19. On the Logic of the Stipulations in Deuteronomy 23-24
There are eight stipulations or ordinances which comprise the Deuteronomic “commentary” on the Eighth Commandment. This is the section which includes the crucial divorce ordinance concerning divorce and remarriage which the Pharisees fought over in the days of Jesus. A consideration of the seven ordinances which surround Deuteronomy 24:1-4 reveals nothing which would incline a student of the Law to view remarriage per se as sinful.
The first ordinance, Deut. 23:15-16, prohibits the return of an escaped (presumably foreign) slave. There is a direct in-principled relation between this subject matter and that of Deut. 24:1-4. It would be just as wrong to send a woman back to her abusive former husband, as it would be to send the slave back to his master. And it is right to provide shelter to the freed person. Of course, the slave ran away, whereas the woman has been cast off, but the principles of provision and care are instructive and, I believe, similar.
Deut. 23:17 may be prohibiting Hebrew parents from prostituting their children, in which case the teaching is that passing them back and forth is immoral, but more probably the verse prohibits continuous, uncovenanted (and perhaps commercial) sex. In this case, each act of such sex is a sin, identified as such by a clear offense term: prostitute. This command is supplemented by another, which prohibits buying off God by bringing a portion of the dirty money as an offering. The text tells us that God detests those activities per se. This is an intriguingly similar passage to Deut. 24:1-4, insofar as progressive sexual behavior with different partners is in view. But the differences are immediately apparent between the passages. Here, the sexual activity is clearly identified as sin by understood offense terms such as prostitute, whereas no such term is used of the woman who goes to a second husband in Deut. 24:1-4. In Deut. 23:15-18, the sexual activity is the point of the prohibition. In Deut. 24:1-4 the prohibition is limited to one instance: the return to the hard hearted first spouse after he allows another marriage to intervene.
Deut. 23:19-20 seeks to protect an economically disadvantaged person from potential further abuse. By charging him interest, he may be sunk further in debt. If a simple continued remarriage of a divorced woman involved continued adultery, one would expect that it would be prohibited by just such a verse as this (in principle).
Deut. 23:21-23 speaks to the issue of the importance of keeping a vow made to God. Marriage, as a matter of fact involves a covenant before God. In principle, these verses imply that a person need not pledge to provide for a woman, but if he does, he must keep that vow or be considered a covenant breaker. Deut. 23:24-25 also protects the disadvantaged. In this case a traveler. As he passes through someone’s land, the landowner has the obligation to provide for the traveler. To send him away empty handed is a sin. In principle, to send away the dependent wife, to be cared for by another is an evil of the same sort. It would be just as wrong to condemn the traveler for finding succor from the next farm as it would be to refuse to allow the cast-off woman from finding it with the next husband.
The after context of Deuteronomy 24:1-4 is also instructive. Verse five protects a woman from having her support, i.e., her lawful husband, taken from her by government conscription. Again, the concern of the contextual law is the importance of provision for the woman. It seeks to insure that she is adequately cared for, even at the potential cost of manpower in war.
Deut. 24:6 insures the poor man that his crucial provision, in this case the means by which he grinds his daily food, will remain his. Applying the principle of this to marriage, it is not fair that a man remove a woman’s livelihood by divorce and yet somehow keep her from future provision. Hers is the right to provision. Note also, that this final law ends with a summary statement to the whole section: “You must purge the evil from among you.” It is the burden of the section, that things which bring sin upon the land (a phrase from Deut. 24:4—seldom discussed in this context) are identified and prohibited. In that context, the most sinful things are those which reduce a person to a piece of chattel … a thing passed back and forth with no concern for the personal needs of that individual who is created in the image of God.
In this context, it is significant that the demeaning sin of Deut. 24:1-4, identified by what is expressly prohibited is the return to a hard-hearted husband (i.e., one who has cast away his wife for the mere reason of erwat dabar), who has allowed her to be claimed by another, before he remorselessly requests her return. Contrary wise, it is entirely opposed to this passage in view of its context to suggest that the verse prohibits the cast off woman from being provided for by remarriage by someone who is not rejecting her for erwat dabar.
For example the Feinbergs, take the passage from its context and present it as a purely moralistic prohibition of all remarriage without any provision for the woman’s continued care. They do so by suggesting that any remarriage involves adultery in its consummating act. Hard-hearted husbands and caring husbands are lumped together. Actually, the Feinbergs prove themselves not to be hard-hearted after all. A certain inconsistency in their argument saves the day. While calling the consummating sex act of the second marriage adultery,638 they also state that the first purpose of the divorce legislation itself is to protect the rights of a woman, namely so that after she is divorced on inadequate ground, men will be able to identify her as free and available.639 The second purpose of Deut. 24:1-4 is to foreclose the possibility of multiplying marriages and divorces640 insofar as the second marriage rendered the cast off wife an adulteress.641 But it is inconsistent to suggest that Deut. 24 both supports the remarriage as providing essential care, and condemns its consummation as adultery!
637 The background of this Appendix is the theory of Stephen Kaufman, The Structure of Deuteronomy, MAARAV,(1979), pp. 105-158, and of John Walton, “Deuteronomy: An Exposition of the Spirit of the Law,” Grace Journal 8.2 (1987), pp. 213-235 etc. that Deuteronomy follows the pattern of the Suzerainty Treaty of the Hittites, in which the Great Statutes, in this case the Ten Commandments, are followed by the Specific Ordinances, in this case the bulk of Deuteronomy. To Kaufman, sections of Deuteronomy are related in a literary sense to the commandments, one after another. Walton and I worked on this theory from a higher view of inspiration, and believe that the lesser laws are Divine comments, explaining and applying the meaning of the Commandments. For my treatment of this theory, I plan to publish The Structure of Biblical Ethics, from this same publisher. At this point, I offer the appended chart setting forth my own theory.
638 Feinberg, Ethics, p. 315.
639 Ibid p. 311.
641 Ibid. p. 313.