The Status of Women in Jewish Tradition

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The Status of Women in Jewish Tradition Most ancient societies were patriarchal in outlook, but not all patriarchies are equally condescending toward women. Impelled by the gnawing question of whether the inferiority of women is integral to the Torah’s vision, Isaac Sassoon sets out to determine where the Bible, the Talmud, and related literature, especially the Dead Sea Scrolls, sit on this continuum of patriarchal condescension. Of course, there are Â�multiple voices in both Biblical and Talmudic literature, but more surprising is how divergent these voices are. Some points of view seem intent on the disenfranchisement and domestication of women, whereas others prove to be not far short of egalitarian. Opinions that downplay the applicability of the Biblical commandments to women and that strongly deprecate Torah study by women emerge from this study as arguably no more than the views of an especially vocal minority. Isaac Sassoon teaches Bible and Talmud at the Institute of Traditional Judaism in Teaneck, New Jersey. He received his rabbinic Â�ordination from the Chief Rabbinate of Israel and his doctorate from the University of Lisbon.

The Status of Women in Jewish Tradition

Isaac Sassoon

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title:€www.cambridge.org/9781107001749 © Isaac Sassoon 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Sassoon, I. S. D. â•… The status of women in Jewish tradition / Isaac S. D. Sassoon. â•…â•… p.â•… cm. â•… Includes bibliographical references and index. â•… isbn 978-1-107-00174-9 (hardback) â•… 1.╇ Women in Judaism.â•… 2.╇ Bible. O.T. – Criticism, interpretation, etc.â•… â•… 3.╇ Rabbinical literature – History and criticism.â•… 4.╇ Dead Sea scrolls.â•… I.╇ Title. bm729.w6s27â•… 2010 296.1082–dc22â•…â•…â•… 2010031513 isbn 978-1-107-00174-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

Preface Acknowledgements Glossary Abbreviations

page vii xix xxi xxvii

part iâ•… monogamy 1 The Sources 2 Pro-CD Arguments 3 Anti-CD Arguments 4 Indeterminate Arguments 5 Make-or-Break Argument 6 Which Way Does the Evidence Point? 7 Gen 1:27–29 Revisited

1 5 9 17 19 24 31 35

part iiâ•… commandments (miSvot) 8 Zeman Gerama 9 Derekh 10 The Scriptural Evidence 11 Deuteronomy:€A Pattern

39 44 60 67 70

12 The Priestly Torah 13 Two Writers on Purity Law 14 Torah Study

77 83 100 v

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part iiiâ•… intrinsic equality

119

15 The Qatlanit Law 16 ‘Rankings’ of Horayot 3:7 17 Venus and Mars 18 Covenant 19 Gauging Purity’s Weight in P 20 Body and Soul Conclusion

124 127 136 143 153 161 171

Bibliography Index of Authors (Medieval & Pre-modern) Index of Citations from Rabbinic Literature Index of Names (Hebrew Bible) Index of Names (Talmudic) General Index

179 189 190 194 196 198

Preface

The ancient Jewish texts pertaining to our subject have been visited and revisited; the juiciest pumped and squeezed, yet not desiccated€– hence the justification for this enquiry of ours. Indeed, the significance of many of the texts remains elusive. Studying them involves decoding what are often cryptic aphorisms and then assessing what they might have meant to their authors and original audiences. Historians and feminists€– two groups to have grappled with the material€– know the drill. Not that historians and feminists share the same goals. To the historian’s grief, religious texts tend to dwell more upon what ought to be than upon what is. But this bane of the historian is a boon to the serious Jewish feminist. For unlike the historian, ravenous to learn what happened in the past, the latter’s goal is to discover legal and religious precedent to the end of upgrading gender equality within the contemporary Jewish community. So whereas the puristic historian is academic from start to finish, the socio-religious concerns of feminists lead them down a path outlined by several able pens: When it comes to religion, the matter of gender is more than a topic of Â�academic concern. As in many fields, the presence of feminist research in religion has been intensified because there is more at stake than simple scholarly investigation. The institutional and theological crises in Judaism and Christianity that have been provoked by feminism have involved the interpretation of biblical texts dealing with women. What is the relationship of the biblical word to the traditional stance of church and synagogue on the role of women? In its

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broadest sense that question affects many important issues, such as the validity of leadership roles for women in the formal structures of western religion, and the nature of the relationship between men and women in the informal setting of home and family. It also involves the problem of general attitudes toward women engendered by the traditional understanding of biblical texts, and it affects the way in which decisions are made for continuing or changing tradition-based patterns in both formal and informal situations.1 Were the Talmud simply an arcane body of ancient texts, we would not find ourselves troubled.â•›.â•›.â•›. But there is much more at stake here:€The rabbis’ literary and legal legacy rests at the foundation of Judaism as it is practiced today. We therefore have a problem:€How can we continue to adhere to Jewish observance today in the face of a conflict between it and our modern sense of social justice?2

Of course these citations must not be mistaken for license to cut corners, or worse still, to bow to ulterior agendas. Sociologists would never dream of pursuing their research proper with less than merciless rigour. It is only after the results come back from the laboratory, so to speak, that the process of application kicks in. Our priorities are the same. Like the sociologist, our commitment to scholarship is unwavering, even though the hoped-for prize lies beyond the findings themselves. Halakhah’s classification of people by gender for religious purposes rubs against the grain of our collective psyche. Yet despite all the champing at the bit to shed so alien a classification, there is a commensurate impulse to keep the halakhic edifice intact. This is the schizoid pinch in which many are caught. Any prospect of resolving it cannot begin until we broach the question of whether, or to what degree, women’s secondariness is set in stone or canonized by Judaism. If it is, then victory belongs to those who consider the exclusion of women from key aspects of religion to be endemic and inevitable.3 For them, the only amelioration possible consists in cosmetic revamping, substantive modification being viewed as a betrayal of authentic Discovering Eve by Carol Meyers, Oxford 1988, p. 6. Rereading the Rabbis:€A Woman’s Voice by Judith Hauptman, Boulder, CO 1998, p. 3. 3 Or as Cynthia Ozick asks rhetorically:€“If in the most fundamental text .â•›.â•›. the lesser status of women is not worthy of a great ‘Thou shalt not,’ then perhaps there is nothing inherently offensive in it .â•›.â•›. then perhaps the common status of women is not only sanctioned, but in fact, divinely ordained?” (“Forging New Identities” in On Being a Jewish Feminist:€A Reader edited by Susannah Heschel, New York 1983, p. 144). 1 2

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Judaism. Destiny, as they see it, having imposed on Judaism’s epigones the stewardship and curatorship of a precious heritage, adjures them not to tinker with it. Women’s script being part and parcel of that same sacrosanct legacy is no exception. We have no quarrel with such worthy sentiments, provided they do not obstruct the path of unfettered enquiry. Under the guise of conserving the heritage, myths have sometimes been allowed to befog history. A particularly lugubrious myth is that of a Judaism undifferentiated and synchronic and possessed of a monolithic set of foundational texts. But let a critical or differentiating ray beam upon them, and those same texts will be seen to shimmer and sparkle in all their rippling splendour. No adjective is wider of the mark than monolithic to describe the emergent composite€– confluence if you like€– of the sublime and mundane; of rapture alongside expediency. A tradition or custom that subjects itself to investigation is taking a gamble. It may gain or lose prestige, depending on the probity of its lineage. History is replete with examples of religious practice that, on closer scrutiny, turn out to be neither scriptural nor Talmudic. Yet by dint of long usage they became part of the ‘status quo’. A case in point is the women’s gallery in two-tier synagogues. For long centuries, synagogues that had an upper gallery relegated their women to its pews while reserving the main floor for the men. In the past, apologists sometimes pretended that this division was halakhically mandated.4 Today, it is conceded by the strictest halakhic interpretations that a physical partition of prescribed height is all the halakhah demands to separate the sexes during worship. Moreover, halakhah also mandates reverence for parents and comity towards elders.5 A son that Frequently appealing to T. Suk. 4:1 and its close analogue at Suk. 51b–52a, which describe a balcony that accommodated women during the annual water-drawing festivities in the Jerusalem Temple. But what those sources actually say is that the balcony was a last resort after an earlier arrangement (Tosefta; B.T. knows of two earlier arrangements), whereby men stood inside (the women’s court?) and women stood outside, had failed to stem lightheadedness (frivolity? hanky-panky?). Thus, far from proving the preference of the balcony, these sources make it abundantly clear that, if practicable, having both genders separate but on the same level is the first choice. What is more, in Zech 12:12–14 (the Talmud’s scriptural authority for separation) there are no onlookers. Both men and women, even as they stand apart, actively participate in the identical misvah (the women’s court of Herod’s temple is tangential to our immediate topic; but see Chapter 13, note 30). 5 See Qid. 32b–33b and cf. Lev 19:32; Dt 28:50. 4

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can watch his aged mother struggle upstairs as he ambles cosily to his ground-floor seat has lost his halakhic compass. Else he would intervene. Then, he and his fellow congregants would divide both storeys with an accredited mehisah, giving men and women the choice to stay below or climb the stairs. Such a symbiosis would meet the mehisah requirement without infringing other misvot. Nevertheless, women up–men down became the norm in synagogues built with upper balconies, at least since the Renaissance.6 But in the absence of halakhic instigation, what on earth triggered the gender-based ‘stratification’ of the available synagogue space? We suspect that deep-seated notions about the respective temperaments and capabilities of the genders, notions possibly internalized by the women themselves, may have been responsible for women assuming their spectatorial perches. But to get back to texts and the way we propose to engage them. Juridical sources are usually underpinned by Weltanschauung and credo. Specifically with regard to halakhah, R. Emanuel Rackman has observed that, “In the deepest strata of halakhic thinking, logical judgement is preceded by value judgement and intuitive insight gives impetus to the logic of argument.”7 Beliefs self-evident to the ancient writers and their society are seldom verbalized. Some lie doggo just beneath the surface whereas others may take a tug and a tease to extract. But whatever it takes, identifying a text’s active ideological ingredients will be one of our prime objectives. Thankfully, enough texts provide glimpses into the thought processes of their framers, and when they touch upon women, Shmuel Safrai (Tarbiz 32 (5723), pp. 329–338, English summary p. 11) and Hannah Safrai (“Women and the Ancient Synagogue” in Daughters of the King:€Women and the Synagogue edited by Susan Grossman and Rivka Haut, Philadelphia, PA, and Jerusalem 1992, pp. 39–49) found no evidence for a women’s compartment in the ancient synagogue. Neither did Bernadette J. Brooten (Women Leaders in the Ancient Synagogue:€Inscriptional Evidence and Background Issues, Chico, CA 1982). While the Safrais’ and Brooten’s arguments still obtain for the synagogue in antiquity, from the 11th century on, women’s segregation in the synagogue is widely attested; see S. D. Goitein’s reaction to Safrai in Tarbiz 33 (5724) p. 314; also Goitein’s A Mediterranean Society vol. 2 1971, p. 144; Richard Krautheimer’s Mittelalterliche Synagogen, Berlin 1927, pp. 132–137 (Heb. translation, Jerusalem 1994, pp. 84–89); “Women in the Synagogue” by William Horbury in The Cambridge History of Judaism vol. 3 Cambridge University Press 1999, pp. 358–401; Louis M. Epstein’s Sex Laws and Customs in Judaism New York 1948, pp. 81–83. 7 Enc. Jud. Year Book 1975–76, p. 141. 6

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those glimpses can prove invaluable. A parade example is a tannaic explanation for the different sequence in which parents are listed in diverse scriptures. The exegesis tells us nothing about the scriptures it purports to elucidate, but volumes about its author’s perspective, and by extension, perhaps also about its author’s community: Ribbi [i.e. Judah the Patriarch ca. 200] says It is revealed and known before the One who spoke and the world was, that a person (adam) honours his mother more than his father because she coaxes him with words. Therefore in the command to honour [Ex 20:12], father precedes mother. It is also revealed and known before the One who spoke and the world was, that a person (adam)8 reveres his father more than his mother because he teaches him Torah. Therefore in the command to revere [Lev 19:3], mother precedes father.9

This midrash takes a number of things for granted. a) Children receive their formal instruction from their fathers. b) Mothers cajole but do not instruct. c) Interaction between father and child is, consequently, aloof and pedagogic in comparison with the relaxed motherchild intimacy. d) These stereotypical models are acknowledged by the Creator and affirmed by Holy Writ. One cannot help feeling that but for the premise regarding the fixity of paternal and maternal roles, the Patriarch’s exposition might never have suggested itself. Another classic is the Talmud’s explanation for why women should be excluded from the misvah to procreate. That misvah is derived from the words “be fruitful and multiply” in Genesis 1:28€ – which verse goes on to enjoin subduing the earth. Since subduing is an exclusively male occupation, the Talmud concludes that the first part of the command is, likewise, intended for men only. But who decided that subduing was out of bounds to women? “It is a man’s derekh to subdue but not a woman’s derekh to subdue” (Yev. 65b; Qid.35a). Thus it is ultimately thanks to non-scriptural derekh that Gen 1 came to relieve its first woman, and with her all womankind, of the misvah to be Â�fruitful and multiply. The context dictates that the two occurrences of adam in this midrash be translated person, not man, because all rabbinic sources apply the filial duty of Ex 20:12 and in essence that of Lev 19:3 to both sons and daughters. If that places Ribbi in the pro Torah for daughters camp so be it. Neither would it conflict with the opinion that “merit suspends” ascribed to Ribbi in M. Sot. 3:5 (but see note 3 in the introductory text to Part 2). 9 Mekhilta, Horovitz/Rabin ed. p. 232; cf. Qid. 30b–31a. 8

