Wednesday, July 25, 2012

Jesus’ Pronouncements on Divorce and Remarriage, 1 of 2

This is part 4 of 8 in a series on what the bible says concerning divorce and remarriage. For the other posts see here:
There are 4 locations in the synoptic gospels that have explicit teaching on divorce and remarriage: Matt. 5:31-32, 19:3-9; Mark 10:2-12; and Luke 16:18. Here I’ll give my own translation of the crucial verses and then explain.

Matthew 5:32 - But I declare to you that anyone who divorces his wife, except for sexual unfaithfulness, causes his wife to be a victim of adultery; and anyone who marries a divorced woman [or: a woman who has gained a divorce for herself] commits adultery.

Matthew 19:3, 9 - Now, the Pharisees came to him and wanting to test him asked, “Is it lawful for a man to divorce his wife for any reason at all?” Jesus responded…. “I declare to you that whoever divorces his wife, excepting sexual unfaithfulness, and marries someone else, commits adultery.”

Mark 10.2, 12 - Then the Pharisees approached him and asked if it was lawful for a man to divorce his wife, in order to test him. Jesus responded…. “Whoever divorces his wife and marries another commits adultery against her. And if she divorces her husband and marries another, she commits adultery.”

Luke 16:18 - Anyone who divorces his wife and marries another commits adultery and the man who marries a woman who has been divorced from a man [or: a woman who has divorced herself from a man] commits adultery.

That there are four passages to look at simultaneously makes the task of understanding them more difficult (one only has two eyes), and that they all prima facie seem to say something only slightly different than the other compounds the difficulty. In this post I’ll explore four general points of comparison. Then in the next post I’ll situate each passage into their respective contexts.

1)    Divorce vs. Divorce and Remarry: All but Mt. 5:32 have “divorce and remarry”. It’s possible that Mt. 5:32 is simply abbreviated to allow direct contrast with the Dt. 24:1 passage quoted in the previous verse and/or because this is the only passage not set in a narrative, thereby allowing the same structure as the other 5 kingdom demands in Mt. 5:21-48. However, more important is that, in the culture, it would be inconceivable to divorce without being able to remarry and, moreover, one hardly divorced except in order to remarry[i]. There would have been little point to divorce simply for separation – remarriage can be reasonably assumed. Whereas the legal structures in place today really require divorce for separation (e.g. the need to break financial bonds) there was little need for it in 1st century Palestine. So there is little reason to think there is a substantial difference between the passages at this point.

2)    Exception Clause “Except for Sexual Immorality”: The exception clause is only found in Matthew. Many scholars these days take the clause (per redaction criticism) as added by Matthew and not original to Jesus; though, quite a few of these see it as still faithful to the intent of Jesus’ sayings. Redaction criticism or not, there is indeed little warrant for thinking it’s not faithful to Jesus’ original intent. “Sexual immorality” is best taken to refer to any sexual infidelity with regard to the marriage and is broader than adultery. An example can be found in Matthew 1 where Joseph contemplates divorcing Mary because it appeared she had been sleeping around. Though not yet married, being betrothed carried a marital-level commitment and thus would require a formal divorce to separate. At a different degree, the examples of divorce in the Mishnah, listed in the previous post, would constitute similar violation: for a married woman to go out with loose hair, for example, was to play “easy to get”, in that culture.

Thus Matthew and Jesus recognize that if faithfulness to the marriage is compromised, then divorce may be permitted. For Matthew, however, believers don’t just rigidly apply law but rather operate within a framework of forgiveness (Mt. 18:21-35) where divorce might be permitted yet not necessary. The breaking of marriage without any consideration of forgiveness on the part of the offended is wrong also.

3)    First Clause, Direction of Adultery: In Mt. 19:9 and Lk. 16:18 the man simply commits adultery, in Mk. 10:11 the man commits adultery against the wife, in Mt. 5:32 the man makes to commits adultery (traditional translation) or makes her to be the victim of adultery.

The first two passages are straightforward in thought: by the husband’s actions, he commits adultery. The Mark passage is slightly more complex but straightforward: by the husband’s actions, he commits adultery against the wife. This might be obvious to us but not so in ancient Palestine. If the woman slept around, she committed adultery against her husband. But if the man slept around, he might be said to have committed adultery against the wife’s father, and if he slept with the wife of another man, he would have committed adultery against the woman’s husband. But such action was not against the wife. Jesus comes along and levels the field, raising the woman to a new place of dignity.

The parallel clause in Mt. 5:32 is the most interesting and complex. Some translations translate as a noun with the sense of “makes her an adulteress” (NIV 1984, ASV). This errs considerably; not least because the Greek is a verb but more so because this implies the woman is now placed in the category of “one who adulters” rather than a point-in-time failure. Most translations have a better translation in the sense of “causes her to commit adultery”, placing some degree of sin on the woman for the man’s actions but placing the larger blame on the man for causing it[ii]. This sense is clearly different than the other parallels since he causes adultery rather than committing it.

