Marriage and related relationships according to the Law of Moses

When considering marital relations, the first thing that attracts attention is the age that is considered adult for marriage. Among biblical Jews, marriage usually took place at a very early age. Early marriage is generally customary in the East, where puberty occurs sooner than in Europe. In present-day Egypt, marriage usually takes place before the age of 16, most often when the bride is 12–13 years old, and sometimes even at 10 years old. 1 The Talmudists forbade marriage before the age of 13 for men and 12 years and 1 day for women. 2 The marriage consisted of an agreement between the parents of the young people, and the groom received the so-called “morning gift” - mohar. 3 Researchers' opinions are divided regarding the meaning of the “morning gift”. Some see it simply as the amount for which the groom buys the bride, others, on the contrary, see it in the proper sense as a gift from the groom to the bride. This question essentially has more archaeological than legal interest; but in view of the fact that one or another of his decisions can cast a very special light on the general nature of marriage relations in the Jewish people, we will dwell somewhat on the consideration of the controversial point. Michaelis, based on his opinion of the “morning gift” as the purchase price that the groom gives to the father for his daughter-bride, makes a general conclusion that “wives were usually bought from Jews.” 4 To support his opinion, he points to examples from other nations and to some biblical facts that give rise to the assumption of the custom of buying a wife. Thus, he refers to the story of Jacob's 14-year labor for his two wives (Gen. 29:15–29), on the history of the matchmaking of Shechem (34:12), on the marriage of the prophet Hosea, etc. In them he sees a direct basis for his categorically expressed opinion. But, as Salschutz, a proponent of the opposite opinion, notes: “all these foundations are not difficult to refute.” First of all, as for the example of other peoples who had the custom of buying wives, one cannot conclude from this that it was certainly the same among the Jews. The reference to Laban carries more weight. Laban actually seems to sell his daughters by forcing Jacob to work for them. But this fact, in essence, cannot serve as confirmation of the opinion of Michaelis, since nothing shows that Laban acted according to customary law: on the contrary, everything testifies that he was guided by a sense of self-interest, which, by the way, is indicated by the complaint of his daughters: “Doesn’t he consider us to be strangers? Rachel and Leah spoke; for he sold us, and even ate our money” (Gen. 31:15). From these words it is clear that Laban, in selling his daughters, treated them as strangers, and therefore accomplished an extraordinary deed. The history of Shechem's matchmaking also does not confirm the opinion of Michaelis, since Shechem is not talking about the purchase price, but about the usual gifts to the bride and her relatives. Moreover, Shechem’s work was exceptional, since he wanted, among other things, to atone for the dishonor he had inflicted on Dinah with rich gifts (Gen. 34:2, 34:7, 34:11, 34:12). Finally, the reference to the prophet Hosea, who bought himself a wife “for fifty pieces of silver and a homer of barley and half a homer of barley” (Hos. 3:2), does not stand up to criticism. This fact, apparently, should have served as the clearest confirmation of the opinion about buying a wife, especially since the price was even indicated. But, firstly, here we are talking about a harlot who committed adultery from her husband, and secondly, the amount is given to her herself and thereby ceases to be a purchase price in the proper sense. In contrast to the facts discussed, there are examples that exclude any thought of buying a wife, and therefore show that for the validity of the marriage, the transfer of money or other valuables was not necessary, which is especially important in legal terms. Such are the marriages of Rebekah, Axa, the daughter of Caleb (Josh. 15:15), Michal, daughter of Saul (1 Sam. 18:25). Therefore, the “morning gift” (mohar) was nothing more than the groom’s gift to the bride, intended to enable the bride to appear at her husband’s house in good wedding clothes. This was the purpose of the gifts of Eleazar, Abraham's servant, which consisted mainly of dresses and jewelry (Gen. 24:10, 24:22, 24:53). This nature of the mohar is indicated, among other things, by the fact that it was mainly intended and given to the bride herself, while gifts for relatives were of secondary importance (v. 53). The law does not determine how independent a girl is in choosing a groom. According to common ancient law, a daughter was usually not independent in choosing a husband and was completely dependent on her parents in this regard. This was not the case under Jewish customary law. The power of parents here was strong, but not unlimited. The story of Rebekah's matchmaking presents an interesting picture of holy patriarchy. The bride's parents, despite the rich gifts they received from the matchmaker and, in general, the obvious benefit of marrying their daughter to a rich man, did not dare to arbitrarily decide their daughter's fate, but considered it necessary to ask the consent of the bride herself. They said: “Let's call the girl and ask what she will say. And they called Rebekah and said to her, “Will you go with this man?” She said, “I will go” (Gen. 24:57, 24:58). Such respect for the daughter’s personal freedom is all the more remarkable since, according to ancient customary law, parental authority was of enormous importance in the groom’s choice of a bride. So Hagar chooses a wife for Ishmael, Isaac guides Jacob in his choice, Judah chooses a wife for his son Er 6, although the consent of the suitors themselves is obviously assumed here. The very act of marriage has no definitions for itself in written law. As far as can be judged from the facts of common law, it did not have a precise definition for itself in this latter law either. And it is remarkable that in all the Old Testament literature there is not even a word to designate the form of marriage in the form of our “wedding,” and this last word is never found in the Russian translation of the Old Testament. The word “marriage” appears once (as translated in the book of Song of Songs 3:11, the word chalunnab), but it refers more to the marriage act itself than to the form of its conclusion. The conclusion of a marriage union bears the stamp of true patriarchal simplicity, alien to any formalities. Here is a lovely picture of the marriage of Isaac and Rebekah, breathing with the freshness of patriarchy (Gen. 24). On behalf of Abraham, his servant goes to a distant country to look for a wife for Isaac. By chance he meets “a beautiful-looking maiden, a maiden whom her husband has not known.” He involuntarily drew attention to her, asked her for water to drink, and when she turned out to be so helpful that she not only gave him something to drink, but also tried to draw water for his camels, then after that he could no longer let her out of sight: physical beauty and moral kindness riveted him to her. He immediately gave her a gold earring weighing half a shekel and two bracelets for her hand weighing ten shekels of gold. Having asked whose daughter she was and whether they had a place to stay for the night, and having received in response from the kind girl, surprised and delighted with the gifts, that “they have a lot of