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Common to the two rabbinic sources just cited is their perception of Torah as taking stock in the conventional quirks of men/fathers and women/mothers. While foisting derekh and obeisance to it onto Scripture may be rare, the tactic of explaining halakhah against a template of conventional wisdom, including conventional genderism, abounds in rabbinic literature. In due course we shall meet more sources that explicitly name alleged female proclivities as the reason for their halakhot, and a preponderance that assume certain beliefs about women without articulating them. It remains for the student to sniff out any such latent or buried beliefs. Our quest, then, is not merely the end product€– in the case of the Talmud its halakhic rulings about women€– but as much and more, the tenets and preconceptions that may have determined the end result. Not that this kind of methodology is novel. Among the spate of books and articles to appear since the dawn of Jewish feminism, not a few have set themselves similar targets, notably in their handling of Â�rabbinic texts.10 But despite its credentials, even this hardbitten methodology is no calculus, and therefore not foolproof against our wayward conceits. It is merely that a rational, explorative approach is likelier to catch the bees in its bonnet and to identify them up front. Or so we like to think. As for our own ‘bees’, we accept as a given that equality is morally superior to inequality. Indeed, so self-evident does this truism appear to us, that we take the liberty of referring to increased equality for women in approbative terms such as ‘improvement’ and ‘amelioration’. In some quarters this positive evaluation of equality is seen as setting up a standard independent, and potentially subversive, of Torah. The majority of the Torah committed, however, sees fairplay and justice as bedrock Torah values.11 For them, disgruntlement with women’s status quo grows directly out of the conviction that Torah For instance, Ross Shepherd Kraemer writes:€“I have deliberately approached these [rabbinic] texts as evidence for the mindsets and worldviews, or cosmologies, of their compilers. I am willing to consider the kinds of social structures that would correlate with such cosmologies, but I remain fully cognizant of the tenuous status of any attempts to reconstruct the realities of rabbinic Jewish communities” (Her Share of the Blessings, Oxford 1992, p. 94). 11 E.g. Gen 18:25; Dt 32:4; Jer 12:1. Also writings such as the 14th-century Sefer Â�ha-Kanah (to be cited by and by). 10

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was given to Israel because of its inherent beneficence:€“You descended upon Mount Sinai and spoke with them from heaven and gave them upright judgements and true laws statutes and commandments that are good” (Neh 9:13). But heaven forbid this conviction be confused with humanism or any other philosophy that would usurp Torah’s role as arbiter. No. A believing Jew sees Torah commitment as part of her/ his submission to God’s will. It is simply that righteousness and truth rank among Torah’s chief declared goals, and as such they make a useful touchstone for checking an idea’s Torah-compatibility. Any idea that tests inimical to the furtherance of those avowed goals must raise eyebrows. And make no mistake; Torah declares for righteousness unequivocally. Unlike philosophers who ever since Plato have debated whether the worth of religious precepts is intrinsic, or whether it is a function of their provenance,12 Moses would seem to have settled the matter. “What great nation is there whose statutes and laws are righteous as is all this Torah which I am setting before you today?” (Dt 4:8).13 Call it another prejudice if you will, but we cannot discount the human dimension in the miracle that became sacred texts. What is the point of Moses and the other prophets unless their personality counts in the transmission of revelation? God has infinite ways of producing Torah and of reaching His creatures. But the fact is, God chose human agents, and that choice we see as integral to the revelation. Moses’ soul lives in his words, because a prophet is more than a secretary or “The point I should first wish to understand is whether the pious or holy is beloved by the gods because it is holy, or holy because it is beloved of the gods” (Plato, Euthyphro 3:2 [Jowett’s translation]). Nowadays moral law is often divided into two categories:€teleological and jural. “The former was characteristic of Greek theories; the latter became dominant in Christian times. Their essential difference is this.â•›.â•›.â•›. Under the teleological conception morality is looked upon as a matter of selfÂ�expression .â•›.â•›. and its laws are regarded as rules for the attainment of a good which every man naturally seeks. In the jural system, on the other hand, it is not the natural value of an act that renders it moral, but its value as commanded by the law. It is not commanded because it is good, but it is good because commanded.â•›.â•›.â•›. In the theological system moral law .â•›.â•›. has its ground in the nature or will of God and not in the nature of man.â•›.â•›.â•›. The rule may be for the good of man, but it is for his good because it is the divine will .â•›.â•›.” (Encyclopaedia of Religion and Ethics Vol. 8, p. 833). See also Divine Command Ethics by Michael J. Harris, Routledge Curzon 2003. 13 Cf. Dt 12:31 that treats as axiomatic the perversity of child sacrifice and, concomitantly, of religions that tolerate it. 12

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a ventriloquist’s dummy.14 However, not every student of the material subscribes to this persuasion. Its mere whiff is anathema to those who, for doctrinal or other reasons,15 deny human impulse or subjectivity any role in the formation of revealed religion, especially in the parts that dictate behaviour such as halakhah.16

The rabbis held certain attributes prerequisite for a person to receive prophecy (Shab. 92a; Ned. 38a; Yad, Yesode ha-Torah 7:1 cf. also Num. Rab. 20:1; Rashi to Ps 2:10 “the prophets of Israel are people of compassion”). 15 Among the reasons conspicuous by their absence is fear of downplaying divine omnipotence€– something the purists never bring up when insisting on a Torah revelation created, as it were, ex nihilo. But then neither does the Talmud find it blasphemous to posit God’s enlisting human instrumentality in the miraculous. Indeed, the Talmud classifies parturition as nifla’im ma‘asekhah [God’s wondrous doing]€– even while allowing for two subordinate contributors, namely the biological parents (Nid. 31a). The fact that Hashem grants the human parents an active role takes nothing away from the miracle; on the contrary, the endowment of such potential to men and women is part and parcel of the wonder. Evidently, then, it is not detraction from kevod shamayim (honour of Heaven) that fires the purists’ zealotry, but perhaps the threat to an apotheosized status quo (see next note and our ‘Conclusion’). 16 Fairly representative of such absolutism in a Jewish guise are the following extracts from a critique of R. Zacharias Frankel’s Darkhe Ha-mishnah authored by [Yedidiah] Gottlieb Fischer (d. 1895), rabbi of Székesfehérvár (Stuhlweissenburg), and published serially in the periodical Jeschurun by its founder and editor R. Samson Raphael Hirsch. “It does not take particularly profound scholarship to demonstrate that these pronouncements by Frankel attribute to human authorship those legal provisions which all of traditional Jewry regards as being no less of Divine origin than the Law itself. It is also not difficult to determine what the Rabbinical authorities have to say.â•›.â•›.â•›. Maimonides’ introduction to his [Mishnah] Commentary contains the following passage:€‘Know that all the laws God gave to Moses on Mount Sinai were given along with their explanation .â•›.â•›. for instance, God said to Moses:€You shall dwell in huts for seven days (Lev 23:42) and then He instructed him that this obligation applied only to men, not to women, and that the sick and those on a journey were also exempt .â•›.â•›.’. According to Frankel’s words, God did not give Moses any explanations .â•›.â•›. but it was the men of the Great Assembly who explained.â•›.â•›.â•›. With [the] notion that all the halakhot le-moshe mi-sinai in the Talmud are only of human origin, Frankel places himself into categorical opposition to everything that has always been accepted as true and authoritative in Torah Judaism. Thereby he has once again joined the ranks of those who deny the binding character of the tradition. Those who deny the binding character of the tradition do not deny that a tradition existed.â•›.â•›.â•›. What they deny is that this tradition is of Divine origin” (“An Epistle of R. Gottlieb Fischer” in Samson Raphael Hirsch:€The Collected Writings vol. 5 1984, pp. 216, 220, 231, translated from the German that appeared in Jeschurun 7 1860–61). Particularly telling are Fischer’s “all of traditional Jewry regards as being no less of Divine origin”; “places himself into categorical opposition to everything that has always been accepted as true and authoritative in Torah Judaism”; “he .â•›.â•›. joined the ranks of those who deny the binding character of the tradition” (cf. previous note; also Rabbinic Authority by Michael S. Berger, Oxford 1998, esp. pp. 20–25). Mutatis mutandis, not unrelated is 14

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Another bone of contention€– and there is no point glossing over it€– is the tenability of acknowledging heterogeneity within the canon. Again, some dogmatists require canonical texts to agree on all major issues of theology and law. To this end, every fissure is plastered over, every cleft lashed together. Scholarship, however, has long since become aware of the irreconcilability of the elemental components that make up the sacred documents. Once the penny drops that both Bible and Talmud are veritable orchestras, we may start to hearken for the distinct chords and cadences. Then, when audible, each will be allowed its individual integrity; which brings us to another of our prime foci. In discussions of women’s status, Bible is often pitched over against Talmud. Yet on closer inspection Bible and Talmud will be seen to encompass matchingly wide panoplies of law€ – not all impacting women uniformly. This is added reason to abandon hope of discovering which of the two, Bible or Talmud, is more sympathetic to women. Not that scholars need convincing any longer of such an exercise’s futility. Tal Ilan chronicles the debate as to whether Bible or Talmud was the more propitious for women. She concludes “A decisive answer has not yet been found to the question .â•›.â•›. and probably never will be .â•›.â•›. for a hundred years men and women have investigated the same problem and, basing themselves on the same sources, have reached diametrically opposite conclusions.”17 Sometimes scholars seem to forget just how unfortunate it is, except in the loosest sense, to speak of a biblical or talmudic posture towards women. The work of scholars such as Judith Hauptman has shown the wealth of diversity in rabbinic literature. But when it comes to Scripture, even this redoubtable scholar writes as though the Torah were flatter or less textured than the Talmud:€“Why is it important to recognize this struggle [of the talmudic rabbis]? Because it is an advance over the Torah’s outlook on women and mitzvot:€ it acknowledges the engine driving the doctrinism described by George E. Mendenhall:€“Typical has been the dogma that the sacred rituals have derived directly from divine inspiration. The suggestion that they originally had some historical and social context seems blasphemous to most religious ‘conservatives’. What is being protected by this attitude is not the original intent or content of the form, but the authority of the socioreligious institution” (The Tenth Generation, Baltimore, MD 1973, p. xiii n.17). 17 Jewish Women in Greco-Roman Palestine, Peabody, MA 1996, pp. 5–6.

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women’s changing status.”18 Another scholar to underestimate the Â�heterogeneity within the Bible is Hannah K. Harrington. In the course of her otherwise meticulous study (to figure more extensively later on),19 Harrington mobilizes texts such as Proverbs 31, Judges 4–5, and the stories of Hannah and Huldah to argue that Levitical purity laws could not be said to denigrate woman on account of her biological difference. We shall be examining the possibility that far from sharing the Bible’s non-priestly universe (where the spirit unbridled accosts both men and women), Leviticus and related priestly texts transform that universe into a grid that effectively stymies a daughter of Israel20 from becoming a Deborah, a Hannah, or a Huldah. But this is where it gets paradoxical; of all biblical texts, it is a priestly one that comes nearest to making women the semblable of men. In the first chapter of Genesis humankind is created male and female. Thus man and woman are coeval (Gen 1:27). Immediately, both are spoken to conjointly by God who blesses them and also instructs them as to what they may use for food (vv.28–29). Genesis 5 (which is Gen 1’s sequel) adds the important detail that the name Adam was, likewise, bestowed on both conjointly.21 In short, nothing about their creation suggests any disparity between man and woman, but on the contrary, the selem of God sets the selfsame divine seal on the pair. From Genesis 2:4 until the end of chapter 4 another story of the beginnings of humans and their habitat unfolds. The differences between the two make it clear that they are distinct narrations of how it all began, including how and when God brought man and woman into existence. For instance, in chapters 1 and 5, as just noted, adam (or ha-adam) is male and female of the human species created simultaneously at the divine behest. In chapter 2 the first human (here the male of the species) is formed from the earth in verse 7, but the woman does not arrive until verse 22, and then only after the man has failed to find himself a helpmate. Moreover, Eve (so named in chapter 2) is not formed directly from the earth, but out of the man (vv. 21–23), Rereading the Rabbis: A Woman's Voice by Judith Hauptman, Boulder, CO 1998, p. 238. The Impurity Systems of Qumran and the Rabbis, Atlanta, GA 1993. 20 I.e. from Sinai onwards. As we shall see, priestly historiography allows for the first woman (and, presumably, other pre-Sinaitic women?) to receive divine communication (see Chapter 9, note 12, and Chapter 17, note 17). 21 MT and Samaritan:€va-yiqra et shemam adam. But note LXX’s “his name”. 18

