Modern Jewish marital traditions are based upon those to be found in the Torah. The Torah was given in a particular cultural context which no longer exists. For this reason modern traditions have evolved as our social context has changed. This article explores the concept of marriage in the Torah and traditions built upon it.
Marriage in the Torah
Among ancient Israelites there was no such thing as a paternity test. A man could not be certain that a child was truly his unless he could trust the mother. Women often earned their income, not through their own labour, but through marriage. A woman would then count upon the inheritance of her children to provide for her needs as a widow. In the Torah any behavior which can result in obligations or which impacts the rights and responsibilities of parties transacting business must be done consensually and preferably under a contract. Contracts prevent one party from taking advantage of another and protect the rights of both. Consent is required: no one can be forced to surrender any right or good without their consent.
A marriage contract, a Ketubah, is thus written to protect both parties. In ancient times a father would present his daughter as a virgin, and certify that she had never known a man, such that the husband could be certain that all resulting children would be his. The man agrees in the Ketubah to be dutiful to his wife, to provide for her needs during his life and to make certain that her children will inherit his estate. A woman promises to be dutiful to her husband, to help him and comfort him and to bear his children, and only his children. The Ketubah was (and still is) held by the woman’s parents, traditionally, along with the wedding night sheet to protect her interests.
In addition to these promises, marriages were also used for business transactions. A man marrying a certain woman might gain access to grazing rights for his livestock on her family’s lands, or to inherit her father’s livestock and so forth. Ancient Semitic culture operated (and largely operates today) on a hierarchy of obligation. One’s obligation to tribe, clan, house, and family would supersede personal desires.
Violations of the Ketubah contract were very serious matters. If, for example, a man father’s a child outside of his marriage, he has:
- Engaged in an act which belongs in marriage, essentially offering marriage to another woman; and
- Fathered a child with a claim on his estate in competition with the children of his wife.
A man cannot take another wife without the consent of his existing wife or wives, this would violate their rights. If a woman lies with another man she brings into doubt not only the bloodlines of future children, but those of all of her children, hurting her husband who has a right to know that all of her children are his children. Violations also effect the Ketubah and the agreements between families and can bring shame on an entire house or clan.
If a man lies with another man’s wife (or fiance) he has violated an important contract between the woman and her husband and has spoiled the husband’s blood lines. This is a serious harm, and it is no surprise that this crime can bear the death penalty (Devarim – Deuteronomy 22:22-27). These verses also raise the question of rape as a defense for the woman and how to determine whether she can be punished for adultery. Note that if the alleged rape took place in the field the woman is given the absolute benefit of the doubt under Torah jurisprudence.
Devarim 22:28-29 addresses what happens if a couple elopes or if two young people engage in consensual reproductive behavior outside of a proper marriage contract. The man must marry her, if she consents to the marriage, or he must pay her father for the damage to the young woman’s marriageability. Note that rape is not addressed here, because the woman cannot be punished; she has no need to raise rape in her defense to avoid the death penalty, as no such penalty can be applied here. Rape is an act of violence under the Torah and such acts are covered under the legal principle of Lex Talionis: eye for an eye, tooth for a tooth, life for a life. Lex Talionis allows the rendering of a punishment equivalent to the crime even if the precise act cannot be replicated against the perpetrator.
There are a number of points worthy of note about the ancient legal context of marriage under the Torah. For example, on certain occasions a man can be forced to marry a woman, such that he may never divorce her, or may forfeit his right to divorce during the course of a conventional marriage. A woman can never be forced to marry, as Rivka was asked if she wanted to marry Yitschak and in that contracts cannot be signed under duress or coercion. A woman always retains the right to divorce, even if that right can be denied to a man under certain circumstances. Women are afforded many rights and protections in Torah as the vulnerablearty to the marriage contract, that is, the party of which advantage may more easily be taken. Devarim 22:13-21 describes the question of fraud in virginity. It describes the legal basis by which a husband is protected from such a fraud and how a young women is protected from a false claim against her.
