FOREWORD

BY

THE VERY REV. THE CHIEF RABBI

Dr J. H. HERTZ

MARRIAGE, DIVORCE,
AND THE POSITION OF WOMAN,
IN JUDAISM

MARRIAGE

[page xiii] Marriage is that relationship between man and woman under whose shadow alone there can be true reverence for the mystery, dignity and sacredness of life. Scripture represents marriage not merely as a Mosaic ordinance, but as part of the scheme of Creation, intended for all humanity. Its sacredness thus goes back to the very birth of man.

They do less than justice to this Divine institution who view it in no other light than as a civil contract. There is a vital difference between a marriage and a contract. In a contract the mutual rights and obligations are the result of an agreement, and their selection and formulation may flow from the momentary whim of the parties. In the marriage relation, however, such rights and obligations are high above the arbitrary will of both husband and wife; they are determined and imposed by Religion as well as by the Civil Law. The failure of the contract view to bring out this higher sphere of duty and conscience, which is of the very essence of marriage, led a philosopher like Hegel to denounce that view as a Schaendlichkeit.

The purpose of marriage is twofold — a) posterity, and b) companionship. [page xiv]

a) The duty of building a home and of rearing a family (Gen. I, 28, Be fruitful and multiply) figures in the Rabbinic codes as the first of the 613 Mitzvoth (ordinances) of the Torah. To this commandment is due the sacredness and centrality of the child in Judaism — something which even the enlightened nations of antiquity could not understand. Tacitus deemed it a contemptible prejudice of the Jews that 'it is a crime among them to kill any child'. What a lurid flashlight these words throw on Graeco-Roman society! It is in such a society that Judaism proclaimed the Biblical view that the child was the highest of human treasures. O Lord God, what wilt Thou give me, seeing that I go childless? was Abraham's agonizing cry. Of what value were earthly possessions to him, if he was denied a child who would continue his work after him? This attitude of the Father of the Hebrew people has remained that of his descendants throughout the ages. A childless marriage was deemed to have failed of its main purpose; and, in ancient times, was admitted as ground for divorce after ten years. In little children — it was taught — God gives humanity a chance to make good its mistakes. They are 'the Messiahs of mankind' — the perennial regenerative force in humanity. No wonder that Jewish infant mortality is everywhere lower than the non-Jewish — often only one-half of that among the general population.

b) Companionship is the other primary end of the marriage institution. Woman is to be the helpmate of man, [H]. A wife is a man's other self, all that man's nature demands for its completion physically, socially, and spiritually. In marriage alone can man's need for physical and social companionship be directed to holy ends. It is this idea which is expressed by the term kiddushin (hallowing) applied to Jewish marriage — the hallowing of two human beings to life's holiest purposes. In married life, man finds his truest and most lasting happiness; and only through married life does human personality reach its highest fulfilment. A man shall leave his father and his mother, and shall cleave unto his wife, says Scripture (Gen. II, 24). Note that it is man who is to cleave to his wife, and not the woman, physically the weaker, who is to cleave to her husband; because, in the higher sphere of the soul's life, woman is the ethical and spiritual superior of man. 'Even as the wife is', say the Rabbis, 'so the husband is'. The celibate life [page xv] is the unblessed life: Judaism requires its saints to shew their sanctity in the world, and amid the ties and obligations of family life. 'He who has no wife abides without good, help, joy, blessing or atonement. He who has no wife cannot be considered a whole man' (Talmud). The satisfaction of the needs of physical and social companionship outside the sacred estate of matrimony, unhallowed by Religion and unrestrained by its commandments, Judaism considers an abomination. And such extra-marital relations are prohibited just as sternly with non-Jewish women as with Jewish. Thus, Joseph resists the advances of the heathen temptress with the words: How can I do this great wickedness, and sin against God? (Gen. XXXIX, 9); and the Book of Proverbs is clear on the attitude of Judaism to the 'strange woman' — married or unmarried (v. Chaps. II, V-VII). No less emphatically than in Scripture is purity demanded by the Rabbis. The New Testament accepted the Jewish view on the subject in its entirety. The whole of Gospel teaching on this subject, even Matthew V, 28, is to be found in the Talmud.