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and subsidiary to him (v.18). Also the diet regulations are here given to the man alone (Gen 2:16–17) before Eve has so much as materialized. Thus Eve does not receive unmediated divine commandments. To be sure, the second creation story shares with the first its depiction of humanity originating with a single couple. Also, it is chapter 2 which boasts that immortal, oracular paean to monogyny: “Therefore man leaves his father and his mother and cleaves to his wife and the two become one flesh” (Gen 2:24).22 However, the oracle’s monogamy does not seem to us to permeate the second creation story proper. Others disagree, arguing that it must be the second no less than the first creation story’s ideal, seeing that Eve’s subjugation to her husband is explained as a curse brought on by sin (Gen 3:16). Sin and its fruit, so the contention, are always a deviation from the optimum.23 While granting that the presentation of Eve’s vassalage in 3:17 as chastisement implies a reversal, we are not persuaded that what is being reversed is monogamy. That is chiefly because the narrative portion of chapter 2 seems to treat marriage itself as an afterthought, in contrast to chapter 1 that with its “be fruitful and multiply” looks to institutionalize marriage and family. If that means sundering narrative from oracle so be it; the two certainly appear to be cut from very Â�different cloth. But even if monogamy were Gen 2’s ideal throughout, Eve would still lag behind Gen 1’s primordial woman. For it is not in the monogamy contest alone that she of chapter 1 outpaces Eve. Over and above monogyny, the woman of Gen 1 is graced with the same prophecy and selem as her husband. That is Gen 1’s paragon; and it shall serve as our benchmark when reviewing gender parity in the rest of the canonical documents, both biblical and rabbinic. For convenience, we shall divide the survey into three headings homologous with the three salient features of Genesis 1 just noted, viz. a) monogamy; b) joint

The translation of this verse and of all other citations from the Hebrew Bible are indebted to various versions, but primarily, to NEB (1970) and JPS (1962). Still, no translation has been followed blindly. Likewise, we are responsible for the translations of rabbinic and Qumran texts. 23 See, for example, Leonard Swidler’s Women in Judaism Metuchen, NJ 1976, pp. 25–28. 22

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Preface

commandments; and c) the God-given dignity inherent in every individual human. In a word:€selem equality.24 24

As to the parameters of this equality, estimations differ widely. Historically, as Carol Meyers notes, “feminists have long looked to Genesis 1 for affirmation of sexual equality.â•›.â•›.â•›. Already in the nineteenth century, The Woman’s Bible [by Elizabeth Cady Stanton, New York 1895] found in these verses a ‘plain declaration of the existence of the feminine element in the Godhead, equal in power and glory with the masculine’” (Discovering Eve, p. 86). Phyllis A. Bird, on the other hand, is less sanguine:€“the meaning and function of the statement, ‘male and female he created them,’ is considerably more limited that [sic] is commonly assumed.â•›.â•›.â•›. It relates only to the blessing of fertility .â•›.â•›. [but] is not concerned with sexual roles, the status or relationship of the sexes to one another, or marriage” (“Male and Female He Created Them” HTR 74:2 (1981), p. 155; reprinted in Missing Persons and Mistaken Identities, Minneapolis, MN 1997). However, in her final analysis even Bird concedes that “if the divine image characterizes and defines the species as a whole, it cannot be denied to any individual of the species. To be human is to be made in the image of God. And if to be human means also to be male or female, then both male and female must be characterized equally by the image.â•›.â•›.â•›. Distinctions of roles, responsibilities or social status on the basis of sex€– or other characteristics€– are not excluded by this statement. But where such distinctions have the effect of denying to an individual or group the full and essential status of humanity in the image of God, they contradict the word of creation” (p. 159). Another modest assessment of Gen 1:27 is Ilana Pardes’s:€“Even if God, according to P, created man and woman simultaneously, this act, as Genesis 5 makes clear, does not quite prescribe equality between the sexes. The Priestly work may be acknowledging a certain symmetry between male and female on the cosmic level, but when dealing with the social realm, procreation turns out to be the perpetuation of seed.â•›.â•›.â•›. Elizabeth Cady Stanton and Phyllis Trible, who put great emphasis on the liberating qualities of this verse [Gen 1:27] .â•›.â•›. take it out of context by neglecting to examine its reappearance and development in Genesis 5” (Countertraditions in the Bible:€A Feminist Approach, Cambridge, MA 1992, p. 56).

Acknowledgements

This book began life as a Ph.D. dissertation submitted in partial fulfillment of the requirements for a doctorate in Humane Letters at the Faculdade de Letras, University of Lisbon. To the dean of the Faculdade de Letras, Professor António M. Feijó, I owe more than I can say. His guidance and mentorship extended far beyond the years of graduate study. Not only the thesis, but its adaptation into the present work, benefited immeasurably from his sage counsel. I should also like to acknowledge the advice and support of Professor Miguel Tamen, Director of the Literary Theory Program at the Faculdade de Letras. The suggestions of Professor Peter Stilwell of the Catholic University, Lisbon, are gratefully acknowledged. Michael Terry’s help on all fronts was incalculable. For Rabbi Steven H. Golden no task was too onerous; he tirelessly lent his expertise at every turn. But without the encouragement and incessant badgering of Professor Herman Prins Salomon, the whole project would have fizzled out; he kept it alive through thick and thin.

xix

Glossary

agunah

amora asereth bamah

baraita bat qol bavli bayit berit

lit. an anchored wife, i.e. a woman whose husband disappears or refuses to grant her a divorce after the marriage has broken down. In either case she is legally still a married woman (pl. agunot) a talmudic sage of the post-mishnaic period (pl. amoraim) convocation, festival (exact meaning uncertain) lit. a high place (pl. bamot). After the centralization of the cult, bamot became a pejorative by which the deuteronomistic histories refer to all cult centres outside the chosen site. For the various meanings of biblical bamah see D.B.D. p. 119. The rabbis used the term also to denote legitimate pre-centralization shrines tannaic materials not included in the Mishnah (such as the Tosefta) an echo; muffled or lesser divine comÂ�munication the Babylonian Talmud (B.T.), developed in the Mesopotamian academies 3rd–6th centuries CE house, household, family covenant

xxi

xxii

Glossary

dat

enforceable law code, decree, religion (Persian loan word€– see DBD p. 206) rabbinic exegesis to a specific text way, habit incest; any forbidden union a work dating from the 3rd–6th centuries that elaborates the mishnah (q.v.) and constitutes the greater part of the Talmud analogy based on congruous wording (see Enc. Jud. 8:367) an individual rabbinic ruling (pl. halakhot); the corpus of rabbinic law a self-validating oral tradition

derashah derekh ‘ervah gemara

gezerah shavah halakhah halakhah le-moshe â•… mi-sinai hallah hallel

haqhel

Hashem hakham hakhamah heqesh hokhmah huppah karet kivyakhol

kor lulav

cake or loaf of bread; the dough-contribution (see Num 15:19–21; Ezek 44:30) song of praise, esp. the liturgical unit of Pss 113–118 as chanted in synagogue (and on Passover night at table) public reading of the Torah on Sukkot in the year of [or in the year following] shemitah (q.v.) (see Dt 31:10–13; M. Sot. 7:8) God, the Lord (see Dt 28:58) a sage, wise man feminine of hakham analogy based on congruity of subject matter (see Enc. Jud. ibid.) wisdom the bridal canopy; metonymically, the marriage ceremony cutting off, excision; esp. as punishment as if; so to speak (used to indicate the language’s inadequacy when speaking of God; see M. San. 6:5) a measure of wheat (see Ezr 7:22) unopened frond of date palm; the entire wreath of ‘four species’ prescribed at Lev 23:40

Glossary

xxiii

maqom

lit. place, location; also God (within whose grasp and embrace the world has its being) unleavened bread especially that eaten on Passover partition (today mostly with reference to separation of men and women during worship) [the priest] anointed for war (see Dt 20:2–4; M. Sot. 8:1) rabbinic exegesis; such exegesis as a literary genre a gathering of waters, a pool (see Gen 1:10; Lev 11:36); a ritual bath the compendium of rabbinic law that constitutes the oldest component of the Talmud (early 3rd century); also, a mishnaic passage (pl. Â�mishnayot). Cf. gemara commandment, benevolent act; pl. misvot season; festival esp. the intermediate days of the feasts of Unleavened Bread and of Tabernacles lamp menstruant see Lev 23:10–11 light, the sun sign, symbol; also omen€ – esp. astrological; pl. ’otot scriptural passage, especially as used in homilies [today its primary meaning is:€ the weekly Torah reading] livelihood, alimentation, providing for (verbs: le-farnes, le-hitparnes) tainted food esp. sacrificial meat (see Lev 19:7; Isa 65:4) a minori ad majus argument lit. a killer wife; a repeatedly widowed woman believed to be the cause of her husbands’ deaths a measure of capacity (sixth of a se’ah)

massah â•… (also matzah) mehisah meshuah â•… milhamah midrash miqveh â•… [var. miqvah] mishnah

misvah mo‘ed ner niddah omer sheaf ’or ’ot parashah

parnasah piggul qal vahomer qatlanit

qav

xxiv

qorban ra’ui reshut segan selem shehi tah shema‘ shemitah sheniyyot

sheqes simha

sisit

sotah sugya taharah tanna

taqqanah targum tefillin terumah

teshuvah tiflut to‘evah

Glossary sacrifice; offering fit, eligible authority deputy, lieutenant, esp. the deputy High Priest image, likeness esp. with reference to Gen 1:26–27 ritual slaughter of sacrificial or profane animals credal or liturgical recitation of Dt 6:4ff (whose incipit, or first word, is shema‘ = hear) the year of release (see Ex 23:10–11) non-scriptural [lit. second-degree or secondclass] incest unions outlawed by the Scribes (see Yev. 21a–b) vermin; a loathsome or repulsive thing rejoicing, celebration; metonymically, a festal sacrifice and/or [participation in] the associated meals at the temple fringes or tassels esp. when attached to the corners of garments as per Num 15:38; a prayershawl a wife suspected of infidelity who is tested by drinking the bitter waters (Num 5:12–31) a talmudic discussion forming a literary unit (pl. sugyot) purity (moral or ritual) sage of the mishnaic era, esp. as contrasted with amora (pl. tannaim; adjectives:€ tannaic, tannaitic) (also takanah) provision; remedy; a rabbinic ordinance (pl. taqqanot) Aramaic paraphrase of Scripture (pl. targumim) phylacteries a heave offering; in rabbinic usage the firstfruits of grain, wine, and oil given to the priests (see Num 18:12 and Dt 18:4) repentance twaddle; salacity abomination

Glossary torah she-be‘al pe tosefta

tum’ah yerushalmi

yeser zav zavah

xxv

the oral torah (as distinct from the written) [var. tosifta] collection of tannaic material contemporary with, but not included in, the Mishnah impurity, defilement (moral or ritual) the Jerusalem Talmud (a.k.a. the Palestinian Talmud) developed in the Holy Land 3rd–5th centuries CE nature, inclination (see Gen 8:21; Dt 31:21) a man afflicted with a discharge (pl. zavim; see Lev 15:2–15) a woman similarly afflicted (see Lev 15:25–30)

Abbreviations

Bible Gen Ex Lev Num Dt Jos Jud 1Sam 2Sam 1Kgs 2Kgs Isa Jer Ezek Hos Mic Zech Mal Ps Prv Song Est

Genesis Exodus Leviticus Numbers Deuteronomy Joshua Judges 1 Samuel 2 Samuel 1 Kings 2 Kings Isaiah Jeremiah Ezekiel Hosea Micah Zechariah Malachi Psalms Proverbs Song of Songs Esther xxvii

xxviii

Neh 1Chr 2Chr

Abbreviations Nehemiah 1 Chronicles 2 Chronicles

Rabbinic Texts Tosefta T. Ber. T. Shab. T. Yom. T. Suk. T. Hag. T. Yev. T. Kelim

Tosefta Berakhot Tosefta Shabbat Tosefta Yoma Tosefta Sukkah Tosefta Hagigah Tosefta Yevamot Tosefta Kelim

Babylonian Talmud Ber. Berakhot Shab. Shabbat Eruv. Eruvin Pes. Pesahim Yom. Yoma Suk. Sukkah Bez. Bezah R.H. Rosh Hashanah Meg. Megillah M.Q. Mo‘ed Qatan Hag. Hagigah Yev. Yevamot Ket. Ketubot Ned. Nedarim Naz. Nazir Sot. Sotah Git. Gittin Qid. Qiddushin B.Q. Bava Qama B.M. Bava Mesi‘a B.B. Bava Batra San. Sanhedrin

xxix

Abbreviations Mak. Shevu A.Z. Hor. Zev. Men. Hul Bekh. Ker. Nid.

