Wednesday, July 18, 2012

Divorce in the Pentateuch

This is part 3 of 8 in a series on what the Bible says concerning divorce and remarriage. For the other posts see here:
There is very little about marital issues in the Pentateuch until we reach the Law proper. There is a passing negative note in Gen. 4.19ff where Lamech of the lineage of Cain notably, per the narrative structure, takes two wives. In Gen. 38 and 39 there is an explicit contrast between Judah’s and Joseph’s sexual integrity (hence why chapter 38 is inserted into the Joseph story) and in Gen. 35.22 (cf. 49.4) Reuben the firstborn of Jacob foolishly lay with one of his father’s concubines. But these only speak to the breakdown of marriage and general sexual relationships. Two passages in the Law are of importance to the task at hand – Ex. 21.10-11 and Deut. 24.1-4.

Exodus 21.10-11 – If he [the master who took the female slave] takes another wife to himself, he shall not diminish her food, her clothing, or her marital rights (see below). And if he does not do these three things for her, she shall go out for nothing …

The passage is mostly straightforward. If the “master” of v. 8 takes another wife, the first woman, who was bought as a slave and designated as his wife, is owed food, clothing, and marital rights or else he must let her go – divorce her – without her having to pay him any of the dowry money (it was standard ANE practice if the marriage contract was broken). The translation is usually as “marital rights”, referring to sexual intercourse[i], although this is by no means a concensus. It’s also quite possible to take it as merely a reference to housing or upkeep[ii]. The meaning doesn’t really change much, but some tenuous arguments[iii] concerning marriage and divorce have relied heavily on the translation “marital rights”, which can only be held tentatively.

There is one other salient point here. Based on the Mishnah[iv], Jewish schools of thought contemporary with Jesus argued, based on the “lesser to greater” argument, that if these obligations are true for a slave woman, how much more are they true for a free woman (and then how much more for a free man). Thus, the higher the status of the woman, the more those obligations held true. It’s also worth noting that the Mishnah gave the additional reasons of cruelty and humiliation as grounds for necessary divorce[v].

Deuteronomy 24.1-4 – When a man takes a wife and marries her, if then she finds no favor in his eyes because he has found some indecency [literally, “nakedness of a matter”[vi] or better, “anything unclean”] in her, and he writes her a certificate of divorce and puts it in her hand and sends her out of his house, and she departs out of his house, and if she goes and becomes another man’s wife, and the latter man hates her and writes a certificate of divorce and puts it in her hand and sends her out of his house, or if the latter man dies, who took her to be his wife, then her former husband, who sent her away, may not take her back again to be his wife, after she has been defiled [or, declared unclean], for that is an abomination before the LORD…

While the Exodus passage is important because it was the key text for most of the divorce rulings in 1st century Judaism, this passage is important because it is the text of reference in 3 of the 4 NT passages of Jesus on divorce[vii] and is the only verse in the Law directly concerned with divorce. Technically, vv. 1-3 are one long protasis (if this…) and v. 4 is the apodosis (then this…), giving the actual command. Here the divorce is merely presupposed – and thus implicitly permitted, or rather, not explicitly prohibited - and the case law here is concerned with a woman who is dismissed, remarries, and the second marriage is terminated by either dismissal or death. It is in this case that the law states that the woman shall not return to the first husband. From this point two main issues arise: 1) What is the “anything unclean” in v. 1 that causes the husband to divorce his wife? And 2) Why does this whole scenario make the woman “defiled” in v. 4 such that the first husband cannot take her back?

First, “nakedness of a matter” or “something indecent” likely refers to anything that is shameful or indecent that must be hidden lest when exposed it brings shame[viii]. As such it may likely have been grounds for the man not needing to return the dowry to the wife[ix]. The “indecency” is not stated but certainly didn’t refer to adultery since there was a law of death for that (Deut. 22.22). From here there are a couple of ways of understanding “nakedness of a matter”.

It could be understood as some sort of immoral behavior on the part of the woman. The Mishnah sheds some light on what sort of offenses may warrant divorce yet not fit the category of adultery. In Ketuboth 7.6 we read that divorce is necessary if the woman a) “she goes out with her hair flowing loose”, b) “she spins in the marketplace”, and c) “she talks with just anybody”. In cultural terms, this translates to acting “easy to get” after she is married. The sense is perhaps heightened significantly in the prophets where this text is applied to the “marriage” between the Lord (Yahweh) and Israel (See Isaiah 50, Jeremiah 3-4, and Hosea 3). In these cases Israel has gone “whoring” after other gods and been entirely unfaithful. The question then is,  “will the Lord take her back since she has been unfaithful?” The answer is twofold: since no divorce certificate has actually been given, she may be taken back (Isaiah and Hosea) and, secondly, what the law does not allow will be overcome by a new law (Jeremiah).

The other possibility is more amoral. “Nakedness of a matter” could refer to a physical deficiency such as an inability to bear children[x] or perhaps menstrual irregularities that would render a woman unclean per Leviticus 15[xi]. Either of these would be private (or “naked”) matters that when exposed would bring cultural shame or opprobrium and would render the person “unclean”. While the term is sufficiently vague to cover the whole spectrum of both understandings, it seems more likely that it primarily refers to this second possibility since the woman is “declared unclean” (see below). Though, this doesn’t mean later usage misapplies the law. Again by “the lesser to the greater”: If this is true for an amoral situation, how much more for an immoral situation?