The Torah also seeks to protect the wife if she consents to her husband taking an additional wife: Shemot (Exodus) 21:10 states that if a man seeks an additional wife, he must not diminish the rights of his existing wife.
“If he take to himself another wife, her [the existing wife’s] food, her clothing, and her conjugal rights, he shall not diminish.”
From this, the Karaite sages deduce that a man must, as a condition of marriage, provide food, clothing, and reproductive behavior to his wife as a condition of marriage. He must also house her, as Devarim 24:1, in describing an uncontested divorce, states that the man will send the woman out of his house with a bill of divorce (a “get” or written document clarifying that she is no longer his wife). Therefore, he must provide housing in the first place that he can send her out from there. What is to happen in the event of divorce can, and often is, addressed in the Ketubah. The Ketubah can provide for the division of property and who will have custody and responsibility for the children.
Since the marriage contract is primarily to protect the rights of the woman in marriage, men take the greater burden of legal responsibility. By contrast, a woman’s responsibilities in marriage are to comfort and support her husband and to bear, care for, and educate his children. She may also labour in the household. The woman has remarkably few duties in marriage relative to those of the man; again the marriage contract is for the woman’s protection. This does not belittle the importance of her role in marriage or reduce her rights as an equal partner to her husband.
Western Tradition vs Jewish Tradition
To sum up the traditional view in Western Society, it has been understood that men desire reproductive behavior and women desire domesticity. Marriage is the compromise by which both achieve their ends. This view differs in slight ways from the more transactional and legal view of traditional Judaism. There has also been a certain misogyny that has run in Western societies since the Hellenistic era. Judaism has its instances of misogyny and some poor interpretations of the law in some areas, much of it inherited from the Hellenistic era. It is worthy of note that the Greek thought Jews were barbarians, partly because of the empowered station Jewish women held in Jewish society at the time. The Western view has been largely derived from Christian thought which has vacillated on the topic, but which has generally held that women should serve their husbands and follow his lead in both spiritual and temporal matters.
Modern Society
Right, so it is the 21st Century now and we now look upon men and women as fundamentally equal. We understand that women want and desire reproductive behavior just as much as men do and men desire domesticity and to be cared for just as much as women do (although we are not taught to think in such terms). Science has shown that men live longer and are healthier when they have a long-term life partner; and men and women report being happier when they have a partner even if they claim that they do not like their partner or might prefer another.
We live in a time of sexual liberation and freedom. While many like to think of this as unprecedented, the Greco-Roman world also experienced this freedom as did many settled historical societies in many places throughout the world. A great deal of confusion and misery accompany such freedom. As much as some were upset by the limited choices offered by the strict traditional society which prevailed in the United States prior to the Great Depression, today many suffer from the great number of choices and freedom available to us. My wife and I went through many stages of confusion in the process of building our marriage, for example.
In a more traditional society we would have married within about six months of meeting and “lived happily ever after.” That choice was denied us as much as other choices were offered. In their zeal for social freedom, the preceding generations had thrown social convention to the wind and sought to destroy tradition. It took us several years and much heartache to land our marriage ultimately on more traditional shores. This was done with much ridicule and belittlement from those around us that we would even find such a thing desirable in the first place. I would not wish this pain and suffering on anyone.
In that the traditional view was not articulated and successful examples of it were not readily available, we had to struggle to establish a type of relationship which was the norm and expectation for centuries before. It might not have happened at all had it not been for my father who, as a man of an older generation, had watched in horror as each generation disintegrated into social chaos. He observed the drug use, single parenthood, and misery of those who went after him, fortifying his staunch belief in the traditional family. If not for his fist-pounding about the right way to live, I might have been denied the joy of a happy life-long relationship with my lovely wife and the joys of proper fatherhood.