The Marriage Service consists of the blessings of Betrothal, the formula of Marriage, the reading of the Kethubah, and the seven blessings of Sanctification. In later times was added the breaking of the glass. Originally, a considerable time intervened between the Betrothal by which the bridal couple became bound for all purposes save living together, and the Nuptials proper [H]. Since the sixteenth century, however, Betrothal is always combined with the Nuptials. The solemnization of both the Betrothal and Nuptials opens with the benediction over a cup of wine. Wine is a symbol of joy, joyousness at a wedding being a religious duty; and in the Wedding Grace, 'we bless our God in Whose abode is joy'. The couple drink from both cups of wine — an indication of their resolve henceforth to share whatever destiny Providence may allot to them. The Betrothal blessing reads: —

'Blessed art thou, O Lord our God, King of the Universe, who hast sanctified us by thy commandments, and hast given us command concerning forbidden marriages; who hast disallowed unto [page xvi] us those that are betrothed, but hast sanctioned unto us such as are wedded to us by the rite of the canopy and the sacred covenant of wedlock. Blessed art thou, O Lord, who sanctifiest thy people Israel by the rite of the canopy and the sacred covenant of wedlock.'

The commands concerning 'forbidden marriages' are given in Lev. XVIII and XX. The 'rite of the canopy' is the chuppah, under which the bride and bridegroom stand during the Service, and is a symbol of the hometaking of the bride by the bridegroom. After this benediction there follows the bridegroom's Declaration, which constitutes the essence of the ceremony. He places a ring upon the forefinger of the right hand of the bride, and says: 'Behold, thou art consecrated unto me by this ring according to the Law of Moses and of Israel.' The general use of the ring is post-Talmudic; its place was formerly taken by any object of value. The formula is at least 2,000 years old, and expresses the resolve to lead their common life according to the rule and manner of Judaism. After this, the Kethubah is read. The Kethubah was introduced by Simeon b. Shetach in the first pre-Christian century as a protection to the wife in the event of her becoming widowed or divorced. This document testifies that on such and such a date, the bridegroom said to his bride: 'Be thou my wife according to the Law of Moses and of Israel. I will work for thee; I will honour thee; I will support and maintain thee, in accordance with the custom of Jewish husbands who work for their wives, and honour, support and maintain them in truth.' The husband further undertakes the obligation of a certain fixed sum for her prior claim on his estate. 'All my property, even the mantle on my shoulders, shall be mortgaged for the security of this contract and that sum.' Then begins the solemnization of the Nuptials proper in seven Blessings. The fourth and seventh of these read:

'Blessed art thou, O Lord our God, King of the Universe, who hast made man in thine image, after thy likeness, and hast prepared unto him, out of his very self, a perpetual fabric. Blessed art thou, O Lord, Creator of man.

'Blessed art thou, O Lord our God, King of the Universe, who hast created joy and gladness, bridegroom and bride, [page xvii] mirth and exultation, pleasure and delight, love, brotherhood, peace and fellowship. Soon may there be heard in the cities of Judah, and in the streets of Jerusalem, the voice of joy and gladness, the voice of the bridegroom and the voice of the bride, the jubilant voice of bridegrooms from their canopies, and of youths from their feasts of song. Blessed art thou, O Lord, who makest the bridegroom to rejoice with the bride.'

It is seen that the Blessings cover the whole of Israel's history. Each new home is thus brought into relation with the story of Creation and with Israel's Messianic Hope (I. Abrahams). At the conclusion of the Blessings, a glass is broken by the bridegroom — a reminder of the Destruction of Jerusalem [H]. Another symbolization may also be mentioned: just as one step shatters the glass, so can one act of unfaithfulness forever destroy the holiness and happiness of the Home. The Service concludes nowadays with the pronouncement of the priestly benediction.

