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The story of Jewish polygamy.

Abstract

This Article examines the intersection of law, religion, and culture in the evolution of polygamy in the Jewish tradition. It traces the development of Jewish thought on polygamy over time by assembling and analyzing relevant discussions, arguments, decisions, and biblical interpretations from the time of the Hebrew Bible passages, when plural marriage was an accepted part of Jewish society, to the early Middle Ages when the practice was formally and conclusively rejected. In doing so, the Article attempts to untangle the various influences--both practical and doctrinal, internal and external--on the evolution of marriage law in Jewish communities. These findings highlight the mutable nature of marriage norms within a religious community, the adaptability of religious doctrine to the practical needs of the community, and the potentially progressive force of religious morality in advancing women's rights.

INTRODUCTION: POLYGAMY AND RELIGION IN PUBLIC DISCOURSE

Judaism's relationship with polygamy has always been fraught with tension and perhaps can best be summed up by the fact that the word for co-wife in Hebrew is tzarah, literally "trouble." As many know, the practice of polygamy was once considered part and parcel of Jewish culture, at least in theory, but nowadays that is no longer the case. The story of Jewish polygamy has no clear-cut ending; there was no one defining moment or document that shifted the Jewish societies in Western Europe away from polygamy and into monogamy. But over time, these norms did shift for reasons we examine in this Article.

For the past several years, the issue of marriage and of marital forms in particular has been a prominent feature on both the national (1) and international stage. (2) Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. (3) While public discourse over marriage in the United States and around the world has focused primarily on gay marriage, the issue of legalizing plural marriage has been gaining considerable attention in recent years. (4) In the United States, TV shows such as TLC's Sister Wives, HBO's Big Love and Showtime's Polyamory: Married and Dating have brought the concept of plural marriage into the nation's collective living room. Polyamory, the practice of having more than one intimate relationship at a time with the knowledge and consent of everyone involved, has even been called "the next civil rights movement." (5)

The discussion of polygamy presents valuable angles for reconsidering the contemporary marriage debate. First, plural marriage raises novel questions beyond those presented by gay marriage because it turns not on the idea of who can be in a marriage, but rather on the very institution of marriage itself as consisting of a two-and-only-two part unit. Second, plural marriage, unlike gay marriage, represents an alternative bundling of marital principles that may be described as "traditional" within a broad range of cultures and religious communities. (6) In this context, an examination of what a religious tradition has had to say about marriage over time can inform our understanding of what religion is capable of saying about the topic today.

This Article will focus on the history of polygamy in the Jewish tradition and will examine why, after millennia of experimentation, a religion walked away from a practice it had once legitimized. We will follow this history through the various streams of Jewish law and tradition, and watch as the debate slowly shifts from a question of legality to morality, from "could" to "should." We will focus on three historical realities over time that make sense of this evolution:

First, all of Jewish law is, at its core, an act of holding multiple values in a dialectic tension. The rabbi, before he rules on the permissibility of the chicken, for example, is first supposed to inquire about the finances of the individual asking and take into account the time of day on the Sabbath Eve. (7) The law has areas that shift, contextually, when multiple legitimate values are at play. And so just because a particular action may be legal in one generation or time period, does not mean that other arguments do not exist that would militate against its continued legality, nor does it mean that additional factors might not very well come into play in the future that would shift that sometimes precarious balance in the opposite direction.

Second, for centuries, despite the fact that Jewish communities tended to be almost entirely monogamous, the rabbis made sure that polygamy was still legal on the books, if only to demonstrate the superiority of the rabbinic versus sectarian or Christian exegesis. At this point in history, the moral value of monogamy outweighed the advantages of polygamy enough, but only enough so that it was not practiced popularly on the practical side, but the law still recognized the important polemical advantages the theoretical aspect that its legality provided--especially if, on the ground, it was not costing the community anything since no one was taking advantage of this particular allowance.

Third, the time eventually came when this calculus forever shifted. The outside pressure of an increasingly monogamous, secular and Christian legal world gradually grew, and at just the right moment it combined with multiple Jewish developments and concerns, including at the forefront an internal pressure that had been building in the Jewish world to fix the perceived gender inequalities of Jewish family law. Taken all together, the benefits of officially outlawing polygamy now outweighed the benefits of even keeping it legal just on the books, and so the above-mentioned factors led to the promulgation of two decrees, commonly known as two of the bans of Rabbeinu Gershom. (8) One dealt with unilateral divorce, and one dealt with polygamy. Both served as an attempt to legitimize Jewish family law both internally and to the outside world.