Second, and more difficult, is why the woman is now “defiled” because of the whole situation. There are 3 significant views as to why:

1. Marital Adultery/ Wife-Swapping – A view held fairly widely is that this law protects against adultery “after-the-fact”. That is, the woman has been forced to commit adultery with the second husband because the first one divorced her. The situation would be made all the worse when the woman went back to the first husband because the adultery has been “doubled” so to speak. Another subset of this is the thought that what the law is preventing is “wife-swapping” where the woman is traded back and forth in almost a prostitution sense. Thus the second marriage is protected.

The problem with this is that 1) adultery seems pretty distant from the text – the second marriage isn’t viewed as adulterous, and adultery is dealt with elsewhere and more strictly in the law. 2) It seems to ignore the fact that the second husband could die and the woman still couldn’t return to the 1st husband. While one exchange per marriage could hardly be called “wife-swapping”, if the second husband dies, for the first husband to take her back it would seem to be more restorative than any form of adultery.[xii]

2. Profit Motive – Gaining popularity of late has been the view that the first husband could have a motive to exploit the woman by taking her first dowry. He would have rights to take the dowry if divorce is warranted by “something indecent”, and then could gain a 2nd (albeit lesser) dowry at remarrying. This is given support by a late 70’s article by S. Kaufman attempting to demonstrate a Decalogue structure to the Deuteronomic laws. Under this analysis, the legislation of Dt. 24:1-4 was included in the section related to the eighth commandment, concerning stealing, rather than in the section relating to the seventh, concerning adultery. Here this section in Deuteronomy expands the idea of theft to include stealing intangible things primarily related to an individual's dignity, including their freedom (23:15-16) and self-respect (23:17-20). In Deut. 24:1-4 it is not adultery or even divorce that is the point of the legislation. Rather, it represents an attempt to preserve the dignity and self-respect of a woman in a very vulnerable position.

Caution is still required here. Nothing is mentioned about financial matters. Moreover, how is the first husband to plan on the second one dying? A necessary part of the law is that the woman is married a second time and is treated poorly by the second (“hates her” within ANE divorce language means that she is divorced for no reason) or is in simply in a poor situation because the second husband dies. There may be a connection to shame by death of husband per Gen 38.11 and Judah’s actions concerning his sons[xiii]. A husband dying isn’t significant in itself, but might be if it concerns an already publicly shamed woman.

      3. A better understanding starts to emerge when the verb form of “defiled” is taken more seriously[xiv]. It may be taken to mean that “she has been made to declare herself unclean” or perhaps more simply “she has been declared unclean”[xv]. In either case, the defiling is not by her doing but is something that is caused by another party. The series of circumstances forces her to be placed in the category of “unclean”. The “abomination” then occurs when the husband marries again the person who he has effectively declared unclean by his actions (and the resulting circumstances with the second husband making it possible for the first husband to remarry her).

The first text we’ve explored actually allows, more precisely, requires, divorce in a certain situation: the complete lack of provision by the husband of the first wife when he has taken a second. The Deuteronomy 24:1-4 law assumes divorce for its legislation and thereby it implicitly allows it. Both texts point to some degree to the “sanctity” of marriage given the seriousness with which they deal with the situations. Yet these are clear examples where, though the Law is “holy and righteous and good” (Rom. 7:12), it hardly demands perfection. Rather it addresses a sinful humanity without making demands on the root problem.

[i] This is for the sake of the mother. The husband is responsible to produce offspring to care for the mother in old age, and, more importantly, so as not to shame the woman by depriving her of offspring.
[ii] Heb. hne is a hapax in the OT. Both Cassuto (1967) and Hamilton (2011) take it as a general statement of house provisions. Cassuto disagrees with later translations such as the Septuagint that take the word to refer to sexual intercourse. Hamilton finds the linguistic evidence for “sexual intercourse” to be lacking.
[iii] Instone-Brewer, pp. 192ff, argues for a certain understanding of 1 Corinthians 7 based on the three requirements here. That Paul uses this passage for writing 1 Cor. 7 is probable. That he picks it up wholesale is quite unlikely.
[iv] Gittin 1.4
[v] Ketuboth 7.2-5
[vi] Hebrew rbd twre (`erwath dabar)
[vii] Matt. 5.31-32, 19.3-12; Mark 10.2-12
[viii] See Ex. 20.26, Deut. 23.14, Isa. 47.3, Ezek. 16 and 23
[ix] The dowry was given by the woman’s father to the husband as a “deposit” of money belonging to the wife but for use by the husband. By the typical marriage contract, if the man divorced the woman but acted so as the break the contract, he was required to return the dowry to the wife. Conversely, if the wife was divorced because she broke contract, the husband could keep all or a portion of the dowry. The “bride-price” was given by the husband directly to the wife and functioned the same but in reverse.
[x] Peter Craigie, Deuteronomy (NICOT), p. 305.
[xi] John Walton, The place of the hutqattel within the D-Stem, and its Implications in Deuteronomy 24:4, Hebrew Studies Journal, 1991, 32:7-17.
[xii] Note that the fact that the woman is prohibited from returning to first husband even if the second dies seems to exclude the idea of an “absolute” or “transcendent” marriage bond.
[xiii] See also Tobit 3:7-15.
[xiv] See John Walton’s article.
[xv] John Walton argues for the fuller, more nuanced meaning. J.G. McConville (Deuteronomy, 2002, p. 356) is more cautious and opts for an analogy of the hothpael with the piel/pual forms in Leviticus 13, giving the word a simply declarative force rather than declarative/reflexive.

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