The Tur Interprets the Rambam

In this post, we will go back to Halachic world, and see how the conception of the prohibition against masturbation evolved as it became codified into law.

Rabbi Jacob ben Asher (RJBA) (1269-1343) also known as the "Ba'al HaTurim" was famous for being the author of the "Arba'ah Turim" or "The Four Pillars".  This work was hugely influential in the future development of Jewish law.  The format of this work became the blueprint for all major Halachic works until modern times.  One of the most important aspects of the Arba'ah Turim was that it served as a bridge that unified the two primary schools of Halachic scholarship that were beginning to grow further and further apart, the Ashkenezic and the Sephardic scholars.  RJBA was born in Cologne in Germany, but moved with his famous father, the "Rosh",  to Castile in Spain, so he drew his scholarship from both worlds.  He was famous for his reliance on Maimonides, but also how he describes the opinions of the Tosafists when there were disagreements.

A quick review of the development of the Halacha so far is important in order to understand the significance of this post.  We described how the Rambam understood the Talmudic objections to masturbation. The Rambam had basically three problems with masturbation. 

1. Sexual activity done in a certain manner in order to maintain a sexual relationship and thus avoid his obligation to procreate, even in the context of marriage.  This only applied to someone who hadn't yet fulfilled his obligation to procreate
2. Sexual activity that is done intentionally as a method of sexual gratification outside the context of of marriage, this was called "Ni'uf Beyad U'veregel" or "sex with hands or feet (or other limbs)" This, according to the Rambam, is problematic because it leads to and occurs in an environment of immorality and promiscuity, and a general lack of holiness.  
3. The third is that the Rambam, in line with the medical thinking of his day, generally felt that too much sexual activity had health risks. This would apply even to too much intercourse with one's own spouse, even in a completely permissible way.

What was not prohibited by the Rambam was sexual activity, done in the context of marriage, that results in ejaculation outside the vagina or otherwise cannot result in pregnancy.  Similarly, what was not prohibited by the Rambam, was masturbation by a single man in a way that would not result in promiscuity or immorality.  (This does not mean that the Rambam approved of this behavior, as he disapproved strongly of deliberately stimulating oneself sexually, and recommended early marriage and involvement in holier pursuits to keep one's mind away from thoughts that could lead to sin. It just means that there is no specific prohibition of "spilling seed").   

This was also clearly the opinion of the Tosafot Rid and the Ri Hazaken, and the general Halachic understanding even during the beginning days of the Chasidei Ashkenaz such as Rabbi Yehuda HaChassid. 

We also described how a new trend in Halacha began with Rabbeinu Tam's interpretation of Rashi to mean that any act of spilling seed that was not in "the normal way of intercourse" was a violation of the command to procreate. This was the first mention of a specific prohibition of "spilling seed".  We pointed out how the Chasidei Ashkenaz emphasized the holiness of avoiding arousing oneself and masturbation in general.  We saw how Rabbeinu Yonah then stated that the act of spilling seed as described by RT incurred the death penalty, and finally, how the Semak then codified it as a halacha.

Now let's turn to RJBA, whom I shall refer to as "the Tur" (short for his work Arba'ah Turim").  The Tur, in his usual style, brings direct quotes from the Rambam in order to present the Rambam's opinions on a halachic matter, and then he brings the dissenting opinions from both the Ashkenazic and Sephardic scholars.  He also often writes his own conclusions after discussing the Rambam's opinions and others. When it comes to our topic, the way that the Tur presents the Rambam is very different from the way we analyzed the Rambam in our previous posts.

Shilo Pachter, in his doctoral dissertation that I have quoted earlier in this series of posts, describes how through numerous subtle changes, omissions, and changes of context, the Tur presents the Rambam in a completely different light. I don't mean to suggest that the Tur deliberately changed the Rambam, rather, the Tur was writing after about two hundred years of influence of a sea change in Halacha with regard to the attitude towards masturbation.  Therefore he understood the Rambam very differently than we did.

I am only going to mention some of the points that Pachter makes, but hopefully enough to show what effect these subtle changes in the Tur's presentation of the Rambam had on the subsequent development of Halacha.

