Termination of Marriage in the Mosaic Law
The last chapter dealt with the positive results of marriage, of keeping the marriage covenant. In this chapter we must, unhappily, consider the curses of breaking it.87 For, indeed, many people have dealt treacherously against their spouse, making it necessary for the laws of nations to resolve such cases. Before turning to the Law of Moses to see the divinely established legislation, let us consider the pre-Mosaic practice as evidenced by the Book of Genesis.
Treatment of Covenant Breaking in the Prologue
Sarah and Abimelech
The first instance is very significant, for in it we find both the failure of the husband to properly care for his wife and the potential violation of a married woman by another man. Both sides of the covenant are, therefore, in question. I refer to the time when Abraham tried to secure his own safety by presenting his wife Sarah as only his sister.88 This deception Abraham repeated some years later in Gerar, where he concealed the true nature of his marital relations from Abimelech, its king. Abraham’s son Isaac showed how the sins of the parents can be visited upon the children when Isaac copied the deception to fool another Abimelech.89 In each case the husband failed to properly secure the integrity of the wife. It is clear that the impropriety was on the part of the husband, though the kings’ chief concern was with the adulterous relationship that could have occurred (12:19; 20:9; 26:10).
The New Testament may be referring indirectly to these incidents when a wife is told to remain submissive, even to a disobedient husband (1 Pet. 3:1-7). For we read the following inspired illustration:
Thus Sarah obeyed Abraham, calling him lord, and you have become her children if you do what is right without being frightened by any fear. (1 Pet. 3:6)
The exact referent is surely Genesis 18:12, where Sarah said to herself: “After I have become old, shall I have pleasure, my lord being old also?” This is the only canonical instance of this word from Sarah’s lips.
But since this thought of hers offers no aspect of submission, we are left wondering at what point that submission went beyond words to reality. One option could be the submission necessary in having physical relations with him, but there is no conclusive evidence that her calling him “lord” is to be tied to the sexual act necessary to conceiving the child of promise. Indeed, that connection seems strained, to say the least! But if “giving in” to having sexual relations with her husband is not the point of the passage in 1 Peter, what is? It must surely be her general approach to doing the will of Abraham.
Therein lies a problem, however, for the one story that dominates the Abraham cycle is the account of the coming of the child of promise. Since Sarah exhibits much independence in this material, the reader must look elsewhere for expression of the sort of submission mentioned in 1 Peter. My own suggestion is that Sarah’s submission is to be found in the two incidents just mentioned. The context of the Peter verse is a “disobedient husband.” This surely fits the activity of a man who, out of fear, puts his wife’s integrity into jeopardy. This must have been disobedience to the “word” of God’s law instinctively known (Rom. 2:14), as there was no written Scripture at that time.90
When the deception placed the wife in unjustified jeopardy, God acted to inhibit the king from mating with the wife. In the first story the king’s house was plagued. In the second, Abimelech’s life was threatened. The second story is the most instructive, for in it God actually speaks to Abimelech and tells him that he is a “dead man” for having another man’s wife (20:3). This forcefully reveals what God thinks to be a proper punishment for adultery. Abimelech’s plea in response is not that death is not a proper punishment for mating with another’s wife, but, rather, that he has not done so. This supports the idea that the propriety of execution for adultery was instinctively known. Further reinforcement for this idea is found in the response of Abimelech in the third story (about Isaac), when he threatens to kill anyone who dares to touch Rebekah (26:10-11).
What we learn from these stories is that the breakup of marriage is so significant an event that death is thought appropriate for the person who would sunder the relation. The difficulty with the stories is that the “offending” parties are ignorant of the marriage and unwilling to sunder it. This latter fact may give room for some to say that the stories are irrelevant, insofar as our study is concerned with the question of willful breach of marriage vows. I believe that such a conclusion is too rigorous, and that the principle of death as punishment does arise from the stories and does apply to our study.91
Abraham and Hagar
Interesting, as well, is the story of Abraham and the release of Hagar (Gen. 21:8-14). According to the story, the mockery of Isaac, the child of promise, by Ishmael, the child of the slave woman, led Sarah to insist upon the putting away of Hagar. Abraham was reluctant to do this, out of love for Ishmael. When God gives Abraham permission to release the pair, he is clear to say that it is all right to do so, and that he will provide for their welfare. This provision is then set forth in the rest of the story.
Whether or not Abraham was concerned for the fulfillment of his obligation to provide for Hagar is hard to say, but I believe that God’s words most likely promote that conclusion. He does not want Abraham to be distressed for the welfare of Hagar and Ishmael. God wants to affirm that the obligation of Abraham to care for Hagar is relaxed insofar as God himself will be a husband and father to them. This story implies that divorce, because it entails a failure to fulfill an implied vow to provide, is therefore wrong and only permissible where God himself releases the husband from the vow. Groundless putting away is a radical failure to live up to marital duties, a breach of covenant.
Tamar and Judah
Significant is the story involving Tamar and Judah (Gen. 38); in it, Tamar is an example of the childless widow, since her first husband, Shua, was so wicked that he was killed by God before he and Tamar could have children. Following the “law of the husband’s brother” (the levirate), Tamar was then given to a younger brother, Onan. Onan wished to use the woman for his sexual pleasure but refused to culminate his gratification so as to give Tamar a chance to conceive a child (cf. 38:9). Because of his abuse of Tamar’s rights, God took Onan’s life as well. The story goes on to tell how Tamar’s father-in-law, Judah, sought to defraud her further in a misguided attempt to preserve his last son, Shelah—as if the death of the others were her fault! Tamar then resorted to deception in order to gain her rights of progeny. In the end, Judah recognized her deception of him as more righteous than his defrauding of her.
There are several messages embedded in this story. The first is that no man has the right to abridge the woman’s right to security in progeny, a point discussed in chapter 2. Onan’s approach to the issue is especially wicked. At least the master in Exodus 21 doesn’t use the concubine sexually in his failure to live up to his covenant with her. Onan, however, does that, using her sexually while denying her the opportunity to have children. Second, and more to the point here, when such abridgment does occur, the woman has the right to be freed from such a one in order to establish a relationship in which the right will be observed. Finally, we learn that the prohibition to remarry (i.e., Shelah), out of whatever misguided motivation, is not righteous, but rather a defrauding worse than fornication.
These conclusions will meet with objections, of course, and the objections will center around the fact that remarriage in these cases occurs only after the “former” husband has died. But that objection misses the point. God ended the marriage of Onan as a punishment of his sin of a failure to do right by Tamar. God killed him to free Tamar to remarry. Though it is true that the means was death, the more important principle is that marriage may be ended when rights are abridged.92 And, we note, those rights did not involve sexual unfaithfulness (i.e., adultery as promiscuity).
Joseph and Potiphar’s Wife
In view of what was said about the story of Abraham and Sarah, it may seem a bit contradictory to see how Joseph was dealt with in the story of Potiphar’s wife (Gen. 39:1-23). Rather than have Joseph killed, Potiphar sought recompense for the (alleged) attempted rape by sending Joseph to jail (v. 20). But remember, Joseph did not actually complete the rape, even according to the wife’s lie. Perhaps Potiphar would have had Joseph killed if he thought that Joseph had accomplished the act. In any case, it is unwise to conclude from this story that death was not understood as a proper punishment for adultery.93
The “End of Marriage” According to the Law of Moses
A Woman’s Rights & the Termination Of Marriage:
The Freedom from an Abusive Husband
The Law of Moses contains several passages that relate to the question of when marriage ends. The first is Exodus 21. Comments on the propriety of using this passage in regard to “full” marriage (insofar as the passage speaks of servant girls) may be found in chapter 2. Our concern here is to note how the text relates to the ending of marriage.94
Recall that the main focus of the chapter is on the rights of the woman. Two sorts of rights are discussed: the right to adequate physical provision (vv. 10 f.)95 and the right not to be seriously abused (vv. 26 f.). Breach of covenant in either case justified the nullifying of the legalities (written or unwritten) of the covenant. Where the passive abuse occurred, the text tells us that “she shall go out for nothing, without payment of money.” In the context (vv. 2-7) “go out” clearly entails a full release from contractual commitments. The one who has gone out (or at least her father, in this case) owes nothing to the former covenant partner. And where aggressive or active abuse of one partner by the other (vv. 26 f.) has occurred, the refrain continues: “go free.” Further, we note that whenever the covenant is nullified the aggrieved partner has the understood privilege to contract a new covenant with someone else.96 Put negatively, the aggrieved partner has no encumbrance from the former relationship that would inhibit a new covenant from being entered into.
The following conclusions can be drawn from these verses: First, when the husband, who owes provision to his mate, intentionally fails to produce that provision, his claims over his mate are thereby nullified. The fact of (moral) nullification precedes the legal recognition of it. Second, the legal release is the right of the offended partner. Third, the released offended party is free to establish a new covenant of the same sort with a new partner. (Or, put simply, the old marriage in no way precludes remarriage.)
The question may now arise as to why this passage was not more explicitly discussed as a divorce passage by the rabbis in the days of Jesus. Two suggestions present themselves. First, the text may well have been thought not to apply to marriage per se, insofar as it deals, prima facie, only with concubinage. Second, the chief concern in the day of Jesus was to find a passage giving the husband a right to divorce the wife; in this text, the right of the wife to force a divorce from her husband is the prime concern.97 In other words, this text did not lend itself to the social concerns of Jesus’ enemies.
Another point to stress is that the marriage responsibility of the woman is put in the negative. At no point in the Law is she required to have sex with her husband; rather, she was required not to have sex with any other man. Since her marital bond was to be sexually exclusive to her husband, freedom from it must entail the release to have sexual relations with another, although, obviously, the exercise of such freedom would have legally required the contracting of a new marriage, or “remarriage.”
I am convinced that the failure of the Church to integrate this passage from Exodus into the theology of divorce is the single most significant reason for our failure to present a harmonious and reasonable doctrine of marriage/divorce. As we shall see, the principles that arise from this text establish a basis for Paul’s teaching that “departure” is grounds for considering the marriage completely ended and for allowing the deserted partner the freedom to remarry (1 Cor. 7:15). In fact, understanding the Exodus passage enables us to understand the meaning of “free” in the Pauline teaching. A similar comment could be made with regard to the teachings of our Lord himself (cf. Matt. 5:32 f., et passim).