In tracing these strands of Jewish law's historical development, this Article sheds light on the ways in which marriage norms within a religious community are mutable across time and place, religious doctrine can adapt to the practical needs of the community, and religious morality can ultimately serve as a progressive force in advancing women's rights.

Part I of the Article provides some initial background on the basic assumptions about polygamy in Jewish society as well as a primer for navigating the basic sources and authorities of Jewish law. Part II outlines the prevailing patterns, themes, and concerns about polygamy in the Old Testament. Parts III, IV, V, and VI analyze the evolving legal and scholarly commentary and interpretations of the Old Testament text as well as changing marriage practices in the Second Temple, Tannaitic, Amoraic, and Gaonic periods respectively. Part VII, VIII, and IX discuss the formal ban against polygamy in the Rishonim period and its relationship to Judaism's evolving conception of marriage generally. Finally, Parts X and XI discuss the geographic and temporal scope of the ban and their connection to the internal and external factors that motivated it.

I. The Background Information

It is important at the outset to make one thing clear: the issue of polyandry was never a discussion. The Seventh Commandment proclaims, "Thou shalt not commit adultery," (9) and adultery is defined as sexual intercourse between a married woman and a man other than her husband. (10) Polyandry under Jewish law is by definition adultery, since it involves a married woman having more than one sexual partner. (11) The Talmud in Kiddushin unequivocally states that: "A woman cannot be the wife of two [men]." (12) Our discussion of polygamy, then, is really all about polygyny, and while polygyny may have always been uncommon de facto, in the rabbinic tradition it was certainly recognized de jure.

A survey of the sources reveals several underlying reasons for the practice of polygamy. Perhaps most importantly in a society that valued children, having many wives increased the man's chances of having many children. Wives were often seen as providing spiritual protection in that they kept their husbands from straying sexually; some have suggested that the practice of polygamy resulted from the chastity enforced on a husband while his wife was pregnant or nursing. (13) In addition, while it was prestigious and a sign of prosperity to be able to afford many wives, it also provided an economic advantage: having many wives and children provided a ready labor supply. Historically, plural marriage served political purposes through the forming of alliances. Occasionally, it was also used to provide support for the helpless in times of surplus women.

A. A Jewish Law Primer

In order to better understand the flow of tradition this Article will summarize, a brief introduction to the history of Jewish law is necessary. Jewish law, or halakha, denotes the entire corpus of the Jewish legal system from its earliest sources in the Bible to contemporary responsa. It includes public, private, ritual, and civil law. It legislates not only that which is legal (things that law can compel or prohibit) but also the ethical and moral dimensions of daily life, and it includes obligations both interpersonal and between Man and his Maker. (14) The term halakha was first employed by the early Rabbis (called Tannaim, approximately 10-220 C.E.) to refer to an oral ruling handed down by the religious authorities (as in the phrase halakha leMoshe miSinai, a law given to Moses at Sinai). It later took on a broader scope, meaning the accepted or authorized opinion when a ruling was in dispute. Eventually, halakha became the general term for the whole legal system of Judaism. Halakha is traditionally thought to consist of two primary sources: the Written Torah, which is comprised of the Hebrew Bible, and the Oral Torah, which, according to traditional belief, was given alongside the written Torah and is represented in the works of the Talmud and accompanying rabbinic literature. (15)

The Pentateuch, or Torah, is said to contain 613 commandments, 248 positive and 365 negative prescriptions. (16) Part of halakha is the enumeration of these commandments, the formal declaration of the manner in which they are performed, and the penalty for transgression. The Biblical books contained in the Prophets and Writings, which together with the Torah represent the Hebrew Bible, were written during the 700 years following composition of the Pentateuch. The Jewish biblical canon appears to have been completed no later than the year 150 C.E. While the Prophets and Writings are traditionally understood to have been written with divine inspiration, and certainly had considerable impact on both the discourse and the homiletical material that appear in the primary documents of Jewish law, they are of far less significance than the Torah for establishing either normative legal or ethical norms. (17)

The Torah is the touchstone of Jewish law, and according to religious tradition and derived legal theory, it is the manifestation of the Divine word, as revealed to Moses at Sinai. Torah means "instruction" or "teaching," and like all teaching it requires interpretation and application. According to traditional belief, alongside God's revelation of the written Torah, represented in the text was a collection of material originally handed down orally from generation to generation. No legal system can exist on just a written text without explanatory notes and clarifications, and so this material was made up of a variety of additional laws, rules, explanations, and interpretive guidelines and tools. Although it was later written down, it remains known as the Oral Law. (18) The divine and therefore binding nature of these two intertwined Torahs is the predicate belief of normative Jewish law. The existence of the dual system accounts for two basic features of Jewish life: the chain of tradition linking generations and the emphasis on Torah study.