Once my wife and I had arrived at the decision to have a more traditional relationship, we had to go so far as to seek out the wisdom of an immigrant community to learn the ins and outs of traditional marriage. To this day, some in our family and former circle of friends refuse to believe that we made this decision together and as equals, certain that it arose from abuse or coercion.
Those from more misogynist traditions are also often confused at our struggle. They find it hard to imagine that two people would make such a decision together, as equals. To this lot, it is the man’s duty to “take charge” and coerce the woman into such an arrangement. Our marriage would not have been successful were it not for our mutual respect and equality.
Relevance of Tradition
In our modern lives we no longer necessarily marry young. It is no longer expected that a woman will be a virgin on her wedding night. We do not have to worry quite so much that a woman might be taken advantage of in marriage. Marriages are no longer business contracts. We are no longer beholden to a hierarchy of obligation. We live in a free and modern Western society in which any two free and equal people (of any gender or preference) can form a marriage and intertwine the trajectories of their lives.
How does Judaism adapt to this environment? Judaism is not so much a religion of reaction as it is of response. As an example, while some religious groups reacted to the women’s liberation movement by defending “the way things have always been” as the right thing, Judaism instead responded to the new way of thinking. There is no reason that Jewish women cannot have careers or work outside the home. There is no reason that they cannot use contraception to prevent pregnancy within marriage or outside of it. There is no reason that men and women cannot share responsibilities in the home, or that a man cannot be a homemaker. Two parties to an equal marriage can make these decisions together and with respect to one another’s views.
Tradition informs us that marriages were once business contracts as well. This is no longer the case, it is still valuable, however, to view a marriage as a partnership which involves financial decisions. We may no longer be so concerned about a woman being taken advantage of in marriage, but this draws attention to the question of equality: how can the partners make certain that each will be respected? How are decisions to be made? Will one partner take the lead in financial decisions or will they be made together? What if one dissents from a decision? Since marriages do not necessarily form according to social or economic “station,” it is possible that one partner may come from a more affluent background and the other from a more working class background; how will this effect the relationship? Finally, we like to think that we may marry whomever we please. Being physically attracted to someone or being infatuated with someone may not be enough to warrant so serious a relationship. In a previous article in this series I discussed courtship as a process that leads to marriage.
There is also a great deal of work that must be done in a home. The house must be cleaned, the children educated, and food prepared. How this is to be done can be worked out in any variety of ways by the parties. They can be delegated as well: a housekeeper can clean, where one can be afforded, public or private schools can educate, and meals can be prepared in a variety of ways. Nevertheless, these things must be done and every husband and wife must arrange that they be done as equal parties to their marriage neither one having the greater authority than the other. Marriage is wonderful, but it is not always fun either. There are arguments, stresses, noisy children, and such. There are times when one wishes to scream and run away. Somehow, we all muddle through. At the end of the day, it is always better taking on the world as a team rather than alone.
These traditions help us establish healthy and happy marriages, first among them the tradition that marriage is a contract between two free and equal people who may arrange their partnership as they choose. Learning to communicate and work out problems is also valuable. If we assume a more traditional setting we have a place from which to start. Starting from the point of view, then, that the household work must be done and the children (if there are to be any) must be cared for and educated allows us to understand how to build the roles of the two parties. The expectation of monogamy, for example, makes for a much less complex relationship. This simplifies the process of forming a partnership and establishing the details of it, something like having a rubric for a marriage.
These forms and structures may seem to conflict with modern sensibilities, but when viewed as one of several possible alternatives available to free and equal parties to a relationship, they are worthy of due consideration. For thousands of years the Jewish people have lived happily by these principals even when they did not enjoy the social freedoms that we enjoy today. Choosing voluntarily to limit your behaviors to the confines of a more traditional approach to life allows the individual to enjoy the blessings of the easy and comfortable lifestyle of a traditional marriage without the confusion, soul searching, and misery that can prevail when too many options are on the table.
Silver Trumpets 
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