1.6. The Legal Relations of Spouses. The Legal Status of Woman, Her Position in the Family and in Society. Relations Between Husband and Wife

The legal relations of spouses are ordinarily determined by the legal position of women, and therefore, for a more thorough clarification of the subject, it is necessary to turn attention to the legal position of women among the Jewish people in general—to her social position.

The law provides no legal definitions of the legal position of women, leaving such definitions, as in many other cases, to customary law. Yet the latter, as expressed in history, provides sufficient data for a more or less complete definition of the position of women among the Jewish people. Her position here differed significantly from the position of women among the ancient Eastern peoples in general, where she was an entirely rightless slave to her lord and husband, serving him as a blind instrument for the satisfaction of passion. An expression of such a position was the harem, in which the wives of the despot-husband, confined without hope of release and ordinarily serving as unquestioning executors of animal caprice, lost the last awareness of their human dignity. Among the Jewish people, by contrast, women occupied a high social position and in their rights were, at least in principle, equal to men. This equality of the sexes was expressed first of all in the very creation of the first human beings, according to the idea of which the woman was created as the necessary helper of the man, completing the perfection of the human being, without whom man would always remain a half-being—morally and physically. Hence even the very name of woman in Hebrew is almost identical with the name of man, differing only in the ending proper to the feminine gender (isch and ischah). In the patriarchal period of history, certain customs came into practice that could unfavorably influence the development of the idea of equality of the sexes—for example, polygamy, which by its very nature debases the idea of marriage and first of all the woman. But, as is known, polygamy never acquired great significance among the Jews and found for itself a powerful restraint in the Mosaic law and, as far as one can judge from the views of the biblical writers, in public opinion, and therefore could not especially harmfully affect the relation between the sexes. Therefore we do not find among the Jewish people harems, at least not in the sense in which they existed among other peoples. If something similar does appear, as for example in the case of Solomon, this must be viewed as an exceptional phenomenon, occasioned by the personal caprice of a king who knew no measure in his prosperity. Moreover, this phenomenon stands in direct contradiction with the laws of the country, according to which, first, a king must not acquire many wives for himself, lest his heart turn away (Deut. 17:17), and second, he must not take wives from those nations of which the Lord said to the sons of Israel: You shall not enter into marriage with them, neither shall they with you, for surely they will turn away your hearts after their gods—yet it was to them that Solomon clung (1 Kings 11:2). Such unlawful actions of the king found full condemnation also in public opinion, as is clearly seen from the tone of his historian’s account in the third book of Kings. Nevertheless, Solomon’s wives were not harem women in the proper sense—that is, rightless odalisques designated solely to serve as instruments of the king’s passion; on the contrary, they enjoyed sufficiently considerable influence over the king that they even induced him to build shrines to their gods—that is, to commit for their sake the greatest and most dangerous iniquity possible for a king in the Mosaic state. In this influence of the wives one cannot fail to see also an expression of the general position of women among the Jews. If we turn to the positive data of history and customary law, the position of women among the Jews presents itself in the following aspect. Contrary to the humiliating customs of ancient peoples, according to which women lived in hopeless confinement in harems, and if they did emerge from their confinement, they did so necessarily with veils covering their faces, Jewish women and maidens freely and openly associated with the male sex, together with men taking part in the cares and pleasures of ordinary life. Thus we see that Rebekah busily attends to household affairs, goes out alone, unimpeded, to draw water from a spring outside the city, and without any embarrassment, at the first request, renders service to a completely unknown person. Later, with uncovered face she was the entire journey to Isaac and covered herself only in his presence, thereby expressing the natural modesty of a young girl before her bridegroom (Gen. 24:11, 16, 17, 65). Jacob greets his cousin, seen for the first time, with a kiss in the presence of the shepherds (Gen. 29:11); and she, on equal terms with the men, herded her