Rabbi Akiva was not merely a transmitter, formulator and redactor of halakhah; he also innovated and changed a great deal in our conception of Jewish law. Tannaitic sources explicitly and vigorously express this assessment of his role in the world of halakhah: “Such was the Mishnah of R. Akiva, but the first Mishnah [...]” (M Sanhedrin 3:4); or: “‘And concerning her who is in menstrual infirmity’ (Lev. 15:33)—the original sages ruled, ‘she shall be in her menstrual infirmity’: ‘she should not put on eye-shadow or rouge until she immerses.’ But then R. Akiva came along and taught ‘The matter may lead to contention and the husband may wish to divorce her’” (Sifra, end of Mezora, fol. 79c; trans. Neusner: vol. 2, 428). The same R. Akiva, who had much to say in all areas of halakhah, was not silent regarding women’s standing and sexual relations, and frequently broke new ground. Many unattributed halakhot in the Mishnah and the Tannaitic literature as a whole are undoubtedly among the teachings of R. Akiva. This is especially so for the dicta by his students that are frequently mentioned in the Tannaitic literature, and in which it may be assumed that many statements by their teacher are embedded. The following discussion, however, will be limited to the explicit instances that can be directly attributed to R. Akiva.
The Torah obligates the rapist or the seducer of a nonbetrothed virgin to pay a fine to her father (Ex. 22:15–16; Deut. 22:28–29), but “If a girl was betrothed and afterwards divorced, R. Yose ha-Gelili says: Through her no fine is incurred. But R. Akiva says: A fine is incurred, and the fine belongs to her” (M Ketubot 3:3). Another halakhah, in which it is related that R. Akiva ruled that this is the law in practice, teaches of this Tanna’s attitude to human dignity in general and that of women in particular. In the discussion in chapter 8 of Mishnah Bava Kamma regarding the amount of the fines that a person is required to pay for having shamed his fellow, Mishnah 6 teaches: “This is the general rule: all is in accordance with a person’s honor,” that is, the payment is to correspond to the status of the person who was shamed. R. Akiva amplifies on this: “Even the poorest in Israel are viewed as if they are freemen who have lost their property, for they are the sons of Abraham, Isaac, and Jacob.” The Mishnah continues:
It once happened that a man uncovered the head of a woman in the marketplace, she came before R. Akiva, and he obligated him to give her four hundred zuz [denarri; a denarius was half a biblical shekel]. He said to him: “Rabbi, give me time,” and he gave him time. He watched out for her, standing at the entrance to her courtyard, and he broke the jug before her, in which there was an isur [a small measure of volume] of oil. She uncovered her head, scooped up the oil in her hand, and placed her hand on her head. He had set witnesses in readiness against her, and he came before R. Akiva. He said to him [R. Akiva]: “Rabbi, shall I give one such as this four hundred zuz?” He replied: You have not said anything. If a person wounds himself, even though he is not allowed to do so, he is exempt; if others wounded him, they are liable. And if a person cut down his own plants, even though he is not allowed to do so, he is exempt; if others cut down his plants, they are liable.
At the basis of R. Akiva’s many teachings on marital relations is the idea of the loving relationship between man and wife. The ideal set forth in his teachings is “When a husband and wife are worthy, the Divine Presence abides with them” (BT Sotah 17a). When the love between them is impaired, R. Akiva acknowledges this as reason for divorce, in contrast to the view that permits the severance of the marital bond only if the husband finds his wife acting licentiously. The Tannaitic halakhah invalidates relatives from testifying in a matter concerning a relative of theirs. The first Mishnah defines these as “[the litigant’s] uncle, his first cousin, and all who are qualified to inherit him.” R. Akiva includes second-order relatives and, as a sign of the importance he ascribes to marriage, adds their spouses: a witness who is ineligible to testify regarding his cousin, is also unable to testify regarding the wife of this cousin (Mishnah Sanhedrin 3:4). The great significance that R. Akiva affords the institution of marriage is also seen from his interpretation of the verse that specifies for which of his deceased relatives a kohen may incur corpse impurity. According to Lev. 21:3, as interpreted by the Rabbis, he may incur impurity for his wife and his maiden sister. R. Ishmael understands “he may defile himself” as granting the kohen permission, if he so chooses, while “R. Akiva says, It is obligatory” (BT Sotah 3a).