straw and feed, and a place to sleep,” he went to her father’s house and right there, now, expressed his desire. The girl’s parents, seeing the seriousness of the slave’s assignment, as well as the wealth of his master, who spared nothing for his favorite son, agreed to the marriage; Rebekah was asked if she agreed, and when she expressed her full consent, the marriage act was concluded. The girl’s parents and relatives received gifts; they wanted to keep Rebekah in their house, “at least ten days,” but since the slave could not hesitate, they said goodbye to their daughter, and “blessed her and said: our sister! May thousands of thousands be born from you, and may your descendants possess the dwellings of your enemies!” After this, Rebekah set off with the slave and several of her maids on the road. When our travelers were approaching the goal of their journey, Isaac accidentally went out into the field to “think.” Rebekah, seeing him and recognizing who it was, was embarrassed and “took the veil and covered herself.” Having learned from the servant all the circumstances under which he had chosen the maiden brought for him, Isaac “brought her into the tent of his mother Sarah, and took Rebekah, and she became his wife, and he loved her; and Isaac was comforted in his sorrow for his mother Sarah” (Gen. 24). The picture presented serves as a typical expression of the order of concluding marriage acts in patriarchal times. Judging by this picture, the whole order of marriage was that a man chose a woman for himself, both of them received a blessing from their parents and after that they became spouses. Subsequently, the act of marriage became somewhat more complicated. When concluding a marriage, he began to use a written agreement or contract, as was the case with the marriage of Tobias to Sarah (Tob. 7:12, 7:13). But both before and after, Jewish marriage retained its special character, namely the character of a civil act. In all the Old Testament literature there is not the slightest indication that marriage, for its validity, needed religious sanctification by members of the sacred hierarchy. Jewish customary law considered the ancient blessing to the first parents: “be fruitful and multiply, and fill the earth” (Gen. 1:28) as a sufficient sanctification for all subsequent marriages, and therefore it itself only cared about the civil side of this act. The Talmudists have preserved the very formula of marriage contracts, and it represents a civil legal act in the proper sense of the word: it sets out the civil obligations of the spouses among themselves, which are of a purely business, practical nature, that the husband undertakes to honor his wife, take care of her maintenance, provide her with food, clothing, “according to the custom of Jewish husbands, who honor, support, feed and dress their wives properly,” etc. “In confirmation of which, is added to the contract: we have concluded a real deed on such and such a day, month, year.” 7 The marriage usually ended with a feast, but since they, of course, are not of legal interest, we will not dwell on their consideration, we will move on to the consideration of the legal relations of the spouses in family life. The legal relations of spouses are usually determined by the legal status of the woman, and therefore, for a more thorough understanding of the subject, it is necessary to pay attention in general to the legal status of women in the Jewish people, to her social status. The Law of Moses does not provide legal definitions of the legal status of women, leaving, as in many other cases, such definitions to common law. But this latter, as it has been expressed in history, provides enough data for a more or less complete determination of the position of women in the Jewish people. Her position here was significantly different from the position of women in general among the ancient eastern peoples, where she was a completely powerless slave of her master and husband, serving for him as a blind instrument for satisfying passion. An expression of her position there was a harem, in which, in a hopeless situation, the wives of a despot-husband, usually serving as unrequited performers of animal whims, lost the last consciousness of their human dignity. Among the Jewish people, on the contrary, women occupied a high social position and were, at least in theory, equal in rights to men. This equality of the sexes was primarily expressed in the very creation of the first people, according to the idea of ​​which a woman was created as a necessary assistant to her husband, a complementary to the perfection of the human being, without which a person would always remain a half-creature - both morally and physically. Hence the very name of a woman in Hebrew is almost identical to the name of a man and differs only in the ending characteristic of the feminine gender (isch and ischah). During the patriarchal period of history, some customs came into practice that could adversely affect the development of the idea of ​​equality of the sexes, such as polygamy, which by its very essence humiliates the idea of ​​marriage and, above all, women. But as is known, polygamy never received significant development among the Jews and found powerful restraint in the Mosaic Law and, as far as one can judge from the views of biblical writers, in public opinion, and therefore could not have a particularly harmful influence on the relationship between the sexes. Therefore, we do not find harems among the Jewish people, at least in the sense that it was among other peoples. If something similar occurs, as for example in Solomon, then it must be looked at as an exceptional phenomenon caused by the personal whim of a king who knew no measure in his happiness. Moreover, this phenomenon is in direct contradiction with the laws of the country, according to which, firstly, the king should not multiply wives for himself, lest his heart be corrupted (Deut. 27:17), and secondly, he should not take wives from those nations about which the Lord said to the children of Israel: do not go in to them, and let them not come in to you, lest they incline your hearts to their gods; and it was to them that Solomon clung (1 Kings 11:2). Such illegal actions of the king found complete condemnation in public opinion, which is clearly evident from the tone of his historian’s speech in the 1st book of Kings. With all this, Solomon’s wives were not haremwomen in the proper sense, i.e. powerless odalisques, appointed to serve only as instruments for satisfying the king’s passion; on the contrary, they enjoyed such significant influence over the king that they even forced him to build for himself a church for his gods, i.e. to please them, to commit the greatest and most dangerous lawlessness that was possible for a king in the Mosaic state. One cannot help but see in this influence of wives an expression of the general position of women among the Jews. If we turn to the positive data of history and customary law, then the position of women among the Jews will appear in the following form. Contrary to the humiliating customs of ancient peoples, according to which women lived in lawless confinement in harems, and if they came out of their imprisonment, then certainly with a veil over their faces, Jewish women and girls freely and openly treated the male sex, and together with them took part in the troubles and pleasures of ordinary life. So we see that Rebekah carefully takes care of household chores, goes alone outside the city to get water to the source and, without any embarrassment, does a favor for