father’s flocks, and of course went with uncovered face. Sarah during her sojourn in Egypt, as is clear from the narrative, also did not cover her face, which gave occasion—as it naturally would by Egyptian customs—for her to be regarded as unmarried and taken into Pharaoh’s household (Gen. 12:14–19). In general, maidens, who among ancient peoples were most heavily subject to guardianship, enjoyed full freedom among the Jews and could freely go everywhere—outside the city, into the fields; and the law secured their inviolability by severe punishment. He who violated a maiden in a field, where she was left defenseless, was subjected to death (Deut. 22:25). Jewish women took the most active part in the public life of the people, in public celebrations and pleasures. Thus, Miriam, the sister of the great deliverer and legislator of the Israelite people, together with other women, solemnly celebrated with timbrels and rejoicing in songs the greatest moment in the history of their people—the crossing of the Red Sea and the destruction of Pharaoh (Exod. 15:20–21). The unfortunate daughter of Jephthah with timbrels and choirs meets her victorious father (Judg. 11:34). The maidens of Shiloh gathered in the vineyards to dance in rounds (Judg. 21:21). Upon the return of Saul and David from their victory over the Philistines, they were everywhere met by women singing and dancing, with festive timbrels and cymbals, with laudatory exclamations: “Saul has slain his thousands, and David his tens of thousands!” How much significance such approval had for the king is shown by the fact that Saul “was very angry” at the exaltation of David above himself and began to view him with suspicion (1 Sam. 18:6–9). Participating on equal terms with men in public life, Jewish women apparently also enjoyed the same education. Religious upbringing was without doubt the same for both men and women. This is indicated with sufficient clarity by the system of religious-historical education examined above by means of explanation of the meaning of the Jewish festivals, established in memory of the most remarkable events in the life of the people—festivals in which both men and women, sons and daughters participated equally (Deut. 16:11, 14). But, besides religious education, women received the same historical-political education as men, as is indicated by the fact that they participated together with men in the public reading of the Mosaic law to the people at the Feast of Booths (in the year of release) (Deut. 31:11–12), and the famous Song of Deborah—that most remarkable woman of the Israelite people—bears the stamp of a deep understanding of the historical destiny and political situation of the people (Judg. 5). In such a position, Jewish women could also hold public offices, chiefly the offices of prophetesses, such as Miriam, Huldah, Noadiah, and Anna (Exod. 15:20; 2 Kings 22:14; Neh. 6:14; Luke 2:36), and especially Deborah, who was a “judge,” who examined and decided not only ordinary domestic affairs of the Israelites but also political matters (Judg. 4, 5). Not once did Jewish women take an active part in the military-political life of their people. Besides the well-known heroic story of Judith, who freed the city of Bethulia and the entire land of Israel from the invasion of the army of Nebuchadnezzar, one can point to two more examples of heroism among Jewish women. Thus, there is known a woman from the city of Thebez and a “wise woman” from the city of Abel; of these, the first killed the rebel Abimelech, and the second conducted negotiations from the city wall with the commander Joab, who had come to punish the city of Abel on account of one man, and persuaded him to lift the siege—and both thereby put an end to the civil strife in the land (Judg. 9:53; 2 Sam. 20:16–22). After this it is not surprising that Jewish women possessed an unusually well-developed consciousness of their rights, by virtue of which they not infrequently appeared personally before the king to request his decision in their cases, as is seen from the history of Solomon’s wise judgment (1 Kings 3:16). Even more remarkable in this regard is the example of the wise woman of Tekoa, who boldly appeared before the king and by a wise parable achieved the king’s reconciliation with his son, who had angered him by the murder of his firstborn son (2 Sam. 14:2–21). The same highly developed female consciousness was also expressed in that abuse whereby Athaliah seized for herself the throne of the kingdom of Judah, and the wicked Jezebel ruled the kingdom with full authority alongside her husband-king (2 Kings 11:3; 1 Kings 18:13).

Such was the social position of women among the Jewish people. From the sketch presented it is clear that it differed almost in no way from the current position of women in Europe. If one takes into account in addition the centuries of cultural development separating present-day Europe from the Palestine of that age, the comparison presented is evidently not in favor of the former.

