1.2. The Nature of Marriage According to the Biblical View. The Perspective of Mosaic Legislation. Laws on Marital Relations. Marital Relations With Foreigners

The biblical view of marriage, expressed at the first institution of marriage before the fall of man, must obviously present the true essence of marriage; and therefore, in order to elucidate this most important relation between people, we shall broaden our subject and indicate the essence of marriage in general, and how this essence expressed itself in the biblical narrative about its institution.

The institution of marriage is founded on the needs of human nature and traces its origin to the time of humanity’s creation. One may say that it was established by God, insofar as human nature itself was organized by Him; but its formal, external establishment is already the work of human beings themselves, and in its form it is a natural and civil institution—though in its mysterious essence, which serves as the expression of a great creative act, it is necessarily subject to the predominating influence of the religious element. Such a view of marriage is presented in the historical narrative of its origin in the book of Genesis: the Creator, seeing the needs of the human nature He had created, seeing that “it is not good for man to be alone,” determined to create “a helper for him” (Gen. 2:18), and accordingly completed the work of creation by supplementing male nature with female (Gen. 1:27). The necessity of this act is clarified by the words spoken on this occasion in the Divine council. Man, as a rational and spiritual being, would not have been a worthy representative of the Deity on earth if he had lived in solitude or in communion only with beings either higher than himself—such as angels—or lower, such as animals. It was an absolute necessity for him—not only for pleasure and happiness, but even more for the perfection of the Divine work—to have “a helper, corresponding to him,” or, as these words more precisely mean, “an exact copy of himself,” capable of receiving and mutually communicating his thoughts and feelings. As soon as the woman was created, Adam immediately understood in this act of the Creator the desire for the happiness of human social life, and at once pronounced that statement to which posterity can look as to a marriage charter given for all subsequent ages: “This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man. Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh” (Gen. 2:23–24). From these words, in connection with the circumstances of the very formation of the first wife, we may draw the following conclusions: 1) the unity of husband and wife, arising from the very manner of the wife’s formation from the husband, and from the words “one flesh”; 2) the indissolubility of the marriage bond; 3) monogamy as the original law of marriage, arising from the fact that marriage was first contracted between one man and one woman; 4) the social equality of husband and wife, expressed even in the identity of their names, ish and ishah, fully corresponding to each other—fully in parallel with the expression “a helper, corresponding to him”; 5) the subordination of the wife to the husband, following from the very conditions of the wife’s formation “for the man” (1 Cor. 11:8–9; 1 Tim. 2:13); and 6) the relative obligations of man and woman, contained in the words “let us make a helper, corresponding to him.”

The fall of man changed the mutual relations of man and woman. Since the guilt of the temptation to sin lies with the woman, her subordination to the husband was turned into subjection to him: the husband, it was said to her, “will rule over you” (Gen. 3:16). The evil effects of sin soon manifested themselves in the corruption of marital customs: the unity of marriage was violated by the introduction of polygamy, which apparently arose first among the Cainites (Gen. 4:19), while its purity perished in the mixed marriages of “the sons of God” with “the daughters of men”—that is, the Sethites with the Cainites—shortly before the Flood (Gen. 6:2). After the Flood, the monogamous form of marriage was restored by Noah, but soon, under the influence of the special conditions of ancient patriarchal life, it was again replaced by polygamy—although this form never attained significant development among the Hebrews. Divorce, due to the existence of polygamy, was frequent and easy, but did not have a fully degrading character with respect to the wife. Such was the state of marital relations at the time of Moses.

Mosaic legislation—having as its aim the restoration so far as possible of the normal state of affairs in all respects (such is the essence of the theocratic principle that pervaded it)—strove in this domain as well to restore marital relations to their primordial normal state, from which they had deviated. Of course, the force of evil that had historically become entrenched was already so great that complete restoration could not be achieved; and therefore the essential and direct task of the legislation was to limit, and as far as possible to eliminate, the harmful effects of this evil. It is from this angle that it holds interest for us. In its provisions on marital relations, it strives: 1) to limit, and as far as possible to abolish, polygamy; 2) to limit the rights of the father or master that could detrimentally affect the marital relations of children or slaves; 3) to bring divorce under certain legally defined rules; and 4) to restore purity of life during the marital union.