a complete stranger at the first request. Then she kept her face uncovered all the way to Isaac and covered herself only in his presence, thereby expressing the natural shyness of the young girl in front of her groom (Gen. 24:11, 24:16, 24:17, 24:65). Jacob greets his first cousin with a kiss in front of the shepherds (29:11); and she, along with the men, tended her father’s flocks, and of course, walked with her face uncovered. Sarah, during her stay in Egypt, as can be seen from history, also did not cover her face, which was the reason that she was considered (of course, in accordance with Egyptian customs) unmarried and taken to the court of Pharaoh (12:14-19). In general, girls, over whom the guardianship of the ancient peoples was most burdensome, enjoyed complete freedom among the Jews, they could walk everywhere without hindrance, outside the city, in the field, and the law ensured their immunity with strict punishment. Anyone who insulted a girl in the field, where she remained defenseless, was subject to death (Deut. 21:25). Jewish women took an active part in the public life of the people, together with other women, with timbrels and rejoicing in songs, they glorified the greatest moment in the history of their people - the passage through the Red Sea and the death of Pharaoh (Ex. 15:20, 15:21). Jephthah's ill-fated daughter, with timbrels and choirs, meets her conquering father (Judges 11:34). The maidens of Shiloh were going to the vineyards to dance in round dances (21:21). When Saul and David returned from the victory over the Philistines, they were met everywhere by women singing and dancing, with solemn tympans and cymbals, with laudatory exclamations: “Saul defeated thousands, and David tens of thousands!” How important such approval was for the king is shown by the fact that Saul was “greatly upset” by David’s exaltation over him and began to look at him suspiciously (1 Samuel 18–9). Participating on an equal basis with men in public life, Jewish women apparently enjoyed the same education as them. Religious education was undoubtedly the same for both men and women. This is clearly indicated by the system of religious-historical education we examined elsewhere 8 by explaining the meaning of the Jewish festival, established in memory of the most remarkable events in the life of the people, celebrations in which both men and women, sons and daughters equally participated (Deut. 16:11, 16:14). But in addition to religious education, women received historical and political education in the same way as men, as indicated by the fact that they, together with men, participated in the hearing of the Mosaic Law, which was publicly read to the people on the Feast of Tabernacles, in the year of liberation (Deut. 31 and 12), and the famous song of Deborah, this most remarkable woman of the Israeli people, bears the stamp of a deep understanding of the historical fate and political situation of the people (Judges 5). In this situation, Jewish women could also occupy public positions, mainly the positions of prophetesses, such as Miriam, Huldah, Noadiah, Anna 9 and especially Deborah, who was a “judge”, considered and decided not only the domestic, ordinary affairs of the Israelites, but also political ones (Judges 4 and 5 f.). More than once, Jewish women took an active part in the military-political life of their people: in addition to the well-known heroic story of Judith, who liberated the city of Bethulia and the entire Israeli land from the invasion of Nebuchadnezzar’s army, one can also point to two examples of the heroism of Jewish women. The woman from the city of Tevets and the “smart woman” from the city of Abel are also known; of them, the first killed the rebel of the state Abimelech, and the second negotiated from the city wall with the commander Joab, who had come to punish the city of Abel because of one person, and persuaded him to lift the siege, and with this both put an end to civil strife in the country. 10 After this, it is not surprising that Jewish women had an unusually developed consciousness of their rights, thanks to which they often personally appeared to the king, asking him for a solution to their case, as can be seen from the story of the wise court of Solomon (1 Kings 3:16). Even more remarkable in this regard is the example of an intelligent woman from Thecoit, who boldly came to the king and, through a wise parable, achieved that the king was reconciled with his son, who had angered him by the murder of his first-born son (2 Kings 14-21). The woman’s highly developed self-awareness was also expressed in the abuse by which Athaliah seized the throne of the kingdom of Judah into her own hands, and the wicked Jezebel ruled the kingdom with full authority under her husband-king. 11 This was the social status of women among the Jewish people. From the presented essay it is clear that it was almost no different from the current situation of women in Europe. 12 If we take into account those centuries of cultural development that separate present-day Europe from Palestine of that time, then the presented comparison is obviously not in favor of the former. This social position of a woman naturally had a beneficial effect on her family and home status. And we see that in home life a woman is just as full and free as in public life. Sarah sovereignly manages affairs as a mistress, so Abraham completely obeys her voice and fulfills her desires, sometimes even against his own wishes (Gen. 16:5, 16:6, 21:10–12), Rebekah is also a full mistress in the house, and Michal, the wife of David, even exceeds her right, and therefore encounters restrictions, although expressed in a subtle form that does not contradict marital respect (2 Sam. 6:20–22). Thanks to such an independent position in the house, the wife could receive guests at her own request, even apparently without the knowledge of her husband, as, for example, did the rich Shunammite woman, who invited Elisha to her place every time he came to Shunam, and then, with the consent of her husband, prepared a special room for him (2 Kings 4:8-10). A wife could start relationships with people even against the wishes of her husband, as can be seen from the example of Abigail, the good wife of the evil Nabal, who brought gifts to David after a rude refusal on the part of her husband (1 Sam. 25:10, 25:27). The wife had equal rights with her husband both in relation to children and to the household. So Anna, at her own request, determines the fate of her son Samuel, and her husband completely agrees with her: “Do what you please,” he says (1 Samuel 1:22–23). Rebekah expresses her reluctance for Jacob to take a wife from the daughters of Canaan, and her husband Isaac, with the blessing of Jacob, complies with her desire: “and he commanded Jacob and said: “Do not take yourself a wife from the daughters of Canaan” (Gen. 27 and 28:1). The Shunammite woman mentioned above, in order to fulfill her desire, even undertakes the construction of an entire upper room for Elisha and receives full consent from her husband, to whom, moreover, in this matter she turns not with a request for permission, but with the expression of only her desire in the form of consciousness of her full rights: “let's make,” she says to her husband, a small upper room over the wall, and we will put him there a bed, and a table, and a seat, and a lamp; and when he comes to us, let him come to us” (2 Kings 4:10). On occasion, the wife even reproached her husband, as can be seen from the example of good Abigail, who spoke to David about her husband Nabal: “Let my lord not pay attention to this evil man, to Nabal; for as the name is, so is he. Nabal (mad) is his name, and his madness is with him” (1 Samuel 25:25). Michal even personally turned to David with reproaches for his supposedly indecent behavior during the transfer of the ark, when he jumped and danced for joy in front of the ark: “how the king of Israel distinguished himself today (she told David), naked today in front of the eyes of his servants, as only some empty man exposes himself!” (2 Samuel 6:20). The relationship between husband and wife is characterized by extraordinary tenderness and love. The husband is often called the wife's "friend" (Jer. 3:20; Hos. 3:1) and his love for her is often described in Old Testament literature (Gen. 24:67, 29:18). The legislator placed an unusually high value on the happiness of family and married life and took all measures to ensure that this life did not cease to be a source of moral strength for the entire state. To do this, it was necessary to take special care to strengthen the marriage bonds, especially in the first time after marriage, when these bonds could most easily be strengthened for life. In order to achieve this goal, the legislator issued a remarkable decree, by virtue of which a married person was initially freed from all duties, both state and public. “If someone has recently taken a wife, then he should not go to war, and nothing should be placed on him; let him remain free in his house for one year, and let him please his wife whom he has taken” (Deut. 24:5). This ruling could have a beneficial effect on the entirety of the life relationships of the Israeli. Thanks to the exemption from all taxes and duties, for a whole year he could devote all his worries and efforts to putting his household in the best possible position, to stand on solid economic ground, as a necessary material basis for the well-being of the family. Then, over the course of a whole year of constant stay in the family, he could strengthen his connection with her so much that she would become for him a necessary and irreplaceable source of moral strength and happiness. This explains in part the amazing strength of family ties that amazes the Jewish people and which alone, during the many centuries of their existence without a state, gave them the opportunity to preserve their type and moral strength. On the other hand, the wife is the consolation of her husband in times of sorrow; for example, Isaac, thanks to Rebekah, “was comforted in his sorrow for Sarah his mother” (Gen. 24:67); and the crying of the young wife over the loss of her husband became the subject of comparison to express the greatest grief (Joel 1:8). Finally, the strongest expression of the fiery love of husband and wife is the entire book of Song of Songs, consisting of lovely paintings depicting this love with the most vivid and at the same time tender features. The state of family relations we have depicted represents, of course, the ideal of this state. We focused primarily on the image of the ideal state because, in the absence of direct legal definitions regarding this state, it was supposed to serve as some kind of replacement and the closest expression of them, since legislation is always higher than life, and its most accurate expression must always be sought in the most normal relations. But there were, of course, exceptions, deviations from the norm, especially since in the Jewish people there were still conditions that could prevent the full realization of the happiness of family life, such as polygamy, with which the displeasures arising from the rivalry and jealousy of wives are inseparable, as can be seen in such patriarchal families as the family of Abraham, where there are frequent displeasures between Sarah and Hagar, and the family of Elkanah, where Anna’s rival Peninnah greatly upset her with reproaches for her infertility (Gen. 21:11, 1 Sam. 1:6). But these facts, in any case, constitute exceptions; they are suppressed by a mass of facts of a different kind. And “these latest facts, as Salschutz rightly says, constitute a positive refutation of the conclusions to which some authorize themselves in view of the existence of polygamy among the Jews, which usually demoralizes women and humiliates them in the eyes of men. The Jews had neither one nor the other, either because the very view of polygamy is not correct, or because polygamy itself among this people was only a rare exception. The latter seems certain. Many examples in Israeli history speak for this. In the Proverbs of Solomon and the Psalms, when depicting domestic family happiness, the image of one wife, complete mistress of the house, appears everywhere. The very Law of Moses obviously does not look favorably on polygamy, and many of its provisions are undoubtedly aimed at limiting it. 13 If polygamy existed among the Jews, it took a softened form, according to which, except for a few cases of bigamy (bigamy), in which both wives had equal rights (such as the wives of Jacob and Elkanah), the wife in the proper sense was always alone, and the rest were as concubines. So Abraham had one wife - Sarah, but besides her he had a concubine Hagar (Gen. 16 and 3). The system of concubinage was widely used among the Jews and enjoyed legal recognition. Therefore, our outline of the laws on family relations among Jews would not be complete if we did not touch upon the legal and social status of this kind of women - concubines. Concubinage, which appeared in the most ancient times among the Jews, was caused by a pious desire to have offspring, which did not allow concubinage to descend to the level of crude polygamy. Therefore, the whole phenomenon must be looked at from the point of view of this pious desire, by virtue of which even a slave could become important in the family, especially where the wife is barren. This was the true source of the concubine of Nahor, Abraham and Jacob. Concubines (pilegesch), as secondary wives, naturally could not be equal to the real wife in legal status. We see that in the family of Abraham the main mistress, the mistress of the house, is Sarah, and the concubine Hagar plays a subordinate role; and when the latter, “seeing that she had conceived, began to despise her mistress,” then Abraham, in response to a complaint or rather a reproach from Sarah, said to her: “Here is your servant in your hands, do with her what you please. And Sarah began to oppress her and she fled from her” (Gen. 15-6). The rabbis find the legal difference between a wife and a concubine in the fact that the latter, upon divorce, did not have the right to a “letter of divorce” (libellos divortii) and could be removed from the home and from cohabitation with her husband without any formalities. 14 There was also a difference in rights in relation to the children of the wife and the concubine; for example, the children of concubines did not receive an inheritance from their father, but only gifts (Gen. 25:6), although this distinction did not apply to all relationships, since these children were still not considered strangers, they constituted an additional family, and their names are found in patriarchal genealogies along with the names of children from actual wives (Gen. 22:24; 1 Chron. 