Makkot Shevuot Avodah Zarah Horayot Zevahim Menahot Hullin Bekhorot Keritot Niddah

Palestinian Talmud Y. Ber. Yerushalmi Berakhot Y. Pe’ah Yerushalmi Pe’ah Y. Bik. Yerushalmi Bikkurim Y. Shab. Yerushalmi Shabbat Y. Pes. Yerushalmi Pesahim Y. Ta‘an. Yerushalmi Ta‘anit Y. Yev. Yerushalmi Yevamot Y. Sot. Yerushalmi Sotah Y. Qid. Yerushalmi Qiddushin Y. San. Yerushalmi Sanhedrin Y. Hor. Yerushalmi Horayot Midrash Aggadah Ex. Rab. Exodus Rabbah Gen. Rab. Genesis Rabbah Num. Rab. Numbers Rabbah Ruth Rab. Ruth Rabbah

part i MONOGAMY

Introduction As feminist studies began ransacking the Hebrew Bible and the related documents (e.g. rabbinic literature, New Testament, Dead Sea Scrolls), it soon became clear just how misleading it is to speak of a€– much less of the€– place of women in Israelite tradition. Yet most scholars concur that Israelite society was essentially patriarchal.1 Now patriarchy is thought to be intolerant of polyandry but compatible with both polygyny and monogamy. Theoretically, then, being pro-monogamy does not make a text uxorious or matriarchal. However, it is not merely monogamy that Genesis 1 projects, but a playing field for spouses that is as level as any in the Bible. How influential was the Genesis 1 configuration, or did it begin and end with the first idyllic union? Put another way:€off paper, can the paradisiac model hold up under patriarchy? It is easy to be sceptical. But even if the hope of finding equality is a lost cause, might there not be shades of inequality? 1

Designating Israelite society patriarchal is not meant to imply that Israel was exceptional or that her neighbours are known to have been matriarchal. Indeed, some writers pooh-pooh the historicity of what were once touted as vestiges of matriarchies:€“Patriarchy is universal .â•›.â•›. theories that hypothesized a matriarchal form of society at ‘an earlier stage of history’ made a certain, if tortuous, sense until the findings of the past fifty years failed to include a single shred of evidence that such matriarchies ever existed, and demonstrated the inability of all such theories to deal with reality” (Why Men Rule:€A Theory of Male Dominance by Steven Goldberg, Chicago and La Salle 1993, pp. 15, 18).

1

2

Monogamy

Étan Levine has this to say in his article “Biblical Women’s Marital Rights”:2 In general terms, biblical families are indeed identical to those most characteristic of the ancient Near East. They are:€(1) Endogamous (with preference for marriage with relatives); (2) Patrilineal (with descent according to the father’s lineage); (3) Patriarchal (with the father as family master); (4) Patrilocal (with the bride brought to the place and family of the groom); (5) Extended (not Â�limited to one generation or one pair-unit; (6) Polygynous (a man may have more than one wife). Nevertheless, despite the pervasive male supremacy in biblical society, cultural anthropologists have clearly documented how the a priori dismissal of all polygamous societies as equally and identically exploitative of women is both near-sighted and culture-bound. And some Biblical laws do attempt to ameliorate the precarious and subservient status of women.

Just so. One might simply add that polygyny itself, though pervasive, need not have been ubiquitous. Undeniably the sacred texts under consideration, in the main, condone polygyny. In the main€ – but not downright. Malachi almost certainly conceives of wedlock as an infrangible covenant between husband and wife.3 Then there is the primordial couple, monogamous to the hilt, as already noted in both creation stories. True, these desultory avowals of monogamy do not exactly yell at us from the pages of the Bible. But even if they whisper, no polygynous roar can drown them. Moreover, some ancient Jews were attuned to an additional text that, to their ears, bellowed forth monogamy. The Jews in question are the authors of the Dead Sea Scrolls, and the text Leviticus 18:18. That Proceedings of the American Academy for Jewish Research, vol. LXlll, 1997–2001, pp. 88–89. 3 As argued most persuasively by Gordon Paul Hugenberger (Marriage as a Covenant:€A Study of Biblical Law and Ethics Governing Marriage Developed from the Perspective of Malachi, Leiden & New York 1994). Responding to the objection that biblical marriage could not possibly be a covenant because it is only the wife’s exclusive loyalty that the Bible demands, not the husband’s, Hugenberger makes the following critical observation:€“After examination of the alleged examples of indifference, it was determined that there are, in fact, no texts which condone a husband’s sexual infidelity. On the contrary, several texts including Job 31:1; Hos 4:14; and especially Prv 5:15–23 make clear that whether or not there was a legal obligation, there was definitely a moral obligation for exclusive sexual fidelity on the part of a husband” (p. 343). One might also consider Hos 3:3, assuming ve-gam ani elayikh to have reciprocal fidelity in mind. Cf. the treatment of both the Hosea and Malachi verses by Edward Geoffrey Parrinder in his 1950 pamphlet, The Bible and Polygamy:€A Study of the Hebrew and Christian Teaching, pp. 29–35. 2

Monogamy

3

both Genesis 1 and the Book of Leviticus are assigned by scholarship to the priestly source of the Pentateuch (hereafter P)4 is no fluke. If anything, the monogamous bent of these two scriptures dovetails rather neatly with other teachings of P, notably those relating to leviratemarriage, to which justice will be done shortly. Meanwhile, by way of appetizer, one may munch on the Talmud’s periodic reservations about levirate-marriage.5 Could they be a throwback to P’s distaste for that institution? Not all contemporary writers on Jewish feminism dwell on the history of monogamy. Some seem content to dismiss the subject with the statement that Rabbenu Gershom (d. around 1028)6 banned polygyny a thousand years ago.7 Today, in light of the Dead Sea Scrolls, The nomenclature is somewhat confusing. The ancient name of the third book of Moses was TORAT KOHANIM (the Torah of the Priests or the Priestly Torah). The siglum P of Bible criticism is used to designate texts throughout the Pentateuch that conform to the distinctive characteristics of the Priestly Torah. Most critics recognize Leviticus 17–26 as a component differing enough from the rest of P to merit its own designation:€the Holiness Code or H. For our purposes, however, we use P comprehensively to include H. 5 E.g. “Abba Saul says whoever performs the levirate act [with his widowed sister-inlaw] for the sake of [her] beauty or for the sake of conjugal relations [var. or for any other ulterior motive] it is as if he violated the incest law [of Lev 18:16] and the child [born from such a union] is in my eyes close to being illegitimate” (Yev. 39b; cf. T. Yev. 6:10 which has “[her] property” in place of “conjugal relations”); also M. Bekh. 1:7; Tos. Shab. 118b s.v. ema; Gen. Rab. 85:6. 6 The ascription of the taqqanah prohibiting polygyny to the historical Rabbenu Gershom has been questioned. Peretz Tishby (Tarbiz 34 [1965] pp. 49–55 [English summary pp. IV–V]) favours a 12th-century date for the taqqanah’s formal promulgation. 7 For some writers, Jewish Law means rabbinic law. This may explain how come a work as thorough as Women and Jewish Law can claim:€“Though it seems that polygyny was not practiced in the postbiblical period it remains very significant that it was halakhically acceptable. This changed in the middle ages for those Jews living in Christian countries.â•›.â•›.â•›. By the ninth and tenth centuries the aversion to polygyny began to take the form of prohibitions set in community practice and rules (takanot). Traditionally, the definitive order against polygyny is attributed to Rabbenu Gershom Me’or Ha-Golah .â•›.â•›.” (Women and Jewish Law:€The Essential Texts, Their History, & Their Relevance for Today by Rachel Biale, New York 1995, p. 50). A similarly myopic view of ‘Jewish law’ mars another otherwise excellent study. Commenting on the saying of Jesus (Mark 10:11; Luke 16:18) that “Whoever divorces his wife and marries another commits adultery”, Gordon J. Wenham writes:€“There are three very striking novelties about this remark of Jesus to the husband who divorces. First, he says a man can commit adultery against his own wife. Under Jewish law a man was guilty of adultery if he took someone else’s wife.â•›.â•›.â•›. Second, this statement effectively forbids polygamy, also practised by Jews until 1948 (Western Jews stopped in 1030). This is because if a second union after divorce constitutes adultery, then a fortiori second 4

4

Monogamy

R. Gershom’s ban pales, for his ban was neither absolute nor did it invoke the Law of Moses, and its success has been correspondingly patchy and inconclusive (witness the husbands of agunot who abscond and remarry). In Qumran halakhah, on the other hand, having two wives was considered fornication (see further). Qumran thus shoves monogamy under the nose of every student of gender relations. A society where polygyny is abnegated€– if only by one sect among many€– is not the same as the one where polygyny goes unquestioned. The Qumran community, even if it lived sequestered, did not hide its ideas under a bushel. Still, the Scrolls’ insistence on monogamy has no counterpart in rabbinic literature.8 This means that the rabbis were not reading the relevant Scriptures in the same way as the authors of the Scrolls. So how were they each reading those Scriptures? And what are the prospects of sizing up the two€– rabbinic and Qumranic€– Â�traditions? Let us find out. unions before divorce .â•›.â•›. must be adulterous too.” (Jesus and Divorce, London 2002, p. 48). Both authors fail to mention a non-rabbinic halakhah that banned polygyny a millenium earlier (see Chapter 5, note 7). 8 At least nothing overt. On the other hand, a saying attributed to R. Aqiva seems to imply disavowal of polygyny:€“R. Aqiva says [he may divorce his wife] even if his reason is that he has found a woman more beautiful than she” (M. Git. 9:10). Now in a polygynous society, the newly discovered belle might just as easily join the harem as break up the existing partnership. In proposing divorce as the remedy, R. Aqiva all but discounts the polygynous option. Cf. “A man who was married for ten years and his wife bore no children they [the authorities] compel him to divorce” (Ket. 77a and Rashi s.v. litne nasa ishah ve-shahah); also the aggadah that depicts Moses as a magistrate taking seriously a wife’s charge of unfaithfulness against her husband (Yom. 75a). For additional examples, see Adiel Schremer’s Male and Female He Created Them [Heb.], Jerusalem 2003, pp. 210–218.

1 The Sources

The Damascus Covenant (hereafter CD)1 may be thought of as the constitution of the community which embraced it. CD outlaws polygyny on Pentateuchal authority and blasts those who permit it: The builders of the partition (bone ha-hayis)2 who go after sav€– the sav is the preacher of whom it is said [Mic 2:6] Assuredly they shall preach€– they are CD (or, more formally:€ CDC) stands for Cairo Damascus Document, the designation given the medieval Cairo Genizah exemplars discovered and then published by Solomon Schechter as Documents of Jewish Sectaries, vol. 1:€Fragments of a Zadokite Work, Cambridge 1910 (New York 1970). Ten ancient copies of basically the same text (ranging from partial to fragmentary) have turned up in caves 4, 5 and 6 at Qumran. The eight from cave 4 were published, with English translation by Joseph M. Baumgarten, in Discoveries in the Judaean Desert XVIII The Damascus Document (4Q 266–273) Oxford 1996; also with English translation by James H. Charlesworth, editor, and Henry W. M. Rietz, assistant editor, in volume 3 of the series The Dead Sea Scrolls Hebrew, Aramaic and Greek Texts Tübingen 2006. The remaining two (5Q 12 and 6Q 15) appeared in volume 2 of the same series, Tübingen 1995. Except for the smidgen in 4Q266, none preserves any portion of text paralleling 4:19–5:2. 2 As to the identity of bone ha-hayis (often rendered ‘builders of the wall’), we cite Adiel Schremer’s synopsis:€“While some scholars have identified the ‘builders of the wall’ with the Pharisees, others viewed this appellation as referring to the Jewish society of the author’s time in general. On the first possibility, see:€S. Schechter .â•›.â•›. 1910; R. H. Charles .â•›.â•›. 1913; J. Grintz .â•›.â•›. 1953; A. S. van der Woude .â•›.â•›. 1957; J. Tomson .â•›.â•›. 1990. The other view is held by J. Murphy-O’Connor .â•›.â•›. 1970; P. R. Davies 1983; M. A. Knibb .â•›.â•›. 1987; J. G. Campbell .â•›.â•›. 1995.” (“Qumran Polemic on Marital Law:€CD 4:20–5:11 and its Social Background” in The Damascus Document A Centennial of Discovery:€Proceedings of the Third International Symposium of the Orion Center for the Study of the DSS and Associated Literature, Leiden 2000, p. 147 note 1). Recently, Ben Zion Wacholder has declared himself in the Schechter-Charles camp:€“Drawing on these biblical prophecies, MTA [Midrash Torah of the Apocalypse; alias CD or, 1

5

6

Monogamy

caught twice in fornication by taking two wives in their lives; also the principle of creation is [Gen 1:27] Male and female He created them, and those who entered the ark [Gen 7:9] Two by two did they enter the ark. And regarding the prince it is written [Dt 17:17] He shall not multiply wives to himself (CD 4:19–5:2)

Now the phrase ‘by taking two wives in their lives’ (laqahat shete nashim be-hayyehem)3 unmistakably echoes Lev 18:18:€“ve-ishah el ahotah lo tiqah lisror legallot ‘ervatah ‘alehah be-hayyehah” (literally: And a wife [or a woman] to her sister you shall not take [in marriage] to cause rivalry to uncover her nakedness upon her in her lifetime). It also seems clear that of the four scriptural texts adduced, it is Lev 18:18 that CD treats as the clincher, with the Genesis and Deuteronomy verses serving as back-up. In other words, it all hinges on the Leviticus verse, or rather on the way that verse is decoded. For Lev 18:18 is cryptic. Hence, the dispute as to whether it means to ban polygyny (CD) or else to prohibit the marriage of a man to a woman and her biological sister (the builders of the partition who permit polygyny). To be sure, CD’s understanding of Lev 18:18 languished for umpteen centuries, but that has not prevented scholars, Angelo Tosato amongst them, from re-opening the case. In 1984, Tosato published his article, “The Law of Leviticus 18:18:€A Reexamination”.4 By paying close attention to semantic and contextual niceties, Tosato concluded that “the interpretation of Lev 18:18 given at Qumran has conserved faithfully .â•›.â•›. the original sense and value of the biblical law”. However, Tosato went on to shoot himself in the foot by cluttering his case with dud arguments: a law which forbids the marrying of two sisters (Lev 18:18 according to the traditional interpretation) seems to find collocation.â•›.â•›.â•›. But on closer examination .â•›.â•›. things turn out to be different. One cannot forget that Jacob-Israel more precisely, Qumran€ – as distinct from Genizah€ – copies of CD] builds a case against the current so-called builders of the wall who, pursuing their own measuring standard in their edifications, spew false legislation. These are the Pharisees .â•›.â•›.” (The New Damascus Document The Midrash on the Eschatological Torah of the DSS:€Reconstruction, Translation and Commentary, Leiden 2007, p. 189). 3 The possessive pronominal suffix of be-hayyehem is masculine. This masculine suffix, as Geza Vermes noted, “has given rise to the greatest amount of controversy”. He also succeeded in demonstrating that the masculine form notwithstanding, the referents of be-hayyehem are women, not men. (“Sectarian Matrimonial Halakhah in the Damascus Rule” JJS 25:1, pp. 197–202). 4 CBQ 46:2, pp. 199–214.