Such a social position of women naturally exerted a beneficent influence on her domestic and family position as well. And we see that in domestic life a woman is as fully authorized and free as in public. Sarah manages household affairs with full authority as mistress, so that Abraham fully heeds her voice and fulfills her desires, sometimes even contrary to his own wish (Gen. 16:5–6; 21:10–12); Rebekah likewise appears as the fully authorized mistress of the house, and Michal, the wife of David, even exceeds the right proper to her and therefore meets with a restraint, though one expressed in a delicate form that does not contradict marital respect (2 Sam. 6:20–22). Thanks to such an independent position in the house, the wife could receive guests according to her own desire, even, it seems, without the husband’s knowledge, as for example the wealthy Shunammite woman who invited Elisha every time he came to Shunem, and then, with the consent of her husband, prepared a special room for him (2 Kings 4:8–10). The wife could enter into relations with people even contrary to her husband’s wish, as is seen from the example of Abigail, the good wife of the evil Nabal, who brought gifts to David after her husband’s rude refusal (1 Sam. 25:10, 27). The wife was equal in rights with her husband with regard to children and the management of the household. Thus, Hannah at her own desire determines the fate of her son Samuel, and her husband fully agrees with her: “Do what seems good to you,” he says (1 Sam. 1:20–23). Rebekah expresses her unwillingness that Jacob should take a wife from the daughters of the Canaanites, and her husband Isaac, in blessing Jacob, accords with her desire and commanded Jacob and said: “You must not take a wife from the daughters of Canaan” (Gen. 27:46; 28:1). The Shunammite woman mentioned above, in order to fulfill her desire, even undertakes the construction of an entire upper room for Elisha and receives the full agreement of her husband, to whom she moreover turns in this matter not with a request for permission, but merely with an expression of her desire in the form of a recognition of her full right: “Let us make,” she says to her husband, “a small room on the roof with walls and let us put there for him a bed, a table, a chair, and a lamp; so that whenever he comes to us, he can go in there” (2 Kings 4:10). The wife at times even reproved her husband, as is seen from the example of the good Abigail, who spoke thus to David about her husband Nabal: “Let not my lord regard this worthless man Nabal; for as his name is, so is he. Nabal (fool) is his name, and folly is with him” (1 Sam. 25:25). Michal even personally addressed David with reproaches for his allegedly improper behavior at the bringing of the ark, when he leaped and danced before the ark in his joy: “How the king of Israel honored himself today” (she said to David), “uncovering himself today before the eyes of his servants’ maidservants, as one of the riffraff shamelessly uncovers himself!” (2 Sam. 6:20). The relations of husband and wife are characterized by extraordinary tenderness and love. A husband is often called his wife’s “friend” (Jer. 3:20), and his love for her is frequently described in Old Testament literature (Gen. 24:67; 29:18). The legislator valued extraordinarily highly the happiness of family and marital life and took every measure to ensure that this life would not cease to be a source of moral strength for the whole state. For this it was especially necessary to strengthen the marital bond, particularly in the first period after the contracting of marriage, when these bonds could most easily be strengthened for life. With a view to achieving this goal, the legislator issued a remarkable regulation, by virtue of which a newly married man was for the first period exempted from all duties, both public and communal. “When a man is newly married, he shall not go out with the army or be liable for any other public duty. He shall be free at home for one year, to be happy with his wife whom he has taken” (Deut. 24:5). This regulation could exert a beneficent influence on the entire totality of an Israelite’s life relations. Thanks to exemption from all taxes and duties, he could during an entire year turn all his cares and efforts toward establishing his household as well as possible—to stand on a firm economic footing, as the necessary material basis for the well-being of the family. Then, during an entire year of uninterrupted residence with his family, he could strengthen his bond with it to such a degree that it would already become for him an indispensable and irreplaceable source of moral strength and happiness. Here too lies the explanation of that remarkable strength of family bonds that is striking in the