The legal debates between the schools of Hillel and Shammai set in motion new debating processes among the rabbinic teachers of first- and second-century Palestine, the Tannaim (literally, teachers). The Tannaim were the first redactors of Jewish law, whose period is closely associated with the editing of the Mishna, traditionally ascribed to Judah the

Patriarch (commonly referred to by the simple honorific "Rabbi"). The Mishna, a redaction of nearly all the main areas of Jewish law then extant, became the basis of subsequent Jewish legal development and literature. It is composed of material thematically arranged in six structural "orders." They deal with agricultural law, family law, civil and criminal law, laws of Festivals, laws of the Temple, and laws relating to ritual purity. (19)

The Tannaitic period saw the transformation of Jewish law in three crucial ways. First, religious leadership was transferred from the triumvirate of king/priest/prophet to the rabbis, who assumed the mantle of expositors of Jewish oral and written law, thereby becoming the architects of authoritative rabbinic decrees and customs. (20) Second, during this period the oral law gradually came to be set in writing, a pivotal process that culminated in Rabbi's decision to allow the creation of an authoritative writing down of the oral law, fixed in the text of the Mishna. Finally, by the end of this period, after the Destruction of the Second Temple, Judaism was firmly rooted in the Diaspora and no longer geographically confined to the land of Israel. These three transitions caused profound changes in Jewish law. (21)

The next five or six centuries saw the writings of the Babylonian and Jerusalem Talmuds, two running commentaries on most sections of the Mishna with elaboration and explanation of the rules and cases therein. They were written and edited by scholars called Amoraim (those who recount the law) and to a lesser extent, towards the end of the period, by the Savoraim (those who ponder the law) and the Geonim (geniuses of the Law). Once the Mishnah had been compiled, it became a sacred text second only to the Bible. It became axiomatic, for instance, that no Amora had the right to disagree with a Tanna in matters of law unless he was able to adduce Tannaitic support for his view. (22)

The Jerusalem Talmud, compiling the interpretive traditions of the Rabbis in the Land of Israel, appeared around the year 425 C.E. The Babylonian Talmud, which developed in the Diaspora, underwent a much heavier editing process; it did not become fixed until about a hundred years after its Jerusalem counterpart. As such, it is a more refined work, and as a result, and for a variety of other reasons (the Babylonian Talmud is later than the Jerusalem and hence able to override the decisions of the latter; the textual condition of the Babylonian Talmud is in a more satisfactory state; the Babylonian Geonim at Sura and Pumbedita were in direct succession to the Babylonian Amoraim, so that the Babylonian Talmud became 'our Talmud,' etc.) the authority of the Babylonian Talmud ultimately eclipsed that of the Jerusalem Talmud, giving it far greater significance throughout most of Jewish history. (23)

Developing alongside the two Talmuds, and really also part of the Talmudic corpus, were the Midrashei Halakha, compilations of rabbinic teachings so called because the sages interpreted Scripture using a method called Midrash. There were two schools of Midrashic thought, the schools of Rabbi Yishmael and Rabbi Akiva. The Midrashei Halakha record the verse-by-verse expounding of the Scripture to substantiate halakhic rulings. Many early halakhic rulings are therefore called Divrei Sofrim (the words of the scribes), although later that term also shifted to mean rulings of rabbinic rather than scriptural origin. Much of the Midrashic material makes its way into the two Talmuds as traditions or laws (known as baraitot), recognizable because they usually begin with a scriptural quote.

The fundamental significance of the Talmudic literature to Jewish law cannot be overstated. Jewish authorities accept that Talmudic law provides the base for all discussion of Jewish law, and its authority is beyond dispute, such that the denial of said authority effectively excludes one from the community of adherents. While the Talmud might in certain circumstances be unclear, or accept more than one view as acceptable or even normative, or at the very least cite several different views without explicit resolution of the matter under discussion, it nonetheless sets the framework of analysis for all that is Jewish within Jewish law. As Maimonides put it in the introduction to his Code, "All Israel is obliged to follow all the statements in the Babylonian Talmud. Every city and every province is compelled to conduct itself in accordance with the customs, decrees and regulations instituted by the sages of the Talmud, since all Israel agreed to accept them." (24)