The Biblical ideal of human marriage is the monogamous one. The Creation story and all the ethical portions of Scripture speak of the union of a man with one wife. Whenever a Prophet alludes to marriage, he is thinking of such a union — lifelong, faithful, holy. Polygamy seems to have well-nigh disappeared in Israel after the Babylonian Exile. Early Rabbinic literature presupposes a practically monogamic society; and out of 2800 teachers mentioned in the Talmudim, one only is stated to have had two wives. In the fourth century Aramaic paraphrase (Targum) of the Book of Ruth, the kinsman (IV, 6), refuses to 'redeem' Ruth, saying, 'I cannot marry her, because I am already married; I have no right to take an additional wife, lest it lead to strife m my home'. Such paraphrase would be meaningless, if it did not reflect the general feeling of the people on this question.

Monogamy in Israel was thus not the result of European contact. As a matter of fact, monogamy was firmly established in Jewish life long before the rise of Christianity. The New Testament does not prohibit polygamy, but only demands that a bishop or presbyter shall have but one wife (I Tim. III, 2). As late as Luther's [page xviii] day, bigamy was not unknown in Western Europe; and in the thirteenth century, for example, monogamy was but a name, at any rate in the upper classes of society. The Church too found it difficult to enforce strict monogamy among Eastern Christians.

DIVORCE

In the first pre-Christian century, there was a fundamental cleavage in the religious schools of Palestine in regard to Divorce. The dispute turned over the interpretation of Deut. XXIV, 1; but, as so often in theological controversy, the words of the Sacred Text were merely the pegs upon which to hang conflicting theories of life on the part of the disputants. The School of Shammai maintained that a marriage could be dissolved only by unchastity on the part of the wife, because adultery alone sapped the whole structure of marriage and made its continuance impossible. The School of Hillel argued that divorce should be permitted for any reason which entailed a rupture of domestic harmony resulting in a daily violation of one of the main purposes of marriage — companionship. The Jewish sectaries (the Essenes, the 'Zadokites' of Damascus, the Samaritans and Jewish Christians) opposed, in addition, marrying a second wife as long as the divorced wife was alive. Official Judaism, throughout the ages, followed the principle of the School of Hillel; and, of course, the unnatural prohibition for the parties to marry again, in any circumstance, is quite unknown to it. We shall see that in recent generations the civilized nations are more and more coming to adopt the Jewish attitude on this basic and vital question.

Not that Judaism ever lost sight of the fact that divorce was a calamitous necessity. 'I hate divorce', is the Divine message by the Prophet Malachi (II, 16). 'The very altar weeps for one who divorces the wife of his youth,' says the Talmud. The Rabbi was bidden to exhaust every possible expedient to dissuade husband and wife from proceeding to divorce; and later legislation made the writing and the delivery of the Get difficult and protracted, in order to facilitate attempts at reconciliation. 'If there is a doubt as [page xix] to the originator of the quarrel, the husband is not believed when he asserts that the wife has commenced the dispute, as all women are presumed to be lovers of domestic peace' (Shulchan Aruch).

a) In theory, the power of divorce is in the hands of the husband. However, in the case of the wife's adultery, he is compelled to divorce her; connivance and condonation are not tolerated in Jewish Law. 'Adultery is not merely infidelity towards the conjugal partner, but a violation of a Divine order, a crime which cannot be condoned by the offended party' (Z. Frankel, L. Löv). Divorce is also compulsory where a man has married within one of the secondary prohibited degrees.²  Incestuous 'marriages' require no divorce, as these are null and void ab initio. There are also a few cases in which the Torah deprives the husband of the right to divorce his wife (Deut. XXII, 13 and 29). Furthermore, the wife might sue for a divorce in the Jewish Courts, which could for certain causes — e.g., loathsome occupation or disease — compel him to free her. The uniform aim of the Rabbis throughout the succeeding centuries was to develop the law in the direction of greater equality between the man and the woman. At last, in the year 1000, Rabbenu Gershom decreed that the wife, unless she was unfaithful, could not be divorced except of her free will. Maimonides went even further: 'If a woman says, "My husband is repulsive to me, and I cannot live with him," the husband is compelled to divorce her, because she is not like a captive woman that she should be forced to consort with a man whom she hates.'