To achieve the first aim, the legislation enacts provisions either directly aimed against the multiplication of wives, or indirectly—through provisions that make polygamy burdensome or difficult. These include the provisions forbidding the king “to multiply wives for himself, lest his heart turn away” (Deut. 17:17); the prohibition on taking two sisters as wives simultaneously (Lev. 18:18). The provision establishing equal rights for all wives to maintenance (Exod. 21:10–11) could naturally serve as a deterrent to having many wives, especially for a man of modest means. The second aim was achieved by means of humane provisions regarding female captives if anyone wished to take them as a wife (Deut. 21:10–14), and regarding purchased wives (Exod. 21:7–11). The same aim was achieved by the provision whereby a father had no right to follow his own whim in distributing his property among his sons but was required to comply with certain strictly defined rules (Deut. 21:15–17). The provisions aimed at limiting divorce consisted in the fact that it was no longer left exclusively to the unchecked discretion of the husband, as had previously been the case when divorce was effected by a single word of the husband declaring that he was releasing his wife (Gen. 21:14). Now a legal formality was required—a “certificate of divorce” (Deut. 24:1)—and this in legal and practical terms means a great deal: as a legal act, this certificate requires time, deliberation, and often the mediation of a third party, and in general made divorce a less easy matter, and could therefore serve as something of a deterrent for a husband to institute divorce without substantial cause; for the woman, it could serve as a legal attestation of her capacity for marriage. One may also note that in certain cases Moses completely prohibited divorce—namely, when a woman had been seduced before marriage or had been unjustly accused of the absence of “proof of virginity” (Deut. 22:29, 19). Toward the restoration and maintenance of the purity of marital life, one of the Ten Commandments is directed, for the violation of which the guilty are put to death (Lev. 20:10; Deut. 22:22–24).

The general aim of the briefly outlined provisions—as it clearly appears from their overall tendency—is to place marriage, so far as possible, at the height at which it stood at its first institution, to place it at the height of the biblical view of marriage. The same elevated striving characterizes the provisions of the Law that define the conditions of the legality of marriage. These provisions fall into two sections: 1) those defining the legality of marriage between Israelites and foreigners, and 2) those defining marriage among Israelites themselves. In both respects these provisions have the character of prohibitions.

In any politically organized society or state, the right of marriage in one form or another constitutes an element of civil law; and where the character and conditions of this right are not sufficiently defined in law, it is controlled by public opinion—as we see in ancient biblical history—and is subject to the predominating view or feeling of society. In societies at their first stage of development, the predominating feeling is generally the feeling of exclusivity; but this feeling must naturally be even stronger where the religious element—predominating in public life and exclusive by reason of its special character—demands for itself the fullest freedom from alien influences. One would naturally therefore expect a strong development of the spirit of exclusivity in marital relations in the Mosaic state, where a particular position of the people in world history contributed to the development of this spirit. The warnings of past history and the examples of the patriarchs served to reinforce the natural feeling of exclusivity: on the one hand, the harmful consequences of marital unions with foreigners were presented in the enormous spread of sinfulness in the generation destroyed by the Flood (Gen. 6:2–13); on the other hand, the examples of Abraham, Isaac, and Jacob—who took wives from among their own kindred (Gen. 20:12; 24:3; 28:2)—as a contrast to this, were presented by two of the rejected sons: Ishmael, who married an Egyptian woman, and Esau, whose Hittite wives were “a grief” to his parents (Gen. 21:21; 26:34–35). Still more strictly was it prohibited for an Israelite woman to marry a foreigner of the uncircumcised: this was considered a complete disgrace, as is evident from the response of Dinah’s brothers to Shechem’s request (Gen. 34:14).

Such are the facts of customary law on the subject under consideration. These facts belong to that epoch in the historical life of the Hebrew people when they were not yet fully organized as a political body and did not yet clearly recognize their world-historical task, and therefore they define the character of marital relations with foreigners only unclearly. Mosaic legislation, however, having fully organized the people into a political body with definite, clearly outlined tasks and purposes, and having taken the facts of customary law as its foundation, gave them a more definite legal character—one rising above the immediate, unreflective natural feeling of exclusivity. In keeping with the elevated aim of his state and people, appointed to be a light of humanity and the guardian of the pure, holy idea of monotheism, Moses strictly prohibited marital union only with the Canaanites, as representatives of the most abominable idolatry—who, being unable to retain Palestine by force of arms, naturally sought to achieve this through the propagation of their religious views and of an idolatry that represented the deification of licentiousness, and therefore had an attractive allure for weak natures. “You shall make no covenant with the inhabitants of the land, lest”—the legislator warns—“when they whore after their gods and sacrifice to their gods, they invite you and you eat of their sacrifice. You shall not take their daughters for your sons (and your daughters you shall not give to their sons), lest their daughters, whoring after their gods, make your sons also whore after their gods” (Exod. 34:15–16; cf. Deut. 7:3–4). It is well known that the legislator’s apprehensions were not slow in being confirmed, as soon as the Israelites deviated from the fulfillment of his wise provisions “and took the daughters of the Canaanite peoples as wives, and gave their own daughters to their sons, and served their gods—the Baals and the Ashtaroth.” The consequence was the weakening of the political organism—a weakness that the seducers exploited to the detriment of the seduced. In addition to the direct prohibition of marital unions with the Canaanite peoples noted above, there are indirect prohibitions. Thus the provision by which “no Ammonite or Moabite may enter the assembly of the Lord; even to the tenth generation, none of them may enter the assembly of the Lord forever” (Deut. 23:3) naturally served as a barrier to contracting marital relations with them—although strictly speaking, according to the interpretation of the Hebrews themselves, this provision only prohibited an Israelite woman from marrying a Moabite or Ammonite, while an Israelite man was permitted to marry the daughters of these peoples, as is evident from the history of Ruth (Ruth 1:4). The prohibition on marital unions with Edomites and Egyptians was less strict: “You shall not abhor an Edomite,” says the law, “for he is your brother. You shall not abhor an Egyptian, because you were a sojourner in his land. Children born to them in the third generation may enter the assembly of the Lord” (Deut. 23:7–8). Here, evidently, are meant such Edomites and Egyptians as had in some way obtained citizenship in the Mosaic state and had in some measure entered its composition. Their children in the third generation—that is, their grandchildren—already had a lawful right to be admitted into the assembly of the Lord.