The Freedom of the Divorced Woman
The freedom of the divorced woman from her former husband is also apparent from a consideration of the law of vows, found in Numbers 30. The topic of discussion is to what degree a “dependent” woman has the right to make and the responsibility to keep a vow that she herself has made. The point of law is that the man over her (viz., husband or father) has the right to veto the vow because she is under his authority (and probably because the objects promised were primarily his possessions (vv. 3, 5). However, the law did hold the woman responsible to keep the vow if the man in authority over her had given at least passive agreement to the vow (vv. 4, 6). This shows both her equality and her subordination. Her vow is equally valuable and solemn to God as her husband’s when valid, but it was only valid if sanctioned by her husband.
Thus, the ability of the divorced woman to vow with impunity speaks volumes regarding her freedom from her former husband. Since adulteresses were to be executed, these vowing laws teach us that any woman divorced for less than capital grounds (i.e., adultery), was understood to be independent before Her God and before whatever people might inquire about the propriety of her making promised to God. She is free. She has no husband to which she must answer. Further, she is closer to the widow than to the married woman who has her husband’s permission, just as the married woman is closer to the single woman who is under the authority of her father. The widow and the divorced women are independent indeed. And, since the only thing that could inhibit a woman from contracting marriage would be the encumbrance of her father or husband the presumption is on the side of those arguing that such a woman is free to remarry. At least anyone arguing that she is not free to remarry, bears the burden of proof.98
The grouping of the divorced and the widowed together by the Old Testament, on the basis of their freedom from their former husbands, presses us in the direction of concluding that New Testament permissions for widows to remarry, would also apply to divorced women in the same category of independence (cf. Rom. 7:2 and 1 Cor. 7:39).
These implications from the first giving of the law (Exodus 21 and Numbers 30), give a prior context to the Deuteronomic laws of divorce to which we now turn. They bring with them the presumption that women freed by divorce are no longer under a man, and are therefore free to remarry within the limits of Levitical law.99
Freedom from Forced Marriage
Another law that affirms the rights of the woman and relates to the subject of divorce is Deuteronomy 21:10-14. This law is embedded in the section of that book that, according to Stephen Kaufman, is structured under the Sixth Commandment (murder) and, according to my understanding, is in a subsection of that commandment that relates to the rights of the descendants of the dead.100
According to this law, a woman who was taken as a spoil of war, may, under certain conditions, be made the wife of an Israelite.101 The first part of the law sets forth the conditions under which the marriage may be contracted, and the conditions seem a bit unusual.
The nature of the conditions stated seems to reveal a concern for the treatment of the woman. The man is not allowed to take her on the field of battle. He must wait until he returns home and allow her a full month of mourning for her (presumably) dead parents. It might be expected that he would want her when he was away from his home and the warm embrace of his wife, but would he be as willing to have the woman if he had to wait and have her in the context of his home and possibly another wife? He then must do to her some things that might dull his interest in her: shave her head and trim her nails. Since he was probably first attracted to her beauty, this provision of the law seems designed to ensure that his interest goes more than skin deep. Of course he wanted her when she was good-looking, but would he still care for her when her looks were less captivating? And finally, he is required to “remove the clothes of her captivity.” Thus he could no longer think of treating her as a spoil of war. He must now consider her a covenant partner.
Why all these conditions? Because the woman had no parent to speak for her in the making of the covenant—no one to protect her rights in the usual way. Even the slave girl (Exod. 21) had a parent who was a party to the contract. But this foreign woman’s parents were dead, and thus God spoke on her behalf.
The first part of the law ends with the man fulfilling all the conditions and taking the woman to be his wife. But in verse 14 we read, “If you are not pleased with her, then you shall let her go wherever she wishes.” This apodosis or conditional clause is interpretable in at least two different ways: first, that the marriage is consummated and at some subsequent time the man decides he is no longer pleased with her and therefore decides to put her away, or, second, that this decision comes at the end of the waiting period, before the consummation. Its similarity in approach to Exodus 21, another passage that concerns a disadvantaged woman who is intended as a bed partner, would lead us to decide for the second option.102 Where the consummation is not completed, the Exodus law requires the master not to “sell her.” It is the same here in Deuteronomy 21:14. And just as the master is told to treat her as a daughter in Exodus 21:9 (when he chooses not to mate her to himself), in Deuteronomy he is told not to “deal tyrannically” with her.
Ambiguity enters into the decision, however, with the inclusion of the reason the man is not to sell her. The text says that he has “humbled” her. This term has a certain breadth of meaning. On the one hand, it can refer to sexual relations (cf. Gen. 34:2 and Deut. 22:29, where the action involves rape). On the other hand, the term is often used of the ill-treatment by oppressors of a slave (cf. Gen. 16:16, Sarah’s misuse of Hagar; Exod. 1:11-12, Egypt’s misuse of Israel). Thought it is tempting to opt for the latter idea, it is difficult to see in the application of the protective conditions (i.e., shaving hair and trimming nails) mistreatment of the kind implied by the term in slave contexts. But then is it any easier to see this as a case of rape?
Perhaps so, for we must remember that this woman is a foreigner who did not ask to be taken to Israel and treated thus by this man. His people had killed her parents and had prevented her from having a normal marriage among her own people. The momentum for this Israelite marriage is all from his side. It is not beyond reason to suppose that the woman has rejected his attempts to consummate the marriage as best she is able. In other words, the consummation might have amounted to rape.
What then is the most probable interpretation? Presumably, the one that sees first his successful consummation of the attempt (v. 13) and then allows for an unsuccessful attempt (v. 14), which leads him to take the wiser path of allowing the woman to be free of him. Her spurning of him, in the second instance, is probably the reason for the caution to him not to treat her in a harsh or tyrannical fashion. Allowing her to go where she wishes, in turn, implies that she does not wish to stay with him. Thus, the crucial “divorce” section of the law actually deals with a sort of annulment, an occasion when a woman does not give consent to the marriage. If we are correct in so concluding, then the passage really has little to do with a “right to divorce,” at least on the part of the husband. It is more an allowance for the woman’s sake.
Freedom from Unjust Divorce
The protection of the woman’s rights is also in view in a law that prohibits divorce. Deuteronomy 22:13-21 deals with the case of a man’s challenging the purity of his bride. We will deal with the instance of a true charge when we discuss the protection of the husband’s rights. But for now let us look at the perplexing instance in which the charge is proven false (vv. 17-19).
The result of a false charge is stated as twofold. First, the man was fined one hundred shekels of silver by the father of the bride (to be held in trust). This was a tremendous fine, amounting to about one hundred months’ wages for the common man. Surely most men would have to sell themselves into slavery to acquire such an amount. And the effect of imposing such a fine was surely to inhibit the defaming of a virgin of Israel. But the fine was not the only penalty the defamer sustained. He was also prohibited from ever divorcing the woman (v. 19).
It seems most reasonable to assume that the direction of this law was to prohibit him from himself initiating a divorce. It is unreasonable to assume that it prohibited the woman from forcing a divorce at some subsequent time on the grounds of mistreatment (cf. Exod. 21); it is unreasonable because the whole direction of the law is to protect the woman from further abuse at his hands. To prohibit such a wife-initiated divorce would be contrary to this direction.
The reason for prohibiting the divorce on the man’s initiative is that, according to the situation as presented in the Law, the man would want to end the marriage, perhaps have the woman executed as an adulteress. After such a charge as the man has made, even if the woman is cleared, it would still be difficult for her and her family to contract a suitable marriage for her, because of the stigma of the whole affair. Thus the Law appropriately sought to protect her from what would amount to abandonment. The man wanted to be rid of her and attempted to have her executed, and it is likely that, failing that, he would want to be rid of her by divorce. This the Law would not allow.
Of course, one might object to this line of reasoning: Why would not the man then simply resort to wife abuse and force her to initiate a divorce procedure (Exod. 21:10 f., 26 f.); see our earlier arguments)? The reasonable answer is that he might, indeed, try such a tactic. After all, some men are so unscrupulous that they will try any means to achieve their ends. If such a man were to try this, however, the Law stood ready to free the woman from that abuse. The man would then lose all indirect use of the forfeited one hundred shekels that might accrue to him as a result of his continued relationship to her and himself have to bear the additional stigma of being a wife-beater (cf. 1 Tim. 5:8 to see how at least New Testament believers evaluated such behavior). The Law cannot keep people from doing sin; it can only inhibit sin by threat of an appropriate punishment.
The perplexing aspect of this law centers around the assumed right of the man to divorce a wife at all, but I shall reserve comment on this matter until we arrive at a discussion of the man’s right to end the covenant
Freedom from Desertion
In the same Deuteronomic comment (viz., on the seventh commandment) and within the same chapter, there resides another command that protects a woman from legal desertion by prohibiting a man from divorcing her. In 22:22-23, we read of a man who has raped a virgin. The prescribed treatment for this offense is, first, fifty months’ wages and, second, no divorce. Though the fine is less (apparently because there was no covenant broken), the prohibition on initiating divorce is the same.
The rationale behind the prohibition of divorce in this case differs from that of the preceding case. Though he is like the man in the previous case in not wishing to be bound by a covenant, this man sought to enjoy conjugal rights without covenant. The law responds by making him marry the woman without the option of ending the relationship. Again, legislation concerning divorce is supportive of the woman’s rights.103 As before I do not think this precluded her forcing him to divorce her if he became abusive. Presumably the woman’s father made his decision to allow the marriage in the first place, partly on the basis of his belief that this man would care for his daughter in the future without the likelihood of his physically abusing her.
The End of Marriage & a Man’s Rights:
Freedom from an Unfaithful Wife
The clearest right of a man to end his marriage appears in the adultery laws. Beginning with the statement of the seventh commandment itself, and proceeding through the casuistic procedures for the treatment of (sexual) adulteresses, it is evident that the practice of sexual adultery was intended to lead to the execution of the offending (female) spouse and her (male) lover. The laws may be categorized into two divisions: laws that apply when the offense is clear and those that apply when investigation is needed to uncover the facts.
The first category is represented by Leviticus 20:10:
If there is a man who commits adultery with another man’s wife, one who commits adultery with his friend’s wife, the adulterer and the adulteress shall surely be put to death.
