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. 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 (Shabbat 13a-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 Yoma 78a mikan), one in Rambam (Isurey Biah 4:3), one in Ramban (Shabbat 13b 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 until R. Akiva came and said that this way he will divorce her and explained rather that she shall be niddah until she immerses. Needless to say, there is no direct proof of immersion in this statement.
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. The simple meaning of the Torah in this verse is that water with ashes of “red cow” had to be sprinkled on these vessels. Indeed there is an understanding based on Rambam that immersing new vessels is not Deoraita at all.
The third proof of the Tosafot in the name of a Gaon 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.
Ramban’s proof that immersion is required is based on the case of a male zav. 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. Rambam’s proof is that all purifications require immersion so it must be that niddah does too, though the verse he uses as a proof is also talking about ritual purity and not necessarily implying any marital prohibition.
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 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. The Rishonim are quite surprised at this as there is absolutely no relaxation 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.
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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:
ראה שם טוב ששאל "ומה יאמר הרב בטבילת זבה ונדה במים קרים בסתיו", והמשיך בדברי הבל שאסור לשמען שכאלו דעת רבנו שטבילת נדה וזבה מדרבנן. וחלילה חלילה.
R. Kafih continues by explaining why Shem Tov is mistaken and concludes:
והארכתי מפני שכבר הטעה את קלי הדעת
In his commentary on the Mishneh Torah, Sefer Kedushah, vol. 1, p. 184, R. Kafih returns to this matter:
והבל יפצה פיהו של בעל שם טוב מפרש המורה, בח"ג פרק מז שכאלו סובר רבנו שטבילת נדה דרבנן, וענה גם כאן שקר ברבנו ותלה בו מה שלא אמר ולא עלתה על לבו חלילה
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:
ורבים מגדולי הראשונים והאחרונים (עיי' תורה תמימה במקומו) עמדו להקשות וכי עיקר גדול כטבילת נדה שקדושת ישראל תלוי בה לא תמצא בתורה רק ברמז דק וקל. ועוד מקשים, כפי משמעות הגמרא בשבת הנ"ל דרשו זקנים הראשונים מן והדוה בנדתה רק שלא תכחול ולא תתקשט הנדה בימי נדותה, אכן לא שנלמוד טבילת נדה במי מקוה, עד שבא רע"ק ולימד בנדתה תהא עד שתבא במים, וכי עד רבי עקיבה לא טבלו?
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:
זב וזבה טבילתן מדאוריתא, נדה מדרבנן היא
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:
ובהלכות גדולות פוסק טבילת נידה דרבנן ושרא להו מרייהו
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.
 Usually what is taken by Hazal as immersion in the mikva is a statement: “and he/she shall wash his/her flesh in water”. No such statement is given in regards to niddah or zava’s purification.
 Based on the word “niddah” implying excommunication of sorts.
 It has been noted by Yerushalmi (end of Gitin) that R. Akiva may be following his general shita that a man can very easily divorce his wife if he finds someone “better”.
 In addition, there is a question as to whether this proof was even used before R. Akiva came.
 A similar proof is also brought in Yoma 78a based on a posuk in Nach (Zecharia 13:1) and similar arguments against this proof can be used.
 See for instance Targum Onkelos and Rashbam on this verse, see also Or Zarua 359.
 Ma’akhalot Assurot, 17:5, see Magid Mishna, Hilchot Yom Tov 4:18, see also Ramban, Avoda Zara 75b s.v. Gemora.
 In some versions they are quoting Bahag (Hilchot Gedolot) but in our versions this does not appear. Others quote this argument in the name of R. Hai Gaon (see Semag, negative commandment 111).
 See Tosafot, Hagigah 11a s.v. lo nitzrecha. We do find many other laws of niddah that apply only for purity purposes but not applicable regarding permitting her to her husband (see Tosafot ibid, see also GR”A, Yoreh Deah 196:31). In addition, sometimes the impurity of a person can go away automatically without immersion. For example a woman who gave birth within her “yemey tahara days” spreads some level of impurity on what she touches but later she automatically becomes pure without additional immersions (Niddah 71b).
 There are many differences between male zav and female zava but Ramban seems to understand that since the passage of zava follows that of zav, the laws must be similar.
 According to many opinions even regular water drawn by people on Biblical level can be used for niddah (see Tosafot, Bava Batra 66b s.v. yehe).
 Rambam uses the verse (Vayikra 15:18) that after relations both the man and the woman need to “wash themselves” (meaning immerse) and be unclean until the evening. This particular Binyan Av is not found in our sources in Hazal but the Magid Mishna (ibid) implies it was in some version of Sifra.
 The very fact that each opinion rejects that of others seems to imply that there was no clear proof that immersion of niddah is a Biblical command. In fact Bahag (siman 41, p. 439 in the Machon Yerushalayim edition) seems to consider niddah immersion as Rabbinical in origin but immersion of zava as Biblical. However, Or Zarua 359 says there is a mistake in that version of Bahag.
 There are other versions of the same story where he even slept naked next to his wife after the seven days of niddah were over.
 Ramban (ibid) however also brings a different interpretation.
 However see Rama, Yoreh Deah 195:14.
 Ramban and Rashba (ibid) specifically write that it’s impossible that this student did not know that a niddah had to immerse. However, according to what we wrote it is possible that the student thought that this immersion is a Rabbinical command and that the drasha of R. Akiva is an asmachta (similarly to the shita that holds that the immersion of vessels is only Rabbinical in origin).