place: "Had
not Rabbi Yohanan (himself) decreed that any wound which requires treatment
on Shabbat, one does not receive treatment from them (i.e., gentiles)?" It
answers this question with a quasi-halakhic saying that is typical of the Bavli
and appears often: "The case of an important man is different ('Jtll :rnvn 01~)",
meaning that what the rabbis forbid in the case of the public, they allow in their
See my Mine and Yours are Hers, 260.
On this formulation as a literary motif in Greek literature, see A. A. Halevy, Legends of
the Amoraim, Tel Aviv 1977, pp. 56-8 (Hebrew).
13

14

195

"Stole!I Water is Sweet"

own cases. This is clearly an example of the lawgivers excusing themselves

from participating in the system they devise for others. The Yerushalmi does
not raise this question, because in its story it is not at all clear that the woman
doctor is a gentile. The expression 'Jill J.1illn t:J1~ is also never found in the
Yerushalmi. However, it often occurs in the Bavli, as we shall see presently.
Thus to conclude: the Bavli, in this case, has done much less to undermine
the gender categories of the Yerushalmi than it had in the previous example.
This is perhaps because it found nothing inherent in the story that raises a
specific gender issue, except, obviously, the very presence of a woman as a
doctor. The Bavli solved this problem by making the woman a gentile. As such,
her profession was no longer a (halakhic and social) problem for its editors.
Once this problem is solved, the woman is no longer important for the story.
What happens to her is of no concern to the Bavli. Her mishandling by a rabbi
is explained away in a comic fashion and the only problem remaining is the
rabbi's behavior. This is the only concern of the Bavli discussion.

yShabbat 14:4, 14d

(CJ. yAvodah Zarah 2:2, 40d)
]O ~1i1il) ',:, :~1':li "i::l ~::! '"i tlil)::l ~11.!JT '::l"i
...n::iil)::i 1m~ r~EJio om',1 i1Elil)i1
'01p 'On'O i11i11 p i1'? i11i1 ]ln1' '"i
o~ .i1::i,, nn ~m::ii.!l::i .~'"i::l't!l::l O'l't!loni
.~'? :i1'? ;,10~ ?m'?:, ino'? ~l~ T"i~'O :i1'?
'10~1 n'~1 ]'"iO'n1 ]'l'.!l"i) ::10 n:,1~ ]'~1
]'"i.!lil)1 11~1 ]'1'P' ]ii1')?El::l ]'O'::!?p'l1
ion ~,1 .?1Elt!l1 p1nil)1 ;i::im ]t!lp n~1~1
.il)"i10 ::i::i i1il)"i11 ?.!l~ ino'? .il)l 1::i 01p
.m",n'~ r10~1 n~, .i101, npim n.!lOil)
i1l1El'~ ]i1~ m'o .!JOil) :n'?n i1l'O .!JOil) n~
tl'lEl?1 i1Elil)i1 ]O ~1i1il) ',:, i1l'O .!JOil) .i1l:l0
'"j 101 ":? i1l'O .!JOil) .n::lil)::l ,m~ ]'El"iO
~EJ11 i1'i1 o~ :pm' 1 tlil)::l ~n~ 1::i ::ip.!l'
.imo -101~

bAvodah Zarah 28a

]'~ ??n

?ii) il:?O ',:, :i1ln "i::l "i::l i1::l"i 10~

...]i10 ]'~El"inO
~;i;,1 ;,::i,, '?r~ .~l'1El~::i il)n pm' 1 :il)"n
10~ .~n::iil) '?.!l01 ~il)On ~1::i.!l .~nint!lo
-~ .n-::i'i~ ~, :i1'? ;,10~ ?'~o ino'? :i1'?
.n'?,o ~,1 ', .!l::lnil)'~ :'?"~ ?'~o .~i::ii~
.~l'?)O ~', ?~"iii)' ~i11?~? i1? .!l::lnil)~
~i11 .~p"i'El::i ~il)'"i1 ,pEll ino'? .i1'? ~,,,,
~l'?JO ~', ?~"iil)'1 ~;,',~', ?i1? .!l::lnil)'~
',1',n ~:,'~i11 .~l'?)O ?~"iii)' i1'0.!l? ?::!~
',',n ?ii) ;i:,o:, ~o'?~ .~ip'.!lO ;,', ,,,1 tlil)i1
~l'1El~ 'l~il) :pn~' "i::l ]Onl ::l"i 10~ ?~'01
~o ...]".!JO i::i::i iom i1El::i '?nno1 ',~1;,
"i1~il) 'O :~::111 i1'"i::l ~n~ "i "~ :i1'? i11::l!J
~nil)o :io~ 'ii)~ :ii 1::i 101 .n'?o, n-r ]Oil)1
1::i.!l ~l~ :"::i~ 10~ .~m~1 ~EJ1J::i ~m~1
:~.!l"t!l ~ii1i1 '? 10~1 1.!l :~on~ ~,1 1;,',1:,
m'?p1 ~n?'n 1'?0 ~,1 ~n'n ~n"il)P 'n"~
:,;, 1::i.!l :111 i1'::i p'::111 ~nin ~10~
"iO~i11 ?':li1 1'::l.!l ':l'i1 ]ln1' '"ii .'~On'~1
r',',noil) ;i:,o ',:, :pm' , .. ~ ,mn 1::i 1::i ;,:ii
::liil)n tl1~ ?]i10 ]'~El"ino r~ n::lil)i1 n~ i1'?.!l
.'lil)

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Tai I/an

3. yKetubbot4:ll, 29a 15
The Yerushalmi St01y: The next story is found, as in the two previous cases, in
two different locations in the Yerushalmi. One of them, the Ketubbot version, is
clearly the original, since the story refers directly to the mishnah under discussion there: the husband's obligation to pay for his wife's doctor bills (mKetubbot 4:9). However, the version in yBava Batrn 9:6, l 7a is better preserved (as in
the two previous examples, where the secondary locations proved to contain
better versions). 16 It is so much better preserved, in fact, that the version in
Ketubbot only becomes comprehensible when compared with the parallel in
Bava Batrn. Thus I quote only the latter.
The story is told with direct reference to a baraita commenting on the above
mentioned mishnah. The baraita is assigned to Rabban Shimeon ben Gamaliel:
"Every injury that is curable - she is treated through her wedding settlement.
That is incurable-she is treated from the property (of the husband-D'O)Jil F~)."
This baraita suggests that a husband is only required to provide health care for
his wife when her illness is incurable. This baraita is followed by a story: A
woman, the relative of Rabbi Shimeon bar Abba, comes to Rabbi Yohanan 17
with an illness. She wishes her husband to finance her doctor's bill. Rabbi
Yohanan suggests that she claim that her illness is incurable, in which case it is
the husband's obligation to take care of her. This she does. Thus far the story
(yKetubbot 4: 11, 29a).
What have we here? A woman with a medical problem approaches Rabbi
Yohanan, obviously in the capacity of an arbitrator between her and her husband. He helps her solve her problem financially by referring her to a minor
clause in the rabbinic law code, which she may employ in her legal battle. Thus,
despite the disinterested stance he is expected to take, the rabbi favors the
woman's cause and helps her win her case. There is something disturbing in this
15 I have two reasons for discussing this story after the previous one. The first is stylistic.
In the previous story we read the Bavli's judgment that an important person is subject to a
different law than the populace is. As we shall see, here again this argument is used to explain
away an occurrence in a Yerushalmi story that is difficult for the Babylonians to accept. The
second is more complex. I had previously discussed the Bavli story I shall present here in the
context of the previous Yerushalmi story, contrasting the attitude of the rabbis vis a vis their
knowledge and women with their attitude to women's knowledge ("Women Studies versus
Jewish Studies"). At the time I was not aware of the Yerushalmi parallel to this story, which
does not change the interpretation I suggested, but adds another interesting aspect to its
redactional history.
16 And see the discussion in G. A. Wewers, Probleme der Bavot-Traktate (Tiibingen
1984) 256-7.
17 As we shall note below as well, most of the stories I shall be discussing (the pervious
one and this one included) have Rabbi Yohanan as their protagonist. I have not been able to
suggest a reason for this except that Rabbi Yohanan is by far the most prominent rabbi in the
Yerushalmi.

"Stolen Water is Sweet"

197

picture, for the editors now ask: "Is it not written: 'Behave not as lawyers?'
(mAvot 1:8)" Rabbi Yohanan has obviously abused his professional integrity.
The rabbis further comment that he has not just abrogated an ancient (mishnaic)
piece of wisdom lore, but he has also transgressed his own dictum for he is
reputed to have proclaimed: "one is forbidden to tell an individual his judgment." However, the final pronouncement of the rabbis on this issue is favorable: "Rabbi Yohanan knew she was a trustworthy woman (i11'WJ i1W~), and
therefore he revealed it to her."
Intertextual Location of the Yerushalmi Sto,y Note that the similarities
between this tradition and the one about Timtinis, are striking from a sociological perspective. A person belonging to a secret society is faced with a conflict
of interests - maintaining the integrity of his/her society and its teaching, or
helping a person in need. Interestingly, the genders of the persons in these
stories are reversed. There was a man who required the medical assistance of a
female doctor and here is a woman who requires the legal expertise of a rabbi.
However, the outcome of their similar actions does not bear similar consequences for the man and the woman. The man is finally vindicated for disclosing his secret, because the woman he discloses the secret to is trustworthy. The
same Rabbi Yohanan himself, however, in the story ofTimtinis is not trustworthy. He reveals to others the woman's secret. Unlike him, she must die for her
transgression.
Thus, like the doctors' guild to which Timtinis belongs, the rabbinic legal
system also has secrets. These are legal loopholes and fictions that are part and
parcel of rabbinic legal practices not disclosed to the ignorant multitudes that
require the rabbis' assistance. Among these multitudes are women. Rabbi
Yohanan reveals to this woman a legal loophole, and is then accused of having
acted as a lawyer. Disclosing to her the required information lays bare the secret
legal intricacies of the rabbinic system. It allows the woman success in her legal
battle. Thus, the editors' comment on Rabbi Yohanan's action seems to suggest
that it is in the public interest that women remain ignorant of the rabbinic legal
mechanisms and lose their legal battles, so that they remain at men's mercy.
The Bavli Parallel: The story under discussion here is another excellent one
about a woman. Her predicament is grave. If she were required to treat herself
she would probably be divorced and go bankrupt. 18 Rabbi Yohanan, despite
legal inhibitions, helps her secure the best deal possible. What have the Babylonian editors done with this story? First of all the story begins with the words:
"The relatives of Rabbi Yohanan" (bKetubbot 52b) Thus we are not dealing
with the relative of some remote rabbi (Shimeon bar Abba) but rather the
relatives of the judge himself. Note also that we are now no longer dealing with
18 Cf. the story in the NT about a woman with a twelve-year flow of blood who had spent
all her fortune on doctors to no avail - Mark 5:26.

