WOMEN AND THE LAW IN ANCIENT ISRAEL
The Ancient Hebrew law code outlined in the Bible unfortunately lacks the detail that can be found in other ancient legal systems such as the Babylonian and Roman, but we can at least summarize the general principles.
1. Marriage was called “taking a wife”
2. It involved sexual intercourse
3. While there was no death penalty in Hebrew law for property crimes, adultery was a capital offence for both participants.
4. Marriage and children were necessary to have a fulfilled life. A childless woman could call herself a mother by giving her maid-servant to her husband as a second wife (assuming, of course, the maid-servant did indeed produce a child).
5. A widow had the right to marry her husband’s brother if he lived in the same town.
6. Polygyny was permitted but uncommon.
7. Divorce was easy for a man and impossible for a woman.
8. Childlessness was the most common reason for divorce
9. The woman moved to the husband’s home and family
10. While the husband was clearly the boss, each expected love from the other and a wife had the legal right to support.
The following contains additional material from the Bible and other Jewish sources such as the Talmud and the Halakhah.
The importance of marriage to the Ancient Israelites is clear enough in the Bible, but nowhere is there any information on the ceremony itself and it is likely that custom varied from one locale to another.
In Leviticus 18 there is a list of prohibited relationships (a man cannot marry his sister, etc.). These appear less concerned with the dangers of inbreeding and more concerned with ensuring that no woman can be related to a man in more than one way; for example, a woman cannot be both an aunt and a wife to the same man. A man was permitted to marry his dead wife’s sister since he was no longer related to her.
While close relatives were forbidden, men usually married women who lived in the same area, limiting ownership of property to people in the same village and enabling the bride to maintain contact with her birth family even after moving to the home of her husband.
Bride Price was the practice in pre-literate societies whereby the groom was expected to pay an amount sufficient to compensate the bride’s family for the loss of labor when she moved to her husband’s home. This may have been the motivation behind Laban’s demand in Genesis 29 that Jacob work two consecutive seven-year terms in order to earn the right to marry Leah and Rachel.
In Exodus 22:16-17 we read that a man who lies with an unbetrothed virgin must pay the marriage present and marry her. In Deuteronomy 22: 28-29, we learn that a man who rapes an unbetrothed virgin must pay 50 shekels to her father and marry her. (A raped woman was considered unmarriageable: a forced marriage to her rapist was thought to be better than no marriage at all.) These references would appear to suggest the existence of a system where men purchased their wives and had to pay real money, but fifty shekels was a reasonable wage for a worker for five years and would be well beyond the resources of the average suitor. Such a sum might be compensation for an act of rape but could hardly be, as some have suggested, the normal price for a bride.
The Halakhah was a collection of texts in which various rabbis presented their views on how Jewish traditions should be applied in specific cases. The result was perhaps not a true law code, but its teachings carried considerable weight and probably reflected the real life of the Jews in the post-Biblical era. The Halakhah was quite clear on the requirements for a valid marriage:
· A payment to the bride’s father of a small sum of money (equivalent to our one cent coin and thus nothing more than a symbol of sincere intent)
· The bride’s consent
· Sexual intercourse
It is possible, then, that Jewish men did purchase their brides in the earliest days, but it is very clear that for at least the two or three centuries before the common era there was no bride price beyond a modest token to demonstrate sincerity. Since the expression “take a wife” was in Scripture it could not very well be repudiated, but Jewish leaders made it clear that brides could not be bought and that marriage required the consent of the woman herself as well as that of her father. Girls typically married at age 12 or 13, immediately after puberty, so one might be excused for wondering what chance they had of developing an informed opinion beyond that of their fathers.
Every marriage was expected to produce offspring since neither society nor the individual could survive long otherwise. Marriage without sex was incomprehensible to the ancients, and it made sense that Hebrew law required the marriage to be consummated before it had any legal effect.
Hebrew law also stated that a man who raped an unbetrothed virgin was thereby married to her and could never divorce her. (Deuteronomy 22: 28)
Almost every groom insisted his bride be a virgin and be able to prove it. If the groom believed he had received “damaged goods” he had the right to challenge her family to produce the proof. If the sheets from the marital bed did not show the required blood then the men of the village would stone her to death in front of her father’s home; if on the other hand the elders were satisfied that the bride had been a virgin then the groom would be whipped, required to pay 100 shekels of silver to her father and lose for ever the right to divorce her. (Deuteronomy 22: 13-21)
The Ancient World’s attitude to virginity, adultery and the so-called double standard is not easy for moderns to understand. It probably did contribute to the growing inequality of the sexes but it began from more pragmatic concerns. Family was the most important institution for it was the one that looked after you in sickness and in old age. It was family that gave you your economic start in life by providing a place to live, land for agriculture, or the resources to start a business. Education made as much difference then as now, but schooling was almost impossible without that all-important family support.
A big family was better because there were more people to help even out the ups and downs in the life of each individual. The system worked only if the people who were up fulfilled their obligation to the people who were down. The Ancients believed this support was more likely to come from “real” members of the family. Hence everyone felt a need to know if a newcomer to the family really and truly belonged.
It was easy enough to keep track of the mother but not so easy to be sure of the father. In fact, the only way to be certain was to place severe limitations on sexual access to women.