1. The Tur places these Halachot in the laws of Pru U'rvu (procreation).  This immediately gives the impression that the laws of "spilling seed" are meant to address married couples as well as single men.  This differs from the Rambam's placement of these laws in the Sefer Kedushah together with other proscriptions designed to help prevent immorality and promiscuity
   
   
2. The Tur, when quoting this Rambam, makes a subtle but very important word switch.
   
   "It is prohibited to ejaculate semen for naught, therefore a person should not have intercourse and then withdraw to ejaculate, one should also not marry a woman too young to give birth to a child. However, those who have sexual relations with their hands and thus ejaculate (outside of a woman's body) not only are they committing a prohibited act, but one who does should be isolated (from the community) and regarding such people it is said (Isaiah 1:15) "Their hands are stained with blood" and it is as if he is guilty of murder.  (Rambam, Laws of Forbidden Relations 21:18)"
   
   The word "Aval" which I translated as "however", is changed by the Tur to a simple "vav" meaning "and".  Although this seems like a small change, it is actually extremely significant.  Until now, we have understood the Rambam as discussing two different categories, separated by the word "however".  The first two cases, withdrawal and marrying a woman incapable of pregnancy were issues because a person was not fulfilling the Mitzvah of P'ru U'rvu. However,  "Ni'f Beyad U'veregel" ("sexual relations with hands or feet") was a problem that was prohibited because it would lead to promiscuity.  (Recall that the Rambam explained in his Pirush Mishnayot that Ni'uf Beyad refers to sexual contact with others that does not involve vaginal intercourse.)  By changing "however" to "and" the Tur is suggesting that Ni'uf beyad U'veregel is actually referring to masturbation and applies to married couple as well as singles.  The Tur does not mention the Rambam in Pirush Mishnayot at all.
   
   
3. The Tur does not quote the Rambam who permitted marrying a woman incapable of conceiving for someone who has already fulfilled P'ru U'rvu. This was one of the primary lines of evidence with which the Rambam made clear his understanding of what the prohibition of Hotza'at Zera was all about. That a sexual relationship with a spouse, done in such a way as to avoid fulfilling his obligation to procreate, is what the Talmud was condemning, as it is indicative of a marriage for the purpose of sexual pleasure alone.  The Tur completely leaves out this Halacha of the Rambam.
    
4.  The Tur quotes the Rambam with the new additional phrase that was not included in the original manuscripts of the Rambam.  This phrase was appended at the end of the Halacha where the Rambam explicitly permits all sorts of sexual activity with one's spouse.  The phrase reads: "as long as one does not spill seed in vain".  We discussed this phrase before, but according to the original manuscripts, the primary purpose of that entire statement of the Rambam was in order to permit sexual activities with one's spouse that do not result in pregnancy, including anal intercourse, and other practices.  Inserting that phrase completely turns the Rambam upside down. 
   
   
5. The Tur prohibits even a married person from touching his penis, thus prohibiting what the Talmud and the Rambam explicitly permit.  All of this was because of his fear that even a married person might commit this sin.  

The sum total of all of this (and many more subtle changes that Pachter records)  is that the Tur presents the Rambam as if he held like Rabbeinu Tam.  That spilling seed is prohibited even for a married couple, and that there is a specific prohibition against spilling seed that has a Torah origin, like Rabbeinu Yonah.

The Tur however, was aware that the Ri HaZaken expressly permitted extra-vaginal ejaculation for married couples.  So he brings the Ri HaZaken as a dissenting opinion.  The end result of the Tur's presentation is that we have the force of the Rambam presented as if it stands in opposition to a lone dissenting opinion of the Ri Hazaken.  The Tur therefore is deciding in favor of the Rambam, essentially squelching all future debate on this issue.

While the Ri Hazaken in our original analysis was simply following the prevalent and generally understood approach to this topic in the Talmud and the Rambam, suddenly the Tur has turned him into an outlying lenient opinion without too many legs to stand on.

As we shall see in a moment, the Beit Yosef is going to take it a step further and use the Kabballah to eliminate the opinion of the Ri HaZaken completely, and establish the Tur's rendition of the Rambam as the law of the land..