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Tai I/an

one (female) relative but with several (and, as we shall immediately see, male)
relatives. The text goes on: "(they) had a father's wife who needed to take
medicine daily." The situation is slightly different. This is no longer a wife but
a widow. It is no longer a question whether the husband will pay for her
treatment but whether his sons will. The halakhah is, however, still the same. If
the illness is curable it could be paid out of the woman's ketubbah. If, however,
it is incurable, the heirs need to maintain her. Since one is no longer dealing
with a live husband, the baraita is slightly altered, in order to fit the new case:
"Rabban Shimeon ben Gamaliel says: An illness that is curable, she is treated
through her ketubbah. If it is incurable - it is like maintenance (mma:i)."
Obviously, for the heirs, it would be more economical in such a case to compensate the woman according to her ketubbah rights and see that she treats her own
illness. Thus the story goes on: "He said to them: Have her illness (diagnosed)
as curable by a doctor." Naturally, when advising the heirs, who would have to
pay the widow's medical bills, Rabbi Yohanan in this story gives the opposite
advice from that given in the Yerushalmi.
lntertextual Location of the Yerushalmi and Bavli Stories: Before we continue with the story it is worth observing how, after altering the roles of the
protagonists in this story, its message has also changed. The story in the
Yerushalmi suggested that the halakhah incorporates legal loopholes from
which a sick woman could benefit. One rabbi discloses these loopholes to her,
an action that is then praised by the editors, despite difficulties that may arise
from it. In the Bavli, however, the opposite happens - the loophole is disclosed
to the woman's adversaries, so that they can take advantage of her. The problem
is perhaps the same halakhic problem, but now it is the woman who loses the
battle. The Bavli, however, does not seem to have problems with this.
Still as part of the story, the text continues: "Rabbi Yohanan said: We have
made ourselves into lawyers." The rabbi recognizes that he had not acted as an
impartial judge but as a representative of one side in the struggle. Reading the
story as told both by the Yerushalmi and the Bavli has a sobering effect on the
reader. One can see how intimate knowledge of rabbinic law can affect any side
in a legal conflict. Thus in this light Yohanan's observation here (which, we
may remember, was an observation of the editors in the Yerushalmi story) can
be better understood. The observations of the Bavli editors are also enlightening. The Bavli comments: "What was he thinking to begin with (when he
disclosed the law to the heirs), and what did he think in the end (when he was
filled with remorse)? In the beginning he thought 'Do not ignore your own
flesh' (Isaiah 58:7 - since the heirs are his relatives). In the end he thought the
case of an important man is different (':Jill :rnvn Cl1t~ - namely as a judge he
should not favor his relatives)."
Two questions arise from this change of the story plan - one ethical, and the
other redactional. I will address the two in this order. The ethical problem is

"Stolen Water is Sweet"

199

this: The rabbis seem to have been aware of the possibility of their code of law
being used to disinherit the weaker members of society. This is particularly true
for the difficult choice a recently-widowed woman has to make between being
maintained by the heirs or receiving her marriage settlement in its entirety and
relinquishing any further demands on her late husband's estate.
The story of interest here, as it appears in the Yerushalmi, has no relevance
for this halakhic problem, because it supposes a husband who is still very much
alive. However, because of the way the story is transformed in the Bavli, this
problem is indeed the issue. Nevertheless, the Yerushalmi, too, knows of such
a dilemma for the newly widowed and it has a name for what Rabbi Yohanan of
the Bavli has just done to the widow. It is not a nice name. Two stories are told
to demonstrate how the sons of the deceased can take advantage of such a
situation. In one of them this sort of action is designated "injuries of the
Pharisees (1'illl1::l m~a)." This expression is found in the Mishnah (mSotah
3:4), and when the Yerushalmi editors comment on it, they exclaim: "This is
one who advises the orphans how to deprive the widow of her keeping" (ySotah
3:3, l 9a). 19 This statement is then followed by a story: "The widow of Rabbi
Shabtai wasted away the property (apparently of her late husband). The orphans approached Rabbi Eleazar. He said to them: What can we do for you?
You are fools. Pay her her Ketubbah? He said to them: Let me tell you what you
should do. Pretend you intend to sell (the property) and she will demand her
marriage settlement (i1J11::l - cpEgv1i) and will lose her maintenance. They did
so. In the evening she approached Rabbi Eleazar (about the same matter). He
said: I am inflicted by the injuries of the Pharisees. I swear I had not intended
this to happen." Rabbi Eleazar had advised the heirs against the widow, in
accordance with rabbinic rulings. They were successful. Now he realizes he has
injured the widow and he is sorry. When we ask why the rabbis do not wholeheartedly uphold their obvious forefathers, the Second Temple Pharisees 20 , this
is one explanation (the one provided by the Yerushalmi) - the Pharisees' legal
proclivities had prevented them from correctly using the concept of mercy in
their legal decisions. The Yerushalmi criticizes the rabbi and stands squarely on
the side of the widow.
Interestingly, in the same context, but not exactly, the Bavli also formulates
this idea: "(what is) a sly villain?" the Bavli asks. A "sly villain" is another evil
category mentioned in mSotah 3:4. "Rabbi Asi said (in the name of) Rabbi
Yohanan: This is one who advises the orphans to sell diminished property. As
19 For my discussion of this expression within a tannaitic context see my "Rabbinic
Literature and Women Studies: A Response to Shulamit Valer, Hannah Safrai and Judith
Hauptman," Proceedings of the 1999 Machom Schechter Conference 011 the Impact of
Women Studies 011 Jewish Studies (Hebrew - in press).
20 See S. J. D. Cohen, "The Significance of Yavneh: Pharisees, Rabbis, and the End of
Jewish Sectarianism," HUCA 55 (1984), pp. 27-53

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Tai I/an

Rabbi Asi said (in the name of) Rabbi Yohanan: Orphans who sell diminished
property, what they sold is sold." The Bavli dubs orphans who behave as
described here "sly villains," but it does not name the injured party who stands
to lose from their selling the dead man's property- namely the widow. Also, it
refrains from telling a story that demonstrates this, as the Yerushalmi does.
This difference is even more marked in the next example. The Yerushalmi
tells yet another story intended to demonstrate the difficult predicament of a
widow faced with the intricacies of rabbinic law: "Rav Judah in the name of
Rav: "Whoever demands her ketubbah in a court of law loses her maintenance"
(yKetubbot 11 :2, 34b). This dictum is followed by a story: "Once the widow of
Rabbi Abdimus of Mazuba (demanded her ketubbah in a court of law). Rabbi
Abba bar Cohen said to her: Do you wish to demand your marriage settlement
and lose your maintenance? If you had known this law, would you bring the case
before Rabbi Yosi? She (chose to) continue with her maintenance." Rabbi Abba,
aware of the injustice that following the letter of the law may inflict on a woman
litigant, warns her against taking such action, as she would be committing a grave
error. The Yerushalmi and its sages are again on the side of the widow.
In the Bavli a similar story (though not a parallel) is told, but with almost a
complete reversal of outcome: "A woman came before Rabba bar Rav Huna (to
demand her ketubbah). He said to her: Rav does not collect the ketubbah for a
widow (because she needs to swear she had not touched it in her husband's
lifetime, and he is opposed to women swearing, for fear that they abuse the
name of God) .... She said to him: Well then, give me my maintenance. He said
to her: Maintenance I cannot give you either, since Rav Judah said (in the name
of) Shmuel: Whoever demands her ketubbah in a court of law loses her maintenance" (bGittin 35a). Note the difference of approach, when compared with
the story of the Yerushalmi. Here the widow is not warned- she is cornered and
made destitute. However, the Bavli, too, is aware of the injustice such a story
presents. It is some consolation to note that at this point the story continues in
another vein: "She said to (the rabbi): Overturn his seat. He has done me two
(wrongs). They overturned his seat. Even so, he did not escape illness (i.e., he
was punished by heaven for having thus treated the widow). Rav Judah said to
Rav Jeremiah of Bira: Bring her back to court and administer a vow to her there
and an oath outside (and let her collect her ketubbah). Then publicize it so that
I will hear it, since I wish to make this into a precedence." Finally the Bavli
senses the outcome of its own attitude to widows. Such a story could not have
been imagined in the legal context created by the Yerushalmi, because its initial
attitude would have been to protect the widow from her own errors, as the
Yerushalmi story told above has demonstrated.
The Bavli Parallel Again: I have brought this collection of stories to demonstrate the ethical issue of the widow and her economic plight, to which the
Yerushalmi seems to be far more finely tuned than the Bavli. This can explain

"Stolen Water is Sweet"

201

why the wife of a living husband in our original Yerushalmi story is transformed in the Bavli into a widow, and how a story sympathetic to a woman
becomes one sympathetic to her adversaries. However, it does not explain how
it was done. I now wish to turn to the forms used in the story in order to explain
the transformation.
I think that here Jeffery Rubenstein's theory of the way stories in the Bavli
are created can be useful. 21 He has shown that formulae from one story are
sometimes transported into another story, thus changing completely that composition. This, I believe, was done twice in the Bavli story under discussion
here. As we may remember, it begins with the relatives of Rabbi Yohanan who
had an annoying stepmother. Since the Yerushalmi tells of the relatives of a far
less famed Rabbi, where does this concept of relatives come from? I think
Rabbi Yohanan's relatives, together with their stepmother, have all been transported here from another story in the Bavli: "Relatives of Rabbi Yohanan had a
father's wife who used to waste her maintenance. They came to Rabbi Yohanan.
He said to them: Go and tell your father that he should put aside land for her
maintenance etc." (bKetubbot 54b). This is a long story and involves two rabbis
(Rabbi Yohanan and Resh Laqish) who rule one against the other. I do not wish
to discuss it here. I am only pointing out the origin of the introduction to the
story we are discussing - it clearly comes from this location.
The end of the story takes up another issue, in which the Yerushalmi is not at
all interested, namely the rabbi's ruling in his blood relatives' favor. This idea
is obviously inspired by the introduction, which, as we have just seen, is
borrowed from another story. Since the litigants are rabbi Yohanan's relatives
and they win the case, we obviously have here a case of nepotism. The end of
the story, raising exactly this issue, is also borrowed from another story in the
Bavli: "A (female) relative of Rav Nahman sold her ketubbah for a small profit.
She was divorced and than died. The (buyers) came to her daughter and demanded (the ketubbah) from her. Said Rav Nahman to (the sages): Is there no
one who would furnish (the daughter) with advice? She should go and surrender the ketubbah (of her mother) to her father and inherit it from him (because
the creditors have no claim against him). She heard this and surrendered the
ketubbah. Rav Nahman said, we have made ourselves into lawyers. What was
he thinking to begin with, and what did he think in the end? In the beginning he
thought 'Do not ignore your own flesh' (Isaiah 58:7). In the end he thought the
case of an important man is different ('JiD :rnvn Cl1~)." (bKetubbot 85b-56a). 22
This is another interesting story with many gender issues, but I have only
presented it here to show whence the formula ending our story was taken. We
21 J. Rubenstein, Talmudic Stories: Narrative Art, Composition, and Culture, Baltimore
1999, pp. 53-57.
22 For more on this story see my "Women Studies versus Jewish Studies". And see now
Valler, Women in Jewish Society, p. 132 f.

202

Tai /Ian

can imagine that the Yerushalmi 's reference to lawyers inspired the Bavli
editors to transport the ending formula from the Rav Nahman story. This, in
turn, required the litigants to be relatives of the judge, so that the editors
transported the relatives of Rabbi Yohanan with their stepmother from the
another place. This was useful, because Rabbi Yohanan is the judge in the
Yerushalmi story as well. This scissors-and-paste policy, however, now created
the gender reversal we encountered above, and Rabbi Yohanan ended up helping his male relatives rather then the widow. This development the Bavli editors
could bear, because, as we have just seen, the ethical problem of the widow's
plight preoccupied them much less than it did the Yerushalmi editors.
As in the two previous examples, we were able to see here how a perfectly
decent woman who is mentioned in the Yerushalmi as "trustworthy (i11'tDJ)" is
mistreated by the Bavli and the legal system it attempts to represent. The only
comment it then makes on the issue is that the judge felt some remorse, not
because the judgment had gone against the weaker link, but because he had
practiced nepotism, which is unworthy in a person of high standing as a judge.
lntertextual Location of the Yerushalmi Story: The Yerushalmi story discussed here, as opposed to the two previous ones, deals directly with an issue
that is of relevance to women - their power to demand medical treatment from
their husbands' estate or their lack thereof. This topic, however, is discussed in
the text only by way of example. The main issue under discussion in the story
is whether a rabbi is allowed to disclose to a court litigant halakhic details so as
to place him or her in a legal advantage in comparison with his or her adversary.
This means that while the storyteller chose to tell the story about an issue
associated with a woman's legal position, many other examples could likewise
have been brought in order to demonstrate the same moral dilemma of the rabbi
in his capacity as a judge. Of course, it is of some relevance to inquire why the
storyteller eventually chose a story about a woman's problem to demonstrate
this point. This could have resulted from the fact that women are, by definition,
persons who require rabbinic services without being themselves experts in
them. This is clearly an approach that derives from a stereotypical view of
women as weak, ignorant and at the mercy of the rabbis and their legal system,
and thus needing the rabbis' protection. The rabbis in this story (and in the ones
I will discuss below) present themselves, as they often do, as standing at the
head of a legal system to which all the Jews in the land are subject - a picture
that is being now questioned earnestly by historians. 23 The Yerushalmi, itself,
however, needs no twenty-first century scholars to question this entire presentation ofreality. In yMegillah 3:2, 74a we hear of Tamar, who came to a rabbinic
23 S.J.D. Cohen, "The Rabbi in Second-Century Jewish Society," in W. Horbury, W. D
Davies and J. Sturdy (eds.), The Cambridge History of Judaism vol. 3, Cambridge 1999, pp.
922-77.