However, there seems to be a better translation: strictly speaking, “causes her to be adultered” or better put, “causes her to be the victim of adultery” (see NIV 2011). That is, the thought in Mark is heightened: it is not simply that the man sins against his wife but rather the woman is a victim of the husband’s sin. This more accurately accounts for the fact that the verb is passive and so should carry a passive sense. The standard translation of the woman committing adultery is based on the standard Greek usage of the verb where, when the man is subject the verb is active (or a unique Greek “middle” voice) and when the woman is subject the verb is passive. However, with R.T. France[iii] and Craig Blomberg[iv], a review of the evidence of Leviticus 20:10 (Septuagint vs. Hebrew Text), Jeremiah 3:9, Hosea 4:13-14, and Sirach 23:23, and the unusual language here in Mt. 5:32, strongly suggests that the woman here is the object of the sin, not the subject who is forced into sin by her husband’s actions[v].

4)    Second Clause, Object of Adultery: Mt. 19:9 simply omits this clause[vi]. Mk. 10:11 simply parallels the first clause: if the wife divorces and remarries, she commits adultery too. Mt. 5:32 and Lk. 16:18 have essentially the same thought. Every translation has something along the lines of “whoever marries a woman who has been divorced commits adultery”.

There is another possible translation. The participle used for a “woman who has been divorced” is usually taken as a passive participle. However, its form could be a middle voice also – a voice used in Greek where, roughly speaking, the subject and object of the verb have the same referent. How would this work then? In a Jewish cultural context, a woman couldn’t divorce her husband, only vice-versa. However, if she wanted a divorce, she could strongly influence her husband or even the court that her husband should divorce her even if he objected[vii]. She might even commit something that, by the Mishnah, would force her husband to divorce her. This would fit the sense of a Greek middle voice: the woman who “has gained a divorce for herself”. This sense is further suggested by the redundant “from a man” in Luke[viii]. The sense of this clause, then, is that the man who divorces such a woman commits adultery since he has been the object to cause the breaking of a marriage.

The use of this word for divorce is rare, but we find the same vein of thought in a passage by Josephus[ix] where he mentions a quarrel by Salome, one of Herod the Great’s granddaughters, with her husband Costobarus. Josephus mentions that she “soon [after] sent him a document dissolving their marriage, which was not in accordance with Jewish law.” The word for “dissolve” is the same word for “divorce” found here in these passages, and is also in the middle voice[x]. Note that this incident refers to the same family as that recorded in Matthew 14. Both passages condemn the same family for their marital actions.

I should add that I’m arguing for a reading that almost no commentator has adopted for this clause[xi], so caution is warranted, though I think the small evidence we do have is quite suggestive. This reading of the passage also has an advantage in that it makes Mt. 5:32, Lk. 16:18, and Mk. 10:11 all say the same thing with the exception that Mark’s reading has shifted to account for speaking to a Gentile audience, where, per Roman law, a woman could divorce a man outright, so he uses an active verb.

Yet, in the possibility that I’m wrong, the reader is directed to my next post where the rhetorical context warrants a bit more nuanced reading than simply claiming absolute law. In the end, taking this as an absolute rule misses the point.

[i] There are some who essentially argue that Jesus is really referring here to what we’d have to call separation - remarriage is not allowed at all. The problem is that the sense of divorce is without qualification referring to absolute breaking of the marriage. When one is no longer married, one is no longer married. Remarriage is thereby allowed by default. David Instone-Brewer makes the point well that (in this case) Jesus (and Matthew) would have to have been more explicit to be referring to a divorce that only amounted to separation.
[ii] That she is forced into sin is usually explained by saying that the divorced woman was forced to remarry due to the poor financial circumstances. However, this has been shown by Instone-Brewer (Divorce and Remarriage in the Bible) to not be true, generally speaking. If she was not to blame, she would have the dowry returned to her, which probably would have sustained her comfortably for a year or more. And she usually could have returned home.
[iii] The Gospel of Matthew (NICNT), 2007, pp. 192, 206ff and personal correspondence. See also John Nolland, The Gospel of Matthew (NIGTC), 2005, pp. 240ff.
[iv] See his blog post Victims of Adultery
[v] The verb is μοιχευω (moicheuo) and translates [an (na’aph) in the LXX. In Lev. 20:10 the man is the subject and primary perpetrator. In the last clause, two participles of μοιχευω are used: active for the man and middle (maybe passive) for the woman (the Hebrew participles are active for both but the verb doesn’t occur in the passive); both are sentenced to death. In Jeremiah 3:9 and Hosea 4:13-14 a woman is the subject and μοιχευω is used in the active voice. Sirach 23:23 interestingly uses a passive μοιχευω but the woman is the subject and primary perpetrator. However, the normal passive sense is probably still retained: in a sense, she causes herself to be adultered. Compare and contrast here in Mt. 5:32 where the husband is the primary perpetrator leaving the wife the one violated.
[vi] There is little doubt that the textual basis for the KJV is incorrect here.
[vii] Instone-Brewer, pp. 85-90
[viii] See also the discussion on the same phrase used in 1 Cor. 7:10.
[ix] Jewish Antiquities 15.259.
[x] Grk. ajpoluomevnh to;n gavmon. Since the verb is middle, it appears that to;n gavmon is an adverbial accusative.
[xi] Though see John Nolland, The Gosple of Matthew (NIGTC), 2005.

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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