1:32). The Mosaic legislation accepted the ancient customary right of concubinage and only subjected it to more precise legal definitions. According to this legislation, concubines could be: 1) a Jewish girl sold by her father; 2) a pagan captive captured during the war and 3) a purchased foreign slave. However, the law gives precise definitions only regarding the first two kinds of concubines - a Jewish girl and a captive; He does not give any definitions regarding the purchased foreign slave, although she could undoubtedly have been a concubine. The essence of the regulations regarding the first two kinds of concubines is as follows: if someone sells his daughter into slavery to another, and this one does not betroth her to himself or give her to his son, or if this latter marries her, but takes another wife with her, and begins to neglect her, then she has the right, without returning the amount received by her father for her sale, to go free (Ex. 21: 7-11). If someone sees a beautiful looking woman among the captive women, and falls in love with her and wants to take her as his wife, and goes in to her and she becomes his wife, but then doesn’t like her, then let him let her go wherever she wants, but should not sell her for silver and turn her into slavery, because he humbled her (Deut. 21:10-14). These decrees define the legal status of concubines under the Mosaic Law. The law treats with such love and care the unfortunate women of this kind, placed in a dependent position, one through forced sale by their father due to poverty, and the other through captivity, that it does not even call them in the proper sense concubines (pilegesch), but in order to elevate them in the eyes of their husbands, calls them wives (ischah), protects them from neglect and sale into slavery. Nevertheless, these women are not real wives, not wives in the proper sense, although in their legal status they are almost no different from them. The entire difference in their legal status is expressed in the absence for them of a “morning gift” during a marriage and a “letter of divorce” during a divorce - these legal expressions for the full legality and validity of a marriage. There is no hint of the existence of the “morning gift” here, and it is excluded by the very form of concluding these marital relations, since in the first case the wife is bought, and in the second she is taken captive, conditions that do not provide room for the “morning gift”, which serves as an expression of the woman’s free consent to marriage. Divorce from these wives is also not accompanied by legal formalities, but simply consists of the husband “letting go” of the wife. The difference between a concubine and a full wife is expressed, among other things, in criminal terms. While adultery with a fat wife or a free bride is punishable by death for both criminals, adultery with an engaged slave (concubine) is simply punished. “If anyone sleeps with a woman, and she is a slave, betrothed to her husband, but not yet redeemed, or freedom has not yet been given to her, then they must be punished, but not with death, because she is not free” (Lev. 19:20). All the considered definitions regarding the right of concubinage give, as Salschutz says 15, the form of a fragile marriage, concluded without any formalities or gifts, with such women or girls who somehow found themselves in a dependent position. This alliance was easier to break and its violation itself was easier to punish. The legislator, in recognizing such a marriage union, making a concession to the customary law legalized by antiquity, tried, through the considered definitions, to eliminate the main evil that depressed the marriage relations of ancient peoples - namely, the development of polygamy and the humiliating position of women associated with it. He achieved the first by depriving the marriage union with concubines of legal formalities, which made the union as if invalid, and the second by raising the legal status of the concubines almost to equality with a full wife. As can be seen from the previous section, divorce laws have a close connection with the laws on the legal status of women and, in general, with the laws on marital relations. The issue of divorce is one of the most difficult issues in legislation. Legal science has not yet established one principle for judging this subject: some look at divorce as a matter of natural necessity, and therefore try to make it as easy as possible; others, on the contrary, look at it as an expression of criminal passion, and therefore try to limit it as much as possible. The truth lies between these extremes. The moral essence of marriage, as a free union of beings that complement each other, a union in which the members become “one flesh,” presupposes the eternity of the union, and therefore excludes divorce. Such is this union in its ideal. But the ideal is never fully realized in reality; there are always more or less abnormal conditions that violate its unattainable purity. The general corruption of human nature was not slow in setting up marriage relations with such conditions that could violate the inviolability of the marriage union and introduce destructive elements into it that necessarily led to divorce. Among such conditions, one can point to gender inequality, restriction of freedom of choice of persons getting married and the ensuing consequences: moral or physical inadequacy of these persons, lack of love, etc. All legislators took these conditions into account and all recognized divorce to a greater or lesser extent. The Mosaic legislation is no different from other legislation in this respect. However, here, as in many other cases, it did not provide its own laws, but took as a basis ready-made regulations developed by common law and only subjected them to definitions consistent with its special purpose. History does not provide sufficient data to judge to what extent common law allowed divorce and what conditions it was subject to. It represents only one example of divorce, and not with a real wife, but with a concubine - Abraham’s divorce from Hagar (Gen. 21:14). But from this example, and mainly from the provisions of the Mosaic legislation, which shed light on customary law, we can conclude that divorce was generally carried out with great ease, without any legal formalities. This state of affairs, of course, could not respond favorably to a woman, who, thanks to her dependent position, could always plunge into a hopeless situation, as was the case with Hagar. The Mosaic legislation would naturally subject divorce to stricter definitions. The main definition is found in Deuteronomy (Deut. 24:1–4). “If a man, says the legislator, takes a wife and becomes a husband, and she does not find favor in his eyes, because he finds something nasty in her, and writes her a letter of divorce, and gives it into her hands, and sends her out of his house, and she leaves his house, goes and marries another husband; but this last husband will hate her and write a letter of divorce to her, and give her into her hands, and let her leave his house, or this last husband of hers, who took her as his wife, dies, then her first husband, who let her go, cannot take her again as his wife, after she has been defiled; for this is an abomination to the Lord your God, and not a disgrace to the land which the Lord your God is giving you as an inheritance.” As can be seen from the conventional form of the presented text, it seems that it is not the law on divorce that is being set out here, but the law on the marriage of persons who have obtained a divorce. The law on divorce is supposed to be known and does not require definition. But it would not be fair, along with Michaelis and Salschutz 16, on the basis of the conditional form of the law on divorce, which supposedly assumes only the ancient law of common law, to deny in this form new regulations regarding