203

"Stole11 Water is Sweet"

court, heard its judgment, disliked it and then went to a gentile court to have the
decision overturned. This episode, told by the same circles who told of the sick
woman who came to Rabbi Yohanan, describes neither a weak woman who
needs rabbinic protection, nor an almighty rabbinic court that has to critique its
own conduct. The rabbis of the Yerushalmi could distinguish between their
wishful presentation of reality and the way it functioned outside of their literary
world.
yBava Batra 9:6, l 7a

(CJ

;i',n ... Clili.l in~ '?ElJilJ ]'Elr11illi1 rn~il :i1Jilli.l

... :'Jr1 :~ir.i, .11:l;sl) '?illr.i ~Eiim - ~Eiirm
:'Jn .l);si.l~il Ji.l ~Eiim - ~E:11m1 ;i',n
- il;s'p ;,', il)'il) il:li.l ',::, :"'1i.l1~ J":::lill"'1
- il;s'p ;,', r~ill1 ,iln:::iin:,r.i i1~El"'1r1i.l,
...,., i1'n:::i'1P ~-,;,::, .Cl'O:lJiT ]i.l i1~El"'1r1i.l
-, :::i, nn~ .m' l) ilillilln n11i1 ~,, 1:::i J1l)i.lilJ
]i.l ,f';sp ]'~ ?T'O~ ]'ii~ .~1i1 f';s'p .pm
~'?, l'? :::iw T'?l):::i ,f';sp ~'? r~ 1J1El
"P"1i1 :i11l):, li.l;sl) il)l)r, '?~" ::::in:,
in'? m'?J'? 110~ :pm' -, Dill:::! "Jn 11r.i1
~n~ ~;,-, pm' -, ;i1;i l)1' :ir.i~ .1n
.i!'? ,.,, p p:::i .i1"'1'ill:l

bKetubbot 52b

yKet11bbot 4: 11, 29a)

i1:l'"'1;s1 rr.i1n '0:lji.l m1l'J mr.i',~ :"'1"n
p pl)i.lilJ pi .mmr.i:, ~;, -,;, - ;i~1E:11
il:::!;sp ;,', il)'il) i1~1El"'1 :"'1i.l1~ - ',~'?r.iJ
~-;, '"'1i1 ,il:::!;sp ;,', r~ill1 ,iln:::i1n:,r.i n~El"'1m
nn~ 1;,', i11i1 pm -,-, ;i:::iip .mmr.i:,
in~ .~m ',::, i1~1El"'1 ;i:,-,;s m;,1 ~:::i~
;,', 1;s1p 1',r~ :1i1'? ir.i~ .pm -,-, ;ir.ip'?
1Ji.l;sl) 1J'illl) :pm -, ir.i~ .~E:111'? ir.i
ri10::i'?1 1::io ~r.i ~ip'l)i.l .p"1i1 :,11l):,
"CJ'?l)r,r, ~'? 11ill::ir.i1" 1::io ;iip'l)r.i ?1::io ~r.i
.'J~ill ::i1illn 01~ :i::io ri10::i'?1 (T m iT'l)ilJ')

4. yKetubbot 2:5, 26c

The Yerushalmi Stories: I ended the discussion of the previous story by pointing out that it is about a woman-related topic, but this is only by way of
example. The story was really about the rabbis' legal system. The next three
sugyot discussed deal with issues that are of importance and relevance only to
women. Thus, they could not be told about men. My next example deals with
two stories embedded in one sugya. The sugya contains other stories about
women, on which I will also touch, but I shall dwell in detail on two - one that
has a parallel in the Bavli and one that does not, though it was clearly known to
its editors, as I shall demonstrate. As I have already hinted, many rabbinic
stories, and, particularly, most of the stories in the Yerushalmi, function in order
to describe how people, usually good, trustworthy people, often the rabbis
themselves, acted against the accepted norm or even against the assumed
halakhah. Certainly in the previous example Rabbi Yohanan, in advising the
woman on legal matters, acts against a given code of behavior. Sometimes
these stories serve as legal precedents, incentives for changing the halakhah.
While in the previous story this is not stated in so many words, in the stories I
shall now discuss this is indeed the drift of the argument.

204

Tai Jlan

The First Stmy: In the first story the following mishnaic ruling is discussed:
"If a woman said: I was married but now I am divorced, she is trustworthy (and
may remarry on her own testimony) because the mouth that bound her is the
one that released her (l'r1i1tll i18i1 ~lil "lO~tll i18i1tll) If witnesses are found
who claim she is married, and she says: I am divorced, she is not trustworthy"
(mKetubbot 2:5). This ruling can be seen as problematic in a patriarchal society,
for it places a woman in a very strong legal position concerning her personal
status. In general, the rabbis ruled that women do not serve as witnesses at all,
let alone for their own benefit. 24 Furthermore, in this case, if she lies or makes
a mistake many lives will be effected, most specifically those of her future
children, who would be deemed mmnzerim. It is no wonder that this ruling
caused some concern in rabbinic circles.
In the Yerushalmi, as part of the discussion of this halakhah, the following
story is related: "One woman came to Rabbi Yohanan. She said to him: I was
married but now I am divorced and he released her (to remarry). When she went
away (his students) said to him: Rabbi, she has witnesses in Lod. He said to
them: And if her witnesses were in Xosnun, should she also wait?"
This story, I believe, demonstrates the principle I described above that, in the
storyteller's world, an action which may appear to oppose the halakhah is, in
fact, praiseworthy. The halakhah says a woman may only be believed as a
witness to her own personal status if there are no contradicting (male?) witnesses. A woman comes to Rabbi Yohanan and he treats her testimony as if this
were the case. This shocks his students because they know of people, residing
in Lod who can give evidence about her personal status. To understand this
story it is important to know that Rabbi Yohanan resides in Galilee and Lod is
in Judaea. To him this is a long way off. He says something like "why should
she wait for somebody to go all the way to Lod to interrogate other witnesses
(probably only to find out that they corroborate her version)." Then he compares Lod with a faraway place, beyond the reach of mortals - Xosnun. 25 Its use
here seems to be equivalent to our use of a place name such as Timbuktu. In
plain words, he is asking his students whether they think that observing the
legal niceties of the law overrides the woman's immediate wellbeing. The
Yerushalmi, which views Rabbi Yohanan's action positively, has now modified
the mishnaic ruling. It claims that when the mishnah speaks of witnesses, it
means here and now. In other words, it expands the woman's role as witness to
her own status. This is a story where a specific woman's needs influence the
decision-making of the rabbis. It serves as a catalyst, because it shows the
rabbis where their rulings need to be adjusted to human needs.
24 See my discussion in Jewish Women in Greco-Roman Palestine, Ti.ibingen 1995, pp.
163-6.
25 See Jastrow, Dictiona1)', 1395 suggested that this place-name is perhaps a corruption of
Saguntum in Spain.

"Stolen Water is Sweet"

205

The Second Stmy: Following the discussion in the Mishnah, whether a

woman is a trustworthy witness to her own personal status, the Yerushalmi also
addresses the reliability of women who describe their personal status as married a11d then retract their statement and claim they are, in fact, single. The
Yerushalmi brings up this related topic by telling the story of such a woman.
Then it explains that she had lied, to begin with, so as to rid herself of the
unwelcome attentions of male perpetrators (Cl'~'1~ in Hebrew). The word used
for their attentions is ~111ii1",, which literally means "to mate" and, while it is
sometimes used to describe the act of marriage, it is more commonly used in
connection with sex, reprehensible or otherwise. The story goes on to explain
that to the rabbis the woman told the truth, that she was single. The rabbis, well
aware of the dangers of sexual harassment threatening women, accept her
explanation of why she had told two different versions of her story. They rule
that, if a woman brought a (convincing) explanation for lying, she is to be
believed. This is a further twist in the application of the mishnaic ruling. The
Mishnah had grudgingly acknowledged that for life to continue normally,
women sometimes have to be believed when testifying to their personal status.
The Yerushalmi had, with the first story, broadened this concession, but now it
goes even further. Not only does it conjecture that a woman may testify to her
personal status, but it further asserts that in some cases she may even lie and yet
still be believed, rather than punished.
The Third Story: This text is followed by yet another story also demonstrating this point to which I shall return later on in this paper. In this story, one day
Samuel's wife told her husband she was unclean but the next day admitted that
she was pure. When he asked her why she had lied previously, she claimed that
she did not have energy for sex the previous night. The storyteller vindicates
her. This story does not treat a woman testifying to her personal status. Its
relation to the previous story is based on the fact that a woman may sometimes
lie when she has a good reason to do so, and should not be reprimanded for it,
but rather praised for her delicacy.
The Bavli Parallel: In the parallel in Bavli Ketubbot the first and third stories
are altogether absent. 26 The second story is told, with some interesting differences. This does not, however, imply that the sugya in the Bavli was composed
independently of its Yerushalmi counterpart, or that its editors were unaware of
its particular legal aspects. I will claim that the Bavli editors, for rhetorical and
ideological reasons, chose to ignore the first and third stories and alter the
second. I will demonstrate how they edited the first story out and what they did
with its leftovers. But I will begin with their attitude to the mishnaic sugya and
to the second Yerushalmi story.
26

On the phenomenon in general, and on this particular case as an example, see Frankel,

lntrod11ctio11, 44a-b.

206

Tai I/an

In the Bavli's frame of mind, the Mishnah, which claims that when a woman
has no witnesses to the contrary, she should be believed when testifying to her
personal status, was not debatable. The Babylonians, however, did not think it
was wise to elaborate it too much or reinforce it with stories. A close look at the
make up of this Baby Ionian sugya is instructive. Following the mishnaic ruling
about a woman testifying to her personal status, the Bavli stages a semantic
discussion of the words "the mouth that bound is the one that released" (bKetubbot 22a). This discussion appears to be purely academic, using a verse from the
Bible to explain the principle, but it is not as neutral as it appears at first sight.
The verse used to justify the principle is Deuteronomy 22: 16: "I gave my
daughter to this man," which records the words of a father who, having handed
his daughter in marriage to another man, now defends her against a nonvirginity charge. The mouth that binds and releases is his mouth, and it is he
who is binding and releasing his daughter. She has no say in the transaction.
When we consult the second Yerushalmi story and the way it underwent
changes in the Bavli, we again encounter the uneasiness of the Bavli about
women's independence. This story and the halakhah that goes with it are both
found in a parallel position in the Bavli 's discussion of the same mishnah. In the
Yerushalmi the ruling is presented as an amoraic discussion within the story of
the woman who lied. It is, therefore, instructive to note that in the Bavli the
halakhic dictum about a woman who lied and then changed her mind is presented as a baraita - a tannaitic utterance which the rabbis cannot overturn,
even when they disagree with it. This means that the Babylonian rabbis intentionally distance themselves from this ruling.
This baraita is than followed by the story from the Yerushalmi about a
woman who lies about her marital status. It has, however, undergone significant changes. In the first place, while the story in the Yerushalmi is about sexual
harassment, the story in the Bavli is about marriage. We learn here that the
woman in question is rich and beautiful, and thus a desirable catch. Then we
hear that she has many suitors. Such details are completely absent from the
Yerushalmi version. In the talmudic storytelling world details are unnecessary
for various reasons. 27 One of them is that in legal matters they may cloud the
issue. Characters who appear in the stories are types. If a beggar is mentioned
we are not told that he also had an aging mother, a scar on his left knee, curly
hair or a special craving for cucumbers. Any of these details will be revealed
only if they are relevant to the story. Even the fact that he is a beggar is only told
because, as we have seen above, he will come begging at some stage in the
story. If we are told here that the woman is rich and beautiful, these details may
suggest that these assets allow her to lie and get away with it. Conversely, they
27 See, e.g., Yonah Frankel, The Ways of Aggadah and Midrash I, Givataim 1991, p. 240
(Hebrew).