The general assumption in the classical Jewish sources is that the halakhah in its entirety goes back to Moses, except for various later elaborations, extensions, applications, and innovations in accordance with new circumstances. Thus Maimonides in the introduction to his Code counts forty generations backward from Rav Ashi, the traditional editor of the Babylonian Talmud, all the way to Moses, and concludes: "In the two Talmuds and the Tosefta, the Sifra and the Sifrei (names of Midrashic compilations), in all these are explained the permitted and the forbidden, the clean and the unclean, the liabilities and lack of liability, the unfit and the fit, as handed down from person to person from the mouth of Moses our teacher at Sinai.... To it [the Talmud] one must not add and from it one must not subtract." (25)

Internal Jewish law consists of a hierarchy of authority. Those laws that are derived directly from the scriptural text are referred to as Torah obligations. Laws whose source is in statements of rabbinic scholars throughout the generations, from Moses to the present, are called rabbinic decrees. The difference between the two lies not only in the type of penalty that each demands if transgressed, but also in the type of consideration each must be given in doubtful circumstances. In the case of doubt with regard to a Torah commandment, one must lean towards stringency, while in the case of rabbinic decrees, on the other hand, one may be lenient. (26) Rabbinic decrees are often meant to make a protective fence around the Torah (27) so as to hinder possible violations of the Torah commandments through carelessness. Other types of rabbinic decrees are called gezerot (singular, gezerah) which differ from other rabbinic rules in their source of authority. They need not be explicitly exegetical nor directly related to Torah obligations, although they are often designed to protect some Biblical ethic or ideal. (28) However, once a gezerah is decreed and has been accepted by Jewry at large, it cannot easily be rescinded by later authorities. (29) Similarly, takanot (singular, takkanah) are rabbinic decrees that typically relate to social and economic situations that may arise. Another component of rabbinic law is minhag (custom), which can affect Jewish law depending on its strength of normativity. (30)

In the post-Talmudic era codification of the various strands of Jewish law became a popular endeavor. Based on available manuscripts from such leaders as Rav Shereira ben Hanina Gaon (900-940 C.E.) and Rav Hai Gaon (939-1038 C.E.), it appears that the Geonic era was an active period of codification. In the medieval era, different approaches arose with respect to codification. One genre that developed was responsa literature, in which individuals or communities addressed questions to major deciders of Jewish law. These responsa were collected, and sometimes organized by topic. Another genre was the systematic organization of Jewish law into codes. The greatest example of such a code is Maimonides' Mishneh Torah, a fourteen-volume codex covering all aspects of Jewish law. Another example is the Shulhan Arukh, written by Rabbi Joseph Karo, which covers all aspects of daily living, but is not as comprehensive as Maimonides' code. (31) The Shulhan Arukh, together with the glosses of the Rabbi Moshe Isserless, became the most authoritative code in the history of the halakha, and it marked a turning point in the history of codification in that even when later authorities departed from its rulings, they did so with extreme reluctance. Adherence to the halakha as represented by the Shulhan Arukh became the test of Jewish fidelity and attachment to Orthodoxy, especially in the modern period when denominational divergence began. Its rulings are still authoritative, even if not the final authority, for halakhic Jews everywhere.

In looking at polygamy through the lens of Jewish tradition and specifically through Jewish law--the primary vehicle for the transmission of Jewish values throughout the ages--this Article will not attempt to quote every statement, law, or saying about polygamy, or co-wives--just the ones that have in some way or another left a mark or made an impact on the tradition. Nor will it quote every responsa, even by major rabbis; there are hundreds that touch upon the idea and practice of polygamy, many of them similar, and so instead of providing string citations I have sifted through them for the ones that, in my opinion, best make the relevant points. The viewpoint for this work is that of an internal Jewish law scholar, and so references to the Old Testament, Talmud, and Midrashic lore will see those texts, and Jewish law in general, as comprising a unified code for a coherent and continuous set of norms for a community (albeit one that has dynamically developed over time), which is the way that it is and has been seen by its traditional practitioners. (32) It will include a discussion of the development of divorce law in halakha, particularly as it explains the changes in the Jewish marital structure. (33)

II. The Old Testament

For Judaism and Jewish practice, everything eventually comes back to the Bible, and so there is no better place to begin. In both the narrative and genealogical sections of the Old Testament, there are numerous references to polygynous marriages, and there are quite a few Biblical laws and passages that presuppose the existence of polygamy.