This law is supported by similar laws found in Deuteronomy 22:22-27, where pledged women are executed with their lovers.104
The second category is represented by two laws, the first in Numbers 5. In the “law of jealousy,” a wife found guilty was to “bear her guilt” (v. 31). Presumably this means “die”; at least, that is what it means in other cases in which adultery is known to have been committed (see above). Some have questioned this interpretation on the grounds that sufficient witnesses were not present to satisfy the stipulations of the “due process” law (cf. Deut. 19:15), but final confirmation may be found in the second passage dealing with allegations of impropriety on the part of a pledged woman: Deuteronomy 22:13-21. There, another test that does not literally fulfill the multiple witness law produces a clear call to execute (Deut. 22:20 f.). Moreover, even though the second case involves a new bride’s purity on entering the marriage state, it is to be remembered that from the beginning of the betrothal onward she is considered the wife of the man, not just some half-bound woman.
Less often appealed to, but equally clear in their implications of the marriage ending, are those other laws that called for the execution of the woman who was pledged to a man-specifically, those dealing with the purity offenses of incest (Lev. 20:14), homosexuality (Lev. 20:13, by implication), and bestiality (Lev. 20:16).105 Though the spouse might not initiate legal proceedings in all of these cases (the law might), the penalty for the sin is the same.
But what if, for one reason or another, the execution commandments were not followed? What recourse had the innocent spouse to be free from a treacherous partner? I defer discussion of that possibility until we discuss the days of the prophets, when such situations did occur and were provided for by divine mandate.
Freedom from a Despised Wife
Without a doubt, the most celebrated text on the subject of the husband’s right to divorce his wife is Deuteronomy 24:1-4. By the time of Jesus, it was very nearly the only passage being discussed in this connection. Actually, the passage is of little value if used to that end, for its aim was to protect the woman from an abusive and hard-hearted husband. It provides no moral “right” for the husband to divorce his wife, but only a legal provision for divorce to protect the interests of the wife. The Feinbergs, in their Ethics For a Brave New World agree.106
Problem Phrases or Words
As is usually noted today, the law in this passage is one long sentence stating certain conditions and the resultant response of the Law. It is easiest to analyze this law by breaking it down into its separate parts and considering the most important of them. 1) Some undesirable condition is said to obtain in the wife. 2) The condition comes to the notice of the first husband. 3) He divorces her because of it. 4) The wife covenants with another man. 5) The second marriage ends (as a result either of the death of the new spouse or of divorce from him). 6) The law prohibits the woman from going back to the first husband (though it does not prohibit her from marrying a different man). 7) Such a return to the first spouse (subsequent to remarriage to another) is said to be an “abomination,” because, 8) she is said to have been “defiled” by the second marriage.107
The “nakedness of a thing” …
Historically, most of the argument surrounding this passage involves the first point: what was the nature of the woman’s condition that gave rise to the husband’s desire to divorce her? Most of the answers involve some alleged offense on the part of the woman. The offenses suggested range from “adultery” (Shammai’s School) to “anything the husband found offensive” (Hillel’s position). Let us consider the possibilities in order.
… is “adultery”
This was the view of the School of Shammai. Whatever sense this view seemed to make in the days after the ending of the capital punishment laws and privileges in Israel, it is highly unlikely that adultery per se was intended by the words: “the nakedness of a thing” (the literal translation of the words in question). Kaiser summarizes Murray’s objections, which are classic:
1. 1. The Pentateuch prescribed death for adultery (Lev. 20:10; Deut. 22:22; cf. 22:23-27);
2. 2. Numbers 5:11-31 even cared for cases of suspected but unproved adultery, so that could not be the intention of this provision;
3. 3. Deuteronomy 22:13-21 also covered the case of a bride who was charged with previous sexual promiscuity and who vindicated herself; so that could not be the alternative meant here;
4. 4. Deuteronomy 22:23-24 treats the cause of a betrothed virgin who voluntarily defiled herself. The sanction was death for both;
5. 5. Nor can the “unseemly thing” of Deuteronomy 24:1 be a matter of coercing a bride-to-be to have sexual relations, for Deuteronomy 22:25-27 exonerated the virgin and put the man to death;
6. 6. Nor was it a matter of premarital sex between an unbetrothed man and woman, for in that case the man must marry her and never divorce her (Deut. 22:18-19).108
This sort of reasoning seems conclusively to rule out simple adultery as the meaning of the words.
… is “Unseemly Behavior Short of Adultery”
The second option is that these words stand for some behavior that is unseemly but is short of adultery. This was the view of Shammai himself.109 The majority of modern commentators seem to side with this option.110 Like Shammai, they include in this category such things as immodesty of dress (e.g., going out without a veil) or of action (e.g., spinning yarn in the streets, an activity of prostitutes awaiting their next client). Of course after the ending of capital punishment, adultery would be included.
In favor of this view is the use of nakedness in the Old Testament as an offense-term and a term with sexual connotations (cf. Exod. 20:26; Lev. 18; etc.). Additionally, the only other use of the two terms is in Deuteronomy 23:14, which is in the immediate context of poor hygienic practices (i.e., improper toilet hygiene).
The “nose-count” of authorities aside, however, there are several good reasons for doubting this opinion is correct. First is a consideration that arises from the context—the structure of Deuteronomy. I suggest that the breaking point between the Deuteronomic comment on the Seventh Commandment and the Eighth is between 23:14 and 23:15. This division raises two noteworthy points for our consideration. The “other” exact use of the two terms comes in a concluding verse to the Seventh Commandment material. I believe that it is better to identify 23:14 as a summarizing comment stretching back over the whole of the seventh commandment material rather than simply to refer it to the rule on excrement. The key is the word “since,” which begins verse 14. Does this mean that since God walks in the camp they must cover the excrement so that he does not step in it? Or does it mean that no unholy thing should be found in the camp since God is in the midst of the camp? Surely the latter. But if we so separate the walking from the excrement, how far back does the reference go? At least far enough back to include “nocturnal emissions” (v. 10). But since nocturnal emissions are involuntary111 how can we suggest that “nakedness of a thing” necessarily means something that is immodest?112 And, since the key terms follow the summarizing phrase, “your camp must be holy,” it does not seem at all far-fetched to suspect that perhaps most of the Deuteronomic comment on the seventh commandment might be implied by both these sets of terms. If that is so, then we have more options to choose from than simply immodesty. (I will specify them more precisely later.)
The second contextual matter centers around the nature of the section in which Deuteronomy 24:1-4 appears. It is the comment on the Eighth, not the Seventh, commandment; it is concerned with property, not adultery. This should caution us from too quickly expecting to find sexual offense in the key terms.113
Out of this observation arises another which is perhaps more important: in each of the subdivisions of the material on the eighth commandment, the chief purpose of the law is to protect a disadvantaged party from abuse by an advantaged one.
Observe the flow:
Slave is protected from master.
Israelites are prohibited from reducing themselves to chattel by prostitution and the Temple from dependence upon defiled provision.
[The treasury] is protected from truants, and people are protected from the idea of forced offerings.
The poor are protected by requiring those with food to give it.
The Divorce Law
The newlywed wife is protected from unreasonable seizure of her provider.
The poor are protected from unjust holding of a crucial pledge.
The innocent are protected from unjust personal seizure.
From this interpretive list, it can be seen that the function of these laws is to define the limits of property rights, with the view of protecting human beings from being considered pieces of chattel property. Note also that in no case is the person who the law seeks to protect, guilty of anything immoral at all. If anything, the text seeks to identify what makes that person disadvantaged.
… is Property Rights Protection
Taking the property idea in a different direction, Heth, depending on work by R. Westbrook, argues that there is a difference in causes of the divorces between the initial husband and those subsequently mentioned. The first puts his wife away because of “indecency,” while the others do so because of “dislike” (hate) or “death.” What common factor unites “dislike” and “death” that does not come into play with “indecency,” they ask? The answer they offer is “property,” “the financial consequences of dissolution.”114
The indecency of the first marriage is presumed to entail some “socially recognized misconduct, either in the sphere of her financial or household duties, or because of sexual misconduct short of adultery.” This, they argue would have justified the first husband divorcing his wife without financial loss (i.e., of the “dowry”).115 Whereas the subsequent divorces, appear grounded upon grounds which would have left the wife with some financial gain (i.e., either the bride price or some penalty paid by the less-than-justified husband).
Wesbrook reasons that such a wealthy widow/divorcee would be a desirable mark for a greedy first husband. His efforts to re-establish the first marriage in order to achieve financial gain must be prohibited by the law, else he abuse his former wife in the second marriage. Such “unjust enrichment” was prohibited by a principle of “estoppel” (“after she has been defiled”). Thus, he cannot both proclaim her unclean enough to be divorce and clean enough to be remarried to him.116 This view has the advantage, Heth notes,117 of fitting the context as discussed by Kaufman and the concept of hate and divorce as found in Malachi 2:16-24 f.118
I find the Westbrook/Heth argument unlikely. First, Heth himself admits that the estoppel principle has no biblical support aside, possibly from the passage in question. These scholars must appeal to “common ancient Near Eastern practice and evidence from post biblical Jewish sources.” Heth finds such sources “sufficient” to “validate” Westbrook’s case,119 even though the Jewish sources are late and the contemporary sources have no clear historical contact with the biblical passage in question. In my opinion, finding a financial factor in the woman’s subsequent marriages is far too distant from anything in the verses or the context.
Second, it is far easier to see a common factor between the “indecency” of the first divorce and the “dislike” of the second than to speculate about the consequences of the “dislike” and the “death.” Note how easily Westbrook and Heth assume that the twice divorced or widowed woman is “wealthy.” The text provides not a shred of evidence for that view. Third, their argument far too quickly assumes that the first marriage ended in the face of a well grounded, socially acceptable cause for divorce. If financial gain is the issue, it is well hidden in the text. That money is involved at all is purely speculative.
Fourth, it seems to me that the customs of Israel and the Law of Moses already had principles of estoppel which might well have protected the woman financially in this case. In the case that she was a wealthy widow, that money would have been tied to the family of the dead husband. She would have inherited it through her children. If she were young enough, it would have been expected that she be redeemed by a near kinsman. While, on the other hand, if her second marriage ended in unjustified divorce, the bride price would probably have been partially controlled by the males in her own family, her father or her mother’s brother.