Such restriction of the husband's power to divorce was practicable only as long as the Jewish Rabbinic Courts had legal power to enforce their decisions. With the disappearance of that power, hardships have arisen in connection with divorce, difficulties which perhaps only a Central Sanhedrin in Jerusalem will in time be able to remove. The most serious of these is that of the Agunah, the woman whose husband has merely vanished. In favour of such a deserted wife, the laws of evidence as to the reported death of her husband have from the first been relaxed, and no effort is spared to free her from her uncertain state. Urgent and sad as is [page xx] the question of the Agunah, it is a pity that in recent decades the Agunah problem has become a tool in the hands of men whose sole purpose is the overthrow of Traditional Judaism, and some of whom recoil from no exaggeration in the pursuit of that purpose. Jewish forsaken wives are relatively a very small minority when compared with the vast number of those in other faiths and legal systems who are deserted, are denied divorce or are granted it only on condition that they commit adultery, and those who are divorced without right to remarry.

b) Jewish divorce can take place by mutual consent, even as marriage itself is a matter of mutual consent. In English law, it is difficult to obtain divorce where both parties want it. If both desire to be freed, it savours of 'collusion', and may involve the intervention of the King's Proctor and the denial or revocation of divorce, even though one spouse is innocent of matrimonial offence and the other guilty. Divorce as a result of mutual consent continued to be in force in Europe, including Saxon England, till the eighth century. It is today granted in various countries — e.g., Belgium, Switzerland and some of the United States of America.

It must be added that despite the ease with which, in theory, the marriage-tie may be dissolved in Jewish Law, divorce is less frequent among Jews than among the other populations of the various countries; v. Jewish Encyclopedia, VIII, 340. Thus in the year 1933, there were in England, 2542 marriages according to Jewish Law, but only 40 decrees nisi. In 1934, there were 2589 marriages, and 46 such decrees. The strikingly small number of Jewish divorces is largely due to the fact that, 'among Jews, there is an absence of drunkenness, always a fruitful source of domestic strife and misconduct' (H. Adler).

c) Perhaps the most characteristic feature of the Jewish Law of Divorce is its absolute prohibition of the adulterer to marry the adulteress. Even in cases where such a marriage had, through suppression of the true facts, been entered into, it must be dissolved. A leader of the Anglican Church regrets that the sacred institution of marriage is so often used to whitewash an adulterous pair. 'I [page xxi] should be glad to see the marriage of an adulterer with his or her paramour absolutely forbidden' (W. R. Inge).

It is impossible to evade reference to the New Testament position of the question of divorce. According to Matt. XIX, 3, divorce was to be permitted, albeit for the one and sole reason of adultery. But it is now generally recognized that the Founder of Christianity desired the prohibition of divorce to be absolute, and taught that a divorced man or woman who married again was guilty of adultery (Mark X, 2-12). The Roman Catholic Church accordingly refuses in any way to recognize divorce, though in very rare cases it grants decrees of nullity. Outside that Church, however, the conscience of mankind has long been struggling with the problem of divorce as inherited from the Gospels. Nearly all Protestant States, and some Catholic ones, legislate today with due regard to the imperfections of human nature. They not only recognize adultery as a ground for divorce, but realize that there are other causes as well (e.g., drunkenness, disease, felony) that destroy the moral foundations of the family, interfere with the upbringing of the children, embitter the lives of two human beings, and often lead them to degradation and crime.

English law until the other day demanded, in the case of the wife's petition, the committing of adultery, in addition to desertion, cruelty or some other enormity, as the indispensable condition for divorce. It was a definite incentive to perjury and immorality, and gave rise to an infamous class of professional helpers to procure a divorce. The evidence given before the Royal Commission of 1909 confirmed the fact that the Jewish outlook, which recognizes the dissolution of a marriage when the happiness of the home is impossible, was in general harmony with progressive thought, while the Christian outlook was in direct conflict with it. In regard to the Anglo-Jewish population, prior to the passing of the Divorce Act of 1857, the Jewish Ecclesiastical Authorities granted divorces on grounds established by Jewish Law, and continued to do so till 1866. Since that date, no Jewish divorce as between parties domiciled in England is given by the London Beth Din, or any [page xxii] responsible Rabbi, unless a divorce, previously decreed by a Court, had been made absolute.