The very first commandment in the Bible is pru u 'rvu (be fruitful, and multiply). (34) This commandment is repeated to Noah and his sons when they exit the Ark after the flood, (35) and is echoed again several times throughout the Biblical literature. (36)

This commandment does three things. First, it sets the stage for the primary purpose of polygamy: the increase of viable children. (37) Second, the stage is also set immediately for tension because the prototypical biblical marriage is, of course, that of Adam and Eve, the first (and at that point the only) man and woman. (38) Their relationship is patently monogamous, as no one else even exists. (39) In addition, the Bible notes that a man clings to his wife and the two "become one flesh," (40) leading to the assumption by many scholars that the Bible introduced monogamy as an ideal before accepting polygamy as a compromise, the difficulties of which were then laid out in detail in the telling of the lives of the patriarchs. (41) Nevertheless, in the Rabbis' view even an example set by God in ordering the world essentially belonged to the domain of aggadah (homiletics), and does not supply an adequate foundation for a specific halakha, (42) The Rabbis might appeal to God's example when enunciating general rules of religious, moral, or prudent conduct, (43) or would reference it when elucidating a halakhic principle already established on other, proper legal grounds, but would go no further. (This is in direct contrast to a verse like Genesis 5:2, "male and female he created them," which the Rabbis do cite in a legal context pertaining to how many children a man must have. Here, the primary duty of procreation, i.e., the commandment of "pru u 'rvu," has already been established by an actual precept, "Be fruitful and multiply." The second verse is brought merely to give a more exact understanding of what that meant. (44))

Finally, the commandment of pru u 'rvu actually sets the stage for the idea of a biblically prescribed polygamy.

A. Polygamy as Religious Obligation

The Rabbis of the Mishna in Yevamot 6:6 teach us:
   No man may abstain from keeping the law "Be fruitful and multiply,"
   Genesis 1:28, unless he already has children: according to the
   School of Shammai, two sons; according to the School of Hillel, a
   son and a daughter, for it is written, "Male and female He created
   them." Genesis 5:2. If he married a woman and lived with her ten
   years and she bore no child, it is not permitted him to abstain
   [from fulfilling this legal obligation]. If he divorced her she may
   be married to another and the second husband may live with her for
   ten years. If she had a miscarriage the space [of ten years] is
   measured from the time of the miscarriage. The duty to be fruitful
   and multiply falls on the man but not on the woman. R. Johanan b.
   Baroka [dissents from this view and] says: Of them both it is
   written, "God blessed them and God said to them, Be fruitful and
   multiply." Genesis 1:28. (45)


The husband of the barren wife who is required to fulfill his obligations is therefore left with only one of two choices: divorce his wife or marry a second one. The latter option is explicitly spelled out in the Mishna in Sotah, 4:3: "... Rabbi Eliezer says, 'He can marry another woman to procreate through her."'

The Tosefta in Yevamot 8:6 deals with the problem of what happens to the infertile wife once it is confirmed that she is the problem: "And to how many husbands is she permitted to be married [until we are sure that she is the infertile one]? Three. Beyond that she should only be married to someone who has a wife and children." (46) The Talmud in Ketubot sees Abram's taking of Hagar in addition to Sarai after ten years of living in Israel as a Biblical reference to this practice. (47)

The idea of monogamy as an ideal is reinforced by the oft-repeated biblical metaphor of Israel as God's unfaithful but still beloved, and ultimately only wife, as well as by several verses that seem to indicate a definite monogamous preference, such as Ecclesiastes 9:9 ("Enjoy happiness with a woman you love all the fleeting days of your life that have been granted to you under the sun ....") and Psalms 128:3 ("Your wife shall be like a fruitful vine within your house; your sons like olive saplings around your table."). (48)

Still, while there are no biblical passages that seem to indicate an actual preference for polygamy, there are plenty of legal passages that acknowledge its existence and even approve of it. (49) Aside from the many tales of multiple wives, the Bible assumes that female slaves will marry either their owner or his son, (50) regardless of whether or not they are already married. Elsewhere, the text is explicit that "[i]f a man (who is already married) marries another woman, he must not withhold (from his first wife) her food, her clothing, or her conjugal rights." (51) The Torah also discusses what to do when bequeathing property to sons born from multiple wives in a situation where one wife is loved more than the other. (52)

The rules of levirate marriage (53) compel a man (in certain circumstances) to marry his childless brother's widow, regardless of whether or not the man is already married to his own wife. This is important because it is one of the only times (aside from the case of barrenness, above) that the taking of a second wife could be construed as actually fulfilling a commandment. (54) The Children of Israel are warned that their king should not have too many wives, (55) while Deuteronomy's discussion of the "beautiful captive" (56) seems to be given in a polygamous context, as it too does not differentiate between married and unmarried soldiers.

