Due to having some interest, instigated by a polemic, I had to research the issue of Jewish marriage vs Roman marriage, and just, in general, the (d)evolution of marriage to what we have today.
(In layman’s terms.) Some rabbis complain that lots of young Jewish men and women end up bonking each other without proper authorization. What’s worse, it can happen that when the bonker and bonkee are — what they assume — divorced, in fact, they’re incorrect.
The latter seemingly exotic case can happen because Jewish religious divorce is only finalized when the husband gives a bill of divorce, termed “get” in Hebrew. But sometimes he refuses. What’s even worse, is that sometimes, when he refuses, the Jewish court adjudicating the case might either annul it unilaterally or issue a decree to coerce/force him to do so. However, because of a heated disagreement in Jewish Law (halakhah), such practices are very, very questionable and are considered by a non-trivial number of conservative, known and respected rabbis to be absolutely invalid, unless done in specific, very limited circumstances. In other words, for example, a wife wanting to divorce her husband on the basis of no longer being into him is not necessarily (certainly, not by all Jewish authorities) considered to be a sufficient basis to grant or compel divorce. Even claiming mistreatment might not be a sufficient grounds, according to a very conservative, Talmud-rooted approach.
Thus, it may end up happening that a woman might officially re-marry without ever actually properly divorcing, thinking that she is alright. If she ends up birthing another child, from another man, this child will probably be considered to be a mamzer. A mamzer is worse than a bastard – it’s a corruption of lineage to eternity, as they pass this status forever to their children and so on, and are limited in how they can form their own families.
One rabbi who is very vocal about this issue is R. David Eidensohn – a man of (I believe) good intent and knowledgeable of Jewish law. Here is one of his write-ups, among many. In short, his solution is “pilegesh” – which, in Tanakh, meant “concubine,” and which, he believes, is a secret key to unlocking a Jewish way to conduct, what the Romans termed, sine manu marriage – a marriage in which not only the man can divorce, but a woman was free to divorce also, i.e. there was bilateral divorce capability in sine manu marriage.
In other words, R Eidensohn wants and thinks of Judaism as allowing a true temporary marriage, a marriage with bilateral severability.
Sounds interesting. But, alas, he is wrong, as things presently stand.
Discussion and Possible Resolution
Despite of what one may tell you, the concept of marriage across polygynous pastoralist and agricultural societies was not too different. I was not so much interested in the issue of monogamy vs polygyny, but more about the guarantees and expectations that a man was getting by marrying a woman during the period spanning the Iron Age till medieval times – as compared to the situation today.
While Roman marriage seems explicitly more about the sense of woman as being a property, a lot of similar assumptions apply to Jewish marriage of that period, even though they are implicit. Roman “levels” of marriage are explicit about level of guardianship of the woman – which is the concept of “manus.”
In contrast, Exile Era (post 5th century to our time) Jewish marriage evolved to be not explicitly about control of the woman but more about reproduction and family vis-a-vis its communal standing – that is, absence of children, at least notionally, obviates marriage. Hence, why (though this didn’t happen in pre-Exile era Judaism), for example, a husband’s prolonged refusal or inability to sexually service his otherwise fertile wife is a halakhically legal reason for a Jewish court to compel him to divorce her.
But, in some sense, the notion of woman as a kind of property, or, more poetically put, of consecration is still there, in Judaism, despite all the modifications it has gone through over the last two millennia and the pretense of modern and postmodern “cool” rabbis who try to obfuscate Judaism via their kiruv propaganda. (To be fair, though, I think many of them sincerely believe their own stuff, which speaks of general ignorance and not a desire to lie. Sorry for the digression.)
“Propertization,” again, resides not so much in marriage per se, but in the concept of betrothal, or consecration – which, in Hebrew, is called “kidushin.” There is also the concept of “ketubah” – marriage contract – but the latter merely delineates and concretizes the expectations of kidushin, i.e. the financial and material exchanges that take place during transfers of wife into man’s domain, his support during the life together, and her transfer back (latter, in case of possible divorce). Looking closely at Tanakh (Pentateuch), for example, a man seducing or raping an unbetrothed virgin is, in effect, considered as him betrothing her by forced acquisition (any fine or money he is obligated to pay to her guardian/father is akin to paying a retroactive brideprice). You can see a hint here that marriage was implied by betrothal, and betrothal not implied by reproduction per se — since the fact of impregnation of the virgin was not even mentioned — but betrothal was implied by the sexual act itself — even if, as in Exodus 22:16–17, the father could “claw” his daughter back. Note though, that such “clawing back” was impossible in case of captured woman described in Deuteronomy 21:10-14, which describes a case of marriage-by-abduction (with some stipulations, likely added around the time of Priestly redaction). That is, according to the Mishna and earliest Talmud (pre-Exile era) it was either money or writ or force (and rape qualifies as the latter) which implied taking of ownership and, hence, marriage. This is as opposed to Exile mode Judaism, in which the Jewish court, not the father, can invalidate ownership even after recognizing the existence thereof — based on family-procreative and even purely social considerations.