Fifth, it is doubtful that the principle of estoppel would really work as Westbrook hopes if another similar situation were to occur. Let us suppose that it is the second husband who seeks to get back his divorced wife, who has become divorced from a third. Suppose that her second and third divorces were both grounded on “dislike.” According to Westbrook’s reasoning, remarriage to the second husband would be allowable insofar as he never proclaimed her “unclean,” but only undesirable to him. Thus, the second husband could stand to gain financially from the woman’s third marriage. No principle of estoppels is offered to deal with such a situation.
Of course, Westbrook could amend his view to include no remarriage to any previous spouse when a marriage intervenes. But to do so would be to forego his point about the difference between the grounds for the first and second divorces.
Finally, one wonders why such a strong word as “abomination” is used to describe a woman taken back and apparently cared for by her first husband, if the matter is not something like adultery or sexual offense.
Westbrook’s interpretation does strive to interpret the text so as to protect the woman in a context of property matters. It also directs our attention away from the unlikely inference that the text protects a “right” of the (first) divorcing husband. But in the end, this view seems to have far more against it than for it.
… is Whatever the Husband Finds Offensive
This brings us to the position of Rabbi Hillel and his school in the days of Jesus. Hillel, the most liberal of all interpreters, believed that the term presented a carte blanche basis for the husband to cast away his wife. Modern exponents of this view, insofar as it defines ‘erwat dabar, include the brothers Feinberg:
What, then, does ‘erwat dabar mean? … The Hillel understood it broadly to refer to anything a husband found disagreeable about his wife (even burning the meal, e.g.). The Hillel were probably closer to being right than were the Shammai … The phrase probably referred to a variety of items a husband might find objectionable such as barrenness (which was frowned upon in Near Eastern culture) or some birth defect It is not clear whether it referred to burning a meal in Moses’ day, but it surely was understood that way by Christ’s Time.120
However, if Hillel and the Feinbergs are correct, one would expect the law to simply say that she (the woman) finds no favor in his eyes. The inclusion of the questioned clause seemingly intends to narrow the field of grounds to something or a category of things. But it must be admitted that Hillel’s position is stronger than is sometimes imagined.
… is Embarrassing Conditions
I suggest that “the nakedness of a thing” refers to some fact about the wife that has made her undesirable to her husband. Her status as a wife, of course, plays into the need for her to be protected from an angry husband, but that status alone is insufficient to explain what the initial problem was. The most we can learn from the immediate context is that her problem is not an act of immorality.
The likelihood is that “the nakedness of a thing” is intended simply as a catchall term for something strikingly embarrassing that is true of or has happened to the wife. What might that be? Looking back to the context-the Seventh Commandment-we are led to suggest (backwards but respectively): some accidental, but indecent, exposure (23:12-13); irregular menstrual periods (23:9-11); impure lineage (23:3-8); illegitimacy (23:2); sexual mutilation (23:1); rape (22:22-27). The only contextual element definitely not open to incorporation into the terms would be defamation by the husband (22:13-21). Standing against this interpretation would be that it would seem most reasonable for a man to seek to divorce his wife for suspicions of her purity (however not grounded in fact). But, of course, since the text of Deuteronomy 22:19 has explicitly prohibited divorce in such cases, it is clear that “nakedness of a thing” cannot be construed to include it, and, in fact, the prohibition found there is given to preclude such an understanding. Yet, since the prohibition to divorce in 22:19 is for the woman’s protection, and we are arguing that the permission to divorce in 24:1-4 is being presented as a protection of the wife, some harmonization needs to be offered. We will do so shortly.
It may well be that the text simply should read, “When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has discovered something embarrassing about her … ” The exact nature of what is embarrassing is left up to the husband. It is clear that any of the things in our previous list, if found true of a wife, would certainly have lowered her worth in the eyes of a husband who had any inclination toward hardheartedness. In the end, then, Hillel’s view comes to be the law. For though the exact meaning is probably more limited, the husband gets to define the term, and the more hard hearted he is the broader his definition is likely to be. If the text is attempting to protect the woman from a man who is so hard hearted that he would divorce his wife for such a cause as those set forth above, it surely would also protect her from someone even more hard hearted! From the lesser to the greater! I conclude, then that whatever the husband wished to use as an excuse would probably have been “allowed.”
But that leads to our next comment on the verse, namely, that over and against Hillel’s school, any husband who would seek to dismiss his wife for any of such flimsy reasons would be breaking his covenant to provide for her.121 In other words, any man divorcing his wife without a better cause than those was guilty of unfaithfulness or (non-sexual) adultery. In fact, the very “permission” in the text allowing her to be divorced is not presented as a “concession” to the husband’s will per se but as an unnecessary action that God permitted in order to protect the woman from this sort of man. This explains why our Lord speaks of this law as being for the “hardness of your hearts” (Matt. 19:8; Mark 10:5). Jesus means that God is allowing the divorce, not in order simply to accommodate hard-heartedness,122 but to provide for the wife in the face of a husband’s hard-heartedness. Thus, the text of Deuteronomy 24:1-4 does not intend to present us with a “right” of the husband to divorce his wife but, rather, with a discussion of how God intends to care for the wife in the face of a man who wills to unjustly put her away. The “concession” that releases the woman from such a man is not the only protection, or even the primary protection, envisioned by the law at this point, however. The woman, being freed from her first husband, was then able to contract a marriage covenant with another man.123
The text later says that in taking advantage of this option, she has been “defiled herself.” Does this mean that the second marriage is a state of adultery? Again, several interpretations have been offered.
“She has been defiled”
… means “Ceremonial Defilement”
First, there are some who would see the defilement as purely ceremonial. It is true that the root of this word is a common one in the Old Testament, and that it refers to a varied collection of pollutions: ceremonial, religious, and moral. But John Murray is convinced that a purely ceremonial interpretation of the word in this case is not proper, since in the other Old Testament uses where ceremony is involved, some form of purification procedure is prescribed. In places where moral pollution is involved (e.g., Lev. 18:20), no such procedure is set forth, because none is possible.124 None is discussed here. Therefore, Murray is sure that some moral defilement is in view.
… means “Moral Defilement”
This second view, moral defilement, is the one most commonly accepted by those who comment on the word. Murray notes the strength of the word when used in moral contexts by citing its usage in incest passages like Leviticus 19:20.125 He goes on to argue that some “gross abnormality” has occurred by the second marriage. Yet Murray is reluctant to identify the second marriage as “adultery”, because the defilement only seems to be taken into account with regard to the first husband, when the issue is of a remarriage to that one, after a marriage to another has occurred.126
This view, though appealing, is not without problems. First, Murray is overstating when he presses the strongest moral implications of the root of the word. For instance, the root is used of the pollution of Dinah by Shechem in Genesis 34:13. Although the rape is surely a morally offensive act (recall Deut. 22:28 f.), it is just as surely not on the level of incest. Second, it is hardly logical to argue as follows:
Gross immorality is defilement without purification procedure.
The defilement in Deuteronomy 24:4 is without purification procedure.
Therefore the defilement in Deuteronomy 24:4 is gross immorality.
Additionally, though a raped woman is said to be defiled, we must remember that she is an innocent party to the act; the resulting stigma does not impugn her integrity. If the woman were married, it would be no sin for her to resume relations with her first husband. If she were single and her father refused to give her to the rapist,127 she might marry another man without fear of defiling him. The “defilement” of the woman reflects upon the rapist. So too, we note that the stigma of “defilement” of the woman in Deuteronomy 24:4 does not so stigmatize her that moral guilt hangs about her marriages to men other than her former husband. The stigma instead reflects back upon the man who caused the problem, that is, her first husband.
Actually, “defiled” is more difficult than such “root” analysis reveals. Kaiser notes that the verb is a Hothpa’el, which he typifies as “reflexive passive.’128 That may not be exactly the right typification (why must a verb that is reflexive be passive as well?), but it may very nearly convey the point. Actually, the exact form of the verb is a hapax legomenon that is to say, this word, in this exact form, does not appear elsewhere in the Old Testament. In fact, the Hothpa’el form itself appears only a couple of times in the whole Old Testament. Thus, we had better be careful about arguing from the form. This is especially true when the verb could have been put in a form that is clearly reflexive or another that is clearly passive. Moses went out of his way to make this form unusual!
Ignoring these grammatical difficulties, the brothers Feinberg argue that “defiled” does indeed imply adultery. Say they,
“When someone divorces a spouse for any cause at all (i.e., divorces for ‘erwat dabar [which they define more expansively than I have concluded above]) rather than for some sexual impropriety, in God’s eyes they are still married. Consequently, if either mate remarries (and men and women in that society were quite likely to do so), sexual relations with the new spouse are adultery, since the marital bond with the first mate is not severed.” 129
Having said thus, the Feinbergs anticipate the obvious objections.
“In response, some might argue that if our interpretation is correct, the woman should have been stoned to death for adultery, not allowed to remarry. On the contrary, we respond that while she is made an adulteress, she winds up in that condition in ignorance of what she is doing and thus becomes an adulteress unintentionally. Moreover, she was forced into that situation by the actions of her first husband (and thus presumably against her will). But then it should be clear why it would be improper to execute her Under Mosaic Law sins committed unintentionally were treated with greater leniency than sins done with premeditation. Moreover … moral praise or blame (and punishment) can only properly be assessed when an agent acts freely, but this woman was forced into this situation.”130
A more immediate question would be “If this is so, why doesn’t the text simply prohibit the second marriage?” The Feinbergs’ do entertain a similar question regarding the possible remarriage to the first husband,
Some will wonder why Moses did not make this explicit. That is, why prohibit her remarriage to the first husband rather than forbid all remarriage to someone in her situation? This is a legitimate question, and we think the answer is that Moses is arguing from lesser to greater. If the woman is made an adulteress (defiled) by the second marriage, then would not marrying a third man, defile her more, especially if her second marriage also ended because of ‘erwat dabar? … We believe Moses made the regulation as he did as if to say, “If a woman winds up in this situation, she is not to marry anyone else. It is abominable for her to remarry even someone you might think would be acceptable for her. And if that is abominable, surely it is abominable to bring in a third party!” That is, if the apparently lesser problem (remarrying the first husband) is abominable, then the seemingly greater problem (marriage to a third man) is also prohibited.131
It does not seem to have occurred to the Feinbergs that a more pertinent question is “Why isn’t the second marriage prohibited?” If there is such concern that a woman be unwittingly defiled, why not preclude the event by law? Just prohibit the second marriage! From what the Feinbergs say above, it may be anticipated that they would response that God apparently does not desire to prohibit the inevitable!132 But since most sins are equally “inevitable”, why have law at all?