B. Polygamy's Benefits

In biblical times, the benefits to a man of having multiple wives were obvious and many. Aside from increasing a man's chances of having more offspring, multiple wives and concubines served as a sign of wealth and power. (57) They also supplied a man with enough people to work the fields and tend the flocks. (58) A woman, meanwhile, may have preferred the status of a wife, even a secondary wife, to that of spinsterhood, or to living under the jurisdiction of a father or a brother. (59) Isaiah 4:1 points out that especially in times of national turmoil, multiple women would be content to take the name of one husband: "In that day, seven women shall take hold of one man, saying, 'We will eat our own food, and wear our own clothes, only let us be called by your name; take away our disgrace."' Polygamous marriages were also entered into for political reasons; Solomon, for example, used his marriage alliances with foreign women to establish cordial relations with the nations around him. (60) Aside from the reference to the king noted above, the Torah places no limit on how many wives a man can have.

C. Polygamy as a Tolerated Practice

The first example of polygamy in the Bible is that of Lamech and his two wives, Addah and Zillah. (61) Although the influential commentator Rashi (62) states that having two wives was the custom of the generation of the flood, Lamech's bigamy is the only recorded case of polygamy in the antediluvian period. (63) Other famous polygamous men from the Genesis narrative include Abraham (married to Sarah, and later, Hagar the concubine (64)), Abraham's brother Nahor (married to Milcah and his concubine Reumah (65)), Jacob (married to Leah and Rachel, along with the concubines Bilhah and Zilpah), Esau (married to Judith, Basemath, Mahalath, Adah, and Oholibamah), and Esau's son Eliphaz. (66)

Throughout the Prophets and Writings we encounter Gideon (who had "many wives" (67)), King Saul (who had multiple wives, although no exact number is given (68)), King David (who had seven wives before he reigned in Jerusalem, (69) and then took additional wives and concubines when he left Hebron (70)), King Solomon (seven hundred royal wives and three hundred concubines (71)), King Mennasseh (at least one concubine (72)), Shaharaim (three wives, unclear how many concurrent (73)), King Rehoboam of Judah (eighteen wives and sixty concubines, and who sired twenty eight sons for whom he sought many wives (74)), Abia (fourteen wives and an unknown number of concubines (75)), and King Jehoash (two wives (76)). In Samuel I and II, the only recorded polygamist aside from the royal monarchs is Samuel's father Elkanah (married to Hanna and Penina (77)). (78)

In terms of the way the Bible thought about polygamy, none of these polygamous men are ever criticized for having multiple wives. Even King Solomon, whose many wives famously led him astray, was criticized not for marrying too many women, but for marrying women who were unsuitable because they were from among the nations with which God had prohibited the Israelites from intermarrying. (79) Still, others claim that the Bible is written in a way which already presupposes that monogamy was the general rule, pointing to verses such as Deuteronomy 20:7 ("And who is the man who has betrothed a wife") and 24:5 ("when a man takes a new wife"), which, although they don't proscribe polygamy, seem to indicate that it might not have been favored or the norm. (80) They also note that great men such as Moses and Aaron lived monogamous lives. (81) Others cite to the thirty-first chapter of Proverbs, as well as several of the Psalms, which seem to speak of and praise a monogamous union. (82)

It was possible, as in the cases of Esau and Jacob, for a man to have multiple wives of equal position and rank. (83) Oftentimes in ancient Israel, as in other polygamous societies, polygamy resulted in antagonism between the wives, whether because one was more favored (Rachel and Leah (84)) or because one was barren and the other bore children (also Rachel and Leah, as well as Hannah and Peninnah (85)). As noted above, Deuteronomy recognized the potential for this problem, stating that "if a man has two wives, one loved and the other unloved ...." (86)

The practice of a barren woman giving her husband her handmaid to bear children "on her (the wife's) knees"--i.e., a form of surrogate motherhood--was common in the Bible, and indeed in the Ancient Near East generally (87); Rachel (88) and Leah, (89) for example, both gave Jacob their handmaids, Leah even despite the fact that she had already borne some children. (90)

It is debatable whether or not the practice of concubinage falls under the rubric of traditional polygamy--the concubine was not "married" to the master, and while her status was higher than that of a slave, it was lower than that of a wife and oftentimes (as in the cases of Sarah and Hagar, Leah and Zilpah, and Rachel and Bilhah) she even belonged to the primary wife. Still, there was a committed sexual relationship between two people in addition to any other wives a man might have, which was exclusive on the part of the woman. In many ways this looks like polygamy, as opposed to just an open sexual relationship. In addition, the reasons for having a concubine are the same as the reasons for having multiple wives: not only was it prestigious, having many concubines also increased the man's chances of having many children and a steady stream of helpers (while at the same time being somewhat less expensive, and avoiding some of the pitfalls of rivalry that co-wives might engender (91)). For some parts of this discussion then, we will equate the practices of polygamy and concubinage, noting here at the outset that this was not the case in all societies and at all times. (92)