divorce, which no longer belong to common law, but to the Mosaic legislation itself. If the legislator in this law only intended to determine the impossibility of persons after a divorce to remarry each other, then the detailed form in which the ancient law on divorce is set out would be completely unnecessary and pointless. Meanwhile, the legislator repeats the legalized procedure for divorce twice down to the smallest detail. This circumstance involuntarily forces us to assume that for the legislator this definition is not a simple conditional form that serves only as an introduction to the main law, but has independent meaning, and is not a simple repetition of the customary law, but on the contrary contains a new definition, unknown to customary law. The literal form of the Hebrew text cannot confirm such an understanding (although at the same time it cannot confirm the opposite), because it is vaguely read: cum acceperit vir uxorem et erit, si nin invenerit grattam in oculis ejus et scribet ei hbellum exidii... But for this, many translations, both ancient and new, adhered to the understanding we indicated and were expressed in accordance with this understanding. This is how the Syriac and Arabian translations understand this text: “Si ducat aliquis uxorem et non inveniat gratam apud ipsum, scribal ei libellum repudii detque ei...” (in Arabic also scribal, trabat - subjunctive instead of imperative). The same meaning can be seen in the Chaldean paraphrase (Targum Onkelos) and the Jewish-Samaritan text, which, although they do not have an imperative subjunctive form, omit the conjunction et, which most of all gives rise to the opposite understanding 17. Of the other translations that presuppose or directly express the understanding we have indicated, we can point to the Vulgate, which also omits the conjunction et, and even to the Greek LXX, which gives the right to such an understanding in that according to it “καἰ δ ώ σει” is not dependent on the conditional εαν, but has an independent meaning. Luther's translation directly expresses this understanding: Wenn jemand ein Weib nimmt und ehelicht sie, und sie nicht Gnade findet vor seinen Augen...so soll er einen Schreidebrief schreiben (i.e., if someone takes a wife and enters into marital relations with her, and she does not find favor in his eyes, then he must write her a letter of divorce). Finally, the law has the same form in the mouth of Jesus Christ in His Discourse on the Mount (Matthew 5:31): “It is also said that if a man divorces his wife, let him give her divorce.” In view of the presented variants of the text of the law in question, confirming the indicated understanding of it, we will analyze this law as an independent law of Moses himself, based on ancient customary law only in its most general foundations. The text of the law states that the reason for divorce is that the wife “will not find favor in the eyes of her husband, because he finds something disgusting in her.” This motive, apparently, does not have an exact expression for itself and therefore gave rise to various interpretations. The difference in interpretation was primarily expressed in different translations. The literal Hebrew text (in the interlinear Latin translation) has the vague expression: quia invenit in en nuditatem verbi, or negotii, as Pastoret translates the 18 Hebrew ervath dabar. It is difficult to accurately determine the meaning of this expression; but judging by the general use in Hebrew of the word “nakedness” (nuditas) in the sense of shame, depravity (Isa. 20:4, Lev. 18:18), one can generally understand this expression in its connection with the word verbi or negotii in the sense of moral or physical depravity that excites disgust. In accordance with this understanding, the translations are expressed - Syriac (deprehenderit in ea rem turpem), Arabian (invenerit adversus eam tem turpem), Chaldean paraphrase (invenit in ea aliquid foeditatis), Jewish-Samaritan text (deprehendit in ea rem turpem), Vulgate (propter aliquam toeditatem) and Greek LXX (ευρεν εν αυτη ασχημο v πραγμα 19). All of them by nuditas verbi or negotii mean something shameful, vile, exciting disgust. But obviously, from a legal perspective, such a general definition is not enough. Therefore, interpreters of the law tried to more accurately determine its meaning. By the time of the Nativity of Christ, two schools were known that developed different views on the law. One of them - the school of Hillel - understood this law in such a way that a husband could divorce his wife for everything that he did not like about her: for actions, for character, for physical shortcomings, even for poor preparation of food 20; the other - the Shammai school - on the contrary, understood the law in such a way that divorce could be given only for gross carnal vices, for adultery 21. It is difficult to decide which of these schools comes closest to the true understanding of the law. When the Pharisees proposed a solution to the controversial issue of these schools for the judgment of Jesus Christ, He, looking at marriage from an ideal point of view, naturally completely denied divorce (Matt. 19:3–6), but when they said to Him: “How did Moses command to give his wife a letter of divorce, and then divorce her!” “He answered the Pharisees: “Moses, because of your hardness of heart, allowed you to divorce your wives; but it wasn’t like that from the beginning.” Then he himself made the divorce conditional on adultery alone. Based on the quoted words of Jesus Christ, Michaelis concludes that He understood the Mosaic Law in the same way as the school of Hallel 22, which is supposed to be hinted at by the expression about hardness of heart, and that “from the beginning it was not so.” But such an understanding is hardly thorough. Most likely, judging by Jesus Christ’s indication of adultery as the only reason for divorce, the words of Jesus Christ should be understood in the sense that He generally saw in allowing divorce a necessary concession to human “hardness of heart,” i.e. the lack in the corrupted human nature of those qualities, both physical and moral, that would make it possible to realize the ideal of marriage as an eternal union, and therefore in the Mosaic Law he saw a meaning consistent with this view. Thus, according to the Mosaic Law, the reason for divorce is both physical defects that contradict the purpose of the marriage union, and moral defects that contradict the moral side of this union. In this definition of the motive for divorce, one can see in the legislator a deep view of the marriage union, a view according to which, in view of the inevitable shortcomings in human nature that may contradict the idea of ​​the marriage union, on the one hand, he makes divorce possible and this makes a great blessing, because “he made divorce impossible for those who feel contempt, disgust or ineradicable hatred for each other, it would be cruel, contrary to free will,” aimless violence, which would, among other things, the most harmful influence on the upbringing of children and even on the desire to enter into legal, indestructible marriages 23; on the other hand, he did not leave divorce to arbitrariness and frivolity, but limited and defined it by strict legal forms. The legislator provides the following restrictions for divorce. Firstly, it requires grounds for divorce and thereby puts a limit on illegal arbitrariness. In order to divorce his wife, the husband must indicate in his wife qualities that contradict the idea of ​​marriage. The need to testify to the reality of the shortcomings