Modern logic can find any number of ways of getting around the paternity problem, but each individual, male or female, felt an enormous urge to leave a part of them for the future. The feeling probably sprang from society’s need to propagate itself, but it was nevertheless a deeply felt desire in the heart of everyone. A woman would know if she had lived up to the need for a child as a legacy for the future; a man wanted similar assurance that his gift to the future really came from him
The Hebrew attitude to adultery changed over the years. They kept the Ancient World’s traditional definition of adultery as a sexual relationship between a married woman and a man who was not her husband, but their response to it evolved as succeeding generations sought to reconcile competing moral values. In the early history of Israel, adultery was a capital offence with no chance of mitigation (Deuteronomy 22: 22 and Leviticus 20: 10): in the Middle Assyrian and in the Babylonian Law codes a husband had the option of saving the life of his wife (as long as he saved the life of her paramour as well), but this choice did not exist in Hebrew law.
Soon after it was put into writing the death penalty for adultery seems to have disappeared and been replaced with compulsory divorce. The marriage was dissolved with or without the consent of the husband and the woman was forbidden to marry her lover: she may have escaped the death penalty but her position in society was precarious and it was unlikely anyone else would want to marry someone so publicly humiliated.
Since adultery was of necessity a very private, secretive activity, there was a need for a way to deal with suspicion and accusation. A woman accused by her husband, or any other man, was required to undergo an ordeal to establish her innocence. A priest would mix dust from the floor of the temple with a little water, pronounce a curse that would make her belly protrude, her thighs sag, and render her sterile if she had been unfaithful, and make her drink.
Most ancient ordeals were designed to produce far more guilty verdicts than innocent ones; this ordeal seems to be the exception for the modern mind can see no way a little dusty water could produce sterility. Some have suggested the process was such a frightening experience that a guilty woman would have confessed rather than undergo it; others have argued that since adultery was a difficult matter to prove one way or another that it was less disruptive to the social order if the matter could simply be pushed aside and forgotten.
By the end of the First Century BCE many were beginning to wonder why the definition of adultery should not include husbands who strayed as well as wives. In an attack on the double standard rabbis refused to administer the ordeal; adultery was as sinful as ever, but it had become a social crime rather than a legal or religious one.
Throughout the Ancient World having many children was thought to be a good thing. Society could not survive without a new generation to take over, and the individual did not want to face old age or ill health without a family to provide care and support.
Sons were preferred for two very good reasons: males had control of the wealth, and in a patrilocal society where the bride moved to the husband’s home sons expanded the family while daughters were dispersed into the society at large.
For all of these reasons, neighbors tended to feel sorry for families without children and to favor families with many children, especially sons. A childless woman who was wealthy enough to own a maid-servant had an interesting option: she could give her maid to her husband and claim any resulting child as her own. Childless women without maid-servants were likely to find themselves divorced.
It was thought to be a great tragedy for a man to die without fathering a son for there would be no one to continue his name. According to Deuteronomy 25: 5-10 one of his brothers living in the same village should marry the widow and thereby produce a boy who would be a surrogate son of the deceased. Many thought this was a very good idea for a son born this way would be as close as possible genetically to the real thing and the widow would continue to be looked after by her husband’s family. Polygyny (one husband married to two or more wives) was not common but it was certainly legal and respectable.
What happened, however, if either party refused? If the eldest brother refused then it was up to the next oldest and so on down the line. The widow certainly had the right of refusal, but she was more or less engaged to a brother-in-law and unable to marry anyone else until all of the eligible brothers had clearly rejected her. Some times it happened that an eligible brother was out of town or otherwise unable to indicate whether or not he would agree to marry her. Whenever that happened the widow was stuck in a legal quagmire and unable to marry anyone.
An example of the Levirate process can be seen in the Biblical story of Ruth.
The Halakhah and the Talmud were very clear: a woman could have only one husband but a man could have as many wives as he wished and as he had the ability to support. While the Biblical patriarchs and kings may have had several wives, monogamy was the norm for most people; for example, we know of no rabbis with more than one wife.
(Note that the word polygamy refers to multiple partners of either sex; Polygyny refers to multiple wives)
Deuteronomy 24: 1 tells us that a man may write a note of divorce to his wife if he finds some “indecency” in her. The need for a written note in a society in which most people were illiterate was designed to inhibit spur of the moment divorces. Rabbis argued whether “indecency” should be limited to adultery or whether it could include any matter the husband disliked about his wife. Christ argued for the former, but the latter appears to have been the more common view.
Neither the man forced to marry the woman he had raped nor the man who falsely accused his bride of not being a virgin could ever divorce. A divorced woman who married someone else could never remarry her first husband regardless of what happened to the second. It has been suggested that a society in which both marriage and divorce required only a few minutes needed this rule to prevent wife swapping.
Protection for women lay in the growing popularity of the “ketubah” or marriage contract. While this document was usually written in an artistic manner and handed to the bride as part of the wedding ceremony, most of its significance pertained to her property rights in case of divorce or the death of the husband. Such rights were often more than enough to discourage divorce except in the most disastrous of marriages.
It is interesting to note that a marriage without a contract had no legal standing under the Hammurabi Law Code but was perfectly legal under Hebrew law.