Louis Epstein makes the argument that the tradition of polygamy among the Hebrews was from time immemorial directly related to the outside culture of which they were a part. (93) It is true that polygamy did prevail among most ancient oriental nations, (94) but not all; thus we find Abraham maintaining a matriarch in Sarah, as per Babylonian restrictions, while Esau, who, unlike Jacob remained in Canaan, participated fully in the Canaanite pattern of full and equal polygamy. (95) That might explain why Jacob's father-in-law, Laban, seeking to preserve his daughters' dignity, made Jacob swear before he returned to Canaan that he would take no other wives to rival them.96 Epstein argues that if the majority of the Hebrews in Canaan and later in Egypt did not practice polygamy, it was mostly due to practical considerations; only the chieftains could afford it even though the law did not forbid it. (97)

Most assume that even though polygamy was clearly sanctioned, it was not extensively practiced even in Biblical times except by the leaders and the wealthy. (98) Polygamy was a privilege of the rich, and while a poor Israelite might desire having a number of wives (along with their attendant slaves and children) to help him in his household, his financial standing would probably make this arrangement highly impracticable. (99) Also note that in almost every situation, polygamy in the Biblical era already leads to strife, pain, and discord.

III. Second Temple Period

After the Old Testament, the next references we get to Jewish stances on polygamy come from extant marriage contracts written during the time of the Second Temple period. (100) One such document was found in Elephantine, a Jewish military colony in Egypt located at the Southern end of a small island in the Nile. (101) The agreement, written in Aramaic and dated to around the year 441 B.C.E., makes it clear that some men in this period did not take a second wife because of an explicit agreement they had made with their first wives. The relevant provision, written by the husband (Ashor) to the wife (Miphtahiah) reads as follows:
   And I shall have no right to say I have another wife besides
   Miphtahiah and other children than the children whom Miphtahiah
   shall bear to me. If I say I have children and wife other than
   Miphtahiah and her children, I will pay to Miphtahiah the sum of 20
   kerashin, royal weight, and I shall have no right to take way my
   goods and chattels from Miphtahiah; and if I remove them from her
   (erasure) I will pay to Miphtahiah the sum of 20 kerashin, royal
   weight. (102)


As noted above, this provision has possible Biblical precedent; when Laban encounters Jacob in Genesis 31:50, he adjures him not to take any additional wives other than his daughters, Rachel and Leah: "If you ill-treat my daughters, or take other wives besides my daughters, though no one else be about, remember, God Himself will be witness between you and me." (emphasis added). (103) According to Ze'ev Falk, however, the clause in the Elephantine marriage contract prohibiting polygyny was drawn less from the Bible and more from the influences of the community's non-Jewish neighbors. (104) Falk is careful to point out though that just because the format of inserting a specific clause in a marriage contract to restrict polygyny may have been borrowed by Jews from their gentile neighbors, "[i]t does not necessarily follow that the tendency to monogamy was also a result of foreign influences." (105) The tendency toward monogamy could have come from within the Jewish community, which then borrowed a formal medium from surrounding non-Jewish culture.

Texts found among the Dead Sea Scrolls at Qumran, from the library of the sectarian Jews that lived there, condemn marriage to one's niece, (106) divorce, and polygamy, calling all of them zenut (fornication). (107) One scroll, commonly referred to as the "Damascus Document," has been dated to the late first century B.C.E. It states (108):
   [They] are caught by two (snares). By unchastity, (namely), taking
   two wives in their lives, while the foundation of creation is "male
   and female he created them." (109) And those who entered (Noah's)
   ark went two by two into the ark. And of the prince (110) it is
   written "Let him not multiply wives for himself" (111) And David
   did not read the sealed book of the Torah which was in the Ark
   (of the Covenant), for it was not opened in Israel since the day
   of the death of Eleazar and Joshua and the elders. For (their
   successors) worshipped Ashtoreth, and that which had been revealed
   was hidden until Zadok arose, so David's works were accepted, with
   the exception of Uriah's blood.... (112)


While this text is somewhat ambiguous--most importantly, it is not clear from the context which person exactly is the subject of "in their lives," the husband (in which case a man would be guilty of fornication for taking a second wife even if his first wife had already died) or the wife (in which case it was only forbidden to take a second wife if the first wife was still alive)--most scholars have understood it as a reference to polygamy. (113) If so, the apparent claim that polygamy is actually biblically forbidden seems to be a complete innovation, (114) although there are those who claim that at least some members of the Karaite sect also believed that it was biblically prohibited (they read the verse in Leviticus 18:18, "Do not take your wife's sister as a rival wife," broadly, with sister meaning something more akin to "neighbor"). (115)