It is well known that not all Jews today follow Rabbinical law in the matter of marriage and divorce. Thus, in 1909, C. G. Montefiore proclaimed that the extreme New Testament utterances on divorce shewed 'unerring ethical instinct', whereas it was 'to the eternal dishonour' of Hillel that he favoured divorce on other grounds than adultery. This impelled Achad Ha-am to produce one of his most brilliant essays [H] 'Judaism and the Gospels') and subject Mr Montefiore's views to an annihilating criticism. Neither the moderate nor the radical wing of Reform Judaism endorses Mr Montefiore's position in this matter. On the one hand, moderate reformers respect, in regard to marriage, the laws of the prohibited degrees, retain the essentials of the Traditional marriage service, and hold that 'it is logical that the Synagogue which insists upon marriage between Jews being performed in accordance with Jewish rites, should also insist upon the divorce being performed in accordance with the same rites' (L. M. Summons). Radical Reformers in Europe and America have, on the other hand, ever looked upon both marriage and divorce as purely civil acts, and hold that the Civil Law alone in regard to these matters possesses for Jews absolute validity.

Over against this secularist view, the following words of the late Dr Friedländer clearly define the attitude of Traditional Jews to the modern State on the vital questions of marriage and divorce. 'We acknowledge the principle laid down in the Talmud, "The law of the Country is binding upon us" [H], but only in so far as our civil relations are concerned. With regard to religious questions, our own religious Code must be obeyed. Marriage laws include two elements — civil relations and religious duties. As regards the former, we abide by the decisions of the civil Courts of the country. We must, therefore, not solemnize a marriage which the law of the Country would not recognize; we must not religiously dissolve a marriage by Get unless the civil Courts of law have already decreed the divorce. On the other hand, we must not content ourselves with civil marriage [page xxiii] or civil divorce; religiously, neither civil marriage nor civil divorce can be recognized, unless supplemented by marriage or divorce according to religious forms. Furthermore, marriages allowed by the Civil Law, but prohibited by our Religious Law, cannot be recognized before the tribunal of our Religion.'

In connection with marriage and divorce, a word must be said concerning the Levirate Marriage and its release by means of Halizah. To avert the calamity of a family line becoming extinct, and of a man's name perishing and his property going to others, Jewish Law required the surviving brother to marry the widow of such a childless man, so as to raise up an heir to that man's name. Where such a marriage did not take place, the widow obtained her freedom through Halizah (Deut. XXV, 7-10). In later centuries, levirate marriage was almost universally replaced by Halizah.

THE POSITION OF WOMAN IN JUDAISM

It is astonishing to note the amount of hostile misrepresentation that exists in regard to woman's position in Jewish life. 'The relation of the wife to the husband was, to all intents and purposes, that of a slave to her master', are the words of a writer in the Encyclopaedia of Religion and Ethics. That this judgment is radically false may be proved from hundreds of instances throughout Scripture. God created man in His own image; male and female created He them (Gen. I, 27) — both man and woman are in their spiritual nature akin to God; and both are invested with the same authority to subdue the earth and have dominion over it. The wives of the Patriarchs are almost the equals of their husbands; later generations regard them as quite alike. Miriam, alongside her brothers, is reckoned as one of the three emancipators from Egypt (Micah VI, 4); Deborah is 'Judge' in Israel, and leader in the war of independence; and to Hannah (I Sam. I, 8) her husband speaks: Why weepest thou? am not I better to thee than ten sons? In later centuries, we find woman among the Prophets (Huldah); and in the days of the Second Temple, on the throne (Queen Salome Alexandra). [page xxiv] Nothing can well be nobler praise of woman than Prov. XXXI; and as regards the reverence due to her from her children, the mother was always placed on a par with the father (Ex. XX, 12; Lev. XIX, 3). A Jewish child would not have spoken to his grief-stricken mother as did Telemachus, the hero's son in the Odyssey: 'Go to the chamber, and mind thine own housewiferies. Speech shall be for man, for all, but for me in chief; for mine is the lordship in the house'.

The property rights of woman became clearly defined in the Talmudic period. Her legal status under Jewish law 'compared to its advantage with that of contemporary civilizations' (G. F. Moore). 'In respect to possessing independent estate, the Jewish wife was in a position far superior to that of English wives before the enactment of recent legislation' (I. Abrahams).

A conclusive proof of woman's dominating place in Jewish life is the undeniable fact, that the hallowing of the Jewish home was her work; and that the laws of chastity were observed in that home, both by men and women, with a scrupulousness that has hardly ever been equalled. The Sages duly recognized her wonderful spiritual influence, and nothing could surpass the delicacy with which respect for her is inculcated: 'Love thy wife as thyself, and honour her more than thyself. Be careful not to cause woman to weep, for God counts her tears. Israel was redeemed from Egypt on account of the virtue of its women. He who weds a good woman, it is as if he had fulfilled all the precepts of the Torah' (Talmud).

The respect and reverence which womanhood enjoyed in Judaism are not limited to noble and beautiful sayings. That respect and reverence were translated into life. True, neither minnesingers nor troubadours sang for Jewish women; and the immemorial chastity of the Jewess could not well go with courts of love and chivalric tournaments. And yet, one test alone is sufficient to shew the abyss, in actual life, between Jewish and non-Jewish chivalry down to modern times. That test is wife-beating. On the one hand, both Rabbenu Tam, the renowned grandson of Rashi, and Rabbi Meir of Rothenburg, the illustrious jurist, poet, martyr and leader of thirteenth-century Judaism, declared: 'This [page xxv] is a thing not done in Israel'; and the Shulchan Aruch prescribes it as the Beth Din's duty to punish a wife-beater, to excommunicate him, and — if this be of no avail — to compel him to divorce his wife with full Kethubah (Eben Ha-ezer CLIV, 3). Among non-Jews, on the other hand, no less an authority on the Middle Ages than G. C. Coulton writes: 'To chastise one's wife was not only customary, not only expressly permitted by the statutes of some towns, but even formally granted by the Canon Law.' Even in our own country, as late as the fifteenth century, 'wife-beating was a recognized right of man, and was practised without shame by high as well as low' (G. M. Trevelyan). In the reign of Charles II, this recognized right of man began to be doubted; 'yet the lower ranks of the people who were always fond of the Common Law still claim and exert their ancient privilege' (Blackstone). Still more strange was the public sale of wives that was not unknown among the very poor. Thomas Hardy wrote his powerful novel, The Mayor of Casterbridge, on such a sale. Some years ago, The Times (January 4, 8, 11, 17, 1924) traced a number of these sales throughout the nineteenth century: and Prof. A. R. Wright has shewn that folk-custom to have survived in various parts of England into the twentieth century.

As to modern times, friend and foe of the Jew alike speak with admiration of his home, and both echo the praise of the heathen seer: 'How goodly are thy tents, O Jacob, thy dwelling places, O Israel.' The following description may well be quoted here of the Sabbath eve of a humble toiler in the London Ghetto a half-century ago: —

'The roaring Sambatyon of life was at rest in the Ghetto; on thousands of squalid homes the light of Sinai shone.

'The Ghetto welcomed the Sabbath Bride with proud song and humble feast, and sped her parting with optimistic symbolisms of fire and wine, of spice and light and shadow. All around, their neighbours sought distraction in the blazing public-houses, and their tipsy bellowings resounded through the streets and mingled with the Hebrew hymns. Here and there the voice of a beaten woman rose on the air. But no Son of the Covenant was among the [page xxvi] revellers or the wife-beaters; the Jews remained a chosen race, a peculiar people, faulty enough, but redeemed at least from the grosser vices — a little human islet won from the waters of animalism by the genius of ancient engineers' (I. Zangwill).

*     *
   *

The eight volumes of Seder Nashim have been planned on the same lines as those of Seder Nezikin, alike in regard to Text, rendering and cultural Notes. The Editor and his collaborators have again performed with consummate skill a task of stupendous difficulty, and the standard of scholarship and accuracy set in the previous volumes has been fully maintained. The Publishers also have left nothing undone to render the Soncino Seder Nashim in every way a worthy continuation of their Seder Nezikin.

J. H. HERTZ

London, 17 Cheshvan Sivan 5697
2 November 1936

Footnotes

1. E. V. 'day of rest'.
2. See 1. H. Hertz, Leviticus, p. 175f.

Directory of Sedarim and Tractates / Come and Hear Home Page