(As I noted yesterday, though I haven’t been posting here, I have been continuing to work on the Sermon on the Mount book; so while I’m getting other things spooled up, I’m going to start posting excerpts from the manuscript as well. I’m not going to do them in any particular order, just as they occur to me. First up: the opening of chapter 17, “Our Law Is Too Small,” on Jesus’ words regarding divorce.)
The power imbalance between men and women in first-century Jewish culture shows even more clearly when Jesus turns to address divorce. He introduces the subject with the statement, “It was also said, ‘Whoever divorces his wife, let him give her a certificate of divorce.’”[1] The use of the word “also” acknowledges the close connection in subject matter between this quotation and his citation of the law against adultery in 5:27. Unlike 5:27, however, the law cited here is not a commandment from God through Moses. It’s inferred from the Torah, not taken from the Torah. In this case, that makes all the difference in the world.
What Is the Law?
The source of this inference is Deuteronomy 24:1. Deuteronomy 24:1-4 is as close to a law on divorce as there is in the Torah,[2] so it’s worth quoting in full.
Suppose a woman was divorced by her first husband because he found something disgraceful about her. He wrote out divorce papers, gave them to her, and sent her away. Later she married another man, who then either divorced her in the same way or died. Since she has slept with her second husband, she cannot marry her first husband again. Their marriage would pollute the land that the Lord your God is giving you, and he would be disgusted.[3]
Note that Deuteronomy doesn’t say, “Whoever divorces his wife, let him give her a certificate of divorce.” It doesn’t set forth the process for a man to divorce his wife or list acceptable reasons for divorce. To do anything of the sort would be to recognize divorce under the law, and thus to define divorce as legally appropriate in Israel. Deuteronomy does no such thing. The men of Israel have worked out their own extralegal procedure for divorcing their wives, and the Torah lets that extralegal practice continue. It neither approves nor bans it—Deuteronomy only regulates it. This is clearly a concession by Moses to the Israelites’ hardness of heart.[4]
Note also that divorce was something men did to women, not the other way around. Again, that isn’t according to God’s Law, because Deuteronomy does not establish such a thing as legal divorce. It merely acknowledges and regulates a practice which had been created exclusively for the benefit of men: from Moses’ time to Jesus’ day, the power to divorce was entirely theirs. “It was accepted throughout Judaism that a man had the right to divorce his wife, though a woman had no such right to divorce her husband.”[5] Jeffrey Tigay notes, “Halakhic sources recognize a number of cases in which a wife may petition the court to compel her husband to grant a divorce, such as nonsupport, beating, and fornication.”[6]
The actual law in this passage is minimal. Of all the situations we might conceive surrounding divorce and all the issues it raises, the only question the Torah answers is whether a man may remarry his ex-wife if she’s been married to someone else. It’s not immediately obvious why this scenario is the only one addressed, nor why the Law gives the answer it does.[7]
Beyond the bare prohibition, it’s also not immediately obvious what this passage from Deuteronomy means. Even the exact nature of the scenario it presents is the subject of much debate. Peter Craigie’s comments are illustrative:
The procedure for divorce is contained in vv. 1, 3; the statement is so succinct that all the details are no longer clear. The woman does not find favor in the eyes of the man; the reason for this lack of favor is because there is something indecent in her. Something indecent (ʿerwaṯ dāḇār) may have been a technical legal expression; the precise meaning is no longer clear. The same expression is used in 23:14, where it suggests something impure, though the words do not seem to have normal connotations. In this context, the words may indicate some physical deficiency in the woman, though this meaning is uncertain.[8]
The one point on which most modern scholars agree is that adultery cannot be in view in Deuteronomy 24. Tigay dryly observes, “The School of Shammai and some subsequent commentators inferred that ʿervat davar refers to sexually indecent behavior—in the opinion of some, adultery. However, in biblical law the punishment for adultery is execution, which would preclude the remarriage spoken of here.”[9]
It is unclear what reasons for divorce are referenced in Deuteronomy 24, or what purpose the legal dictum of 24:4 was intended to serve (though numerous suggestions have been offered).[10] What is clear is that under the Torah, there is no such thing as a legal divorce. No such category is ever created, much less defined.
Photo © 2010 Ken and Nyetta. License: Creative Commons Attribution 2.0 Generic.
[1] Matthew 5:31 (ESV).
[2] Duane L. Christensen, Deuteronomy 21:10-34:12 (WBC 6B; Dallas: Word, 2002), 567; R. T. France, The Gospel of Matthew (NICNT; Grand Rapids, MI: Eerdmans, 2007), 206-07.
[3] Deuteronomy 24:1-4 (CEV).
[4] Matthew 19:8.
[5] Leon Morris, The Gospel According to Matthew (PNTC; Grand Rapids, MI: Eerdmans, 1992), 480.
[6] Jeffrey H. Tigay, Deuteronomy (JPSTC; Philadelphia: Jewish Publication Society, 1996), 221.
[7] Underscoring the oddity of this law, Tigay observes, “Islamic law prescribes the opposite procedure: if a man has irrevocably divorced his wife, he may not remarry her unless she has been married in the interim. When a couple wishes to reunite, a beggar is hired to marry the woman and consort with her for one night, after which he divorces her and frees her to reunite with her husband. Wives understandably find this repulsive, and some Muslims permit a sacrifice to be offered in place of the intervening marriage.” Tigay, Deuteronomy, 222.
[8] Peter C. Craigie, The Book of Deuteronomy (NICOT; Grand Rapids, MI: Eerdmans, 1976), 305.
[9] Tigay, Deuteronomy, 221.
[10] For a brief overview, see Robin Wakely, “כְּרִיתוּת,” NIDOTTE 2:718-22; see also John A. Thompson, Deuteronomy: An Introduction and Commentary (TOTC 5; Downers Grove, IL: InterVarsity, 1974), 267-68.