Divorce and Remarriage
by David Instone-Brewer

"I.-B.'s pastoral concern is commendable. But I doubt that it is helped by ignoring past and present differences of opinion on divorce and remarriage, both in Judaism and Christianity."


Peter J. Tomson

Theologische Literaturzeitung 129 (2004) 7/3

Full review:

The introduction announces a presentation of New Testament teaching on divorce and remarriage 'as it would have been understood by its original readers'. From the start, there is also an emphasis on pastoral implications. Next, the introduction anticipates the conclusions: Jesus and Paul affirmed the Old Testament grounds for divorce, i. e. 'adultery and neglect or abuse', while condemning divorce 'without valid grounds' and discouraging 'divorce for valid grounds'. Subsequent Christian tradition, however, would have become much more restrictive on divorce and remarriage than this teaching from the Old Testament and the New. The legitimacy of the pastoral concern expressed here is beyond debate, but the asserted harmony of Old Testament and New Testament teaching is problematic, and it is based on incorrect analysis of the sources.

The successive chapters deal with 'The Ancient Near East'; 'The Pentateuch'; 'The Later Prophets'; the 'Intertestamental Period': 'Rabbinic Teaching'; 'Jesus' Teaching'; 'Paul's Teaching'; and 'Marriage Vows'. They offer a wealth of data from the relevant Jewish, Pagan and Christian sources, displaying much learning and ingenuity, occasional lapses notwithstanding (twice spelling shana instead of sana for the Hebrew verb 'hate', 78 and 7, n. 30; qol for qal vahomer, 100; death penalty for rape of a 'virgin' instead of a betrothed virgin, 23).

A fundamental Old Testament passage frequently quoted in the book is Deut 24:1-4, a complex piece of case law. It is about a woman who is divorced 'because of some indecency', remarries, but then sees her second marriage terminated because her husband 'dislikes' and divorces her, or just because he dies; the first and second divorce are both formalised by 'a bill of divorce', which of course is not necessary when the husband dies. When arrived at this point, thus Deuteronomy, the first husband can not remarry the woman. The reason given is 'she has been defiled'. There seems to be no objection to her being remarried to another man.

This is hard to understand. Why would a divorcee be more 'defiled' for a former husband than for a new one? A coherent explanation, quoted repeatedly with approval by I.-B., was given by R. Westbrook ('The Prohibition on Restoration of Marriage in Deuteronomy 24:1-4', Scripta hierosolymitana 31 [1986], 387-405). When reviewing it we must keep in mind, as I.-B. also reminds us (20 f.), that Old Testament law is not systematic but rather cites exceptional cases based on implicit rules every-one would know.

Westbrook observes that according to Deuteronomy, marria-ge ends just as legally by divorce as by death of the husband. But there is a difference between the two divorces; the first one is 'because of some indecency', the second 'because he dislikes her'. The term 'dislike' or 'hate' (Hebrew sana) in ancient Near Eastern law denotes a subjective ground for divorce that would oblige the husband to pay the woman a sum equalling at least the dowry. This is also the case in rabbinic law (cf. the ketubba), and therefore probably tacitly supposed in the second divorce in Deut 24. The first divorce, however, was occasioned by 'some indecency' committed by the wife, or in Westbrook's terms by objective grounds, which by Near Eastern and rabbinic law (Mishna Ketubbot 7:6) justifies divorce without financial re-compensation. The same seems presupposed in Deut 24: the first husband has divorced her 'because of some indecency' apparently without paying the established sum - and if he would remarry her now, he would profit from the money the termination of her second marriage entitled her to! The prohibition is summarised, thus Westbrook, in the phrase hutama'a that must mean 'she was declared to be unclean' - i. e. by her first husband.

I.-B. introduces a different terminology and completely mis-ses the point of Westbrook's analysis; 'The first marriage ended when the man cited a valid ground for divorce ... The second marriage ended without any valid grounds for divorce' (7; cf. 23, 56 f.; emphasis added). I.-B. also completely ignores the fact that the >hate divorces though subjectively motivated, is accepted as legal and valid - as distinct, to be sure, from New Testament teaching.
Very important evidence is found in Qumran, because it stands chronologically between the Old and New Testament. Two related passages prohibit 'taking two wives during their lifetime' (CD 4:20-5:2; 11QTemp 57:17 f.). The first passage aims at priests in Jerusalem and adduces three arguments: (1) the principle of creation is: 'male and female He created them' (Gen 1:27); (2) they came 'two by two' into Noah's ark (Gen 7:9); and (3) the king 'must not multiply wives' (Deut 17:17). The last argument is also brought by the second passage, which indeed speaks about the king's obligation to monogamy, but implicitly excludes divorce as well. The first passage reads as being primarily directed against divorce, because polygamy is alluded to only in its third quote. According to most commentators, therefore, these passages exclude both polygamy and divorce. I.-B., however, peremptorily states that only monogamy is discussed.

The rabbinic evidence is also misread. Ignoring the formal acceptance of 'hate divorce' in Old Testament law, I.-B. attributes the Pharisaic-rabbinic school of Hillel with the 'invention of a new type of divorce, called the "any matter" divorce' (110). He nevertheless notes (115) that both Philo and Josephus also supported this type of divorce, and elsewhere in a footnote (154, n. 44) he concedes that this indicates it was wide-spread, even adding Sir 25:26 which proves its existence before the school of Hillel. If we take in the reality of the Old Testament acceptance, it appears that this type of divorce had been in use all along and that the Hillelites merely maintained it over against the Shammaites who wished to restrict the grounds for divorce to 'some indecency' in the sexual sense. Hence the asser-tion that the Hillelites 'invented' it floats in the air.

The Gospe! material is of course crucial to the book. Here, the argument is particularly tortuous as regards the differences between the various documents. Throughout, I.-B. sticks to Matthew's version that Jesus accepts divorce 'in case of porneia' or 'indecency', which evidently fits better with the marriage the-ology he wishes to develop but ignores the fact that Mark, Luke and Paul do not mention the Matthaean clause (see Mt 5:32; 19:9; Mk 10:11; Lk 16:18; ICor 7:10 f.). The reader, who is informed that the author accepts the strong arguments to the effect that the clause was added in Matthew, is nevertheless invited to accept that the Matthaean version represents more aspects of the original debates (171-173, cf. 134).

I.-B.'s pastoral concern is commendable. But I doubt that it is helped by ignoring past and present differences of opinion on divorce and remarriage, both in Judaism and Christianity. On the contrary, could Christians not, inspired by Jewish tradition, learn to distinguish between the necessity of creating basic order in society (clarifying the boundaries of marriage, not least on behalf of the offspring) on the one hand, and on the other, the adhortation to adhere to the biblical ideal of lifelong monogamy (correctly sensed in Mal 2:14-16; 54-58)? It would resemble Paul's two levels of instruction throughout ICor 7, i. e. the rule accepted in the Church and his own stricter 'opinion'. Indeed, it would be what Jesus seems to suggest: 'Moses wrote his di-vorce ruling for our hardness of heart' (Mk 10:5). 


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