So, as such, it is not Jewish marriage and Roman marriage that ought to be compared, but Jewish betrothal vs Roman marriage.
My research was done using Yerushalmi, Bavli, and Mishne Torah, and some online writings and books on Roman law and Jewish family law. Data is aggregated in the table above, a la Turchin’s “cliodynamics.”
A few important points first.
Tanakh era understanding of “pilegesh” must be distinguished from Talmudic-era’s. In the former, “pilegesh” is slavery of the woman in the context of reproduction. In the Talmud Yerushalmi’s terminology and discussion, the Sages decided to expand and generalize the term “pilegesh” to be rather about “freeing” the woman and her guardians, i.e. the father and the husband, from any material conditions of betrothal. However, contra to what Eidensohn et al want, the Sages kept the non-severability of betrothal coherent, as it had been since Tanakh’s time.
In the Tanakh the meaning of “pilegesh” implies concubinage, i.e. slave status of woman with no guarantees of full wifely treatment, other than the usual treatment accorded to all slaves plus whatever the whims of her master are. The Talmud generalizes the definition of “pilegesh” to stand for allowing a strong relaxation of husband’s responsibilities towards the wife, in the sense that he may not be required to support, feed or clothe her, beyond basic providence for all slaves (if she is one), and it does appear, or in fact is implied, that (if she’s not a slave) the woman can either have her own property separate from man’s, or be as rightful of a decision-maker when it comes to property that she brought into the marriage.
Both definitions are mutually consistent. Tanakhic and Talmudic “pilegesh” reduce to both mean the same thing when the woman is a non-Jewish slave — the woman can’t divorce and her status is lower than regular wife, materially. (In case of Jewish maidservant — the Talmud expects the owner to arrange for her to be properly married to either him or his son and, so, treat her like an actual daughter/wife.)
Originally, I erroneously believed that Talmudic pilegesh equated to Roman sine manu marriage, but I was incorrect. Pilegesh is still a cum manu marriage, including in Talmud, except that, again, the man is expected to neither take as great care of the woman nor delineate his obligations in contract. The reason for the erroneous assumption was that I trusted the write up of a rabbi with whom, albeit I agree on some other points, including the problem of invalid divorce and mamzerut, I cannot agree on treating “pilegesh” in the same way as sine manu marriage, sans additional lawmaking in that direction, lawmaking that is not possible in our age of Exile mode Judaism.
I will detail the above later, below. For now though, let’s go back to the table I attached.
In the table above it is obvious that, in terms to guarantees to the man, the case of pilegesh and regular wife are absolutely identical. In this post, we are concerned with the evolution of guarantees of marriage/betrothal solely from the point of view of man’s direct interests and, more importantly, the validity status of wife-induced divorce against husband’s consent.
The King’s case, in the table, is special, because he can contract and force all kinds of “betrothals,” ranging from traditional betrothal to the the type that allows mere sexual gratification without any offspring — or, rather, offspring that he is under no obligation from Heaven to be liable for or to own — kind of like having a “personal prostitute,” an oxymoron, but a possibility in this case. (Funny enough, in the latter case, the kids born out of this kind of relationship should be considered classical bastards, as in “born outside of main marriage,” and not as “illegal,” even though no “bastard” category exists in Talmud or even today’s Orthodox Judaism. The term “bastard” originally stood for exactly that: brood begotten of non-first wife, and was used by Catholic Church to discourage polygyny among the Germanics and the Celts, during the spread of that religion. The disparagement turned into notion of “illegality” as a later evolution of the term, when monogamy became commonplace and normative even for the elites.) For those who think that “personal prostitute” is too exotic to exist in reality, you are wrong. We have an actual historical illustration of “personal prostitute” in Sambandam “marriage,” in Kerala, India. It’s very likely that it evolved from something like a “permanent personal prostitute” belonging to a younger Brahmin son into a truly temporary arrangement, severable by both parties, and where the concept of “husband” is an ephemeral one, existing only to bestow nominal paternal status on the child. A noble/king might have more ability to prevent a woman from contracting a relationship with another man, but overall, any system like that done from generation to generation naturally devolves into matrifocality, matrilineality, and even polyandry: which is what Sambandam became. (Sorry for the digression into goy-land…)
I hope this gives more information on pilegesh marriage, as it was understood by Talmud. This is important, because many confuse Talmudic pilegesh with Tanakhic pilegesh. Tanakhic pilegesh means concubinage. Talmudic pilegesh is more general, and concubinage is merely its sub-type. When using Roman categories (which I, personally, prefer more), Talmud’s pilegesh still corresponds to cum manu marriage. Actually, pilagshut in Judeah was an even stronger form of cum manu marriage than in Rome. This is because, in Rome, due to enforcement of monogamy, children born in concubinium were not considered to be the father’s, but the mother’s. In Judeah, in contrast, children born of pilegesh were still fully the property of the father, together with the inheritance implications. The most important distinction between all these marriages and the modern marriage is the issue of custody of children, which I will describe in the concluding paragraphs.