pointed out by the husband in his wife naturally presupposes the transfer of the case to a public court, as for example, it is directly indicated in the case of accusing the wife of lack of virginity (Deut. 22:13–21). Therefore, secondly, divorce is determined by a court verdict. Thirdly, for the validity of a divorce, a legal written document was required, which, given the weak development of writing at that time, was a matter of the greatest importance, requiring a lot of hassle, such as turning to the only class of Levites familiar with writing to write a document. All this together made divorce not very easy and eliminated from it all motives of frivolity and thoughtlessness. The same purpose of the law - to make divorce an act of strict deliberation - is visible in the very expression (twice repeated in Articles 1 and 3) by which divorce is defined: “He will write her a letter of divorce, and give it into her hands, and let her go from his house.” In addition to the fact that the document must be legally certified as correct, the husband is obligated by law to apparently personally deliver it into the hands of the released wife. The law, thereby ensuring that the wife receives the divorce document with certainty, at the same time brings the divorcing husband and wife together for the last time, as if at a personal stake, so that in this last moment of their cohabitation they weigh for the last time the importance of those motives that gave them the reason for the divorce. Then let him “let her go from his house.” Here again there is an opportunity for reflection: where will the released woman go? What will it contain? In addition, there may be obstacles to leaving home, such as pregnancy or illness of the wife. In view of all these circumstances, it could easily happen that the very determination to get a divorce could waver 24 . The rabbis, in their interpretation of the law in question, while maintaining its general basis, furnish it with more detailed definitions. Divorce is considered valid, they say, when the will of the husband is clearly expressed, certified by a written act, in which it must be clearly indicated that from such and such a time all ties between the spouses are broken, that the husband renounces possession of his wife and releases her from his home. When the document is prepared, it must be given to the wife or one of the slaves who is authorized to receive it from her, in the presence of a rabbi, a scribe and two witnesses, or most often the husband himself is forced to personally deliver the document into the hands of his wife. To avoid confusion in names, rabbis determine that the three closest generations of both spouses should be listed in the document. As for the document itself, it must be written in round letters clearly and distinctly, on oblong paper, on which there should be no damage or even the slightest stain. First, it indicates the time and place of conclusion of the act, the names of the divorcees and their closest ancestors; then the husband announces that he is letting his wife go, that she is leaving of her own free will, and that he is giving her the full right to marry someone else. Two witnesses apply their seals 25. From the considered Mosaic law on divorce and its Talmudic interpretation, it is clear that the right to divorce seems to be confined exclusively to one husband, as if the wife is a completely passive, powerless being in this act. To deprive one party of every right, and to give every right to the other, in an act which concerns both parties equally, would be manifest injustice. Therefore, for a student of Mosaic law, the question of deep interest is: did the wife have any right to divorce? There are no clear, legally defined indications of this in the legislation, and therefore some researchers, based on the law discussed above, strongly think that “the right to divorce is assigned exclusively to the husband” 26 . But such an opinion does not have very solid foundations. It does not explain some facts that apparently have the opposite meaning. First of all, if the right of divorce were exclusively assigned to one husband, then it would naturally have to become his absolute right, and yet there are positive and indirect indications that this right for him is limited by certain conditions of the wife’s position. Thus, the husband lost the right to divorce if he declared that he did not find virginity in his wife, and meanwhile in court it would be proven that this was malicious slander: “he cannot divorce her for the rest of his life” (Deut. 22:13–19). “However, Salschutz rightly says, the very fact that the husband, in order to divorce his wife, resorted to such a means indicates that divorce was not exclusively at the disposal of his arbitrariness, but that for this he was obliged to present valid reasons” 27. In the law (Deut. 21) it is assumed that it is possible that a husband, having two wives, hates one of them. What makes him keep this latter with him, if the right of divorce exclusively belongs to the husband, “he cannot divorce his wife in his entire life,” there is one when, by a court verdict, he takes her for himself for the insult inflicted on her maiden honor (Deut. 22 and 29). All these facts are important for us now in the sense that they limit the husband’s right to divorce precisely because of his known relationship with his wife, i.e. It’s as if the wife herself restricts this right of her husband. Finally, there are positive indications that the wife could demand a divorce in certain circumstances. So, even if a concubine, bought as a slave, but then entering into the “rights of a wife,” does not receive food, clothing and marital cohabitation from her husband, then she had the right to leave her husband, i.e. had the right to demand a divorce (Ex. 21:7–11). If in this way the deprivation of the necessary conditions of a marriage authorized even a concubine to divorce, then, of course, this right was even more important in relation to the actual wife. History has not preserved facts of this kind for us, and therefore this right cannot be factually confirmed; but the rabbis, often standing firmly on the basis of ancient Jewish tradition, fully confirm this wife’s right to divorce. Thus, according to rabbinical law, a wife had every right to demand a divorce if her husband deprived her of marital cohabitation; she also had the right to demand a divorce in the event of ten years of childlessness, or even earlier if the husband’s complete impotence was proven, and the wife’s testimony enjoyed special confidence. The rabbis expand this right of the wife to the point that it is completely equal to the right of the husband, as defined in the Law of Moses, so that the wife has the right to demand a divorce in all cases where the husband “does not find favor in her eyes, because she finds something disgusting,” such as physical defects or even the husband’s occupations that she does not like, disgusting to her, for example, the occupations of tanners, foundries, diggers and others, which inevitably involve untidiness and bad smell. It goes without saying that the wife had the right to divorce her husband in the event of any contagious disease, such as leprosy, such a rabbinic decree is so consistent with the spirit of the Mosaic legislation, the sanitary part of which is one of the most developed parts of it, that, without having behind it the facts of history and a positively expressed right, in its general spirit it finds quite sufficient justification for itself. All these private rabbinic definitions have a common