Jewish people, and which alone, during many centuries of existence without a state, gave them the possibility of preserving their character and moral strength. On the other hand, the wife is the consolation of the husband in times of grief; thus for example Isaac, thanks to Rebekah, “was comforted after his mother Sarah’s death” (Gen. 24:67); and the lament of a young wife over the loss of her husband became a subject of comparison for expressing the greatest grief (Joel 1:8). Finally, the most powerful expression of the ardent love of husband and wife is the entire Book of Song of Songs, consisting of a series of pictures depicting this love with the most vivid and at the same time most tender strokes. As an expression of the general view of marital relations, one may further cite in conclusion a few sayings of the Hebrew sage that define the norm of these relations. The sage exhorts one to remain faithful to one’s wife: “Rejoice,” he says, “in the wife of your youth, a lovely deer, a graceful doe. Let her breasts fill you at all times with delight; be intoxicated always in her love. Why should you be intoxicated, my son, with a forbidden woman and embrace the bosom of an adulteress?” (Prov. 5:18–20). For a good “excellent wife is the crown of her husband,” a goodness acquired, a gift from God; “she is far more precious than jewels; she opens her mouth with wisdom, and the teaching of kindness is on her tongue. She looks well to the ways of her household and does not eat the bread of idleness. Her children rise up and call her blessed; her husband also, and he praises her. Give her,” the sage exclaims, “the fruit of her hands, and let her works praise her in the gates!” (Prov. 12:4; 18:22; 19:14; 31:10; 31:26–31). “Blessed is the husband of a good wife,” says another sage of the Jewish people, “the number of his days is doubled. A worthy wife brings joy to her husband, and he will complete his years in peace. A good wife is a great blessing; she will be granted to the man who fears the Lord. Rich or poor, his heart is glad, and at all times his face is cheerful” (Sir. 26:1–4).

The state of family relations depicted by us represents, of course, the ideal of that state. We have dwelt chiefly on the depiction of the ideal state because, in the absence of direct legal definitions concerning this state, it had to serve as a partial substitute and the nearest expression of them, since legislation stands above life, and its most accurate expression is always to be sought in the most normal relations. But there were, of course, exceptions as well, departures from the norm—all the more so because among the Jewish people there nonetheless existed conditions that could hinder the full realization of the happiness of family life, such as polygamy, inseparably accompanied by the dissatisfactions arising from the rivalry and jealousy of wives, as is evident even in such patriarchal families as the family of Abraham, where frequent dissatisfactions arose between Sarah and Hagar, and the family of Elkanah, where Hannah’s rival Peninnah sorely grieved her with reproaches for her barrenness (Gen. 21:11; 1 Sam. 1:6). But these facts constitute, in any case, an exception—they are overshadowed by the mass of facts of another kind. And “these latter facts,” as Saalschütz justly says, “constitute a positive refutation of the conclusions to which some authorize themselves in view of the existence of polygamy among the Jews, which ordinarily demoralizes women and debases them in the eyes of men. Neither the one nor the other occurred among the Jews, either because the very view of polygamy is incorrect, or because polygamy itself among this people was only a rare exception. The latter seems certain. Many examples in Israelite history speak to this. In the Proverbs of Solomon and in the Psalms, in the depiction of domestic family happiness, the image of a single wife, the full mistress of the house, appears everywhere. The Mosaic law itself evidently looks unfavorably upon polygamy, and many of its regulations are without doubt directed toward its restriction.” If polygamy did exist among the Jews, it assumed among them a mitigated form, by which, apart from several cases of bigamy in which both wives had equal rights (such were the wives of Jacob and of Elkanah), there was always in the proper sense only one wife, and the rest were in the position of concubines. Thus Abraham had one wife—Sarah, but besides her he had a concubine, Hagar (Gen. 16:2–3). The system of concubinage was considerably widespread among the Jews and enjoyed legal recognition. Therefore our sketch of the laws concerning family relations among the Jews would be incomplete were we not to touch on the legal and social position of women of this category—concubines.