Thus, in Mosaic legislation one can distinguish three degrees of prohibition of marital unions with foreigners: complete prohibition in relation to the Canaanites—on the male and female side alike; also complete prohibition, but only on the male side, in relation to the Ammonites and Moabites; and temporary prohibition, also on the male side, in relation to the Edomites and Egyptians. Marriages with women of these latter two categories were considered lawful. Marriages of Israelites with foreigners were generally rare; and although the law does not consider them unlawful under certain conditions, it nonetheless marks them as exceptional phenomena. Such are the marital unions of an Israelite woman with an Egyptian, whose son was stoned for blaspheming the name of the Lord (Lev. 24:10–14); of Abigail with Jether the Ishmaelite, contracted probably during the sojourn of Jesse’s family in the land of Moab (1 Chron. 2:17); of Sheshan’s daughter with Jarha the Egyptian, who had been Sheshan’s slave (1 Chron. 2:35); and of a woman from the tribe of Naphtali with a Tyrian smith, whose son Hiram oversaw the work at the construction of Solomon’s Temple (1 Kings 2:13–14).

In the case of marriages of Israelites with foreign women, the law in all likelihood presupposes the conversion of the wives to the religion of Jehovah—as we have the example of Ruth the Moabitess (Ruth 1:16)—although there were also cases in which foreign women, even while married to Israelites, did not cease to serve their own gods and even spread idolatry among the Israelites. Such were Solomon’s Egyptian wife and Ahab’s Phoenician wife (1 Kings 11:4; 16:31). But these latter facts do not negate in the law the noted aim of acquiring proselytes for the religion of Jehovah, since they occur in history during an epoch of the trampling of the law, and therefore can in no way be regarded as an expression of the law’s idea. At the same time, in pursuing its purpose, the law does not constrain freedom of conscience and leaves conversion to the religion of Jehovah to the goodwill of foreign women—as is suggested in particular by the law (Deut. 21:10–14), in which, in determining the conditions of the marital relations of an Israelite with a foreign captive—a most dependent person—not a word is said about her conversion to the religion of Jehovah. By contrast, proselytism appears to have been an indispensable condition at the contracting of a marital union of a foreign man with an Israelite woman, since in this case, owing to the predominating influence of the man, the fidelity of the Israelite woman to the religion of Jehovah was in danger. This condition is not indicated in the law, but its existence may be inferred from the facts of marital unions of Israelites with foreigners cited above—since the latter, after marriage, fully entered into Israelite society and were enrolled in the genealogical registers.

So long as mixed marriages did not overstep the limits indicated by the law, they could bring no harm to Hebrew nationhood; but after the Babylonian captivity they intensified to the point of threatening the existence of the nationality itself, and therefore the prohibition on them—which at first extended only to the Canaanite peoples—was extended also to the Moabites, Ammonites, and Philistines (Neh. 13:23–25). Public opinion also rose against mixed marriages; so that, according to the testimony of Josephus, the marriage of Manasseh with a Cuthean woman (κουθαῖος γένους, Cuthaeus genere) aroused such indignation as to lead to an internecine conflict. A similarly hostile attitude toward mixed marriages is attested by Tacitus, who notes this as a characteristic peculiarity of the Jewish people of his time. Children born from legally prohibited marriages between Israelites and foreigners are designated by a special term, mamzer (Deut. 23:2), the etymological meaning of which is unknown, but which clearly contains the concept of “foreigner,” as for example in (Zech. 9:6), where the Septuagint renders it with the word ἀλλογενεῖς. They were excluded from “the assembly of the Lord”—that is, deprived of civil rights and privileges until the tenth generation. It follows, according to Talmudic interpretation, that marriage with them is prohibited in the same way as with Ammonites or Moabites.