Several other criticisms are in order. First, the Feinbergs do not give any proof for their claim that remarriage was a common practice in Moses’ day.133 Second, the concept of the woman “unwillingly” committing adultery is of doubtful value. Unlike the raped woman, she does not cry out, she willingly accepts marriage to the second husband. It seems that the Feinbergs are stretching concepts to fit their interpretative needs. We shall have more to say about their view after a consideration of the next major concept, i.e., the abomination she is said to commit were she to remarry her first husband. For now, let it be said of this view that, if Moses were trying to prohibit the adultery of a woman unwillingly committing adultery by remarriage to anyone at all after divorce for ‘envat dabar, he surely chose an odd way to do so.134
… means “Proscriptive Defilement”
I believe that a better solution is as follows: The husband does indeed commit adultery against his wife when he divorces her without grounds (i.e., takes advantage of the “Mosaic concession”), but a certain personal defilement of the woman does not take place until she marries another man. The text is trying to convey that the first husband is responsible to come to his senses before the second marriage occurs. That he does not underlines the offensiveness of the first husband’s character. The man was so hard-hearted that he cast the woman from himself. Then, he was so unrepentant that he allowed her to be officially (sexually) coupled to another man. Thus, in a sense, the second marriage does involve a kind of defilement of the woman, but that fact stands not really against her character but against the character of her treacherous first husband. More about the “kind” in a moment. This explains why it is possible for her to be involved with the defiling action without incurring a specific statement against her character, and perhaps, a call for punishment of her for adultery.135
“That is an abomination”
We turn finally to the issue of the seventh point: the typification of the remarriage to the first husband (subsequent to her remarriage to others) as “abomination.” The difficulty of interpreting this matter is not so great. The law was trying to head off any attempt of such a hard-hearted man to further abuse his wife by taking her back to himself for marital (conjugal) use. Such action amounts to “wife swapping.” The man casts her from himself to be used by another and then takes her back again for his own use. This is to treat her like a piece of chattel property; it is a main concern of the eighth commandment section to prevent a human being from being treated like chattel.136
The major interpretations of Deuteronomy 24:1-4 appear to be seven in number. First is the implied interpretation of the AV, ERV, and ASV that the passage wishes to regulate divorce by requiring the first husband to formalize it by giving a writ of divorcement. The “defilement” and “abomination” sink into the background. Second, we have the interpretation of Murray that the passage is designed to discourage divorce. This view places the burden of guilt on the first divorce, holding the first husband responsible for defilement that occurs when the first marriage is restored after subsequent marriages.137 Third, P. C. Cragie interprets the text as intended to inhibit remarriage (especially remarriage to the first husband subsequent to the wife’s remarriage) after divorce. He makes much of the fact that the text identifies subsequent marriages as “defilements.” 138
Fourth, there is R. Yaron’s posture that the text is designed to inhibit the social tension of love triangles that would occur were the wife to remarry her first husband after marrying others.139 Fifth, Wenham suggests that the text means to stigmatize as incestuous remarriage to the first spouse after subsequent marriages. Heth and Wenham highlight the implication of several of these positions that the reason for the stigmatization of remarriages rests in the assumption that the bond of the first marriage still exists, that is, that marriage is indissoluble.140 Sixth, there position of the Feinbergs that the ordinance seeks to prohibit any marriage beyond the second, insofar as the second renders the woman an adulteress, who would involve any subsequent husband in her adultery by the marriage.141 Last, is the interpretation offered in this book that Deuteronomy 24:1-4 intends to protect a stigmatized woman from further abuse by her offending first husband.
In deciding among these possible interpretations it is well to remember criticisms of aspects of the first five views presented earlier. The first is defective because it does not give full weight to the grammatical construction, though it correctly notes that a divorce writ is proper. The second view is correct in seeing the first divorce as the primary offense and the first husband as the chief offender, but it is wrong in attributing offense to the wife and in presuming that the bond with the first husband still exists. The third view is correct in its main contention that the text wishes to prohibit remarriage to the first husband, but it is inadequate in its underlying assumptions about incest and a continuing bond. The fourth position has little to commend its unique contention concerning “love triangles” but has some merit in stressing that aspect of the passage that seeks to preserve social stability. The fifth position, as well, has little to commend its primary conclusion-that the text wishes to prohibit remarriage to the first husband because a continuing bond with him still exists.142 The sixth view suffers from the same objections against the third (incest) view.
Since publication of the first edition of this book, John Walton has argued an eighth view, for the concept of abomination. Says he, “ … we would suggest the translation, ‘she had been made to declare herself to be unclean’”. He bases this upon his belief that the grammar is “reflected by a passive subject and undersubject while also featuring the factitive/estimative or declarative elements of the D [stem] group as well as the reflexive element common to the corresponding hitqattel.”143 The Hebrew of the verb relating to defilement is hutqattel, the passive of the hitqattel. He consequently interprets the legislation of Deuteronomy 24 to mean. “ … the abomination would come about because he seeks to take her back as his wife ‘after she has been made to declare herself to be unclean.’”144 By so stigmatizing her—by forcing her to publicize something embarrassing to her simply as a means to divorce her and yet keep her dowery.145
Note how similar this is to Jesus’ statement in Matthew 32a, where the passive infinitive is used of the woman unjustly divorced by her husband. Here, though a remarriage is discussed, the woman is not guilty of anything in her remarriage. In Matthew, the woman may not even have remarried. This stigmatization is remarkably similar to that position taken by Lenski on Matthew 5:32b, except that Lenski argues that a woman has been stigmatized as an adulteress, whereas here the woman has been stigmatized as unclean. But that “hardening of the categories” from unclean to adulteress, is also parallel to the concept that a man who is hard-hearted is guilty of adultery, and not some mere insensitivity.
Consequently I would accept either the seventh or eighth positions on the meaning of “abomination,” with a leaning toward the eighth. Once again, careful study shows how harmonious are the teaching of the Scripture on the subject of divorce and remarriage.
Deuteronomy 24 Compared and Contrasted to Jeremiah 3
Before leaving this passage, it is appropriate to consider Jeremiah 3:1-4:4, in which Deut. 24 is cited. God says in Jer. 1:
“If a husband divorces his wife, And she goes from him, And belongs to another man, Will he still return to her? Will not that land be completely polluted? But you are a harlot with many lovers; Yet you turn to Me,” declares the Lord.
What is happening here? First we have a question arising from Deuteronomy 24:1-4. Then we have a contrast made between Judah’s relationship to Yahweh and the Deuteronomy passage.
To the textual relationships properly, a person needs to note the similarities and dissimilarities between Deut. 24:1-4 and Jer. 3. First, in the hypothetical situation in Jer. 3 at the basis of the questions, no reason for divorce is offered (contrasted with ‘erwat dabar in Deut. 24). Second, the sending away by the husband, which is in the forefront of Deuteronomy, is subordinated to the woman leaving in Jer. 3. Third it is not clear if “belongs to another” here means the same as it does in Deuteronomy. Fourth, the second relationship is not said to defile the wife. Fifth, there is no mention of the second relationship of the wife ending in Jeremiah. Sixth, in a question, the propriety of the return is questioned, but in the context of the husband returning to her, not she to him as in Deut. 24. The seventh point is a question, if a return is completed, won’t that be unacceptable to God? On the heels of this rather odd discussion of Deut. 24, God calls Judah a whore who is attempting to return to her husband. Yet in the historical context, Judah was not yet repentant of her adulteries. What is God trying to say, and how does it relate to Deuteronomy? Clearly God is trying to get Judah to stop and think through the issues of her sin.
In the historical context of Jeremiah, Judah was committing adultery with other gods. Though Yahweh had not divorced her on that ground, He would shortly thereafter because she would not repent. What is being rejected in Jeremiah is the very thought that an adulterous partner like Judah can just go out and have adulterous relations, and expect that she can continue normal ones with her husband. He cannot take her back without her repentance and she cannot expect that He will. Confession, repentance, and forgiveness must happen first.
How does all this relate to Deuteronomy 24? Just as it would be wrong for the innocent woman to return to the unrepentant husband (Duet) and act as if nothing had happened, so it would be wrong for the unrepentant Judah to return to Yahweh (Jer.) and act the same way. The sin in Deuteronomy is the husband’s in casting his wife aside and allowing her to officially be taken by another man. The Sin in Jeremiah is for Judah to have rejected Yahweh. The remarriage in Deuteronomy was allowed for by law, the adultery of Judah was not. The abomination in Deuteronomy was for a wife abused by an unjust divorce to be further abused by a return to a hard-hearted husband. The abomination in Jeremiah would be for the unrepentant Judah to think that she could return to a Holy Husband. Judah clearly defiled herself by her harlotry. The defilement in Deuteronomy was only with regard to the husband.
There is nothing wrong with a disciplining husband taking back a straying wife (even if another marriage has been contracted in the meantime). The text of Deut. 24 restricts the actions of an immoral husband, not a righteous one. The contrast between Deut. 24 and Jer. 3 underscores the view that Deuteronomy deals not with a sinning wife but with a sinning husband.146
Conclusions Concerning Deut. 24:1-4
Deuteronomy 24:1-4, then, is a provision for the woman. It is so in several regards. First, it permits her to be divorced from a husband who is set on ceasing to provide for his covenant partner on flimsy grounds. This permission makes it possible for her to be provided for by another man. If the first husband does allow this chain of events to occur, the Law steps in to forever prohibit him from taking her back as a man would a piece of furniture that he has sold to a neighbor, then reclaimed. The “concession” grants no moral option for the man to end his marriage. The act of divorce, which he means for evil, God means for the good of the woman.
It remains for us now to harmonize this passage with those in the section on the Seventh Commandment, which sought to protect a woman from a hard hearted man by refusing to allow divorce to certain hard hearted men. In the first instance we read of a man who charged his bride with not being a virgin when she came to him (Deut. 22:13-19). The second case is of a man who rapes a virgin (Deut. 22:28-9). In both instances the man is told he is never permitted to divorce the woman. First, we note that the divorces that these laws do not involve “the nakedness of a thing” (Deut. 24:1). Second, the intent of these laws is to prescribe a punishment that fitted the crime. In the case of the defamation law, the man had tried to get rid of the woman by execution. Even if the charges were untrue, there was a direct and public stain upon her character. It was in the nature of the case that it would be difficult for her to find a new partner when a charge of infidelity hung over her, even though the evidence had proved her innocent. The Law therefore provided security for her future by freeing her (to a certain extent) from the worry of how this undeserved bad reputation would affect her future marital relationships. Her husband must provide for her in perpetuity. This contrasts with the woman of Deuteronomy who only leaves with the charge of erwat dabar over her. If that were trivial, then it would probably not inhibit her remarriage … or at least not like a charge of adultery.
In the case of the rape law, the man had sought to use a woman’s body without continued obligation to provide for her. In doing so, he had stained her purer reputation. So the Law prescribes that such a one should always have to provide for her—if her father so chose. The fine of 50 shekels provided some security if the husband were to die, but her primary provision was in being married to him.
Note that what is common to both laws is the idea of a stain upon the woman’s reputation. In the fornication law, it is the reputation of a virgin; in the other, it is the reputation of a married woman. We conclude, then, that the direction of the “no-divorce laws” is to protect the woman whose reputation has been stained. The man who stained it must care for her indefinitely. He is being told that, since he has embarrassed her, he is not allowed to put her away if she simply does something embarrassing.147
The direction of the protection of the woman in the Deuteronomy 24:1-4 law is markedly different. I do not refer to the aspect of that law that protects her from returning to a hard-hearted man, but to the concession of the divorce itself. The 24:1 “permission” to divorce seeks to “head off” the sort of abuse of the woman that is cared for in Exodus 21:10-11 (and perhaps Exod. 21:26 f. as well). In other words, a man who is hard-hearted enough to divorce his wife simply for something he finds embarrassing is permitted to do so, except when he has already stained her reputation in such a way that it may be hard for her to contract a new marriage. But if the man who has stained a woman’s reputation tries to abuse her physically, she still has recourse to the law, which allows her to force him to divorce her.
To this it might be objected that that is precisely the goal of the man in the first place, so does not the law here encourage, rather than discourage, the man from abusing her? Allow me to speculate. In the first instance, where the man falsely accused his wife of not being a virgin when she came to him, remember that he was publicly humiliated and fined enough so that he would probably have had to sell himself into slavery to pay her parents. He would not likely have risked further actions against her. In the second instance the “rapist” had to pass muster with the girl’s father. If he considered him a risk for abusing his daughter further, the father need not have contracted the marriage at all, just settled for the fine. That amount too probably would have required slavery to pay off. In any case, As stated earlier, I think that the stigma attached to a “wife-beater,” not to mention the possibility of the avenging of her by her family, would serve to inhibit most men from taking that route to marital release.148
Summarizing again, Deuteronomy 24:1-4 was a law that permitted treacherous divorce as a way of protecting the woman. Primarily, however, it protected her from being passed back and forth between men like a piece of chattel. The law is not concerned with presenting a “right” for the husband to divorce his wife. Nor does it imply that an indissoluble marriage bond exists between the first, divorcing husband and his wife.
Summary of Teachings on the Termination of Marriage
in the Mosaic Code
The following list summarizes the teachings of the Law of Moses regarding the “end of marriage”:
1. 1. Since marriage is a bilateral covenant, the covenant is truly broken when one party fails to keep the vows.
2. 2. Implied in this “breaking” is that the moral obligation of the “innocent” party to keep fulfilling his or her side of the agreement is technically ended.
3. 3. This “technical” ending should lead either to the restoration of the covenant (i.e., the offender renewing the vows and keeping them) or to the legal ending of the marriage contract.
4. 4. In the case of the wife not keeping her vows of monogamy, no restoration is permitted, and the legal ending of marriage occurs with the execution of the wife and her lover.
5. 5. In the case of the husband not keeping his vows to provide for the minimal support of his wife, court action is possible, with the outcome being either the restoration of provision or a forced divorce, which allows the woman to contract another marriage (if possible). If more active abuse is the grounds, the same recourse is possible. We may presume that a “husband-beating” wife could be divorced by her husband, in the same manner that a master-beating slave would be separated from the master.
6. 6. The Law provides for the wives of hard-hearted husbands by allowing their husbands to separate from them. This provision does not imply that the husbands are guiltless, rather that they are guilty. The only time a husband is allowed morally to initiate a divorce where no adultery has taken place is in the case of a woman who is forced into the marriage and continues to reject his advances. Husbands who stain their wives’ reputations by slander or premarital sex are prohibited from initiating divorce proceedings against their wives (thus inhibiting the occurrence of such offenses).
7. 7. Men are permitted to remarry subsequent to divorce (since plural marriages were not prohibited). Under the provisions of the Law, divorced women are morally permitted to remarry, though they are considered stained by the divorce (thus unfit to marry a priest) and defiled by the remarriage (thus off-limits to the hard-hearted man who unjustly divorced them). These stigmatizations, however, are not to be interpreted as moral offenses on the part of such a divorced woman.
8. 8. All marriages are to be “in the Lord,” in the sense of being between members of the confessing community of Israel and not between Israelites and heathen.
87 There is at least a formal difference between breaking a vow and failing to keep one. “Breach” implies moral offense, whereas “failing to keep” may simply involve the fact that the other partner has nullified the covenant by prior breach. Thus, one ought never “to break” the oath/vow/covenant of marriage, but one does not break such a vow by “not keeping” promises to a spouse who has already abrogated the covenant.
88 She was his half-sister (Gen. 20:12).
89 “Abimelech” was apparently a title rather than a proper name. I do not follow the unfounded and hasty conclusion that the accounts are really just three versions of the same story. Cf. Speiser’s treatment in his Genesis in the .Anchor Bible (Garden City, N.Y.: Doubleday, 1964), pp. 150-52.This position seems based on the view that we don’t sin the same way twice, and that our children don’t emulate our failings.
90 The statement that what she did was “right” refers, not to the deception, but to her compliance in making the truthful but risky identification of herself as Abraham’s sister. Making the identification on her part was not a sin, but obedience. His was the sin insofar as the risk was contrary to his covenant obligation to care for her.
91 Thankfully, my position does not rest solely upon these stories.
92 In point of fact, we might suppose that death should be considered the proper punishment for failure to provide, were there not other biblical reasons to suggest that a less stringent punishment is permissible. cf. Exod. 21:10 f.
93 Interestingly, paganizing influences seem to inhibit the death penalty for adultery. Compare also the practice of pagan Rome regarding the punishment for adultery. According to the Julian Laws, the adulterer and daughter might only be killed with impunity by her father in his or his son-in-law’s home if she was caught in the act A husband could kill with impunity only if the adulterer of his wife was caught in the act in his home. Otherwise he must divorce his wife. Perhaps the depreciation of women in pagan cultures accounts for this. Since the woman is often understood as a piece of property, she is not worth killing over. Naphtali Lewis and Meyer Reinhold, eds., Roman Civilization; Sourcebook, vol. II: The Empire (New York: Harper Torchbooks, the Academy Library, 1966).
94 Walter Kaiser, Toward Old Testament Ethics (Grand Rapids: Academic Books/Zondervan, 1953) denies that this text deals with the rights of a wife. See Appendix B for a detailed response to his position.
95 It is interesting here to note the importance to the text of the woman having children, who will be able to care for her in her old age. Because of this concern, I conclude that any attack upon the well-being of the children is counted as an attack upon the well-being of the mother This holds true whether the attack is passive or active. Compare this text with Deut. 21:15-17, which insisted upon the husband granting full inheritance rights to the children of unloved wives.
96 In line with the previous note, I also count it justified to end the legalities if the attack (active or passive) is upon the children of the woman. Although it is true that the father, in biblical times, had the right to end his children’s lives, it must not be assumed that he exercised this right arbitrarily. If we were to assume this, then the easiest way to circumvent the strictures of Deut 21:15 ff. would be by simply killing the children of the unloved woman. There is no need to ensure the inheritance of children so easily disposed of. We must rather assume that social pressures inhibited a father’s ending his children’s lives except under circumstances of the sort set forth in Deut 21:18-21. Further, note well that it is the interest of the woman to secure her future through children that was at issue for her father who contracted the marriage in the first place. If God freed the girl from the “husband” denying her that chance, would He deny her the opportunity to try again? The Tamar story suggest not.
97 We should also remember that in ancient Israel only the man could initiate divorce. In this case it is presumed that he would not of himself initiate divorce and would, therefore, have to be forced to do so by the court.
98 I shall give one qualification to this at a later point. Here, I state the “general rule.”
99 Other laws (Lev. 21:14, 22:13) put the divorced woman with the widow. According to such legislation, the High Priest was not to marry any woman who was a widow, a divorced woman, or a (former) prostitute (e.g., Rahab). The implication of these passages is that there abides with the divorced woman a certain stigma. She has been used by another man. She is not pure. Therefore, she is not good enough for the priest or the High Priest. Her stigma appears to be somewhat less staining than that of the (former) prostitute, because she is lumped with the widow in Lev. 21:14. But we may presume that it is more staining than that of the widow, because she is categorized with the (former) prostitute in 21:7, where the widow is not mentioned as “off-limits” for priests other than the High Priest. It is not clear why these “purity” laws prohibited the priests from marrying these types of women. Clearly the (former) prostitute has (at one time) been guilty of moral offense, but it must be assumed, she is cleansed of moral guilt by the time of possible marriage. It is also clear that the widow is not guilty of immorality simply by being a survivor. The divorced woman seems to stand in the middle. It is best simply to say that the Law viewed her as a woman who was less pure than a virgin, and that a pure virgin is the sort of woman that God wanted mated to the mediators. In other words, her stigma is ceremonial in these passages. For other comments regarding God’s leaders and divorced mates, see chap. 10.