After perusing Maimonides’s Mishne Torah and reading some other writeups, it is obvious that the confusion of Talmudic pilegesh with Tanakhic pilegesh has been occurring since at least the medieval period. I believe that one of the most glaring instances of this confusion is the case of Maimonides’s Mishne Torah. In it, Maimonides restricts pilegshut only to King (see Melachim uMilchamot, Chapter 4). He notes: “A commoner is forbidden to have a pilegesh [translated as “concubine”]. The only similar relationship is the union with a Hebrew maid servant after she has been designated by her master.” Basically, Maimonides believes that the only viable way for a loose obligation of a husband towards the woman is when she is either an actual Torah concubine (i.e. a slave) or a prostitute (which is forbidden to engage in, for a Jewish woman). But this is not how Talmud Yerushalmi looks at it, in Ketubot 5:2, pilegesh is just a case of lower wife – but the lower status comes from the husband’s lack of special financial responsibilities to her, and not from any lack of consecration of her to him. In other words, contra Rambam but according to the Sages of Mishna (not to be confused with Mishne Torah), the kidushin/consecration of pilegesh originates not from control over her by her master (e.g. King) but from the Heaven itself!
Tosefta, in support, actually proceeds to give an example of a woman maintaining the husband as per her nuptial agreement. It’s not very clear whether it’s pilegesh or full wife, though it should be obvious, based on the Mishna rabbis’ mutually consistent statements that [same] kidushin exists in both, what the Sages are saying regarding the concept of kidushin itself. What is clear is that she’s unsuccessfully filing for divorce on grounds of financial hardship and even the husband concedes her words. The Sages re-affirm the nuptial agreement as binding (sans the husband’s bill of divorce), against her latest wishes. This is a really strong case in support of the supposition that betrothal/kidushin is quite binding on the woman and doesn’t depend on mere caprice of the woman’s heart.
Again, the fact that Mishna/Talmud rabbis never distinguish between the kidushin of wife and kidushin of pilegesh, means that whatever construction the later rabbis, including Maimonides and, especially, R. Eidensohn, made regarding temporality of pilegesh are rather artificial. Thus, the important issue here is that a pilegesh is still in, effectively, a full betrothal and, thus, if she wishes to divorce, still must go through the court and needs to depend on the husband issuing a get/bill of divorce (whether the rabbis compel the get or not depends on community, but from strict reading of halakhah, it is wrong to compel the husband). There is no way around it, according to the Scriptures (Tanakh, Mishna/Tosefta and Gemorah, i.e. Talmud) i.e. there is no way that Scriptures approve giving any right to either a pilegesh or wife to lawfully leave her husband on her own volition… Indeed, it appears that only through a new, not yet existing law regulating pilegesh can she escape the marriage — other than by committing adultery or being a rebellious wife (which might imply death or other unpleasantness).
Another interesting fact is that Talmud Bavli postulates that pilegesh has no kidushin — and maybe this is the reason for Maimonides’s and R. Eidensohn’s confusion. However, apparently, Rashi and others had a version of Bavli that, just like the Yerushalmi, said that pilegesh does have kidushin (though no ketuba). So, in light of extant Bavli, one might say that the case of kidushin is somewhat weakened. But when the discussion is about a binary quantity (yes or no), there’s no way to resolve it as “she has ¾ of a kidushin.” So, perhaps, given the weight of evidence, it’s just best to go with Yerushalmi (i.e. yes, there is kidushin). Hence, the problem of unilateral dissolvability of pilegesh still stands. The level of her consecration is still at the level of a regular wife, as Talmudic rabbis spoke of only one “kidushin” when comparing wife and pilegesh under single breath.
Therefore, it’s impossible for pilegshut to be considered a sine manu marriage type, which is what R. David Eidensohn and a few other contemporary rabbis seem to desperately want.