The laws that R. Akiva expounded concerning marriage were of great significance for his and following generations. The following are only a few examples. Deut. 23:9 proscribes marriage with an Edomite or an Egyptian until the third generation, a ban on which the Tosefta (Kiddushin 5:4) elaborates:
R. Judah said: Benjamin, an Egyptian convert, had a fellow from among the disciples of R. Akiva. [He said:]
I am an Egyptian convert and I married a woman who is an Egyptian convert. I am about to arrange a marriage for my son with a woman who is the daughter of an Egyptian female convert so that the son of my son may be admitted into the congregation, as it is said, ‘Children born to them [i.e., Edomites or Egyptians] may be admitted into the congregation of the Lord in the third generation’ [Deut. 23:9].” R. Akiva said to him: “Benjamin, [this is] an error in the law. After Sennacherib came up and confused all the nations, the Ammonites and Moabites are no longer in their [original] place, nor are the Egyptians and the Edomites in their [original] place. Rather, an Ammonite man may marry an Egyptian woman, an Egyptian man may marry an Ammonite woman, any one of these may marry any one of all the families of the earth, and any one of the families of the earth may marry any one of these.”
A law highly significant in the life of the Jewish people, as regards its divorces and its wanderings, states that a single witness suffices to attest to the death of a husband, thus enabling the wife to remarry. Although R. Akiva was not the Rabbi who formulated this halakhah, he brought it with him from Babylonia and was responsible for its spread throughout Erez Israel. As we read in M Yevamot 16:7:
R. Akiva said: When I went down to Nehardea to declare a leap year, I met Nehemiah of Beth Deli, who said to me: “I heard that in Erez Israel only R. Judah ben Bava permits a woman to remarry on the evidence of one witness.” I replied: “It is so.” He said to me: “Tell them in my name, you know that this country is in confusion because of [ravaging] troops. I received a tradition from Rabban Gamaliel the Elder that a woman is permitted to remarry on the testimony of a single witness.” And when I came and recounted the matter before Rabban Gamaliel [the grandson of Rabban Gamaliel the Elder, who was active in Yavneh], he rejoiced at my words and said: “We have now found a fellow [i.e., one who is of the same opinion] for R. Judah ben Bava.” During the course of this, Rabban Gamaliel recalled that certain men were killed at Tel Arza, and Rabban Gamaliel the Elder permitted their wives to remarry on the basis of a single witness. The rule was established to permit a woman to remarry on the evidence of a single witness [who heard testimony] from another witness, from a slave, from a woman or from a maidservant.
This halakhah is closely paralleled by the law established by R. Akiva that halizah (release from yibbum [levirate marriage]) is valid even if performed only in the presence of the widow and her brother-in-law, as in the instance reported in Mishnah Yevamot 12:5: “Once a man submitted to halizah when he and she were alone together in prison; the case came before R. Akiva and he declared it valid” (both Talmuds explain that this case came before R. Akiva when he himself was imprisoned). The Bar Kokhba rebellion left many childless widows, who were in need of yibbum or halizah. R. Akiva’s declaration that if the woman performed halizah, even if in the presence only of her brother-in-law, she would be released from her status as an agunah (a “chained” woman unable to remarry, because of uncertainty concerning the husband’s death, or his refusal to grant a divorce) provided a solution for the especially difficult situation of these widows in a time of religious persecution, when Jewish courts could not function openly.
Sifra: An Analytical Translation, translated by Jacob Neusner. Atlanta: 1988.