100 Kaufman, “Structure:’ pp. 136-37.
101 Since the Israelites were not to take to themselves “women of the land” (Deut 7:3), we may assume that this woman was taken as a concubine, or that she became a convert to Hebrew religion and thereby qualified for the status of a full wife.
102 Recall that in Exod. 21 the text deals with two sorts of cases: first, cases in which the concubine is released without consummation (v. 8), and then cases in which the consummation is completed (by the son, v. 9, or by the man himself, vv. 10 f.).
103 Again, the reader is asked to wait for discussion of the assumed “right to divorce,” implied by such texts, till a later point in the chapter.
104 Note that willful sexual relations practiced by an engaged woman as well as a married woman were punished by execution. Adultery was breach of a vow of monogamy subsequent to its being made. The Israelite women made that vow at the time of the betrothal, not at the point of consummation.
105 And it should also be clear that these penalties could end the marriage of a woman to a man who himself, and not she, is the offender.
106 See their Ethics, p. 312-13. They prefer to say that the law merely “describes” the divorce. Grammatically this is correct, but conceptually it falls a bit short The context, as we shall see shortly, implies that this text seeks to protect and provide for the hypothetically cast off woman. This would entail more than mere description.
107 There is no basis in the text for Kaiser’s twice-made implication that the former husband has, in the meantime, remarried (Kaiser, Toward, pp. 200, 203). Further it would be irrelevant to the text if the man had remarried, since polygyny was morally permissible. The law concerns itself only with the remarriage of the woman.
108 I do not take this to be the meaning of that passage. There is no real reason for believing that it is the husband-to-be that is in view. In fact, it is most incredible to suggest that it be such when Exod. 22:16-17, a law clearly dealing with premarital sex, prescribed only forced marriage for the couple. When no offense at all is assigned premarital sex in the Exodus passage, is it likely that a betrothed couple who engaged in sex would be executed? Certainly not!
109 See James B. Hurley, Man and Woman in Biblical Perspective (Leicester: Inter- Varsity Press, 1981), p. 100.
110 So David Atkinson in To Have & to Hold (Grand Rapids: Eerdmans, 1979), p. 103; C. M. Carmichael, in The Laws of Deuteronomy (1974), pp. 203 f.; Kaiser, Toward, p. 202; John Murray, Divorce (Philadelphia: Presbyterian and Reformed, 1961), p. 12; and others.
111 We needn’t suspect that the referent here is exclusively emissions that are the result of masturbation.
112 In fact, the person who has the problem with his toilet practices might as well be someone who simply got “caught short:’ so to speak, and therefore is not guilty of exhibitionism.
113 See Appendix G for a more detailed treatment of the context.
114 Heth, William. “Divorce, But No Remarriage” in Divorce And Remarriage; Four Christian Views edited by House, Wayne (Downers Grove: IVP, 1990), pp. 84-85; R. Westbrook, “The Prohibition on Restoration of Marriage in Deuteronomy 24:1-4, “in Studies in the Bible: 1986, ed. S. Japhet, Scaripta Hierosolymitana 31 (Jerusalem: Magnes Press at Hebrew University, 1986), p. 393-404.
115 Heth, “Divorce,” p. 84-85.
116 Heth, “Divorce,” p. 86; Westbrook, “Prohibition,” p. 404.
117 Heth, “Divorce,” p. 86.
118 I will discuss this at the end of the next chapter.
119 Heth, “Divorce,” p. 85.
120 Feinberg, Ethics, p. 312.
121 So too the Feinbergs. Ethics, pp. 312-13.
122 One noted radio preacher has turned the divine intention upside down by insisting that God is permitting husbands to divorce their hard-hearted wives! But Jesus says, speaking to the husbands, “Because of your hardness of heart, Moses permitted to divorce your wives” not “Because of the hardness of your wives’ hearts, he permitted you to put them away.”
123 The Feinbergs conclude that protection of the woman is one of two primary purposes for this legislation. They say, “The initial purpose was to protect the rights of a divorced woman … Thus, the legislation was meant in part to protect a woman from a husband who would merely throw her out without making it clear that she was divorced and so free to remarry. Ethics, p. 311. The Feinbergs cite David Garland, “A Biblical View of Divorce,” RvEx 84 (Summer 1987): p. 419, as teaching this view also.
124 Murray, Divorce, p. 13.
126 Ibid., pp. 14 f.
127 I presume that, as in the case of the seduced girl, the father may deny the marriage.
128 Kaiser, Toward, p. 41.
129 Feinberg, Ethics, p. 313. Since their conclusions are presented in direct interaction with the first edition of this work, and since no other modem scholar as concluded that Hillel’s view is correct insofar as it defines “the nakedness of a thing,” but rejects Hillel’s conclusions regarding the right of a man to divorce a woman on such grounds, it is difficult not to see that the Feinbergs’ position is dependent on the first edition of this work. Strangely, no acknowledgment of dependence is made. Sadly, the same is true at other points as well.
130 Ibid., p. 314.
131 Ibid., p. 315.
132 Of course, the Feinbergs might respond that the same could be said of the view offered in these pages, i.e., Why didn’t Moses prohibit husbands from divorcing their wives for causes as flimsy as ‘erwat dabar. To that we will respond shortly.
The primary response of the Feinbergs is that though the woman commits adultery in the second marriage, the guilt of this adultery is not laid up to her account, insofar as she was “forced into that situation by the actions of her first husband (and thus presumably against her will). “ Appeal is then made to the fact that non-presumptuous sins “were treated with greater leniency.” Then, speaking more philosophically, they add, “ … moral praise or blame (and punishment) can only properly be assessed when an agent acts freely, but this woman was forced into this situation.” (Ethics, p. 314) To them, the woman’s only other alternative is to become a prostitute (Ethics, p. 311).
This is questionable exegesis as well as questionable logic. To say that she would be forced into prostitution if she did not remarry is baseless. No source is cited to show that this is her only or even primary option. Normally she would be able to go back to her kin for support. That is the implication of Ex. 21:11. Second, the Law provided for the poor and needy in numerous ways (e g., Deut. 23:24 & 25, in the immediate context, provided a venue for immediate food needs, as did the gleaning laws, etc. Third, as the story of Hagar shows, God provides for the cast off wife. Though not a great ethicist, that slave woman preferred to die of starvation to taking a path of immorality, which, if the Feinbergs are to be believed, every cast off woman necessarily faced. Clearly, the Feinbergs are stacking the deck to create sympathy in their readers for the “unwillfulness” argument that they wish to float. But, I ask, why is it preferable to commit adultery in a second marriage to be a prostitute. Actually, prostitutes were generally not executed, whereas adulteresses were! Which does God consider the greater sin? And why is it not justice for the husband to be held responsible for the welfare of the woman by supplying her needs in some fashion other than marriage? Return of the bride price would be one.
Beyond this, the idea that a choice of remarriage would not be presumptuous is mere unfounded opinion. If a married woman who is being raped, but does not cry out, is considered an adulteress, why would not taking a second husband be considered actionable? The Feinbergs are on thin ice arguing that the covenant of marriage is forced. Let them learn from Hagar.
The Feinbergs seem caught in a logic box of their own making. For, if remarriage at the cost of defilement (adultery) is justified in order to keep a woman from prostitution, how is it that this point is invalid when it comes to a potentially necessary third marriage? The Feinbergs argue that the second purpose of Deut 24 is to inhibit multiple marriages. We are told that the reason that the woman cannot return to the hard hearted husband is because to do is to commit adultery (even though adultery is permissible in the instance of the second marriage and even though he may marry a whoring wife who has not subsequently married another man). Then, employing a fortiori argument, we are told that, if it is wrong for her to remarry the first husband, it would be even worse for her to go on to a third husband (Ethics, p. 315). But wait! Would not the same rationale which permitted the second marriage also justify a third? What of the threat of prostitution now? Suppose her hard hearted husband casts her out, she remarries and her second husband dies, all within the span of, say, two years? The text considers all but the last condition. Do we suggest that Moses would say, sorry Sarah, you used up your once-in-a-lifetime exemption from yourself being guilty for adultery? All that’s left for you is starvation. Or can we now justify prostitution on the basis of duress? In the end, the Feinbergs’ position reduces to absurdity and self-contradiction.
133 They have a bad habit of doing this in their work on similar subjects. Cf. Ethics, pp. 312 & 338.
134 It is interesting to note that the Feinbergs stress defilement, but fail to interact with the treatment of that matter in the first edition of this work—a book of which they are highly critical.
135 Of course, it is possible that, just as God permits the first husband to divorce her and allow her to remarry without specific condemnation, Scripture nonetheless means to imply offense in the case of all the woman’s successive marriages. I reject this possibility in view of the contextual implications of both Deut 24 and Matt. 5 regarding the woman’s innocence. We will discuss fully the implications of the Matt. 5:31 f passage, which also speaks of stigmatizing/remarriage, in a later chapter.
In interpreting this passage, it is tempting to make the following associations: (1) 24:1-4 parallels 23:17 in treating dependents in such a way that, like chattel property, they are passed back and forth from one sexual partner to another, being defiled in the process; (2) 24:1-4 parallels 24:3 in prohibiting actions that inhibit a person from fulfilling (marital) covenantal obligations; and (3) 24:1-4 is paralleled by Matt. 5:32 in containing an adulterization of the wife by means of a divorce and subsequent marriage to another—the second marriage being seen as “defiling” or “adulterous.” Combining these elements, we have an implied condemnation of the divorce (with 24:3) and of the remarriage for which the first husband is responsible (23:17, and Matt. 5:32). The return is not mentioned in Matt. 5:32, because that was unnecessary. Jesus is only trying to clarify those issues in Deuteronomy that had not been properly understood or taught by the Pharisees.
Although I am impressed with the above relations, and consider conclusions drawn from them defensible, I ultimately rejected them for the following reasons: First, the context of Deut. 24:1-4 does not support it
Of greater concern is a comparison of the Deuteronomy passage to the Matthew “correction” spoken by Jesus. The issue in both passage is divorce. If both speak of some sort of remarriage by the divorced woman that is defiling, Jesus could be seen as correcting the interpretation that the first husband and the woman of Deut. 24:1-4 are guiltless of adultery-the interpretation of the Pharisees.