The Sources

7

had at the same time two sisters as wives; that David probably married two daughters of Saul5.â•›.â•›.â•›. It is hard to believe that such personages were made into breakers of the Law on account of incest .â•›.â•›. (pp. 211–212)

Such paralogism provided fodder even for the most equitable of critics, such as Calum M. Carmichael: I do not accept the view of Angelo Tosato that this rule has been properly interpreted by the Dead Sea Community.â•›.â•›.â•›. I agree with Tosato that we should not introduce the notion of incest into this rule€– a major part of his argument€– but his interpretation that the rule is a general prohibition of bigamy still does not follow. He finds himself in considerable difficulty when he argues against the usual view that the rule is about two sisters. Thus he comments “One cannot forget that Jacob-Israel had at the same time two sisters as wives [.â•›.â•›.]”. One wonders what Tosato would have to say about Abraham’s marriage to Sarah in light of the Levitical prohibition against that incestuous union, and also about Moses’ rule in Lev 18:12, 13 legislating against the union his parents contracted. 6

While agreeing with Carmichael as to the ineptitude of the patriarchal marriages, one still wants to beware of throwing out the baby with the bathwater. In this instance, we must confess to a vested interest in the ‘baby’. Long fascinated by the ancient Lev 18:18 dispute, we set out to investigate. The philological voyage was bumpy, the literary road circuitous;7 but in the end the odyssey brought us close to Tosato’s basic position. What follows next may be described as a distillation of our travelogue. Analysis of Lev 18:18 The first five words of the verse ve-ishah el ahotah lo tiqah constitute a formidable crux. Literally, of course, ishah means woman (or wife) and ahot sister. Going with those literal meanings, what the verse See 1Sam 18:17–21. For the rabbis who understood Lev 18:18 to prohibit a man marrying two sisters, David’s case did indeed pose a quandary. “His students asked R. Yose ‘How could David marry his wife’s sister?’ He replied ‘Only after Merab’s death did he marry her sister’” (T. Sot. 11:9; cf. San. 19b). Modern scholarship, on the other hand, tends to skirt the issue by positing not two sisters but a double recension of a single story that knew simply of David’s marriage to a daughter of Saul (see Henry Preserved Smith, ICC on The Books of Samuel, Edinburgh 1899 [1969], p. 172). 6 Law, Legend and Incest in the Bible:€Leviticus18–20 Ithaca, NY 1997, pp. 46–47. 7 And all without the benefit of belatedly discovered Tosato! 5

8

Monogamy

forbids is the taking of two biological sisters as wives. CD, however, takes the phrase ishah el ahotah in its only attested sense:€metaphorically. The phrase occurs another eight times: 1) Five of the strips of cloth shall be joined ishah el ahotah (flush with one another; Ex 26:3) 2) and the [other] five strips of cloth shall be joined ishah el ahotah (flush with one another; Ex 26:3) 3) the loops shall line up each ishah el ahotah (opposite its counterpart; Ex 26:5) 4) you shall join the cloths ishah el ahotah(flush with one another) by means of the clasps (Ex 26:6) 5) Two tenons for each plank in alignment8 ishah el ahotah (with each other; Ex 26:17) 6) Each one’s wings touched tip to tip9 isha el ahotah (those of the other; Ezek 1:9) 7) Under the vault their wings were spread straight out ishah el ahotah (touching one another; Ezek 1:23) 8) the sound [or noise] of the living creatures’ wings brushing ishah el ahotah (against one another; Ezek 3:13). In all eight examples, the phrase is used idiomatically to signify a relationship of symmetry or congruity between two objects or sets of objects. Neither the ishah nor her ahot are ever people. For conformity’s sake, Lev 18’s ishah el ahotah ought therefore to mean something like ‘both in tandem’. With that in mind, let us try to reconstruct a plausible sense that CD might have extracted from our verse. The key word would probably have been lisror, qualified by the ishah idiom. Such a reading might, in turn, yield an overall construction like this:€Do not take rival wives either together or even successively as long as the first wife is alive. At this juncture, it will be useful to tabulate the ramifications of a metaphorical reading of ishah el ahotah in Lev 18:18. Although we cannot speak for the authors of CD, there can be no doubt as to the relevance of the following considerations to any monogamist reading of the verse. Heb. meshullavot. This hapax legomenon is most likely a carpentry term describing the tenons’ compatibility with their answering mortises (see Jastrow’s Dictionary, p. 1577). JPS notes “meaning of Heb. meshullavot uncertain”. 9 ‘Tip to tip’ is speculative but gives the general drift which seems to be this:€ Each angel’s right-hand wing meets with the left wing of its neighbour to the right in regimented formation. 8

2 Pro-CD Arguments

1) Besides its basic meanings (bind, constrict, show hostility, vex), Hebrew srr can also denote the act of ‘rivalling’ or being a rival. Thus srr’s derivative noun srh (pl. srt), like its Akkadian cognate serretu,1 stands for ‘rival’€– particularly a rival-wife (see 1Sam 1:6; M. Yev. 1.1 and passim). Accordingly, lisror comes into its own if the focus of Lev 18:18 is rival wives. But if the focus is sisters, lisror would seem otiose. Nor does it help that it is absent from the ‘woman and her daughter’ prohibition (18:17). 2) Verse 18 ends with the qualifying phrase be-hayyehah (in her lifetime), implying that with the wife’s death, the union ceases to be unlawful. This provision is extraordinary; nowhere does Torah teach that affinity to one’s spouse’s kin dissolves with the spouse’s death. As noted, the Talmud sided with the ‘builders’, taking the subject of Lev 18:18 to be biological sisters. Hence, rabbinic texts allow marriage to a deceased wife’s sister. This exceptional leniency stands out like a sore thumb, as Maimonides’s code will illustrate: Once a person enters into matrimony with a woman six of her relatives become forbidden to him and each of the six remains in the category of ‘ervah for ever€– whether or not the marriage is consummated; even after it ends in divorce; during his wife’s lifetime and after her death. These are the six. Her mother, her maternal grandmother, her paternal grandmother, her daughter, 1

See An Akkadian Lexicon Companion for Biblical Hebrew by Hayim ben Yoseph Tawil, Jersey City, NJ 2009, p. 328.

9

10

Monogamy

her daughter’s daughter and her son’s daughter.â•›.â•›.â•›. In addition, his wife’s sister becomes ‘ervah to him until his wife dies. (Yad, Issure Bi’ah 2:7, 9)

For CD, on the other hand, Lev 18:18 does not deal with incest and therefore cannot be accused of breaking rank. If you like, it is already the odd man out insofar as polygyny is not a kinship issue. Thus on the congruity score, CD can be said to manage be-hayyehah better than its opponents. But the acid test will come further in this book, when CD’s own understanding of be-hayyehah faces the music. 2a) As just noted, v. 18’s be-hayyehah proviso is unparalleled throughout the incest laws. Its singularity stands out sharpest when juxtaposed with v. 16 which prohibits a union between a man and his brother’s wife. That prohibition is not said to lapse at the brother’s death. So if a woman is barred from marrying her husband’s brother€– even after her husband’s death€ – why should a man be at liberty to marry his wife’s sister after his wife’s death? This question simply underscores the previous pro-CD argument (2 above); and like that argument, CD’s opponents cannot permit it to go unanswered. Some of them attribute the leniency to the fact that, seen from the text’s androcentric perspective, a wife’s sister is outside the man’s paternal family, whereas Lev 18 allegedly considers a man closest to his father and, by extension, to his father’s kin. In defence of this theory, they cite two lopsided categories of incest, namely aunts by marriage and parents-in-law. Union between a man and the wife of his father’s brother is prohibited (v. 14) but not between a man and the wife of his Â�mother’s brother. Similarly, union between a father-in-law and his daughter-in-law is prohibited (v. 15) but not between a mother-inlaw and her son-in-law. What could account for so glaring a discrepancy, they argue, except the non-agnate affinity of mother-in-law and Â�maternal aunt-in-law? Needless to say, the induction of a general principle from this laconicism would be speculative, especially in view of the reciprocity of Lev 18’s other laws. For instance, Lev 18 equates the maternal aunt (v. 13) with the paternal one (v. 14). It also equates a half-sister by the father with a half-sister by the mother (v. 9). Admittedly, the Scribes are credited by some late sources to have judged siblings born of the same father closer to one another than siblings born to the same mother, for the second-degree-incest unions (sheniyyot) outlawed by the Scribes

Pro-CD Arguments

11

include a union between a man and the wife of his mother’s brother. According to some traditions, the Scribes limited their decree to wives of the mother’s full brother and of the mother’s half-brother from the same father. But if the Scribes (or rather their tardy interpreters) are going to be retrojected onto P, it seems at least as logical to look to the Patriarchs. In an earlier morality, a man’s half-sister by the mother was the only half-sister forbidden him. Marriage to a half-sister by the father was tolerated in the days of Abraham (Gen 20:12) and David (2Sam 13:13; cf. Dt 13:7). So sure enough, incest law had once upon a time distinguished between distaff and spear consanguinities. However, it was consanguinity on the distaff side, rather than on the spear, that had then been treated as the closer. Lev 18’s double-barrelled and expansive stepsister law (vv. 9, 11; cf. 20:17, Dt 27:22) is read by many as polemicizing against that erstwhile asymmetry between agnate and distaff kinships. But in redressing an imbalance, it is not necessary to swing to the opposite extreme. Therefore, in rejecting the standard of Abraham and David, Lev 18 should not automatically be assumed to invert it. The silences regarding the wife of a maternal uncle and a mother-in-law do not add up to proof positive that Lev 18 has swapped the motherbinds-more-than-father paradigm for its antithesis. Down the road we shall be considering P’s promotion of patrilineality. Here we need only to express our doubt that P would allow patrilineality (as indeed any other extraneous value) to dent its incest laws. And even supposing it did, how to explain anomalous be-hayyehah? Let us now try and put the anomaly of be-hayyehah into perspective. As noted, some latter-day opponents of CD (or rather defenders of the rabbinic tradition) cite the omission of the aunt-by-marriage and mother-in-law to argue the weakness of kinships contracted through the distaff side. That ‘weakness’ allegedly permits a man to marry either of the affines in question once they are divorced (needless to say, not while still married, for that would constitute adultery; v. 20). In plain words, Lev 18 does not deem incestuous a union between a man and the wife of his maternal uncle or between a man and his mother-in-law. But if these unions are not branded incest, surely they must be presumed unconditionally licit€– without the bridging relative

12

Monogamy

having to die. This is not the paradigm of v. 18. There it is the demise of one woman that lifts the ban from the surviving woman. To recapitulate:€ Lev 18 classifies unions between certain relatives as incest€– no ifs or buts. It omits from the list unions between other relatives€– no ifs or buts. Union with his maternal aunt is not permitted a man after his mother’s death any more than union with a paternal aunt; nor does union with his stepdaughter become lawful after his wife’s death, because the expiration of the relative who forged the link does not lift the incest ban. Not so the case legislated in v. 18. There it is the link’s death that lifts it. Hence the be-hayyehah provision remains peerless in all the length and breadth of Lev 18. 3) V. 18 begins with the letter vav, indicating a break with the preceding. If incest was the theme hitherto, what follows promises to be something other than incest. CD will not have been oblivious of this tell-tale vav. 4) If a man dies leaving no issue, the law of levirate-marriage (Dt 25:5–10) directs the surviving brother to marry the childless widow of his deceased brother. This law makes no exception for a surviving brother who is already married and must therefore be assumed to sanction polygyny. There can be little doubt that this Deuteronomic law has, down the ages, influenced the understanding of Lev 18:18. For as long as the Pentateuch’s discrete law codes were being ‘telescoped’, Leviticus and Deuteronomy had to fit in with one another. A ban on polygyny anywhere in the Torah was unthinkable because of its potential to sabotage levirate-marriage€ – an institution Deuteronomy not merely condones, but by which it sets great store. That it makes clear with the warning “lest his [the dead brother’s] name be blotted out from Israel” (v. 6) and with the contumely hurled at the recusant levir (vv. 9–10). In short, Deuteronomy’s levirate-marriage could not coexist with monogyny. Later we shall confront the question of how CD (which understood Lev 18:18 to outlaw polygyny) got around levirate-marriage;2 the Priestly Torah, however, hardly beats about the bush. 2

Column 66 of the Temple Scroll (11QT) is where its ‘arayot laws are located. It is also the scroll’s last [legible] column. Even though it breaks off abruptly, scholars do not believe that any incest laws are lost. Thus Gershon Brin is able to assert that “the author of the Temple Scroll does not include all of the laws in the book of Deuteronomy.â•›.â•›. for example, he does not copy the law of the levirate marriage because this conflicted with his own view concerning the prohibition of marriage with a brother’s wife.” (“Divorce at Qumran” in Legal Texts and Legal Issues, Leiden 1997, p. 239).