Nonetheless, maybe there is a way out (in terms of making the arrangement more like a sine manu marriage). Pilegshut has always existed in the context of slavery – both practically and (other than in Talmud) theoretically. Other than the case of the “prestigious Torah scholar” given above, almost no woman would willingly concede to an arrangement in which she has at least the same amount of responsibility with reduced benefits and guarantees to herself and her offspring; and, of course the Torah scholar case is not a sine manu type marriage, so, as far as both the discussion above and the current settled law goes, the case is pretty settled.
So, let’s then consider whether the issue of enabling a female-driven divorce vis-à-vis a free pilegesh might be resolved in a rabbinical fashion, by a sort of construction that assumes innovative supporting legislation (also known as “chidush”). Consider a free man and a free woman who desire to move together and reproduce in a fashion that allows their offspring to be non-mamzerim and also allow the woman to lawfully leave her husband without needing his bill of divorce at the time of actual divorce. They might do as follows: the guardian of the woman sells his daughter into the man as maidservant, on the condition that, upon obtaining a certain sum of money, as redemption, the husband agrees to free her. The man buys the woman, then immediately marries her. Within a certain period, the former guardian pays the master/husband the agreed upon sum of money, thus redeeming her from her servitude. In the marriage contract it should also be stipulated that, upon being granted her freedom, she is free to leave the house of her husband and go back to her former guardian’s. If the redemption money is received before she gives birth, the children are born free and in her guardian’s house, and hence children are really hers. If the money is received after she gives birth, the children are husband’s, though are born of slave status and so, if girls, forbidden to marry a kohen. Either way, she can leave relationship on the volition of her former guardian, as scheduled per the prenuptial contract between former guardian and her husband, which secures the (conditional) get document automatically.
Of course, the arrangement described above comes with some caveats.
- The Jewish religious legal framework would have to accept to expanding the scope of prenuptial arrangement/ketubah to include the “pre-emptive” bill of divorce, conditional on mutually agreed arrangements. This is the biggest if here. (Funny enough, R. Saul Lieberman, Z’T’L, from Conservative Judaism, back in the day when Conservative was truly conservative, proposed something kinda similar. I think that my proposal is legalistically better — as it preserves the spirit of Jewish husbands’ and fathers’ care for their daughters — if more cumbersome, and it has the side effect that priests/cohens would be strongly disincentivized from pursuing these kinds of temporary marriages — see below).
- If the children are born as slave sons, even if freed thereafter, they will pass their “freed slave” status to their children (this might be an interesting legal issue to resolve, if the father is of priestly status — do those children then become equated in status to chalal, i.e. of defective priest?)
- If the children are born as slave daughters, even if freed thereafter, they are not eligible to marry priests.
- On a practical level, slavery (even if on paper) might be illegal in the jurisdiction where the pilegshut is conducted.
- On a practical level, the rabbis might not accede to this construction for whatever reason, including completely made up ones. Of course.
- Again, it’s pretty convoluted and, to an unfriendly, non-Jewish eye might appear rather silly, kind of like the way some Haredi men have to jump through hoops to conceive a child in vitro
All things taken together, this is a hypothetical scenario that requires some legislation to enable it.
Summary and Looking Forward:
It is important to consider various options that might allow a way out of this problem of invalid Jewish divorces, including bringing Torah-period pilagshut (plus some modern modifications), or something along the lines of Roman sine manu marriage, back. Unfortunately, it looks like this is a hard problem to solve without Judaism switching from Exile mode into Return mode and establishing proper legal institutions to make new religious legislation on marriage and divorce.
It is also possible that nothing needs to change, except that old Tanakhic and Talmudic ways need to be enforced, which includes not letting a woman re-marry without unforced bill of divorce from her current husband. This issue ought to be decided by men of high Jewish learning and authority, but who, alas, are either not existent or not given proper platform to make their lawmaking possible, in our current day and age (this requires a Jewish Sanhedrin).
Historically, tracing the evolution of Jewish marriage and divorce, we see that, roughly, Jewish marriage started out as a strongly cum manu marriage, where the husband owned his wife and children as special kinds of property. But the situation (legally speaking) began to change, certainly, as of medieval Judaism, where cum manu began to erode.
Today, de facto, children born to a father are not so much his but the State’s, via the mother as the trustee. Hence, modern Jewish marriage (including of those who are considered Orthodox), vis-à-vis its primary purpose – continuation of man’s lineage – is much closer to Roman contubernium – i.e. marriage of slaves – than to either Roman sine manu marriage or Jewish pilagshut (be it Tanakhic or Talmudic). The State, via its quasi-coordinated army of “public servants” — bureaucrats and paper pushers lacking disincentive in mostly anything other than their standing with their bosses — is the new Master.