"Stolen Water is Sweet"

207

may imply that because a woman is beautiful she is more desirable to the
harassers, and thus their conduct may be excused on the grounds of mitigating
circumstances. The victim would be made to bear the burden. Legal systems
have been known to fall into such a trap. This is perhaps why the Yerushalmi
tell us no such details. In the Bavli, however, because the issue is marriage,
wealth and beauty are important. Why would a woman be wooed by many, as
the story goes on, if she had no redeeming features?
The story in the Bavli now introduces the theme of the Yerushalmi - to the
unworthy suitors this woman told a lie: that she was engaged. This she did, not
to protect herself, as in the Yerushalmi story, but more likely out of politeness.
She did not want to hurt their feelings. When the right man came along she told
him the truth and become engaged to him. Again, the terminology is important.
The men here want to sanctify her - i1ilnp', - a loan word meaning to enter a
legal engagement. Their intentions are respectable, and the woman lies only
because she wishes to choose for herself. Since the halakhah is only interested
in whether the woman has a good reason for lying, the changes in the story do
not affect this premise.
What they do is place the entire story into a more ordered world. In the world
of the Bavli, women are under the tutelage of men. A good story about a woman
is a story about marriage. Whether women can testify to their own personal
status is best ignored. Since this is the picture that now emerges, let us observe
what happened to the first story, about the woman who testified to her personal
status and was given permission by Rabbi Yohanan to marry, despite the fact
that witnesses were far away. Although this story is clearly absent from the
Bavli, it is not completely lost. Bits of it have been transferred to a nearby
location. The last part of mKetubbot 2:5 compares the status of a divorced
woman who testifies about her own status with the status of a woman who was
taken captive and likewise testifies: "She says: I was taken captive but am pure
- she is trustworthy. And if she has witnesses that she was captured - she is not
trustworthy." On this statement both the Bavli and the Yerushalmi bring the
story of the daughters of Shmuel, who were taken prisoners. I will not discuss
this story here, although it, too, may raise similar concerns. While the Yerushalmi story ends with the acceptance of the daughters' evidence about their
status, it is interesting to note that the story in the Bavli has an appendix, which
is clearly taken from our first Yerushalmi story. It ends with the words of a rabbi
present in the hearings: "now has this mishnah taught that if she had witnesses
in the North she shall be forbidden?" "The North qnoti; 1~:::l)" referred to in
this tradition easily compares with Xosnun of the Yerushalmi tradition. The
Bavii claims that one should not doubt the evidence of the daughters of Shmuel
concerning their status even though there are, perhaps, witnesses who can
testify to their status elsewhere, in some distant location. This leftover indicates
that the first story from the Yerushalmi was known to the Bavli editors, and yet

208

Tai I/an

they chose not to tell it. To me this suggests that the Bavli had no interest in
preserving it. The answer to the question, why this is so, is, of course, anybody's guess. I suggest that the Babylonians did not like its conclusion that
made a woman a reliable witness to her own personal status in a wide array of
circumstances.
yKetubbot 2:5-6, 26c

bKetubbot 22a

'n"i1 iV't,:: niVt,:: :i1iOt,::iV i1iVt,::i1 :i1liVO

i15:li1 t,::1i1 iOt,::iV i15:li1iV ,nlQt,lil - 'lt,:: i1iV1iJ1
t,::'i11 iV't,:: niVt,:: t,::'i1iV tl'1.!l iV' tit,:: .,'ni1iV
.mot,::J i1l't,:: ,'lt,:: i1iV1iJ :n,01t,::
.t,::~n t,::', - tl'1.!l 1t,::J nt,::iV'liVO tit,:: :'Jn :t,::10,
t"J10 t,::', :]'iOt,:: J1i1'in i1l'ln 'i1 t,::J1i1 Ji
1"J i11i'ni1 1?'5:lt,:: t,::',t,:: ,nt,::iV'JiVO
iJ1
.t,iiiVJi1?
:1'? ;,;ot,:: .pm' -, 'JJ? nnt,:: t,::n't,:: ,n t,::1;,::,
JO .m,nm .'Jt,:: i1iVn,, 'n'i1 iV't,:: niVt,::
1::i .11',J i1'1'.!l 'ii1 .'Ji :i1'? r,ot,:: np::ii1
... ?]'non po,opJ i1'1'.!l 1'?::it,:: :,01t,:: 'Jt,::
:i1,0t,:: ,no'?, .'n'i1 iV't,:: niVt,:: ;,;ot,:: tl1'i1
ci,, pt,:: n;ot,:: '?1ont,:: :i1'? ,,ot,:: .'Jt,:: i1iV11'
1'i1iV p,::i '?iV n::, i::io :Ji'? ;,;ot,:: .pt,:: r1
:t,::?'t,ii 'i tl1iVO pt,:: 'Ji .'? J111li1? ]'t,::J
.nOJt,::J - i1',J1'? t,::',no i1t,::'Ji1iV J1'JO
.i1'nnt,::', p1p11't,:: i1.!JJ ',t,::10iV t,::1;,::,
:i1'? ;,;ot,:: ,no'? .'Jt,:: ;it,::ot!I :i1'? ;,;ot,::
,i1t,::Ot!I n;ot,:: '?1ont,:: :i1'? ,ot,:: .'lt,:: i1i1i1t!I
'?"nJ i111i1 t,::', :i1'? i1i0t,:: ?i1i1i1t!I J1i'OiV
p::,o :?"t,:: .J,'? '?t,::iV t,::nt,:: .t,::n.!liV "i1
.mot,::J - i1',J1'? t,::',no i1t,::'Ji1iV
- 'lt,:: i1i1i1t!l1 'n'JiVl i1iOt,::iV i1iVt,::i1 :i1liVO
iV' tlt,li .i'niliV i15:li1 t,i:1i1 10t,iiiV i15:li1iV ,nlQt,lil
tl'1.!)
i1l't,:: - 'lt,:: i1i1i1t!I mo1t,:: t,::'i11 n'JiVliV
iJ1 t"J10 t,::', :iQt,:: t,::J1i1 Ji :t,iiiQJ .nlOt,::l
.t,::iVli1? ]'1 n'J ;,nm 1'?::it,:: t,::',t,:: nt,::iV'JiV
,J t,::Jt,:: o,p i11J1.!l t,::nt,:: .tliV? 1JiVJ tl'iVl
1poi .tl'1.!l Ji1'? 1100 :1,ot,:: .'?t,::1oiV1 ,,.,, t,::J
tl'O'? i1iV.!ll i101 :i1'? iQt,:: .?t,::iiV'1 i1.!Jit,::?
1',t,:: :t,::J ,J t,::Jt,::?" ?nn"miV tl'l1iVt,::,
i1'nlJ J"JniV't,::1 ?,Ot,:: nm p 1mJ p-11;,
1::, .t!l'?iVi1 'l5:l?O nt,::~1'iV i1JJiVJ ?t,::10iV1
-, 01p ]'?.!l .Ji10.!l J"JiV Jp'?o ,t,::::,;,', pp'?o
:i1'? 1iQt,:: .iJ?O J"JiV JO'p1t,:: .t,lil'ln
rn'?iV J'P5:ll1 JO .Ji'ni11 .1lt,li n1i1i1t!l1 1l'JiVl
.Ji1 ci::,n mlJiV 1',t,:: n,;::,i :,Ot,:: .J'?.!l J"JiV
:t,i:J iJ J1.!l0iV? ]'iOt,:: ]'1i1 JO ]' .!l11'n't,::1 JO

i1iln1 ,'lt,:: iV't,:: niVt,:: :i1i0t,:: :'Ji1 'Ol :t,li'ln

tlt,\1 ,nlQt,lil i1l't,li -'lt,li i1'1l5:l :i1iQt,i:1
mot,::J-i1',J1'? t,::',not,:: mm
'1lJ ;,',11, i1n'i1iV ;,',11, i1iVt,::J 'OJ i1iV.!l01
;,;ot,::1 .i1iV1p'? tl1t,:: 'lJ i1'?.!l 1:mp1
nt,:: i1iV1'p1 i110.!l tl'O'? .'lt,:: niV11po :tli1?
?p nw.!l'? nt,::; ;,o :tl'o::,n ;,', not,:: .i10~.!l
tll't,::iV tl'iVlt,:: ',t,:: 1t,::JiV ;,',nn:i :tli1? ;,;ot,::
1t,::JiV 1'iVJ.!l .'lt,:: niV11po n,ot,:: cii,,;,o
nt,:: 'niV1'p1 nio.!l tl'lJ1i10 tl'iVlt,:: ',t,::
.'Q~.!)

Ibid. 23a
tl'1.!l ,., iV'1 'lt,:: i1i1i1t!l1 'n'JiVl :i1,0t,:: :,"n
1t,1i1J'iV 1.!J rnol :tl'i01t,:: ]'t,li ,'lt,:: i1i1i1t!iiV
t,::iVl'? i11i'ni1 .1'0 i1n1t,:: ]'i'nO t,::',t,:: tl'1.!l
11 -,;, .1i.!l1' t,::', :not,::1 tl'1.!l 1t,::J 1::i ,nt,::1
;,o::, ;,', iV' 1'?::it,:: ,i1t,::01t!I '1.!l 1t,::J tit,::1 t,::~n t,::',
.t,::~n -tl'lJ
J'n,t,:: .t,::.!l1ii1lJ J"nt,::1 t,::n"'1JiV 'li1 ...
:?t,li1QiV ?"t,:: .1i1"1i1J 'i1t!ll ?t,li1QiV1 i11Jt,::
lnlJ 1?'t,:: :?"t,:: ?1i1l'it!IJ Jt,::O t,iil1't,::i1 1.!l1
t,::'1i1 ?'t,::i1 '?1J 1i1J ?l?!O n'1i1 'O ]'11i1
J"JniV't,::1 t!i'?iVi1 'l5:l?O t,::~1'iV i1JJiVJ
.?t,liiiV'1 i1.!lit,li? 1i1l'p0t,::1 ?t,li1QiV i01 i1'nlJ
t,iiiVi10 'J? ?" .!l1 't,::iJt,::Q 1i1l"1JiV? JOp1t,::
'lt,:: i1i1i1t!l1 'n'JiVl :i1,0t,:: t,::i1 .t,::l'Jn ;1
c-i10 .1i1l'iiV .'lt,:: i1i1i1t!l1 'n'JiVl :i1,0t,:: t,::i11
J",101 ]lJ :t,::l'ln -, ;ot,:: .1i1l"1JiV 1nt,:: '?1.!l
',t,::10iV 101 i1'mJ1 t,::n',o t,::',rt,:: .J1l't,::
:t,::Jt,:: iJ JOiV Ji? t,::l'ln 'i i1'? iQt,:: .]'11i1
:t,::l'ln -,', i1'? ,ot,:: TnJnpJ ?5:lt!l't,:: p1::i
n;,o t,::niVi1 .tl'i1 m10J tl'1.!l t,::::,'t,::i11
.JnOt,:: 1~J tl'1.!l ,mn',

"Stolen Water is Sweet"

209

.nm~, t-lln'1~1p'? ::ioJ .1n::i1p::i '?::i~t,11

c:n'?ii.11 on .riptD, p::i ?i1Q'? .nn'Q1 t-llrm'?
, nt,11 p i1'Jm nt-li~n jQ t,11',t,11 1npiLl t,11',
.'?",n::i i1JiLli1 nt-li 1::i'J.JiD J.JiLl1i1'

5. ySotah 4:5, 19d

The Yerushalmi Sto,y: The last story has drawn us into a discussion of a wellknown, universal and, by no means, anachronistic issue- sexual violence against
women. With it I move on to the next sugya. In Yerushalmi Sotah the biblical
verse "and she was not apprehended" (Numbers 5: 13) is discussed. This verse
is part of the chapter that describes the ordeal of the wayward wife. It describes
a woman who was unfaithful to her husband and was not apprehended. The
verse claims that such a woman is forbidden to have sexual contact with her
husband. This is the reason why she has to undergo the bitter water test.
Regarding this verse, the rabbis then raise the question: Does this imply that
had she been apprehended she would have been permitted to (sleep with) him?
To this they reply - there is no logical connection between the two parts of the
verse. In some cases a woman is not apprehended and is permitted to her
husband and in some cases she is apprehended and is forbidden to (approach)
him. They then explain what is what. Here they insert the issue of rape and
seduction. When a woman is raped, even if the rapist's actions are not observed,
she is still permitted to be with her husband. They even agree that the bitter
water will test her pure. Seduction they deem a completely different matter, but
we shall not discuss this issue here.
The case for rape is formulated thus: "who is this (who is not apprehended
and yet permitted)? This is one who was compelled, to begin with, but ended
with consent." The idea voiced in this formulation is a common one, that
women who are raped begin by resisting the attacker but eventually they even
enjoy the act. Obviously the idea is thoroughly androcentric, displaying a
marked male perspective on sex. It is followed by a story that demonstrates the
"truism" of this claim: "A woman came to Rabbi Yohanan and said to him: I
was raped. He said to her: and did you not enjoy it in the end? She said to him:
If a man dips his finger in honey and puts it in his mouth on Yorn Kippur, is it
not bad for him, and yet does he not enjoy it? And he accepted her argument"
(ySotah 4:5, l 9d).
This story is hardly written from a feminist perspective. The assumption that
women enjoy being raped is common to both the rabbi and the woman and is
taken for granted in her reply. She claims that she is permitted to her husband
because even though she had sex with someone else, without witnesses, the act
was not consensual. The rabbi doubts that a non-consensual sexual act is
possible, since, by definition, women have sexual appetites and wish to be

210

Tai Jim,

violated. Rather than argue against this assumption, the woman answers with a
metaphor and another halakhic context. 28 The metaphor for sex, as is often the
case in many literary compositions, is food. The halakhic context is Yorn
Kippur, when food is forbidden. Just as honey is sweet to a person on Yorn
Kippur, even though it is forbidden, so is sex with other men desirable to a
married woman even though it is forbidden. 29
The argument in this text is clearly androcentric. It is, however, interesting
that it is put in the mouth of the woman. She teaches the rabbi that, in rape, the
transgressive intentions of the rapist count. It is no mere coincidence that the
rabbis distinguished between rape and seduction. The victim should not be
punished. Rabbi Yohanan, again, rules according to the words of the women.
The Bavli Parallel: This entire discussion is absent from the parallel sugya in
the Bavli. But that does not mean that the story was not known in Babylonian
circles. In another part of the Bavli - bNiddah 45a - it appears in a completely
different setting. The halakhah discussed here is even more androcentric and
obscene than the one discussed in ySotah. In mishnah Niddah the rabbis rule
that a woman who was violated when she was less than three years old is not
considered to have lost her virginity. This is either because, prior to that age, no
hymen exists, or because it grew back. In either case she is still technically a
virgin. As such she is allowed, for example, to marry a high priest.
As the discussion proceeds, the following story is told: A woman came to
Rabbi Aqiva to inquire whether she could marry a priest. She is aware that there
is a problem here, because, as she tells the rabbi, she was violated as a very
young child. The rabbi, however, allows her to marry a priest. Here we find the
woman pressing the rabbi: "let me tell you to what it was likened" she tells him,
"to a child whose finger was dipped in honey. The first and the second time he
pushed it away, but eventually he sucked it." Clearly this story is a version of
the story we met in the Yerushalmi. This is particularly true because sex is
likened in both to dipping ones finger in honey. The differences, however, are
what really make this new story interesting. The metaphor is not applied in
response to a rabbi's inconsiderate and chauvinist statement. On the contrary,
the rabbi has just ruled in the woman's favor. If she knew what was good for her
she would take it and go. Yet she presses him. Mine is not a usual case, she says.
I enjoyed being violated (and am thus to be suspected of prostitution nlJT). A
priest is not allowed to marry a prostitute. 30 In other words, it is not the rabbi
28 A similar literary approach can be observed in the NT story about the Syro-Phoenician
woman (Mark 7:24-30; Matthew 15:21-8. On this story and its interpretation see Elisabeth
Schiissler Fiorenza, Sharing Her Word: Feminist Biblical Inte,pretation in Context (Boston:
Beacon, 1998), 121-30.
29 For a similar idea see D. Boyarin, Dying for God: Martyrdom and the Making of
Christianity and Judaism (Stanford 1999), I 00.
30 I am grateful to Shamma Friedman for drawing my attention to this detail.

"Stolen Water is Sweet"

211

who suggests women enjoy rape (and should, therefore be punished for it) - it
is the rape victim herself. Something is clearly missing in the logic of this story,
because the issue at hand is not whether an infant girl enjoys sexual relations
and is thus a willing party to her own rape, but rather whether she is now
technically a virgin. Is her hymen ruptured or not? The logic of the story should
have ended with Rabbi Aqiva telling the woman that her personal perversions
do not interest him or are not relevant to the law. However, he does not. He tells
her she is forbidden to marry a priest.
At this point the storyteller, who is a staunch supporter of the law, intervenes.
In the name of Rabbi Aqiva's students he protests that the law was given to
Moses in Sinai just so. Aqiva cannot randomly forbid such a woman to marry
into the priesthood. The students here respond to Aqiva's ruling as students do
in the first Yerushalmi story I discussed, when they support a strict approach to
the law over and against the rabbi's ruling. In the Yerushalmi story, however,
Rabbi Yohanan, who suggests a lenient approach to women, carries the day, by
answering his student with logic and compassion. Here, on the other hand,
Rabbi Aqiva has just ruled against a woman, not in accordance with the law.
The students, again supporters of the law, uphold here the more lenient and
compassionate approach. The story, and indeed the entire sugya, ends with the
words "and Rabbi Aqiva also did not say this for any other reason than to test
the alertness of his students." In other words, in order to insure that his students
receive the best legal practice Rabbi Aqiva is willing to deprive a woman of her
legal rights.
What has the Babylonian author done to the story of the Yerushalmi? From a
literary point of view we may observe that he has taken a perfectly good story,
altered its ending and thus spoilt it. Many of the features of the story are the
same. A woman comes to a rabbi concerning her sexual status. The rabbi rules
in a certain way. The woman then presents the parable of the honey and changes
the rabbi's ruling. The main difference is, of course, that in the Yerushalmi her
story changes his ruling from a negative view of her disposition to a favorable
one, while in the Bavli the opposite is achieved. The woman manages to
overturn a ruling in her favor to one against her. This may remind us of how the
Bavli altered the story of the sick woman, so that its outcome is the exact
opposite of that in the Yerushalmi story. There, however, the Bavli is simply not
interested in the woman's plight. Here, she is made to look not powerful but
foolish. This, I suspect, was the original intention of the editors. Many stereotypical depictions of women in the Bavli portray them as foolish and ignorant.
Once again we encounter an alteration designed to fit the woman in the story
into a less independent and more stereotypical and gender-specific place in
society.

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Tai I/an

ySotah 4:5, l 9d

bNiddah 45a

iliV=:im tllil .er il ,::i,o::i) "iliV=:im tll'? tll'il1"

.il,10tli tll'i11 '?tll,iV'::i ilo1=:in l ' iV' m,mo
.0J1tll::i il=:i101 p~,::i ilrl?'nniV 11 ?1! 1rtl:1
.mmo tll'i11 '?tlliiV'::i ilo1=:in ill'tlliV l ' iV'1
.]1~,::i il=:i101 oi1tll::i iln'?'nniV 11 ?11 1l'tli
:1'? iliOtl:1 pm ; ::iJ'? nntll tlinn'tli tl:1il::i
iliOtli ?=]10::l l? :!ill tl:?1 :il? iOtli .'rlOltlil
illlrl'1 iV::!1::l 1.t)::l~tli tl1tli '?1::i~ tltl:1 :il'?
1? lli 1l'tli tl:OiV ,tl'i1=J':)il tl1'::l 1'=:l 11rl?
.il?::!'p1 ?1? ::lil) 1l'tli =]10::!1

niVipno intll en C'liV iV1?iV n::i :illiVO

.]' .t1::i .t1::i~tli 1mi::i - po mn=:i ... iltli'::i::i
'J=J'? ntli::iiV nntll iliVtli::i iliVllO :,"n ... :tll,OJ
" 1m::i 'n'?.t1::ii :::i, :1'? il,otll .tli::i'p.t1 ,
.rltli iliiV::i il? iOtli ?i1J1i1:)? 'ltli ilO ,tl'liV
i::!1il ilO? ?iVO l? ?1iVOtli 'i :1? iliOtli
tlll=J .iV::!1::l ll::l~tli 1? 1lO~iV p1m', .il011
iOtli .il~~O rl'iV'?iV .il::i ill1J il'liV1 ill1iVtlii
iltlii .ill1il::i'? rltli il?10=J p tltli :il?
ilo'? :tiil'? ,otll .ill::i ill ti''?::inoo tl'1'o'?m
ili1ni1 '?::iiV tliV::i :?"tli ?tl:)'l' l)::l iliVp i::!1il
tl'liV iV1?iV n::io mn=:i =Jtli 'l'OO iliVO'? il::i'?il
'i =Jtl:1 .'l'OO iliVO? il:)?il ill1il:)? iliiV::i
ntli il::i ,,n'? tli'?tli il,otll tli'? tli::i'p.t1
.tl'1'0?rlil

6. yBerakhot 3:4, 6c
The Yerushalmi Stories: The next two stories I wish to discuss are also concerned with sexual abuse. The text in which these stories are embedded discusses the mishnah that states that a man who has had a nocturnal seminal
emission C1p ",,!i:::1) is unclean and should therefore immerse himself before he
may engage in prayer or any other activity associated with holiness. The
Yerushalmi comes up here with an innovative statement: according to Rabbi
Joshua ben Levi '1P ",,!i:::1 applies to any man who has just had sexual relations
with a woman. Such a definition suggests that immersion for men as well as
women (who need to immerse after menstruating) be practiced regularly. It also
suggests that the approach to sex be less casual and spontaneous. Since the
mishnah makes no such generalizations 31 we may inquire, why do a Palestinian
rabbi, and indeed the editors of the Yerushalmi, as we shall see, all of a sudden
promote such an ascetic lifestyle. I assume that here Daniel Boyarin's analysis
of the differing attitudes to sexuality between Jews living under Graeco-Roman
culture and Jews living under Sassanian rule comes into play. Graeco-Roman
body culture, so he showed, was in general more ascetic and less pleasureoriented than the eastern Persian culture. 32
The First Story: However, even in Palestine this approach, put forward by
Rabbi Joshua ben Levi, must have been problematic and raised questions. In
31 And see also Louis Ginzberg, A Co111111ellfary 011 the Palestinian Talmud 2 (New York
1971), 220-2, who after much slwqla ve-tai)a, concluded that here, too, this is not the
meaning of this text. On pp. 243-5 Ginzberg interprets this story in exactly the reverse way
from me, by emending the Yerushalmi, in the light of the Bavli.
32 Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley 1993) 4657. A discussion of this text, albeit only in its Babylonian version is found on pp. 49-52.

"Stolen Water is Sweet"

213

the next few lines in the Yerushalmi several rabbis object to it on various
grounds, but eventually the Yerushalmi allows Rabbi Joshua ben Levi a final
word in its favor. He claims that multiple immersions are a safeguard for Israel
against fornication. This point of view is then reinforced by a story. The story
tells of a vineyard guard who wished to engage in sex with a married woman.
The woman, apparently, was party to this plan and thus the discussion is of two
people who wish to engage in consensual but illicit sex. We are now told that,
as they were preparing a place to immerse themselves following the act,
passersby interrupted their activities and their desire died down without them
having sinned. This story vindicates Rabbi Joshua ben Levi's ruling. It is about
illicit sex, but not about sexual abuse, as we would define it today.
The Second Story: This story is followed by another one, to which immersion
provides the link, but it is not told in order to demonstrate the veracity of Rabbi
Joshua ben Levi 's dictum, and it is indeed about sexual abuse. In this second
story the protagonist is Rabbi (Judah the Patriarch)'s female slave. We are told
that a man wished to have sex with her. The words used to describe this desire
are neutral -ppri1? t,l;J. They are the same words used to describe the mutual
transgression perpetrated in the previous story. And yet very soon we learn of a
difference between the two actions. The maidservant has no wish to engage in
sex with this man. She excuses herself by referring to Jewish law: since she is
not a free agent, she only immerses, and is thus ritually clean, when her mistress
immerses herself. Now, she argues, she is unclean and cannot have sex.
Many feminists have argued that Jewish menstruation regulations, rather
than heaping intolerable hardships on women, in fact liberate them by allowing
them to control their sexual availability. 33 If they want a break from sex they
can postpone their visit to the mikveh. As we saw above, such a story is told of
Shmuel's wife in yKetubbot 2:5, 26c. The answer of Rabbi's slave here, whether
we take it as an explanation or an excuse, is of the same kind. She assumes that
the man in question worries about Jewish purity laws and will thus leave her
alone.
The man, however, is not so easily put off. He also presumes to know
something of the law and answers the woman with reference to her personal
legal status. Since she is a slave, and thus someone's property, is it not more
logical to compare her to a beast, who is the master's property to dispose of at
will, than to a daughter of Israel, who is protected by the law in various ways.
Here we encounter, of course, the perspective of the master rather than the
slave. As I defined the approach of Rabbi Yohanan to women and rape in the
previous story as androcentric, so this approach could be dubbed according to
33 Recently argued by Hauptman, Rereading the Rabbis, 248-9, but see also Charlotte
Elisheva Fonrobert, Rabbinic and Christian Reconstructions of Biblical Gender (Stanford
CA 2000), 25-7.

214

Tai l/a11

the terminology of Elisabeth Schussler-Fiorenza - kyriocentric - a point of

view of the master toward his property. 34
Interestingly, the same literary technique as in the story of Rabbi Yohanan
and the raped woman is employed here to formulate the maidservant's answer.
She does not begin by denying the dehumanizing picture painted by her assailant. Instead, she takes it as a starting point. Being a beast, she argues, she should
be treated halakhically as if she were considered such. As a woman, sleeping
with her when she is unclean would result in no more than a state of ritual
impurity. But if she were a beast, sleeping with her at any time entails the death
penalty. A specific biblical verse confirms this. 35
In this story, again, the final punch line, and a rather amusing one at that, is
placed in the mouth of a woman. Of course we do not know how the story really
ended. We do not know whether this answer by a wise woman quieted the man's
sexual appetite and he went away or whether it had the opposite effect. Her
show of legal acumen was too clever for her own good and the man not only
raped her but also left her beaten and dying by the wayside, to show her who is
lord and master. The rabbis seem not to be interested in the psychological
dynamics of such an encounter. From their point of view the last words in the
story belong to the woman. This means that the storyteller, at least, identified
with her. He, at least, thought that slaves were indeed women, with the same
human properties. He may be interpreted as suggesting that raping a slave was
a no less serious offence than raping a freeborn daughter of Israel.
The Bavli Parallel: Again, it is instructive to consult the parallel sugya in the
Bavli, in order to formulate our view of the Yerushalmi's approach to gender.
The Bavli makes no attempt anywhere to broaden the definition of the 'lP ?l.l:l.
On the contrary, it knows of a lenient ruling regarding 1"lp '?l.l:l - they need
not actually immerse themselves but need only to have a certain amount of
water poured on them and they are purified. This ruling is also quoted in the
Yerushalmi, but not really discussed. In the Bavli the discussion proceeds as to
whether this facilitating law should be made known to all. Those who claim it
should, argue that without it procreation is diminished. Those who claim it
should not, argue that, if its knowledge were widespread, it would make the
disciples of the scholars behave like roosters.
Interestingly, the rooster metaphor is also used in the Yerushalmi. Here,
however, it is used to explain why all men who have had sex should immerse
afterwards - so as not to act like roosters who have sex and immediately
afterwards begin eating. Different assumptions on the habits of the rooster are
evident in the two compilations. In the Yerushalmi it is viewed as a brutish
animal who has no manners and mixes what should not be mixed - sex, which
E.g., in her Shari11g Her Word, 190, n. 52.
Frankel, Ways ofAggadah a11d Midrash I, 270, describes the entire episode as employing the literary technique of irony.
34
35

"Stolen Water is Sweet"

215

is always verging on the impure, and food, which should always be consumed
in purity. In the Bavli it is viewed as a sex-crazed being. Note also, that, while
in the Yerushalmi the danger of acting like roosters is applied to all Israel, in the
Bavli it is assigned only to the students of the rabbis. This obviously points to
another difference in the social location of the two compositions, but is not the
topic of this paper.
These examples, and several others, indicate that the Bavli was familiar with
some form of the Yerushalmi sugya, and altered it according to its preferences.
It is therefore most instructive to see how it also altered the two stories outlined
above. In the first place, if men do not have to immerse following sex, the first
story makes no sense. Thus, just before the story is told the Bavli states that
some people are lenient with this ruling and some are strict, but those who are
stricter live longer. Following this statement the parallel story from the Yerushalmi is related. I say parallel story, but as we have seen, in the Yerushalmi two
stories are told. Only one, however, is related in the Bavli. At first sight, it
seems that it is the first story that is related: A man wants to have sex with a
woman. She points out to him that there are no immersion facilities available
and he desists from his pursuit.
A closer look at the story, however, shows that it is a hybrid of the two
Yerushalmi stories. In the first place, while the woman is not a slave, she is not
married either. This means that the transgression about to be committed is not
adultery, as in the Yerushalmi. What is it, then? We see that, as in the second
story, it is an issue of sexual abuse, because, again as in the second story but not
in the first one, the woman is not a willing partner to the transgression. Unlike
the first Yerushalmi story, in which the pair cooperates in searching for a means
to comply with the halakhah, but like the second story, here, too, it is the woman
who instructs the man on a point of law. Except that the law she teaches him is
the one that both partners seek to preserve in the first Yerushalmi story, and not
the halakhah that Rabbi's maidservant teaches her assailant in the second story.
The outcome of the story is also like that of the first story - the transgression is
avoided. However, from a literary point of view, the story ends more like the
second story than the first one - a woman utters words of wisdom and is
vindicated by the editors. From a literary perspective, however, these alterations have again spoilt a good story. The framework of a question-answer is
carried over from a case where the ultimate answer attests ultimate wit, a story
where the ultimate answer reveals perhaps piety, but at the expense of the
literary punch-line.
Why has the Bavli gone to the trouble of combining the two Yerushalmi
stories? What has it gained in the process? In the first place, perhaps the
transgression about to be committed is, in the eyes of the Babylonian editors,
less serious. After all, the woman who is about to be violated is not married. In
patriarchal societies married women are the property of their husbands and

216

Tai /Ian

their violation is a direct infringement on his exclusive sexual privileges. An

unattached woman, while perhaps also a man's property, is no one's acknowledged sexual partner. According to biblical law, a rapist is punished by being
made to marry the woman he raped. This formal biblical context may be the
premise under which the Babylonians constructed this sugya.
Secondly, the intelligence and wit are taken away from the maidservant and
a rather mediocre answer is put in the mouth of a freeborn daughter of Israel.
This may suggest that for the Babylonians letting a slave make such a statement
questions the entire institution of slavery, which is based on the inferior status
of slaves. Allowing the slave to outwit the freeborn suggests a subversive and
dangerous approach in which the Babylonians wish to have no part.
Finally, unlike the story of the maidservant, we are told explicitly that the
woman's words had a positive effect on the man, who abandoned his sexual
designs and went home. As noted above, the Yerushalmi story makes no such
claim. The fact that the editors were convinced by the maidservant's answer
does not necessarily suggest that the rapist was likewise impressed. The Bavli,
however, felt that things must not be left in obscurity. We are explicitly told
that, as in the first Yerushalmi story, the evil was averted. Because of the
difference, however, this story suggests the strange idea that a rapist should and
could be repelled by recourse to words of Torah. I wish once again to argue that
the Bavli here adopts a more conventional and regulated view of gender and
class hierarchy than the Yerushalmi does.
yBerakhot 3:4, 6c

bBerakhot 22a

rnll 1i'pm t,::', F~~.I) ',:, :p:::it,:: 1:::i :::ip.1J' 1"t,::

.inn:, '?tli1iV' 1i1' t,::',iV t,::',t,:: nt,::li1 i1'?':::i~i1

tl'O pp i1.1JiVn 1''?.1J 1imtv '1P '?.1J:::i :1"n

tli:::l'P .1J 1', i1tvn'? 110.i tv'tli ci1m ... tl'11i1~

'1 .'?:l1tli1 111'1 i1'?1.IJ1 1n~'O iVOiVO - 1',',i1

t,::~' 'tlil.lJ pi 'tlil.lJ p'? i1tvn'? t,:::::i'p.1J 11

'1n i1:::i '.l''?::i .p1tv:::i 1'1'o'?n'? i1tliliV1
'01' '11 ]1:::ltli 1:::l '01' '1 - tli:::l1.IJO:::l 'tli110tli

.tlin~'1p:::i ro10'1 '.1J1n '?.1J 1:::i.1J i11i1 tlil'ln

11'?1" ?i1El ]'iV1.IJ n'1niV ''?:ii~ i10 :1ot,::
... pin"1
1 '01':::l :tli"n '1':::l tnmn titv:::i t,::nt,:: 1
ntlili1 i1'?':::i~i1 ntli 11p.1J'? itvp':::i ,,., p .1Jtv1i1'
'1 ]i1'? 10tli .m1p.1Jl 1'i1iV '?''?.l 'iVl 'lElO
JO ',t,::1tv' nt,:: 111.l tli1i1iV 1:::l1 :'1'? ):::l .IJiV1i1'
111.i 1i10 ?1mt,:: 11p.1J'? tl'iVp:::io tint,:: i11':::l.1Ji1
1nt,:: tl'01:l 101iV:::l i1iV.IJO ?i11':::l.1Ji1 ]0 ',t,::1tv'
Ji1'? ppno Ji1tv 1.1J .tv't,:: ntvtli'? ppii1'? tli:::liV
]':::liVi11 ]'1:::l1.1Ji111:::l.l) .r'?:::i,~ ]i1i1 ]:l'tli mpo
.i11':::l.l)i1 i1'?~:::i,
.':::i1 '?tv 1nn::itv tl.lJ ppm'? t,:::::itv 1nt,:::::i i1tv.1Jo
.n'?:::i1~ 'l'tli .n'?:::i1~ 'ni:::i.i rt,:: tltli :1'? i110tli
n.lJOiV t,::',1 :1'? i110tli ?ntli i10i1:::l:l t,::',1 :'?"t,::
'?:," :10tliltv ?'?poi 1i1tv i10i1:::li1 '?.IJ t,:::::i:::i
.(n' :::i::i motv) "no1' mo i10i1:::i tl.lJ :::i::i1tv

JtliO .i1tvn'? :'ln 1m i1tliltv :'Jn 1n .tli1':::ll 1:::i

'?1~':::l tl1iV01 i111n '?1~':::l tl1iVO ,i1t,::ltv :'Jn,
n"n 1i1' t,::',tv ,i1tvn'? :'in, JtliO .i1':::i11 i1'1El
i10 :'?":::i'1 1ot,:: ... ti''?1mn:, tli1'n1iVl ',~t,::

F~

... ?)'1ntv ''?:ii~ '?tv

:t,::'Jn, ,i1:::i 111.i '?11.i 11.i :t,::l'ln 1 1ot,::
i110t,:: .i11':::i.1J 1:::i1', i1tvt,:: .1J:::intv 1nt,:::::i i1tv.1Jo
'?:ii~ i1nt,::tv i1t,::O tl'.IJ:::l1tli 1'? tv' ,t,::p'1 :1'?
.iV1El 1'0 ?tli1:::l

"Stolen Water is Sweet"

217

7. yMoed Qatan 3:1, 81d

The Yerushalmi Sto,y: For people who are aware of the Bavli's particular liking
to Rabbi's maidservant 36 , her complete deletion from the sugya I have just
discussed could come as something of the surprise. In the Yerushalmi, Rabbi's
maidservant is mentioned twice. In the Bavli she is mentioned no less than
seven times. In fact, one story in the Yerushalmi, which deals with a completely
different maidservant, is altered in the Bavli, so as to refer to Rabbi's slave.
I would like to devote the remaining space to discuss this particular story.
In yMoed Qatan 3:1, 8ld a ban of excommunication ('11J) is discussed.
A chain of stories is appended to the halakhic debate, which tell of all the
famous excommunications in rabbinic lore - that of Rabbi Eliezer, that of
Aqabiah ben Mahalalel, of Honi the Circle-maker etc. Between the stories,
various halakhic details are inserted. At one point the editors of the Yerushalmi
insert the following halakhah: "Whoever is banned from the rabbi is banned
also from the disciple; whoever is banned from the disciple is not banned from
the rabbi." This principle suggests that persons, according to their hierarchical
standing can ban people from a larger number of subordinates. The further
elaboration of the hierarchy is ends with the words: "whoever is banned from
the Nasi is banned from all persons." Then the editors inquire: "This applies to
sages who excommunicated, but what if a 1J.n excommunicated?" Obviously,
the editors understood this hierarchical structure as being relevant only within
the rabbinic academy. They are now interested in its application to wider, nonprofessional circles. To this question the editors reply with a story: "One time
the maidservant of Bar Pata walked by a synagogue. She witnessed a scribe
beating a child (p1J'rl) more than he deserved .('J11~ 1~ 1'rl') She said (to the
scribe): Let that man be excommunicated" (yMoed Qatan 3:1, 8ld).
lntertextual Location of the Yerushalmi Story: As opposed to the three last
sugyot discussed (but more like the second story we looked into), this sugya is
not specifically gender-oriented. In fact, the story, as it is told, could be related
about any person - a prince, a beggar, a Jew, a gentile, a man a woman. In
general, we can see that, for the Yerushalmi, female slaves appear in stories
describing legal precedences in which their gender is of no consequence. Thus
in yGittin 4:6, 46a we read that a slave who ran away from Eretz Israel to a
foreign land may, according to some rabbis, not be enslaved again. This claim
is followed by two stories: one tells of slaves of Rabbi Isaac who escaped from
him, and the other tells of the maidservant of Abba bar Adda who also ran away.
The law is formulated in male language and there is nothing in the story that
requires a female slave. The story is probably told because it was true.

36

See in my Mine and Yours are Hers, 97-107.

218

Tai I/an

Similarly in yGittin 4:4, 45d we read that the law that if a slave escaped from
his or her master and the latter gave up on ever getting the slave back (tD~"rli'J),
the slave, if found, cannot be enslaved again. This ruling is followed by a story
about Rabba bar Zutra's maidservant who ran away, whereby he gave up on her.
When she was found, Rabbi Joshua ben Levi forbade him to enslave her but
recommended that he write her a writ of manumission. Obviously, this story
could likewise be told of a male slave; it is probably told here of a female slave,
because it was true.
The Bavli also elaborates upon both laws, and it is interesting to see what it
does with these two stories. In the case of the slaves who escape from Eretz
Israel and go abroad, the Bavli reverses the situation, and has them escape to
Eretz Israel. It also tells only one, non-descript story, in which the protagonist
is a male slave, whose master is anonymous (bGittin 45a). This alteration
clearly demonstrates my claim that in a "normal" story, the protagonist is male.
In order for him/her to become female, s/he has to function in some specific
female area. If she does not do so, the story should be about a male. In the
second story, the slave remains the maidservant of Abba bar Zutra, but now the
story is altered: "The maidservant of Abba bar Zutra was taken captive." Note
- she does not escape, she is captured. This, of course, could also happen to a
male slave, but as the story continues, we see the Bavli 's subtle reworking:
"She was then released by a Palmyran (obviously the captor) in order to marry
her" (bGittin 38a). This is where the story becomes specifically female. It
continues with the rabbis suggesting that Abba bar Zutra write the slave a writ
of manumission, as in the Yerushalmi. Again, the Bavli reacts to the Yerushalmi
anecdotes stereotypically. If a female is unnecessary, she is deleted, or made
male. If she is retained, she receives specifically female attributes.
Having made this point, we may well inquire what purpose is served by
telling the story of the ban in the Yerushalmi about a woman slave? Whether it
has a historical basis is impossible to decide. What does seem clear, however,
is that since the halakhah discusses bans of non-scholars and is all about
hierarchical systems, the example cited is of a person who is least like a scholar
as possible. The maid fits the bill. Not only is she not a scholar, she is not even
free. Not only is she not free, she is not even an enslaved man. She may actually
not be Jewish. If a scholar is the highest rank one can achieve, a maidservant is
clearly the lowest. Often in the Yerushalmi we find the expression "even a
slave, even a maidservant" when the most inclusive statement needs to be made
(ySotah 6:2, 20d; 9:1, 23b). Here the principle of imm ~p is implied. If
something holds true for a female slave, you can be certain it holds true for
anyone else.
However - what does hold true for the maidservant? Does her ban count?
The Yerushalmi goes on to explain this: "(That scribe) went and asked Rabbi
Aha. (Rabbi Aha) said to him: You should indeed fear for your soul, for the

"Stolen Water is Sweet"

219

Torah states that he who does something wrong requires excommunication."

The Yerushalmi again reveals a struggle. On the one hand there is a law, and
according to it this ban does not count. A maidservant can only ban the man
from contact with herself, and since she has no authority over others, he is
banned from no one else. However, the editors are also aware of an injustice
involved here and are also critical of the beating teacher and think he deserves
social censure. Thus the Yerushalmi makes the sage voice of the opinion that,
even though this ban is not legally binding, a person should nevertheless fear
the wrath of God, since he has committed an offence against him. Once again
the woman has the last word.
The Bavli Parallel: The Bavli also tells this story in the parallel sugya
(bMoed Qatan l 7a) except that here it is incorporated into a larger story. First
the Ba vii cites the baraita that whoever is banned by the rabbi is banned for the
disciple but not vice versa. It does, not, however, go on to inquire about the
results of a ban by a lay person. Instead we hear of a disciple of the sages who
is excommunicated by Rav Judah. Then Rav Judah dies and the disciple has not
been released from the ban. He inquires of the rabbis whether they will release
him but they claim that, since Rav Judah had not released him, they cannot
release him either. Only a greater sage than Rav Judah- and one like that is only
found in Eretz Israel - can do this. The disciple then goes to Eretz Israel and
presents himself to the court of Rabbi Judah Nassia. The court discusses his
case, but as they are about to release him Rabbi Samuel bar Nahmani objects,
claiming that if the rabbis had abided by the ban of Rabbi's maidservant for
three years, they should certainly heed Rav Judah's decision for at least as long.
The use of the maidservant here is explicitly in the service of imm ?p.
Since the ban of the person on the lowest rung of the hierarchical ladder is
heeded, certainly at least the same honor should be accorded to the person on
the highest rung. Yet we have not learnt which excommunication cast by a
maidservant was heeded by the rabbis. This we hear later on: "A maidservant of
the house of Rabbi saw a person beating his adult son. She said: Let that man be
excommunicated, since he has transgressed the commandment: 'You shall not
place a stumbling block before the blind' (Leviticus 19: 14 ), and it is taught (by
the rabbis) 'The blind' is an adult son."
Clearly this is the same story we met in the Yerushalmi. It has, however, been
significantly altered. Aside from the change in the identity of the woman, here
she does not excommunicate a scholar, while in the Yerushalmi she does. This
emphasizes clearly the social differences between the excommunicator and the
excommunicated. This contrast is blurred in the Bavli story. Secondly, the man
is not beating a student but his own son, and not a minor but an adult. This
suggests a completely different set of norms for the societies who formulated
the stories. The Yerushalmi seems to be sensitive to child abuse. The Bavli is,
apparently not. Beating small children is the norm. The Yerushalmi also ac-

220

Tai l/a11

knowledges this norm, but the man in the story was beating the child "too
much." For the Bavli, apparently, such a concept is unknown.
lntertextual Location of the Bavli Sto,y: This suggestion is further affirmed
by another story, which involves no gender issues but seems to be in some way
related to our story, though it conveys almost the opposite message. This story
is located in Babylonia and involves Babylonian rabbis. In bGittin 36a we read
of a teacher who used to abuse his students so badly that Rav Aha placed him
under a vow never to teach. This vow, however, was revoked by Ravina, because
he could not find a teacher who was as precise as this one (i1'n11J P'11) to
replace him. In this story again a teacher's abusive behavior provokes someone
(this time a sage) to place him under a vow. Note, however, that vows in general
are not as strict as bans. The sages can revoke them. One sage indeed revokes
it, and the teacher is reinstated in his post, because the intellectual goals of the
rabbis' education override the pedagogical ones. This is basically the message
of the story. While it is true that the teacher in the Yerushalmi is also not
removed from his post, the message of the story carries a warning against
abuse, rather than its dismissal. The rabbi warns the teacher that he should not
mistreat his pupils.
Having made these changes and thus significantly altering and perhaps diminishing the thrust of the maidservant's social critique, the Bavli makes her
ban halakhically binding. This of course makes her a much more powerful
agent in the Bavli than in the Yerushalmi. This is the most significant difference
between the two stories about the maidservant. They prove that not all women
presented in the Bavli are weak and stupid. Some of them are substantially
stronger than their counterparts in the Yerushalmi. It is, however, important to
note that strong actions by women in the Bavli are usually restricted to a small
number of players: Beruriah, Yalta, 37 Rabbi's maidservant (and a few others)all associated with the world of the scholars. This is, I believe, because the
Bavli wishes to make sure that powerful women do not act against but rather
with the system of the rabbis. Thus, the anonymous maidservant of the Yerushalmi is made into Rabbi's maidservant. 38 As such, she may criticize the nonrabbinic world as much as she wishes.