Pro-CD Arguments

13

“If a man takes his brother’s wife it is impurity3 he has uncovered the nakedness of his brother they shall be childless” (‘aririm yihyu; Lev 20:21). There are three other occurrences of the adjective ‘ariri (plural ‘aririm)4€ – the first at Gen 15:2:€“Abram said, Hashem God what can you give me seeing that I shall die ‘ariri and the one in charge of my house is Eliezer of Damascus”. The context leaves little leeway as to the meaning of ‘ariri, and any residual doubt is dispelled by v. 3 which stands in apposition to v. 2:€“Abram said you have given me no offspring so my steward will be my heir”. The next time we meet the word it is in the plural ‘aririm:€“If a man lies with his aunt he has uncovered the nakedness of his uncle they shall bear their guilt they shall die ‘aririm” (Lev 20:20). The last is at Jer. 22:30:€“Write down this man [Coniah] as ‘ariri a fellow who will have no success in his days for no offspring of his shall succeed in sitting on David’s throne or ruling again in Judah”.5 Supposing our only ‘ariri were this Jeremiah verse, would we still have arrived at the meaning ‘childless’? For if ‘ariri describes Coniah as childless, what business has he leaving offspring, kingly or otherwise? Moreover, the phrase “a fellow who will have no success” has led some to posit a meaning of ‘unsuccessful’ for ‘ariri. But in reality, the whole point about Coniah’s fate is predicated on the idea of childlessness€– which status will define Coniah once his line is illegitimated and his children’s names are dumped from the records. As for the ‘failure’ clause, it is widely thought to be a gloss. The following gobbet from John Bright’s commentary touches upon all these questions: Write down this man as childless. The meaning is not that Jehoiachin would have no sons. He actually had seven (1 Chron III 17 f), the oldest of whom had almost certainly been born when this prophecy was uttered. The figure Heb. niddah. The noun niddah means, of course, a menstruant. Here, however, niddah hi marches in epistrophic step with zimmah hi (v.14) hesed hu (v. 17) and, like them, means to stigmatize. At Ezra 9:11 and 2Chr 29:5, niddah seems to convey ‘defilement’. Hence:€impurity. 4 That is to say, in the Hebrew Bible. In the Apocrypha, Ben Sira moralizes:€“better to die childless (‘ariri) than to have godless children” (Ecclesiasticus 16:3). As for Jubilees, until Qumran yields the original Hebrew of Jubilees in 3:34, 13:18 or 17:2, it is at best a calculated guess to posit a Vorlage of ‘ariri at those loci. Meanwhile, Qumran has yielded 4Q179 (4Q Apocryphal Lamentations A) with its “[ke-] ishah ‘ar[i]riah” (fragment 2, line 6). 5 LXX diverges considerably from MT:€“Write ye this man an outcast for there shall none of his seed at all grow up to sit on the throne of David or as a prince yet in Judah”. 3

14

Monogamy

is that of a census list. Jehoiachin is to be entered as childless since, as far as throne succession was concerned, he was as good as that. One who’ll have no success in his lifetime. Literally, “will not succeed in his days.” It is doubtful that these words are original. They are not appropriate as an entry in a census list, and they interrupt the close connection between “childless” and the remainder of the verse, which explains it. LXX, which misunderstood “childless,” seems not to have read, “who will not succeed in his days.” Perhaps the colon is a gloss by one who, knowing that Jehoiachin had sons, like LXX misunderstood the point.6

Rabbis of old were already intrigued by the Jeremiah prophecy, insofar as it predicts childlessness for a man who turns up in Chronicles with six or seven sons:€“R. Johanan said exile atones for everything for it says Write down this man as ‘ariri a fellow who will have no success in his days for no offspring of his shall succeed in sitting on David’s throne or ruling again in Judah. Yet after he [Jehoiachin, a.k.a. Coniah, Jeconiah] went into exile it is written The sons of Jeconiah, a prisoner (or Assir)7 Shealtiel his son. [Also] Malchiram, Pedaiah, Shenazzar, Jekamiah, Hoshama, and Nedabiah” (San. 38b). Mark how Coniah’s unbargained for brood is the thing that knuckles under€– not the word ‘ariri! The denotation of ‘ariri must have been secure enough in the eyes of the Talmud (as it is for most moderns) to withstand Chronicles 3:17. R. Johanan dates the children’s birth after their father’s sentence had been overturned in compensation for the suffering of his (unforeseen?) exile. For John Bright, the prediction had referred not to Coniah’s actual childlessness, but to his going down in the records as such. Linking these two very different approaches is their shared confidence in the meaning of ‘ariri. Our own confidence in ‘ariri thus fortified, we are ready to appreciate the polemical force of Lev 20:21. You€– it says to its readers€– hope through levirate-marriage to raise surrogate children for a deceased kinsman. Your efforts are doomed, because marriage to a brother’s wife will be sterile. The man and his uncle’s wife may yet sire children€ – albeit any such children will predecease their sinful The Anchor Bible, Jeremiah:€Introduction, Translation and Notes, New York 1965, p. 143. 7 In Isa (10:4, 24:22, 42:7), assir means a prisoner; asir (without dagesh) has the same meaning at Ps 79:11, 102:21. Assir as a proper noun is borne by two descendants of Korah (Ex 6:24; 1Chr 6:7, 22). 6

Pro-CD Arguments

15

parents who then die childless (‘aririm yamutu; Lev 20:20). But marriage between a man and his brother’s wife will be denied progeny altogether. This is a transparent repudiation of all levirate-marriage.8 Hardly less perspicuous is Lev 18:16. “The nakedness of your brother’s wife you shall not uncover it is the nakedness of your brother”.9 Barren or fecund, the widowed sister-in-law comes under the strictures of the motive clause “it is the nakedness of your brother”. That translates into a blanket ban. Irrespective of whether or not the dead brother left issue, Lev 18:16 outlaws a union between his widow and his surviving brother. Another scriptural verse not to be overlooked is Lev 22:13. “If a priest’s daughter is widowed or divorced and has no children and she returns to her father’s house as in her youth, of her father’s food shall she eat”. How come a childless widow makes for her father’s, rather than her brother-in-law’s, home? Captiously one could retort that not every husband is outlived by a brother. But that truism did not hinder the formulation of the levirate law as we have it. “When brothers live together and one of them dies leaving no son [or no offspring10] the wife of the deceased shall not be married to an outsider. Her husband’s brother shall go in unto her and take her unto wife and discharge his levirate duty by her” (Dt 25:5). Like any law, it deals with a situation which is statistically feasible; childless widows are often survived by one or more of their brothers-in-law. Lev 22:13’s scenario of childless widows going home to their fathers totally ignores levirate-marriage that, again statistically, would leave a minority of widows free to

See Athalya Brenner’s pertinent comment:€“‘And a man who takes his brother’s wife .â•›.â•›. they shall be childless’.â•›.â•›. ‘take’ a woman, often signifies ‘in marriage’; hence, this verse [Lev 20:22] looks like a polemic against the levirate law” (“On Incest” in A Feminist Companion to Exodus to Deuteronomy, Sheffield 1994, p. 123). 9 Heb. ‘ervat ahikha hi. Rendered by some:€she is the nakedness of your brother, so as to chime with “they are your nakedness” (v. 10) and sh’er of verses 12, 13, and so on. The doubt is engendered by the indeterminate feminine pronoun hi which can be either she or it, and by the elusiveness of ‘ervah in these motive clauses. 10 Heb. ben€ – a word whose primary meaning is ‘son’ (as per M. Naz. 2:7) but that can also signify ‘child’ or ‘offspring’. It is evident that the rabbis read this instance of ben inclusively as did LXX which gives ‘seed’ for ben. However, Tosafot (ad loc. s.v. kevan) demur as to whether the word ben was the Talmud’s scriptural authority for including a daughter. Instead, they propose “lest his name be blotted out from Israel” (Dt 25:6). A daughter, in Tosafot’s reckoning, is just as capable as a son to perpetuate a father’s name (cf. Chapter 14, note 30). 8

16

Monogamy

return to the parental nest.11 The cumulative evidence is rather compelling:€the Priestly Torah disallows levirate-marriage. As for a reason, we would wager on that institution’s repugnance to monogamy. But whatever the reason, P’s demonstrable scuppering of levirate-marriage must surely deter one from loading Lev 18:18 with Deuteronomy’s levirate-marriage law. Lastly, to proof from silence for P’s abrogatory stance towards levirate-marriage. The Priestly Torah’s inheritance law (Num 27:8–11) names legatees in order of precedence:€“If a man dies leaving no son you shall transfer his property to his daughter. If he has no Â�daughter you shall give his property to his brothers” (vv. 8–9). In levirate-Â�marriage, the dead brother’s property passes to his surviving brother along with the deceased’s childless widow. Though not stated explicitly in Dt 25, it is attested not only by a firm rabbinic tradition (Yeb 24a et al.), but also in the biblical story of Ruth (Ruth 4:5–10). Yet Num 27:9 entirely overlooks levirate-marriage when legislating the transfer of a childless man’s property. More than that, it is the brothers (plural) who inherit, not a single brother as is the case with levirate-marriage. And it is that multiplicity of surviving brothers who, free of matrimonial strings, inherit from the dead man. So if you stop to ask what happens to the widow when the brothers-in-law bag her husband’s estate, turn to Lev 22:13. There we find the childless widow reinstalled under her parents’ roof. 11

Notwithstanding, hackneyed harmonizing between the Torah’s levirate and antiÂ�levirate texts is still going the rounds, according to Dvora E. Weisberg:€“Commentators are aware of the contradiction between the incest laws of Leviticus and the injunction to perform levirate marriage in Deuteronomy 25. One solution is to assign these laws to different circumstances:€the laws of levirate would apply when a man died childless, whereas the prohibition against a union between a man and his brother’s wife would apply in cases of divorce or when the brother died leaving children” (Levirate Marriage and the Family in Ancient Judaism, Brandeis University Press 2009 pp. 30–31). Contrast this with the Yerushalmi’s mettlesome approach! The Yerushalmi (Ned. 3:2 [37d]) lists pairs of mutually exclusive scriptures whose reconciliation is a feat so intangible “that the mouth is unable to utter and the ear unable to hear”. Included in the list is the pair “the nakedness of your brother’s wife you shall not uncover” (Lev 18:16) and “her brother-in-law shall go in unto her” (Dt 25:5).