expression in the provision according to which a wife could demand a divorce from her husband if she was at all disgusted with the performance of marital duties towards her husband 28 . Such a broad right to divorce, however, did not serve to weaken the purity and strength of family ties. It found a happy counterbalance in the extraordinary strength and vitality of the family instincts of the people, and only contributed to the cleansing of family relationships from that moral and physically disastrous evil, which is sometimes inevitable with the eternal indestructibility of the marriage union, when the cohabitation of spouses who do not love or even hate each other is indeed moral and physical torture for both. In addition, the legislator, giving the right to divorce, at the same time furnishes it with such definitions as shown above, which could eliminate any interference in this matter of frivolity and rashness, and make it an act of actual strictly considered necessity. Such a goal of the legislator can, among other things, be seen in the law, according to which those who were divorced could no longer marry each other again (Deut. 24:4). After a divorce, divorced people could marry anyone, and the law does not make special provisions regarding them, extending the application of general laws to them. The only restriction was that they could not marry each other again (and then only after the wife had married another husband), and exclusively for a divorced woman that she could not marry a priest and high priest (Lev. 21:7, 14). Another moment of termination of a marriage is the death of one of the spouses. After the death of one of the spouses, the remaining spouse enters into a new relationship that is different from the previous one. But the change could especially affect only the fate of the woman, as the weaker member of the destroyed union. Therefore, the legislation, being completely silent about the situation of the widower, deals only with the situation of the widow, trying to provide for her in her new position. We will dwell somewhat on the position of the widow under the Mosaic legislation in order to conclude the consideration of the Mosaic laws on family relations. The position of a widow is not determined with precision by law: in general it is determined by family ties. If a widow had children, then, of course, they had a natural duty, which, as Michaelis puts it, does not need to be defined by law 29, namely the duty to feed the mother. This responsibility primarily fell on the eldest - the firstborn son, who, among other things, received a double part of his father's property for this purpose. If the widow did not have children, then the care of her maintenance passed to relatives. But the law is not content with providing care for providing the widow with family feelings: it itself takes care of her and seeks the means to support her. He provides the widow with the same means of food that were provided and determined in the Mosaic state to all its dispossessed, unfortunate members - the poor, strangers, orphans and even the Levites who did not have a “part and inheritance” in the state. Thus, the widow had a share in the tithe, which was separated every three years from all productions for the benefit of the poor members (Deut. 14:28, 29, 26:12); had the right to collect legal remains in the field after the harvest, in gardens and vineyards after harvesting fruits (Deut. 24:19–21), and to participate in the religious celebrations of the people, which, among other things, had as their goal the provision of food for the poor (Deut. 16:11–14, etc.). There is historical evidence that even part of the spoils of war was set aside for the benefit of widows (2 Macc. 8:28 and 20), and this is completely in the spirit of the Mosaic legislation. Special definitions regarding the widow include a decree prohibiting taking clothing from a widow as collateral (Deut. 25:17) and, in general, the essentials of life, as can be concluded from the words of Job, who sees lawlessness and cruelty in the fact that “they take a widow’s ox as collateral” (Job 24:3). In all other cases, the legislator provides care for the widow to private communities, indicating to them only the general tone of relations towards her in general regulations like the following: “Do not oppress either the widow or the orphan. If you oppress them and I hear their cry, then My anger will burn and I will kill you with the sword, and your wives will be widows and your children orphans” (Ex. 22:22-24). The one who “judges a widow wickedly” was publicly cursed (Deut. 27:19). In times of danger, the widow was allowed to deposit her property in the church treasury (2 Macc. 3:10). Regarding the remarriage of a widow, the legislation, giving her full freedom, makes only two definitions: first, when a widow remains childless, she must marry her husband’s brother, and second, that she could not marry the high priest (Deut. 25:5, 6; Lev. 21:14). The explanation of the last limitation must be seen in the sublime holiness of the high priestly dignity, in accordance with which the marriage of the high priest must represent the purest union with an immaculate virgin, which a marriage with a widow cannot be, as she has already experienced her first natural union. Smith, Dict. of the Bible art. "Marriage" Puella uque ad annum duodecimum, diemque insuper unicum, minor nuncupabatur, nisi manifesta praepopere pubertatis signa nomen juvenculae forte anticipassent. Per sex dui sequuntur menses juvencula dicta est. Dein pubertatis erat plenae. – Soldenus Uxor hebraica, I. II, c. 3. P. 138. Pastoret, Moyse cosidere comme legislateur et moraliste, p. 251. Mohar is mentioned in the Bible only three times: Gen. 34:12; Ref. 22:17 and 1 Sam. 18:25, but in these places it is spoken of as an ordinary thing, legalized by custom. Michaelis, Mos. Recht, § 85. S. 79. Saalschutz, Mos. Recht. Kap. 102. § 3, S. 733 Selden, Uxor hebraica, I,II, c 10. Pastoret, I c.p. 262–264 “Christ. Reading", 1878 Sept.-Oct. Page 316 etc. Ref. 15:20, 2 Kings 22:14, Nehemiah 6:14, Luke. 2 Court. 9:53, 2 Sam. 20–22. 2 Kings 11:3, 1 Kings. 18:13. Smith, Dict. of the Bible, art. Marriage and Woman. Saalschutz, Mos. Recht&cap. 102, § 1, s. 727. Saalschutz, M.R.Kap 103, § 3, Ammerk. 977. Saalschutz, Mos. Recht, Cap. 103, § 4. Michaelis, M.R. §119. Saalschutz, M.R. Kap. 106 Waltonus, Biblia Polyglotta, I.c. Pastoret, Moyse consid comme legist et moral. p. 296. Waltonus, Biblia Polyglotta 1 c “If a wife cooks her husband’s food poorly—oversalting it or overcooking it—then she should be given a divorce.” A follower of this school, Rabbi Akiba, even came to the following position: “If someone sees a woman more beautiful than his wife, then he can give the latter a divorce, for it is said: if she does not find favor in his eyes.” Pastoret, I.c.p.297; Smith, Dict. of the Bible, art. Divorce Saalschutz, M.R. Kap. 106, § 1. Michaelis, Mos. Recht. § 120, S. 246. Saalschutz, Mosaisches Recht. Kap. 106, § 1. Saalschutz, Mosaisches Recht, Kap. 106, § 1, S. 801. Pastoret, I. c. p. 299 – 301. The most ancient form of a divorce document according to Pastoret reads “Ecce licita sis viro cuicunque. Atque hic est inter te et me libellus repudii, relictionis epistola, ac instrumentum dimissionis, adcoque tibi liberum sit cuicunque velis nubere.” Oehler, Theologie d. A. T § 101, 2. Saalschutz, Mos. Recht, Cap. 106, § 2. Pastoret, Moyse, consid.comme leg. et mor.p. 304 and 305. Cp. Saalschutz, Mos. Recht, Anmerk. 1040. Michaelis, Mosaisches Recht, § 121, Th. II, p. 256. You might be interested in: