Sotah 28 Technically Not a Sin, Oh But it Is!
Our Gemara on amud aleph tells us that a husband who commits sins cannot expect the waters of Sotah to work. He only has the right to make such moral demands on her if his own behavior is free of sin.
דְּאִי אִית בֵּיהּ עָוֹן בָּדְקִי לֵיהּ מַיָּא כִּי אִית בֵּיהּ עָוֹן בְּדִידֵיהּ מִי בָּדְקִי לַהּ מַיָּא לְדִידַהּ וְהָא תַּנְיָא וְנִקָּה הָאִישׁ מֵעָוֹן וְהָאִשָּׁה הַהִיא תִּשָּׂא אֶת עֲוֹנָהּ בִּזְמַן שֶׁהָאִישׁ מְנוּקֶּה מֵעָוֹן הַמַּיִם בּוֹדְקִין אֶת אִשְׁתּוֹ אֵין הָאִישׁ מְנוּקֶּה מֵעָוֹן אֵין הַמַּיִם בּוֹדְקִין אֶת אִשְׁתּוֹ
that if he has committed a similar iniquity the water evaluates his actions, this is difficult, as in a case where he has committed a similar iniquity does the water even evaluate her fidelity? But isn’t it taught in a baraita that the verse: “And the man shall be clear from iniquity, and that woman shall bear her iniquity” (Numbers 5:31), indicates that only when the man is clear of iniquity does the water evaluate the fidelity of his wife, but if the man is not clear of iniquity the water does not evaluate the fidelity of his wife?
What is the sin that the husband must be clean from? Rashi says, it is limited to having been intimate with her after she was secluded with another man, which he is forbidden to do until after she drinks the water. However, Rambam Laws of Sotah (2:8) says he must be free from all sexual sin, even rabbinic sins, such as being sexual while betrothed prior to Nisuin.
This Rambam is remarkable. How can a rabbinic sin disqualify the couple from the ritual, when the miraculous effect comes from the Torah? From the Torah’s perspective there was no sin. Of course the simple answer is that the rabbinic enactments have the full force of the Torah, even on a mystical level. However, we still need to explain how this is so, and why. Maharal (Be’er Hagolah 1:1:7-8) explains that rabbinic enactments are often based on Torah concerns, they just were not ratified as law. Maharal gives the example of washing hands, which the rabbis use an asmachta from the verse (Vayikra 15:11), “and his hands were not rinsed in water…” (see Chulin 106a) as a basis for the requirement to wash hands. Maharal says that the Torah identifies hands in regard to impurity even though the law in that verse was applying to all parts of the body. The Torah is showing that hands in particular have a strong susceptibility to contacting impure states. Thus, this was Torah concern, but it was not activated into a specific binding law until the rabbis felt it necessary. Consider this, do you think that Moshe Rabbenu picked up a pen or a tool on Shabbos? Do you think that he did melachos with a shinuy? I believe it is unlikely that Moshe and his generation understood the sanctity of Shabbos and naturally avoided secular and mundane contact on Shabbos. They did not need to formalize it into a particular stricture as they adhered to the broad Torah concern of Oneg Shabbos. However, at a certain point in time, the rabbis found it necessary to enact specific prohibitions, presumably because people lost the natural sensitivity to the sanctity of Shabbos and needed more concrete guidelines.
Similarly, we can say the Rambam would argue that immodesty and promiscuity are Torah concerns, even if there isn’t a specific violation on the books, so to speak. Thus, even though the man was only sexually violating various so-called rabbinic laws, he was behaving in a promiscuous way. Torah law does not give him the moral high ground to impose the Sotah process on his wife when he is promiscuous..
29 Psychology of Rabbinic and Torah Laws
Our Gemara on Amud Beis, quoting our Mishna on Daf 27b, explains that Rabbi Yochanan predicted that a later generation of Sanhedrin will overturn Rabbi Akiva’s Kal V’chomer. Maharitz Chayes on Daf 27 notes that this Gemara is a strong proof to the Rambam’s position (Laws of Mamerin (2:1) that a different Sanhedrin from a later generation can overturn rulings of a prior Sanhedrin based on derashos and limmudim, even of they are not greater in wisdom or numbers. The Rambam holds that when it comes to edicts, a later generation that is not as great cannot overturn their rulings, but when it comes to Torah derivations which are based on logic and comparisons, the verse (Devarim 26:3) says, “You shall go to the priest who is in THOSE days.”
Rosh Hashanah 25b expands on this idea:
וְאוֹמֵר: ״וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם״, וְכִי תַּעֲלֶה עַל דַּעְתְּךָ שֶׁאָדָם הוֹלֵךְ אֵצֶל הַדַּיָּין שֶׁלֹּא הָיָה בְּיָמָיו? הָא אֵין לְךָ לֵילֵךְ אֶלָּא אֵצֶל שׁוֹפֵט שֶׁבְּיָמָיו. וְאוֹמֵר: ״אַל תֹּאמַר מֶה הָיָה שֶׁהַיָּמִים הָרִאשׁוֹנִים הָיוּ טוֹבִים מֵאֵלֶּה״.
And it further says: “And you shall come to the priests, the Levites, and to the judge who shall be in those days” (Deuteronomy 17:9). But can it enter your mind that a person can go to a judge that is not alive in his days? What, then, is the meaning of the phrase “in those days”? It teaches that you need to go only to the judge in one’s days, i.e., he is authorized to judge and decide matters. And it also says: “Do not say: How was it that the former days were better than these? For it is not out of wisdom that you inquire concerning this” (Ecclesiastes 7:10). Instead, one must accept the rulings of the leaders of his generation.
However, rabbinic decrees follow a different system, as Rambam says (ibid 2:2):
בֵּית דִּין שֶׁגָּזְרוּ גְּזֵרָה אוֹ תִּקְּנוּ תַּקָּנָה וְהִנְהִיגוּ מִנְהָג וּפָשַׁט הַדָּבָר בְּכָל יִשְׂרָאֵל. וְעָמַד אַחֲרֵיהֶם בֵּית דִּין אַחֵר וּבִקֵּשׁ לְבַטֵּל דְּבָרִים הָרִאשׁוֹנִים וְלַעֲקֹר אוֹתָהּ הַתַּקָּנָה וְאוֹתָהּ הַגְּזֵרָה וְאוֹתוֹ הַמִּנְהָג. אֵינוֹ יָכוֹל עַד שֶׁיִּהְיֶה גָּדוֹל מִן הָרִאשׁוֹנִים בְּחָכְמָה וּבְמִנְיָן. הָיָה גָּדוֹל בְּחָכְמָה אֲבָל לֹא בְּמִנְיָן. בְּמִנְיָן אֲבָל לֹא בְּחָכְמָה. אֵינוֹ יָכוֹל לְבַטֵּל אֶת דְּבָרָיו. אֲפִלּוּ בָּטַל הַטַּעַם שֶׁבִּגְלָלוֹ גָּזְרוּ הָרִאשׁוֹנִים אוֹ הִתְקִינוּ אֵין הָאַחֲרוֹנִים יְכוֹלִין לְבַטֵּל עַד שֶׁיְּהוּ גְּדוֹלִים מֵהֶם. וְהֵיאַךְ יִהְיוּ גְּדוֹלִים מֵהֶם בְּמִנְיָן הוֹאִיל וְכָל בֵּית דִּין וּבֵית דִּין שֶׁל שִׁבְעִים וְאֶחָד הוּא. זֶה מִנְיַן חַכְמֵי הַדּוֹר שֶׁהִסְכִּימוּ וְקִבְּלוּ הַדָּבָר שֶׁאָמְרוּ בֵּית דִּין הַגָּדוֹל וְלֹא חָלְקוּ בּוֹ:
The following rules apply when a court issued a decree, instituted an edict, or established a custom and this practice spread throughout the Jewish people and another court arose and sought to nullify the original order and eliminate the original edict, decree, or custom. The later court does not have this authority unless it surpasses the original court in wisdom and in its number of adherents. If it surpasses the original court in wisdom, but not in the number of adherents, or in the number of adherents, but not in wisdom, it cannot nullify its statements. Even if the rationale for which the original court instituted the decree or the edict is nullified, the later court does not have the authority to negate their statements unless they are greater.How is it possible that the later court will surpass the original court in number? For every Supreme Sanhedrin consists of 71 judges. The intent is the number of sages in the generation who consent and accept the matter stated by the Supreme Sanhedrin without opposing it.
This is the basis for the Rambam’s position. We might wonder what is the difference between a rabbinic edict and a derasha? If anything, since an edict has no scriptural basis, I would think that it should be easier for a successor generation to override it. Yet the opposite is true. The answer to this depends on how one understands derashos made by Chazal. As we discussed in Psychology of the Daf Sotah 22, a rabbinic derash, though having the force of Biblical law, may have been designed for the rabbis of each generation to assess and decide how to apply them based on the needs of the times. These judgment calls can only be made by the authorities of that generation, no matter if they are inferior in Torah knowledge. This is because, by definition, they are MORE knowledgeable and superior in regard to the needs of THEIR generation. However edicts are laws which are made out of broad concerns and not subject to as much analysis. Thus an inferior Sanhedrin of a later generation may lack the wisdom to know if the edict should be annulled. But as far as analysis and derivations from scripture, we can argue that God gives each generation’s Sanhedrin the insight to understand the Torah as they need to.