The comparison of passages is compelling if there is a textual/conceptual connection between Matt. 5:32a and b. Unfortunately for the anti-remarriage position of most commentators, the connection of the two clauses is not as strong as a first reading suggests (see chap. 3). Further the historical context of the Matthew passage, tied to Jesus’ criticism of the Pharisees (especially as seen in Luke 16:18—see chap. 6), suggests another, perhaps better, alternative, which focuses attention away from the remarriage to treacherous divorce.
Beyond this, nothing in the text of Deut. 24:1-4 which proscribes the remarriage of the woman. That is very unusual in view of the context, near and far, of the Law. The return is clearly prohibited. But the going out and marrying another is not. The Law usually moves quickly to inhibit acts of adultery. If the divorce and remarriage are adulterous as such, why does the Law not say so? A simple proscription of the divorce in the first place would have rendered unnecessary any commandment concerning an abominable return.
In His comment on the text of Deuteronomy, I believe that Jesus does identify that kind of divorcing as adulterous on the part of the husband (see Matt. 5:32a, 19:9, and see chap. 3). But He seems to me to be saying that the divorce was allowed for the sake of the woman, that is, as a provision for her subsequent care. (See chap. 7.) Would it then make sense to understand Matt. 5:32b as a condemnation of the second husband? He would only be providing succor for the unjustly divorced woman—succor for which divorce was permitted in the first place? Highly doubtful. And the rejoinder that the permission was intended not as provision for her, but as a concession for the hard-hearted husbands, runs amok on Christ’s own condemnation of the Pharisees for not demanding the full rate of God’s debtors (Luke 16:18). God is no Pharisee who tells the sinners that “boys will be boys!” Moreover, although the remarriage of Matt. 5:32b is clearly involved with adultery, in Deut. 24:1-4 the “defilement,” whatever it is, seems only to relate to the matter of the return, which is clearly not in view in Matt. 5:32a or b. When the Law is so clear on executing adulteresses that it even supplies a test for the wife of a suspicious husband—with the result that the woman is executed, why would it care so little about the defilement of Deut. 24:4 that it would not even prohibit its occurrence?—especially when the return is prohibited. For these reasons, I have preferred the harmonizing interpretations of these passages set forth in this book.
136 I far prefer this interpretation to that offered by Yaron—trying to block a potential love triangle. C. Carmichael, in The Laws of Deuteronomy (Ithaca: Cornell University Press, 1974), p. 205, correctly notes that this does not explain why the rule still applies when the second husband dies (R. Yaron, “The Restoration of Marriage” Journal of Jewish Studies 17 :8-9). I also prefer it to that offered by Gordon Wenham in his “The Restoration of Marriage Reconsidered”: Journal of Jewish Studies 30 (1979): 36-40. In that article Wenham argues that the first marriage made the woman the blood relative of her first husband, and therefore, paradoxically, for her to return would be for her to commit incest with him. Says he: “If a divorced couple wants to come together again, it would be as bad as a man marrying his sister” (p. 40). This interpretation is patently absurd, as I noted in chap. 1. If the marriage act has made them blood relatives, then the second intercourse (if not the first) of their initial marriage would be incest—forget the divorce. Any intercourse between near relatives, no matter what their marital status, would be incest. Wenham’s “explanation” explains nothing.
137 Murray, Divorce, pp. 3-16. His conclusions are reflected in the work of David Atkinson, To Have & to Hold, pp. 102-5.
138 P. C. Cragie, The Book of Deuteronomy: The New International Commentary on the Old Testament (Grand Rapids: Eerdmans, 1976), pp. 304-5.
139 Yaron, “Restoration,” p. 8.
140 Wenham, “Restoration,” p. 40. For further criticism of this view, see Chapter One of this book. Heth and Wenham, Jesus, p. 110. In his contribution to Divorce and Remarriage (p. 125, n. 6.), however, Heth disavows the use of Deut 24:1-4 in the establishment of an incestuous kinship element in remarriage preferring Westbrook’s interpretation. He should abandon the idea altogether.
141 Feinberg, Ethics, pp. 312-316.
142 The Feinbergs seem unaware that one of the arguments they offer against the incest view completely undercuts their own position. On page 314 of their Ethics, they say “ … if anything, the fact that Heth and Wenham think kinship ties with the first husband remain make it hard for us to see why it would be abominable for the woman to return to him. Moreover, if Heth and Wenham are right that the point of the legislation is that kinship lines must not be ignored, then why allow the second marriage (as verse 2 apparently does)? That marriage, too, would ignore kinship ties established in the first marriage. These problems lead us to conclude that a different interpretation of the passage is necessary.” By the same token, if anything, the fact that the Feinbergs think that a marriage union with the first husband remains makes it hard for me to see why it would be abominable for the woman to return to him. Moreover, if the Feinbergs are right that the second reason for this legislation is that the defilement of the second marriage must not be ignored in a third marriage (either to the first husband or another) then why allow the second marriage (as verse 2 apparently does)? That marriage, too, would ignore union ties established in the first marriage.
Having said that the initial purpose of Deut. 24:1-4 is to protect the rights of a divorced woman (p. 311), by insisting that her hard-hearted husband clarify to potential second husbands that she is no longer married to him, but is “free” (ibid.), they then go on to say that the second purpose of the law is to curtail the possibility of her multiplying marriages subsequent to the second, because the second marriage defiles her in its adulterous consummation (ibid). How can the Feinbergs have it both ways? How can the law purpose to exhibit the cast-off as available to be cared for by remarriage to a second husband, while at the same time arguing that another purpose of the law is to prevent her from spreading the adultery of that second marriage to others? Is this not to imply that the law’s provision for her is her adultery? Does not their interpretation of Deut 24:1-4 imply that it encourage adultery?
It should be noted that neither of the Feinbergs’ “purposes” actually covers the most important point to Jesus: “For the hardness of your hearts Moses permitted you to put away your wives.” He focuses upon the putting away by the first husband. The Feinbergs’ first purpose does not adequately center upon the divorcing. It centers upon the remarriage as a provision of care. The second purpose centers upon her possible return to the callous first husband, rather than upon the divorce. While it is not wrong to present both provisions supporting the woman as purposes, the Feinbergs’ view is inadequate insofar as it fails to identify the main provision as being the divorce to protect her from her hard hearted first husband on the one hand and from his possible further denigration of her by a (post-second marriage) remarriage to him. In the Feinberg’s argument, the only point against the hard hearted husband is in its implied condemnation of him for setting her up to commit adultery, which comes from reading their reading of their own interpretation of the Gospels back into Deut 24:1 -4. While they do note that he casts her out for inadequate reasons, their focus is so determined by their belief in the continuing marriage bond and the alleged adultery of remarriage, that they don’t have a basis for discussing what sin he is committing by casting her out without grounds.
It should be apparent that the Feinbergs have offered an unsatisfactory view, but there is something else awry in their reasoning. Between pages 313 and 315 of their book, their position allows that a woman who commits adultery and is divorced could remarry her husband, while a woman who engages in a second marriage is prohibited from remarrying her first husband insofar as the second marriage entails a defilement which is adultery, and the first husband, who set her up for the defilement must avoid her to keep himself from committing adultery with her. So harlotry differs from adultery, and that the sole reason that remarriage to the first husband cannot take place is because the abominable adultery (as opposed to simply harlotry) takes place in a marriage! It is hard to take such a position seriously, and this should be remembered when they will subsequently attempt to interpret Jesus’ teachings based upon what has already been argued in the section on Deuteronomy 24.
This shows the difficulties that can be gotten into by a misuse of the doctrine of the Analogy of Scripture. In this instance, the Feinbergs attempt to interpret a difficult reading in Deuteronomy by equally difficult readings in the New Testament They anticipate that this criticism will be made. See Ethics, p. 315 ff. Their response is 1) we cannot determine readings on the basis of what the initial readers understood, and 2) the fact that Deut 24 is under discussion in the Gospel passages justifies interpreting Deuteronomy on the basis of the clearer New Testament passages.
To this I respond that if the necessary interpretation of a legal passage awaits another written 1500 years later, it would not make for very usable law. I have no complaint against showing that a New Testament passage clarifies one in the Old Testament. As the Feinbergs point out, Jesus is trying to clarify “common” misunderstandings current in His day regarding Deuteronomy 24. But I believe that the Feinbergs’ interpretation of Deuteronomy is determined by their interpretation of the Gospel passages, and therefore is improbable. Second, while it is true that clarification of the meaning of Deuteronomy is at issue in the Gospel passages, that does not at all prove that the Feinbergs have rightly understood the Gospel passages themselves. I ask my readers to compare Ethics pp. 313-6 with 318, 325-26 and 338 to see just how circular their reasoning is. Suffice it to note here that pages 315-16 argue for interpretative dependence for the meaning of the whole Deuteronomic passage on the teachings of Jesus according to Matthew, while pages 325-26 admit that the crucial teaching of Jesus regarding the meaning of porneia (which determines the meaning of the passage) is “based” on their understanding of ‘erwat dabar in Deuteronomy. That circle of reasoning is too tight.
143 Walton, John. The hutqattel, Hebrew Studies 32 (1991), page 11.
144 Walton, hutquattel, page 12.
145 Walton, hutquattel, page 14-15.
146 In his “Deuteronomy 24:1-4 and the Issues of Divorce” (Bibliotheca Sacra. Vol. 149, No. 593, January-March 1992, pp. 3-15), Carl Laney criticizes the position taken by the first edition of this book, where only Jer. 3:1 was contrasted with Deut 24:1-4, and then only contrasted on the basis of the treacherous divorcer in Deut 24 being contrasted with Yahweh in Jeremiah (without analysis beyond verse 1). I erred in not going deeply enough into the context of Jer. 3 to make it clear to my readers all that I had in mind in Jer. 3. The first edition made reference to a future discussion of Jeremiah 3 in the next chapter, a discussion which, in fact, was unintentionally omitted in that edition. That discussion is presented above in this edition rather than in Chapter Four.
147 We need not assume that such an inhibition to divorce meant that if such a wife later became an adulteress the husband would not have a right to charge her and have her executed.
148 And, in fact, we do not read of a single instance of such abuse in the Old Testament.