3 Anti-CD Arguments

1) The fact that ishah el ahotah is found only as a metaphor does not preclude its concrete use. Besides, the individual words ishah and ahot occur repeatedly in Lev 18 always in their primary sense. In the Â�context of incest regulations, ishah and ahot surely demand to be taken literally. 2) Lev 18 employs four distinct terms to express cohabitation: qrb el (draw near to); galleh ‘ervah (uncover nakedness); lqh (take [in marriage], acquire); ntn shekhovto le-/be- (give one’s lying to). There is much debate as to whether some or all of these terms are interchangeable or if each is meant to convey a distinct nuance. The introductory verse uses two of the terms:€“men one and all none of you shall draw near to any she’r besaro (close relative; literally, flesh of his flesh) to uncover nakedness .â•›.â•›.” (v. 6). Starting at v. 7, the text proceeds to elaborate. This it does not merely by specifying which close relatives fall under the prohibition of v. 6, but also by repeating the prohibition for each individual union along the line. From v. 7 through 17a, having sexual union is referred to stereotypically as galleh ‘ervah, with qrb el appearing once in v. 14. Thus, from the literary standpoint, Lev 18:6–17a can be said to form a unit; v. 6 laying down the general rule which is then applied to specific cases (vv. 7–17a). By introducing the new term lqh, vv. 17b and 18 assert their independence from the cohesive galleh ‘ervah-she’r besaro unit of 6–17a. The question is whether that independence is merely literary or substantive. The style of the Priestly 17

18

Monogamy

Torah is decidedly anaphoric, and at times Â�declamatory.1 Therefore, legal significance cannot automatically be attached to a proliferation of synonyms. Neither is context alone decisive;2 hence, not even the pragmatism of its subject matter suffices to pin down Lev 18 as Â�legalese sooner than oratory. Where does all this leave CD? Had lqh occurred in verse 18 and nowhere else in the pericope, it would be a feather in CD’s cap. For that would have set v. 18 linguistically apart from the incest laws, which would be seen as eschewing lqh. As it is, lqh appears already in v. 17:€“The nakedness of a woman and her daughter you shall not uncover the daughter of her son and the daughter of her daughter you shall not take [lo tiqah] to uncover her nakedness3 they are close relatives [sha’rah]4 it is depravity”. The presence of lqh outside v. 18 militates against CD. 3) According to Hittite law, “If a man’s wife dies (and) he Â�marries his wife’s sister, there shall be no punishment”.5 If ancient Middle Eastern legal codes were all interrelated, should not this Hittite law influence our reading of Lev 18:18? See Meir Paran’s Darkhe ha-signon ha-kohani ba-torah, Jerusalem 1989, esp. p. 110. Tosafot find parallelismus membrorum in a passage as seemingly prosaic as Lev 25:37 (B.M. 60b s.v. lamma). 3 Targum Neophyti 1 (vol. 3 Madrid-Barcelona 1971, p. 123) has ‘eryatehon. Likewise LXX:€their nakedness. 4 LXX:€your kinswomen. 5 ANET, p. 196. 1 2

4 Indeterminate Arguments

1) Lev 20:10 deals with adultery:€“A man who commits adultery with a married woman, who commits adultery with his neighbour’s wife, the adulterer and the adulteress shall be put to death”. There is no Â�parallel verse outlawing relations between a woman and a married man. But if the Priestly Torah meant to ban polygyny€– so the objection€– would Lev 20 not have included precisely such a parallel prohibition? Perhaps. But one must ask oneself whether in banning polygyny P is likely to have made it a capital crime or even to have tarred it with the opprobrium of adultery.1 Had P’s anti-polygyny legislation been more fervent, Jewish marriage might have taken a very different course. Moreover, those who read Lev 18:18 as banning not polygyny but the marriage of a man to his wife’s biological sister are every bit as flummoxed by the omission of that incestuous union from chapter 20. Lev 18:18 simply has no counterpart in Lev 20. If anything, it is easier to explain the absence of a polygyny ban than an incomplete register of incestuous relations. After all, polygyny had not been frowned upon in early Israel as far as we know; and Lev 20 may represent a less radical position than Lev 18 (see further). We have therefore classified this argument as indeterminate. 2) Union between a man and his wife’s sister could be inferred by analogy from verse 16 that prohibits union between a woman and 1

See note 3 in the introductory text to Part I.

19

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Monogamy

her husband’s brother. If a woman may not marry two brothers, why should a man be allowed two sisters? Of course one can object that, as a rule, it is rash to propagate laws by means of such extrapolation. However, CD extrapolates in precisely this way. As noted, the laws of Lev 18 are addressed to the Israelite male. For instance, prohibiting union between a man and his aunt is not expressed in the third person but rather in the second person masculine. It is the male who is told “The nakedness of your mother’s sister you shall not uncover” (v. 13; cf. vv. 12, 14). But what of the Israelite woman€– is it lawful for her to marry her uncle? CD could not be clearer:€“Moses said Do not approach your mother’s sister she is a blood relation of your mother. And the law of prohibited marriages written for males equally applies to females and therefore to the daughter of a brother who Â�uncovers the nakedness of her father’s brother being also a blood relation” (CD 5:8–11). The hermeneutical principle operative in this passage will have enabled CD to derive the prohibition of marriage between a man and his wife’s sister from v. 16. Once the prohibition was thus illatively derived from its ‘mirror-image’ law in v. 16, CD would have had no use for an explicit prohibition of marriage to a wife’s sister. Of course we will not take CD’s word as to whether Lev 18 means its incest laws to extend to unions in which the affinity between the man and woman is reversed. After all, the ‘builders’ who were marrying their nieces (CD 5:7–8) and the rabbis who applauded uncle-niece alliances (Yev. 62b end; San. 76b) could not have subscribed to this principle of mutuality. Both CD and the ‘builders’ will have appealed to Scripture; but as we are about to see, Scripture can go either way. Besides the aunt/nephew example, Lev 18 lists other instances of forbidden unions that lend themselves to mutuality€– such as: a) b) c) d)

a union between a man and his stepmother (v. 8) a union between a man and the wife of his father’s brother (v. 14) a union between a man and his daughter-in-law (v. 15) a union between a man and his mother (v. 7)

the converse of which are not explicitly prohibited but would be, respectively:

Indeterminate Arguments a) b) c) d)

21

a union between a woman and her stepfather a union between a woman and the husband of her father’s sister a union between a woman and her son-in-law a union between a woman and her father.

a) V. 17 says, “The nakedness of a woman and her daughter you shall not uncover”. On the surface, it seems to forbid a man to be married simultaneously to a woman and her daughter. Qumran, however, could not countenance such an understanding because it implies that if the two wives are not mother and daughter, such ménages à trois are unobjectionable. The implication would wreck CD’s cornerstone, namely that Lev 18 bans all polygyny outright. Nor would the rabbinic reading of v. 17 work for CD. As the rabbis read it, what v. 17 forbids is marriage between a man and his stepdaughter (after the divorce or death of the stepdaughter’s mother). But according to CD’s enunciated principle, woman/stepfather should be deducible from man/Â�stepmother of v. 8. The fact that the Torah nevertheless saw fit to specify woman/stepfather (v. 17) suggests that it did not rely upon analogies being drawn from the stated law to its ‘mirror image’. b) V. 14 prohibits a union between a man and the wife of his father’s brother. Scripture does not prohibit a union between a woman and the husband of her father’s sister. However, being the converse of v. 14’s stated example, CD logic would presumably find this latter union unlawful by analogy. Unfortunately, no additional scripture comes to our aid in interpreting Lev 18’s silence regarding the husband of a father’s sister. According to the rabbis, the silence means the union is permitted.2 c) A union between a man and his daughter-in-law is prohibited in Lev 18 (v. 15), but not between a woman and her son-in-law. Again, CD hermeneutics is able to elicit the unstated case of woman/son-Â�inlaw from the stated case of man/daughter-in-law. The rabbis also forbid a union between a woman and her son-in-law. Unlike CD, however, their scriptural authority is not Lev 18:15. According to the Mishnah 2

However, as noted earlier, a union between a man and the wife of his mother’s brother was among the so-called sheniyyot declared illicit by the Scribes (Yev. 21a–b). According to some of the sources, the Scribes limited their decree to wives of the mother’s full brother and of the mother’s half-brother from the same father.

22

Monogamy

(San. 9:1), “‘a woman and her daughter’ [Lev 18:17] subsumes the man’s own daughter, the daughter of his own daughter, the daughter of his own son .â•›.â•›. his mother-in-law, his mother-in-law’s mother and his father-in-law’s mother”.3 Thus a union between a woman and her son-in-law (man and his mother-in-law from the Mishnah’s androcentric angle) is extracted out of the man/stepdaughter prohibition; Â�(incidentally, in deriving mother-in-law from 18:17, the Mishnah equates the progenitor and offspring generations€– an aberration noted by the Gemara at San. 75a–b). d) And the most egregious omission of all:€ incest between father and daughter. We have just seen how the Mishnah rectifies matters by extracting father-daughter from ‘a woman and her daughter’ (Lev 18:17€– reasoning that a man’s own daughter is ipso facto his spouse’s daughter).4 True to form, CD would presumably derive father-Â�daughter from son-mother (v. 7). Having surveyed these four instances of ellipsis, we are no closer to discovering a pattern. To complicate matters, the brachylogy alternates with seeming pleonasm. For instance, incest with a father’s wife (v. 8) and with a son’s wife (v. 15) are each explicitly outlawed€– not leaving the one to be fetched from the other by means of analogy. To compensate for such inscrutability, all Torah devotees will have felt called upon to practice some form of extrapolation. That Qumran and Talmud diverge in their methods is far less of a surprise than their tranquil resourcefulness. Neither party seems perturbed that sporadically, but not consistently, Scripture spells out laws it might have left to logic to infer. Indeed, this reality that the Torah at times spoon-feeds its readers and at other times trusts their heuristic skills the Talmud takes in its stride:€ mashma‘ mosi miyyad mashma‘ u-mashma‘ mimmela

R. Ishmael holds that even after his wife’s death, relations between a man and his wife’s mother constitute a capital offence, whereas for R. Aqiva, relations between a man and his mother-in-law are no longer a capital offence after the wife/daughter’s death (San. 76b). 4 Elsewhere the Gemara supplies another derivation for father-daughter incest (Yev. 3a; Ker. 5a et al.). Rashi maintains that the additional derivation was necessary to cover incest with a ‘natural’ daughter (some editions actually read “his daughter born from rape” at Ker. 5a). The Mishnah (San. 9:1), however, seems satisfied that its own derivation from Lev 18:17’s ‘a woman and her daughter’ is adequate (for Rambam’s very different unravelling of the two derivations, see his Sefer ha-Misvot negative Â�commandment 336). 3

Indeterminate Arguments

23

(Yoma 42b with reference to Num 19). Similarly, it recognizes milta de’atya beqal va-homer tarah Â�ve-katab lah qera ([even] things inferable a minori ad majus Scripture is wont to spell out).5 5

Pes. 18b, Yom. 43a, Qid. 4a etc. See Enc. Talmudit 1961 vol. 10 col. 568, especially its quotation from R. Nissim (RAN) to the effect that what is said of qal vahomer most probably applies equally to heqesh and gezerah shavah; also Sede hemed Hashalem, Kelalim section mem 22–27 (New York 1962 edition, pp. 64–68).

5 Make-or-Break Argument

A little way back, we considered the be-hayyehah anomaly and its awkwardness for CD’s opponents. CD eludes this particular awkwardness but, in its lieu, has to face a be-hayyehah ordeal of its own. That make-or-break ordeal is divorce. How so? The be-hayyehah stipulation (or be-hayyehem as paraphrased by CD) would prohibit a man from remarrying as long as his ex-wife is alive. Such a prohibition is tantamount to an abrogation of Torah divorce inasmuch as that institution severs the matrimonial knot, allowing the former partners to go their separate ways and form new alliances (Dt 24:1–4). To be sure, CD rejects levirate-marriage which is also a Pentateuchal ordinance. But, as we saw, for that rejection it found an ally in the Priestly Torah. Divorce, on the other hand, is alluded to uncensoriously in that very Priestly Torah no fewer than four times (strictly speaking, divorcees, not divorce per se: Lev 21:7,14; 22:13; Num 30:10). Even P’s ban on priests marrying divorcees (Lev 21) hardly countermands the institution. In fact, limiting the ban to priests alone leaves the impression that remarriage after divorce is not intrinsically wrong. These uncritical references have disposed some scholars to doubt that any Jewish group, let alone P itself, would oppugn divorce. Accordingly, those scholars fight shy of CD’s understanding of be-hayyehah, insofar as that understanding seems to void divorce€– at least prima facie. While granting that the references to divorcees attest to their existence, we are not persuaded that recognition of existence amounts to approbation. To ignore divorce would have been difficult even for its 24

Make-or-Break Argument

25

antagonists while Israelite couples were divorcing, as seems to have been the case. Moreover, divorce had the law behind it (Dt 24:1–4), which divorce’s opposition did not. What the opposition did have was Malachi. Whether he sowed the anti-divorce seed, we cannot say; but the prophet whose call for monogamy we saw earlier is also the prophet to tear into divorce:€For I detest divorce says the Lord God of Israel .â•›.â•›. (Mal 2:16a). Malachi’s message must have generated tension. After all, Dt had sanctioned divorce and Jews went along (see Isa 50:1; Jer 3:1). Now they are told God detests it; and divorce is rendered problematic.1 1

Tg. reproduces Mal 2:16a-b as:€“If you hate her divorce her says Hashem God of Israel and do not conceal the sin in your garment .â•›.â•›.” (cf. Git. 90b). Printed editions of LXX approximate Tg in that they construe ‘divorce’ as an imperative (e.g. “If you hate divorce! .â•›.â•›. then iniquity will cover his garments”; but see David Clyde Jones, JBL 109, pp. 683–685, who argues for the following construction of the Greek:€“If having hated you divorce .â•›.â•›. then iniquity will cover his garment .â•›.â•›.”). As for the DS Scrolls, enough of the Twelve Minor Prophets (4QXII) survives to declare it closer to Targum than to MT. However, the choppiness and incoherence of the versions bespeak a corrupt text. The only question is whether the corruption came about accidentally or by design. Various lines of argument lead one to prefer MT. As for the versions, it is understandable how desperately Mal 2:16’s denunciation of divorce€– seemingly at variance with Dt and with prevailing practice€– must have been wished away. At some point, an audacious scribe stopped wishing and, under the kind of pious compulsion that conspired to suppress the Book of Ezekiel “because its words contradicted Torah” (Shab. 13b), doctored Malachi. Among scholars who have minutely analysed the versions, most are inclined in the same direction. “I propose,” writes Russell Fuller, “that the text of MT, although obviously not the clearest text, is nevertheless closest to the original in form.â•›.â•›.â•›. The variation in person and number of the verbs in the versions may be suggestive of attempts to change the text.â•›.â•›.â•›. The fact that three witnesses, two quite old, preserve texts that promote divorce probably indicates that this question was of interest to the communities that copied and transmitted these texts.” (“Text-Critical Problems in Malachi 2:10–16” JBL 110:1, p. 56). Similarly, Andrew E. Hill:€“MT sane makes excellent sense if one presumes that the subject ha’ehad of the verb has been gapped from verse 15. This reading preserves the integrity of the MT, rendering “cosmetic surgery” of the text unnecessary. (The ancient versions clearly represent “interpretive corrections” of a harsh prohibition.) (The Anchor Bible Malachi, New York 1998, p. 250). On p. 249, Hill cites Lars Kruse-Blinkenberg (“The Pesitta of the Book of Malachi” ST 20 [1966], p. 104) to the effect that the ancient versions were “corrected in order to avoid inconsistency with Deuteronomy”. Needless to say, 4QXII tells us nothing about Qumran attitudes to divorce. If the pro-divorce slant of the versions was indeed the handywork of busybodies, they are unlikely to have been members of the sect. Most probably, 4QXII inherited the ‘improved’ reading from the same testator that bequeathed it to Targum. Moreover, as Philip R. Davies reminds us “[T]he majority of Qumran texts may not have originated at Qumran itself .â•›.â•›.” (“The Judaisms in the Damascus Document” in The Damascus Document A Centennial of Discovery:€Proceedings of

