Mikva Revisited - Understanding Shabbat 13a-b in light of Parshat Metzora

by Chaim Sunitsky (with some additional comments by Marc B. Shapiro)

It is well known that when describing the purification of niddah and zava the Torah does not explicitly mention that immersion is required.[1]The present article will briefly examine the proofs given for such an immersion and show a novel understanding of a story brought in the Talmud (Shabbat13a-b).

There are 5 most commonly brought proofs for mikva immersion. Three are brought in Tosafot (Hagiga 11a s.v. lo nitzrecha, Yevamot 47b s.v. bimakom and Yoma78a mikan), one in Rambam (Isurey Biah 4:3), one in Ramban (Shabbat13b s.v. bimey and in his Chumash commentary Vayikra 15:11). One of Tosafot’s proofs is in the Gemara itself (Shabbat 64b): “and she shall remain in her niddah status”. The earlier sages used to understand this to mean that a woman during her menstruation should not use makeup or wear nice clothes[2]until R. Akiva came and said that this way he will divorce her[3]and explained rather that she shall be niddah until she immerses. Needless to say, there is no direct proof of immersion in this statement.[4]

Tosafot (ibid) bring an additional proof from newly obtained vessels after the war with Midian, where according to Hazal’s understanding they required immersion as the Torah states (Bamidbar 31:23): “the waters of niddah”, seemingly implying that niddah needs an immersion too.[5] The simple meaning of the Torah in this verse is that water with ashes of “red cow” had to be sprinkled on these vessels.[6]Indeed there is an understanding based on Rambam[7]that immersing new vessels is not Deoraita at all.

The third proof of the Tosafot in the name of a Gaon[8] is from the fact that even those that touched a bed of niddah need to immerse to become pure, how much more so niddah herself. However, this would only at best prove that a niddah needs to immerse in order not to cause ritual impurity to spread on the objects[9].

Ramban’s proof that immersion is required is based on the case of a male zav.[10]The problem with this is that zav requires immersion in “mayim chaim” (a natural source of water) whereas a niddah can immerse even in regular mikva made from snow or rain water.[11]Rambam’s proof is that all purifications require immersion so it must be that niddah does too,[12] though the verse he uses as a proof is also talking about ritual purity and not necessarily implying any marital prohibition.[13]

After we see that there is no conclusive proof that the immersion of niddah is a Biblical law, we may gain a better understanding of a story in the Talmud (Shabbat 13a-b, Avot Derabbi Natan, 2). It tells us that a certain rabbinical student used to sleep in one bed[14] with his wife after her seven days of niddah were over until she counted the “seven clean days” and went to the mikva. The implication seems to be that after the Biblical period of seven days the prohibition is only Rabbinical.[15]The Rishonim are quite surprised at this as there is absolutely no relaxation[16]of the prohibition for a woman who is niddah after the seven days are over as she remains biblically prohibited to her husband until she immerses in the mikva. Some Rishonim therefore suppose that the minhag at that time was for a woman to go to the mikva twice, once in the end of the seven days of niddah and one at the end of “seven clean days”. However according to what we wrote it is possible that this student thought that the entire immersion in the mikva is also rabbinical in nature and therefore was more lenient once the Biblical seven days were over.[17]

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I sent this post to Marc Shapiro and here are his comments:

See Shem Tov’s commentary on Maimonides, Guide 3:47, where he has a radical view that according to Maimonides immersion of a niddah is only rabbinic. R. Kafih, in his commentary on the Guide, ibid., is outraged by Shem Tov’s comment:

R. Kafih continues by explaining why Shem Tov is mistaken and concludes:

In his commentary on the Mishneh Torah, Sefer Kedushah, vol. 1, p. 184, R. Kafih returns to this matter:

The matter you discuss in your post also concerned R. Solomon Zvi Schueck. In his Torah Shelemah, vol. 2, p. 129b, he prefaces his discussion as follows:

See R. Schueck’s extended discussion as it is quite interesting, even though it is complete speculation.

You cite Halakhot Gedolot, Hilkhot Niddah, no. 41 (p. 439 in the Machon Yerushalayim edition), that the law of immersion for a niddah is rabbinic:

This is a well-known passage that has been discussed. Let me just make three comments.

1. See Teshuvot u-Fesakim me’et Hakhmei Ashkenaz ve-Tzarfat, ed. Kupfer (Jerusalem, 1973), no. 158, p. 246 which states:

2. R. David Zvi Rotstein points out that the Karaites were very stringent regarding niddah, and therefore it is possible that the Behag’s comment, that the law of immersion for a niddah is only rabbinic, does not reflect is true viewpoint but was only directed against the Karaites. See Ohel Sarah Leah (Jerusalem, 1999), p. 638 in the note. As far as I am concerned, this makes absolutely no sense. If something is a rabbinic prohibition, and the Karaites were arguing that it is unnecessary, then I can understand a rabbinic figure (falsely) stating that the matter in question is a Torah law, in order to shore up observance. (I discuss this in my new book.) But what sense does it make to do this in the reverse, i.e., declaring that something is only rabbinic because the Karaites took it as a Torah law?

3. This view of Halakhot Gedolot is mentioned in Besamim Rosh, no. 175. Here it is attributed to R. Yehudai Gaon. As Saul Berlin explains in Kasa de-Harsana, some rishonim assumed that R. Yehudai authored Halakhot Gedolot.

The case in Besamim Rosh deals with a man who would publicly hug and kiss his wife even though she was a niddah. The rabbi who wrote to “R. Asher” did not place the man in herem, and one of his reasons was that the law of immersion of a niddah is only rabbinic, and therefore since the man was not violating a Torah prohibition “better an unwitting sinner than a willful sinner.” “R. Asher” rejects this position and thus on the surface this responsum might appear quite pious. But as with a number of other responsa in Besamim Rosh, what the forger Saul Berlin has done is put the radical view in the public eye, even if in the end “R. Asher” rejects it. From this responsum people will see that there is an argument to be made for not being strict with the laws of niddah, since after all, they are only rabbinic. In his reply “R. Asher” also mentions that many am ha’aratzim are more stringent when it comes to the laws of niddah than the scholars. I see this too as an attempt by Berlin to subvert traditional Judaism by making it seem as if the common practices regarding the laws of niddah are based on ignorance.