37 In my Mi11e and Yours are Hers, 121-9. I have discussed all the Yalta traditions. I was
than unaware of a parallel tradition in the Yerushalmi (yYom Tov 1:6, 60c) telling a similar
story to bBesa 25b, but associated with Resh Galuta's wife. That the two are not the same see
my discussion ibid, 121-2. The parallel was not obvious because the word nill~ has been
deleted from the main Yerushalmi text at our disposal (The MS tradition is found in Y. Zussman, "Yerushalmi Fragments: An Ashkenazi Ms." Kobez a/-Yad: Minora Ma11uscripta
Hebraica 12 (1994) 25. On this sort of "censorship" see my discussion, ibid. 73-88. I wish
to thank Anderas Lehnardt for drawing my attention to this phenomenon.
38 See in my Mi11e a11d Yours are Hers, 129-30; eadem, /11tegrati11g Wome11 i11to Seco11d
Temple History (Tiibingen 1999), 175-94.

221

"Stole11 Water is Sweet"

yMoed Qatan 3:1, 8ld

BMoed Qatan 17a

:-1:l'il i'~1 C1' Cl'iU1?iUO mn:i "11J i'~

... D'O' nJJ::iiUo :imn:i
~,:i ff'?1 J)1'1 ... ~1:ip 1::i';, 1p10 il1il .,
.'101'::i ~--Jono
'J'~ :Dil? 10~ .1'~0 -, n~ n11J';, 1iUp::i
'?JJ1 ]'1JO 'O n~ '? 11o~niD 1JJ p'? JJ10iU
.]'1JO Cl'i::11 ilO:i
JJiU1il' ,"~ ... ,!JJ'?~ , n~ n11J'? 1iUp::i
... (::!' ';, Cl'ii::11) "~'il Cl'OiU::l ~?"
... n11l? iln~ Ti:!; :n~iU p ]1JJOiU 1';, n'?iU
0111n n~iD ';,1';,~ :1'? 1,0~1 oo:,n 1n'?iU
... 1m~ ]'1JO 1l"il ~';,
,m~ n~ r1 n::i 1'?po1 1'11'J::i no, 1il1i'J

:Ji iO~ .'llJ01iD DO 11i11 iJ::liO ~::i,1;:; ~1iiii

il'? ':,',:!; ?il'nOtv? ?1'::lJJ'? ':i'ii :il11il'
.il'OiD1 ~otv ';,nm ~p ?il'notv'? ~';, .p::i,
?~il::l l? JJ'OtD '1'0 :ilJn i::l i::l il::li? ?"~
n:itv ':," :::in:,1 -~o :pm' ,"~ ':i'il :?"~
':, ,1il':l0 1tvp::!' il"11n1 ,nJJ1 1iOiD' ]il:i
:-1011 Cl~ .(l ::! :i~?O) "~1ii n1~::l:!; 'ii l~?O
,~';, o~, 1il':JO i111n 1tvp::i' :i 1~'?0';, ::i,il
.il11il' ::11 il'n/JtD .1':JO ili1n 1tvp::!' ~';,
'?1'iD? p::i, ,n~ .il11il' :ii tv''?n~ .,,o::i';,
:ii il"m 1:, .1il'1il::l m 1il'~ ~n~, il'::l
il'nOtv1 rnoo ~';, :il'? iO~ .rn il11il'
:?"~ .'::! r n 'OJ n,:,~ ~';,~ .~i:JJ ~1ilil?
~1:-Til? ~J'?l~ :,1 ~';,~ ~J:,"nO 11'1::l 1~?
1nn:i ~,::iJ';, 1';,:i~, :~nJJ1 ~n,,::i ~o'?JJ
,n~ .il11il' :ii, il'tv:JJ m .il'? ':J'Jn ~';,
:-1'? 110~ .'? '"1(!) :1il? "10~ .~tD,10 '::!?
~:iil ~:,';, il11il' :ii:, ::itvn, ~1::iJ :p::ii
il~'tDJ il11il' ..,, '::lJ? ?'l ~';,~ ,l ' '"1tD'?1
p1:i :'O~ -,';, 1? iO~ .il'Op? ?l~ l';, '"1iD'?1
'"1tD ,il'? ~"1tD'O? il'JJ::10 '~ .il'J'1::l ]"JJ
.il'? ~itD'O? i::10 .il'J'1::l 'O~ '"1 ]" lJ .il'?
il01 :10~11';,n ?JJ 'Jom ,::i ';,~1otv , 10JJ
iU~-, m';,p CJ'o:in 1JilJ ~';, ::i, n::i ';,w iin:iw
nn~ '?JJ 1n::in il11il' ,D'Jtv tv1';,w il'11'J::i
. .. ilO:i1 iiO:i
::i, ::i, ilno~, ?~'il -~o ::i, n::i ';,w iin:iw
.'?11J 1J::i';, no il1il1 ~,::iJ ~1ilil? il'n'm
,::iJJp, .~now::i ~1::iJ ~1ilil '1il? :ii,o~
~- ~,p'1) '?1w:io inn ~';, 11JJ 'J:i::i" D1iUO
il:io::i "?1iU:io inn ~';, ,1JJ 'J:J?" :~'Jn, ,(1'
.1::110 ::i1n:iil ';,11J 1J::i

10';,n';, il11JOil .,o';,n';, i111Jo :ii';, il11JOil

.o:in';, :i11Jo , ::i~';, il11JOii .:ii';, ii11JO 1J'~
.]'1 n::i ::i~';, il11JO 1J'~ o:in';, :i11JOil
o:in pi:, 1JJ .o,~ ';,:,';, il11JO ~'iUJ? il11JOii
.il1'JiU ,:in 1';,:i~, il1'JiU
nm ~~:l ,::i, jO ~nilO~ :~1il JO ilJJ)IJil)J
no ,:io ,n non .~niD'J:, ~,n 01p il,::iJJ
'1il' :ii'? il,o~ .':,11:!; 10 1'n' p1i-n in';,
.~n~ -,';, '?~iU ~n~ .oimo ~1::i1J ~1ilil
:ilio~ ~,il liD:lJ '?JJ iDiDn n~ T"1:!; :?"~
.'11l Ti:!; i111iU:i ~'?iD ,::i, iliD1JJil
.1? ]'"1'n/J r~ 1'1JOO ,n~ no :'Jn p ~';, ...
j'~iU:i iO~ n~1 ~1il :'1? p JJiU1il' '"1 "10~
.,'no ~'iUJil ~'iUJ DiU iD' o~ ';,::i~ .~'iUJ DiU
iliUJJO :?00 i::l ~::! 'i CliU::l ~n~ i::l ::!pJJ' 'i
.1';, ,-,,n;, ~,, 1'1Joo ,n~ noiU ,n~::i
00

00

Conclusions
The conclusions regarding gender that can be drawn from these examples
cannot be defined precisely. The Bavli is not blatantly anti-feminist while the
Yerushlami is not women-friendly. They are both, in fact, products of a patriarchal society that views women as secondary citizens. The differences are more
in nuance than in fact. Yet in all the examples I have presented here there is a
consistent attempt to downplay women's importance and participation in life
and law in the process of transmission between Yerushalmi and Bavli. Does this
say something about the difference between the societies that produced the
Yerushalmi and the Bavli? Does it mean that women were better thought of and

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Tai l/a11

better treated in Palestine than they were in Babylonia? Does it mean that they
really did have more of a voice in this community than they did in the other?
Even after pointing out the differences I was able to discover, I am reluctant
to draw such conclusions. After all, the differences I have pointed out are first
and foremost, of a literary nature. The Yerushalmi compilers told good stories.
These were taken over by the Bavli compilers and more often than not, their
literary qualities were debased in the process. It is perhaps useful here to apply
Yonah Fraenkel's observations on the development of the aggadic story in its
journey through various rabbinic corpora. He wrote: "[O]ne may note the
dilution of the aggadic stories. This dilution - meaning the stories became
diluted and dull - came about in the post-talmudic period and throughout the
Middle Ages replacing the crystallization, depth and wealth of the [aggadic
story] of the talmudic period, its classical period .... The generations that came
after the classic aggadic period were insensitive to the beauty of the stories ... ;
perhaps they did not even notice that the changes they made in the stories
ruined their form and beauty. These changes also reveal differences in the
content and ideas that the stories convey. There is plenty of room for the study
of the changes that took place in the points of view and in the moral and social
differences emerging for the renewed stories." 39
Fraenkel, when writing these words, referred to stories that appear in the
talmudim, and then again in later midrashim, and concluded, on the basis of the
changes he noticed, that the talmudim told classics, which were then corrupted
by later generations. For him the talmudim meant both the Bavli and the
Yerushalmi. Both were classics. However, our little investigation here has
demonstrated that the same process he describes for stories between the talmudim and the later midrashim is already evident between the Bavli and the
Yerushalmi themselves. The differences are thus literary in character and quality.
Fraenkel believed the difference made in the stories also point to differences in
social location and ideological outlook, but he gives no guidelines on how to
discover these.
In the absence of such guidelines, I suggest another, alternative approach to
this question. We have observed in this paper how the Bavli treats its source,
when this source refers to women. Can we do the same for the Yerushalmi? I
believe it is instructive to see what the Yerushalmi does with stories about
women that it finds in earlier tannaitic compilations. Since this is not the topic
of this study, I will be brief, bringing but one example (though there are more).
In the tannaitic midrash Mekhilta de Rabbi Ishmael we find the following
halakhah and appended story: "In this connection the sages said: All categories
of persons are obliged to don phylacteries, except for women and slaves.
39

Yonah Fraenkel, "Characteristics of the Textual Traditions of the Aggadic Stories,"

Proceedi11gs of the Sevellfh World Co11gress of Jewish Studies 3 (Jerusalem 1977), 59, 69

(Hebrew - the translation is mine).

"Stolen Water is Sll'eet"

223

Mikhal bat Kushi would don phylacteries" (Mekhilta de Rabbi Ishmael Pisha
17). The story is obviously told in an attempt to contradict the halakhah formulated previously, by presenting a legal precedent. Here is a woman whom the
rabbis obviously knew, who did not act according to their halakhah.
The way this story is told in the Yerushalmi indicates that this attempt had
obviously failed. The rabbis of the Yerushalmi relate the story as follows:
"Women, who are exempt from Torah study, are likewise exempt from donning
phylacteries. They answered: But Mikhal bat ShauI40 would don phylacteries
... and the sages did not prevent her. Rabbi Hezekiah said in the name of Rabbi
Abahu: ... The sages did prevent her" (yEruvin 10: l, 26a; cf. yBerakhot 2:3,
4c). Two significant changes have been inserted into this story. One is that the
contemporary of the rabbis, Mikhal bat Kushi, has become the near mythical
daughter of the biblical King Saul. At the same time we hear that her case is no
real precedent because the rabbis do not approve of it or accept it. They even
deny the details of the story as told in the midrash.
From a literary perspective, the techniques used by the Yerushalmi when
altering the baraita story are not compatible with those used by the Bavli editors
when altering the Yerushalmi stories. Nevertheless, the trend is the same restricting powerful women and altering the character of the stories and even of
the women they portray. How do we explain this? In my book Mine and Yours
are Hers I looked at phenomena of this sort and suggested "that at every level
of redaction of rabbinic literature, material which was compiled or collected by
previous generations has been reviewed for inconsistencies and excesses concerning women, while at the same time new texts were composed which in the
coming generations were viewed as similarly contradictory and excessive. By
this I do not suggest that there is a constant trend for the worst to be manifest in
rabbinic society's attitude to women, only that each generation is critical of the
previous generation's straying from the straight and narrow path, while oblivious of its own similar idiosyncrasies." 41 I think this assessment would probably
also hold true for the differences we have observed between the Bavli and the
Yerushalmi. I have pointed out more than once that the Bavli can make outrageous statements on behalf of women, and tell good stories in which they best
the sages and have the last word. 42 At the same time its editors did not like such
a trend when they saw it in the work of previous compilers. Thus, the nature of
this repeatedly occurring problem is existential rather than social, i.e., independent of its geographic origin.

40
41
42

Thus in the Eruvin version; in the Berakhot version it is still Mikhal bat Kushi.
Mine and Yours are Hers, 55.
See my lllfegrating Women, 171-4; 181-9.