26

Monogamy

But once thus rendered, it is no surprise to find other prophetic voices, close in date to Malachi, unfriendly to divorce in varying degrees. In forbidding priests to marry divorcees, Ezekiel (44:22) and Leviticus, while not rescinding it, certainly taint divorce. This is especially true of Lev 21:7 which concatenates divorcees with profane harlots, as if to say divorcees and harlots are out there in the population but are to be shunned by the elect. This is how we construe P’s allusions to divorce:€as something tolerable for the hoi polloi but not for the loftiest echelons. It is this kind of ‘compromise’ that we see as prevalent in P, with one possible exception:€Lev 18:18. That verse’s ‘alehah be-hayyehah looks very much like a flat negation of divorce. If there had once been other such radical negations, they have not survived. Its obscurity may have helped spare our ‘alehah be-hayyehah. In any case, if Lev 18:18 means to thwart divorce, it should not be steamrollered for the sake of conformity with other biblical provisions€– even when those provisions cast a longer shadow; even when they occur within the priestly canon. By now we should have learnt that P incorporates variations on a theme.2 We should also have learnt to respect the Â�modest, quavering voice. Whether Qumran would have allowed for a multifarious Torah may be doubted. Their egress from contradictions is thought to have been via the route of harmonization.3 It was arguably by that route that they circumvented Dt’s levirate-marriage, for in rejecting leviratemarriage, it would not have sufficed to cite the Priestly Torah unless Dt 25 could be satisfied.

the Third International Symposium of the Orion Center for the Study of the DSS and Associated Literature, Leiden 2000, p. 28). 2 At Lev 19:27–28, the entire congregation of Israel is forbidden to round off the edge of the beard and gash over the dead; 21:5 seems to limit the same two prohibitions to priests. Corpse-defiled persons are rusticated according to Num 5:2, 31:19 but not according to Num 9:6–8 (Num 19 is silent). A single tamid is offered daily (Lev 9:17; Num 28:23 et al.) versus two daily tamids (Ex 29:€38–39, 41; Num 28:3–4, 8); Num 4:2 versus 8:24; Lev 23:18 v. Num 28:27; Ex 27:21 v. Lev 24:3 [MT] and Num 8:3. See Chapter 18, note 5. 3 At which their adeptness is manifest in tours de force such as the following. King David is never upbraided in the Bible for marrying multiple wives (see 2Sam 12:8), although in doing so he appears to transgress Dt 17:17. Resourceful CD has the explanation pat:€“David had not read the sealed book of the law which was in the ark for it had not been opened in Israel from the day of the death of Eleazar and Joshua .â•›.â•›. remaining hidden until Zadok arose” (CD 5:2–5).

Make-or-Break Argument

27

Harmonization was, of course, being deployed long before Qumran (e.g. 2 Chr 35:13€– see the concluding chapter of this book). It goes on to find its classic expression in rabbinic midrash, achieving formulaic status with R. Ishmael’s thirteenth hermeneutic rule:€“Two scriptures that contradict one another, a third scripture comes along and arbitrates between them”. But sometimes the friction was due not to contradictory texts but rather to the significance of a particular Torah law evanescing from view. Take, for instance, the ‘comely captive’ law (Dt 21:11–14). The rabbis, palpably mortified by that law, drastically circumscribe its applicability as befitting a law they interpret as a sop to the warrior’s profligacy (Qid. 21b–22a and parallels). Thus the law stands but is relegated to the status of an indulgence reluctantly dispensed.4 This device of relegating abstruse or jarring Torah law to Â�concessionary status seems to have been a mainstay of late Second Commonwealth midrash. A case in point is Jesus’ explanation of Torah divorce as no more than a sorry concession (Matthew 19:7–8; Mark 10:4–5). Indeed, some wonder whether the midrashic accommodation attributed to Jesus might not have served other opponents of divorce who had, willy-nilly, to contend with divorce’s sanction in Dt. Prominent among those groups would have been the Qumran community, whose antipathy to divorce is seen not only in CD and its reading of Lev 18:18, but again in the Temple Scroll (11QT). The Temple Scroll lays down that a king “shall not marry a wife from among the daughters of any gentiles but rather from his father’s house and his father’s family shall he take him a wife. He shall not take besides her (‘alehah) another wife, for she alone shall be with him all the days of her life. But should she die then may he take unto himself another” (11QT 57:15–19). This king law, taken in conjunction with be-hayyehem of CD, disposes Qumran scholars, by and large, to conclude that the community had fallen foul of divorce.5 Once Not unrelated is the Mekhilta’s comment on the word ‘slave’ at Ex 21:2:€“against its will [be‘al korhah] the Torah calls such a person a slave” (Mekh. Neziqin 1 [p. 247 end]). 5 A vocal dissenter is Gershon Brin. In his 1997 article “Divorce at Qumran” (cited Â�earlier), Brin marshalls references to divorce and divorcees found in Qumran texts. On their basis, he opines that “a reexamination of old and new sources on this Â�subject will confirm that divorce was recognized as a legitimate phenomenon in Qumran, a conclusion that contradicts earlier conclusions about this subject” (p. 231). “The 4

28

Monogamy

Qumran’s distaste for divorce (and polygamy) is realized, inevitably one has to enquire “how such restrictions would have been reconciled by the Qumran exegetes with Pentateuchal law which explicitly condones both polygamy and divorce”. This particular formulation of the question is Joseph M. Baumgarten’s, the scholar who goes on to resolve Qumran’s ostensible disparities by means not averse to our own unravelling of the perceived dissonance in P. The only logical way to account for this discrepancy is to assume that the king as a role model for moral behaviour was subject to supererogatory restrictions limiting him to one wife during her lifetime; divorcing would not free him as it would a commoner. This two-tiered approach to halakhah is manifested elsewhere in the Temple Scroll .â•›.â•›. in the Damascus Document .â•›.â•›. the ban of polygamy and by extension the prohibition of remarriage after divorce applicable to the king is held up as a model of the higher moral standard in marriage. According to this standard, marriage is an exclusive covenant between one man and one woman ‘in their lifetime’. It is called ‘the foundation of creation’, derived from the words in Gen. 1:27, ‘male and female He created them’. The further consequence drawn in the Gospels that what God has joined together cannot by man be put asunder is not explicitly stated .â•›.â•›. but we may infer that conclusion to be drawn from the evidence .â•›.â•›. proves beyond all doubt that divorce existed and had a legitimate place within the life framework of the members of the Judaean Desert sect. Hence one needs to reexamine the various texts, such as CD 4:20–21 .â•›.â•›. reinterpreting them in a manner which accounts for the overall picture of the sources discussed .â•›.â•›.” (p. 244). In other words, the uncritical references to divorce in Qumran writings suggest to Brin a level of comfort with divorce incompatible not only with outright repudiation, but even with the accommodation of Baumgarten (whom he cites). Hence Brin’s call to reinterpret Qumran’s hostility to divorce in a way that still leaves divorce wiggle room. Of course the reinterpretation would have to meet the criterion of Qumranic verisimilitude. One reinterpretation that fits that bill endows be-hayyehah/ be-hayyehem with a meaning other than the literal. A few paragraphs ago, we pondered Lev 18’s plethora of terms for cohabitation:€ qrb el; galleh ‘ervah; lqh; ntn shekhovto le-/be-. There may be debate as to the exact significance of these terms, but there is little doubt that every one of them is being used figuratively. Like those conjugal tropes, the etymology of such a putative be-hayyehah trope eludes us. Notwithstanding, a figurative be-hayyehah€– or better a figurative compound ‘alehah be-hayyehah€– would be entirely in keeping. Moreover, we have seen the incongruity of literal be-hayyehah even for the ‘builders’ who have no logical explanation as to why a wife’s sister should be singled out for the be-hayyehah stipulation. Thus both CD and their opponents might sleep better with an idiomatic ‘alehah be-hayyehah. So much for a solution that meets Brin’s specifications. See also “Nomological Exegesis in Qumran ‘Divorce’ Texts” by David Instone-Brewer, Revue de Qumran 18:4 (1998), pp. 561–578; Cecilia Wassen’s Women in the Damascus Document, Leiden 2005, pp. 114–118; The Damascus Texts by Charlotte Hempel, Sheffield 2000, pp. 82–83.

Make-or-Break Argument

29

the king as well as any morally scrupulous adherent of the sect would not remarry while his first spouse was still living.6

In comparing the Qumran and Gospel traditions on divorce, Baumgarten quite properly acknowledges differences in their respective levels of tolerance. If Qumran relaxes the law for its ‘lower-tier’ adherents, Jesus brooks divorce for no class of followers. But that should not shut our eyes to a nexus between the two traditions. In the words of John Kampen:€“Amply attested in the New Testament materials is a viewpoint which the author surely inherited, that divorce is not permitted”.7 But whatever form it took, the resort of demoting perplexing laws from the rank of advisable to that of grudgingly tolerated will not have escaped the Qumranites. To sum up, the Scrolls now hough divorce, now flirt with it. How exactly the Qumranites bestraddled two such incongruent attitudes to divorce may be debated, as we have seen. Yet we must assume them to “Qumran-Essene Restraints on Marriage” in Archaeology and History in the Dead Sea Scrolls; the NYU Conference in Memory of Yigael Yadin, Sheffield 1990, pp. 13–24. 7 “The Matthean Divorce Texts Reexamined” in New Qumran Texts and Studies ed. by George J. Brooke with F. G. Martinez, Brill 1994, p. 166. And indeed Mark 10:11 and Luke 16:18 both imply that polygyny was tantamount to polyandry within the community being addressed. For what these texts present as Jesus’ innovation is the abrogation of divorce. Once divorce is disallowed, they seem to say, going through the motions of divorce will be null and void. Consequently, “[w]hoever divorces his wife and marries another commits adultery against her; so too if she divorces her husband and marries another she commits adultery” (Mark 10:11). “A man who divorces his wife and marries another commits adultery; and anyone who marries a woman divorced from her husband commits adultery” (Luke 16:18). What these texts seem to take for granted is that a man committing polygyny is no less an adulterer than a woman committing polyandry is an adultress. The change brought about through Jesus invalidating the institution of divorce means that a couple once wed remain husband and wife, come rain or shine. Should they remarry [while the former spouse is still living], they would, henceforth, both be committing adultery. Prior to the abolition of divorce, though there would presumably have been no question of adultery, it looks as though the community was already monogamous€– that is, following a halakhah analogous to CD’s. Scholars have rightly contrasted the Mark/Luke tradition with the Matthean that omits all reference to a divorced man remarrying:€“Anyone who marries a divorced woman commits adultery” (Matthew 5:32 cf. 1Corinthians 7:10–11). Perhaps we should think of Matthew’s community, in contrast to Mark and Luke’s, as following Pharisaic, rather than CD, halakhah (see To Advance the Gospel by Joseph A. Fitzmyer, New York 1981, pp. 97–99; “Qumran Ve-haissiyim” [Heb.] by Magen Broshi in Megillot:€Studies in the Dead Sea Scrolls II, Haifa 2004, p. 13; James R. Mueller’s “The Temple Scroll and the Gospel Divorce Texts” Revue de Qumran 10:2 [1980], pp. 247–256; also see note 7 in the introductory text to Part I). 6

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Monogamy

have made sense of it all by one strategy or another. It also seems likely they would have applied the same strategy to the Priestly Torah where they encountered Lev 21:7 alongside be-hayyehah. The ‘builders’, for their part, would no doubt accuse Qumran of perverting the Priestly Torah. There is no impartial argument, however, why the Qumranite accommodation could not go back to a priestly tradition that had, in turn, explained an apparent bifurcation in P’s treatment of divorce. If so, then just as divorce’s presence in the Scrolls would not have stumped be-hayyehem, neither should P’s divorce references sway our judgement as to the feasibility of Lev 18:18’s be-hayyehah spurning divorce.

6 Which Way Does the Evidence Point?

Having thus cleared the be-hayyehah hurdle, we submit that CD’s understanding of Lev 18:18 wins on balance, if by a whisker. Even so, the wrangle rages on, as documented by Jacob Milgrom: a woman .â•›.â•›. to her sister we’iššâ ‘el-’aho