It is interesting that while in the Torah the prohibition of the king having too many wives is meant only for the king (116) (and the same is true in the Temple Scroll found in Qumran (117)), when it is referenced in the Damascus Document, it is used for a different purpose, i.e., to show that the king serves as an example to his subjects. "Just as [the king] is not permitted to have more than one wife, so others are not." (118) Perhaps the intent was to benefit women, or to promote stable marriages, or was simply in keeping with general Second Temple community attitudes. (119) It is also noteworthy that the Damascus Document seems to have been written during the reign of King Herod, (120) and could have been written as a critique of his and his supporters' polygamous ways as described in Josephus' Wars and Antiquities. (121)

The apocraphylic literature does not deal with polygamy that often. 1 Esdras 4:29, for instance, simply mentions that Apame was a concubine of the king. The clearest statements we get come from the book The Wisdom of Ben Sirah, otherwise known as Ecclesiasticus. In regard to having multiple wives, Ecclesiasticus (122) writes: "It is a heartache and sorrow when one wife is the rival of another." Later, he advises his audience, "Do not consult with a woman about her co-wife." (123) The author, however, was not against marriage, per se, and seemed to praise the monogamous lifestyle:
   In three things I show my beauty and stand up in beauty
   before the Lord and men;
   Harmony among brothers, and friendship among neighbors,
   And wife and husband suited to each other. (124)


And also:
   Happy is the man who has a good wife!
   The number of his days is doubled.
   A noble wife gladdens her husband,
   And he lives out his years in peace.
   A good wife is good fortune;
   She falls to the lot of those who fear the Lord,
   Whether rich or poor, he has a stout heart;
   And always a cheerful face. (125)


Overall, the materials available from the Second Temple period, both legal and homiletic, seem to reflect a growing attitude in favor of monogamy. Despite the fact that the majority of Jewish texts (with the exception of the Damascus Document (126)) had not outlawed the practice of polygamy at this time, it is likely that it was not common. (127) This concept, of polygamy being legally valid but socially frowned upon, continued as a trend in the Jewish communities throughout the Talmudic period. (128)

IV. The Tannaitic Period

The period of the Tannaim ("those who taught the Law") extends from the period of Hillel the Elder at the end of the first century B.C.E. until the compilation of the Mishna by Rabbi Judah HaNasi at the end of the second century C.E. (129) The primary sources of Jewish law passed down from the Tannaitic period are the Mishna (designed to preserve, clarify, and systematize the rabbinic teachings surrounding the commandments in the Torah) and the Tosefta (literally additional material; made up of material attributed to the Tannaim that did not make the final cut in the redaction of the Mishna, but serves as a supplement to it). (130)

While the majority of the material cited in these works is attributed to sages from this era, it also contains some material attributed to sages dating back as early as 300 B.C.E. (131) Material from the Tannaitic period can also be found throughout the discussions in the Babylonian and Jerusalem Talmuds, which, although they were compiled and redacted later in the Amoraic period, preserve numerous stories, references, statements, and rulings of the various Tannaim.

The Talmudic tractate Yevamot (literally "levirate marriages") deals with the legal rules that arise from the description of levirate marriage contained in Deuteronomy 25:5-10:
   If brethren dwell together, and one of them die, and have no child,
   the wife of the dead shall not be married abroad unto one not of
   his kin; her husband's brother shall go in unto her, and take her
   to him to wife, and perform the duty of a husband's brother unto
   her. And it shall be, that the first-born that she bears shall
   succeed in the name of his brother that is dead, that his name be
   not blotted out of Israel. And if the man like not to take his
   brother's wife, then his brother's wife shall go up to the gate
   unto the elders, and say: "My husband's brother refuses to raise up
   unto his brother a name in Israel; he will not perform the duty of
   a husband's brother unto me." Then the elders of his city shall
   call him, and speak unto him; and if he stand, and say: "I like not
   to take her"; then shall his brother's wife draw nigh unto him in
   the presence of the elders, and loose his shoe from off his foot,
   and spit in his face; and she shall answer and say: "So shall it be
   done unto the man that doth not build up his brother's house." And
   his name shall be called in Israel the house of him that had his
   shoe loosed.


In addition to the polygyny that could occur when a married brother is biblically required to perform levirate marriage, several other passages presuppose the existence of polygyny. (132) The teachings at the very beginning of the tractate, for example, Mishnayot Yevamot 1:1-4, all make mention of co-wives in their discussions of the family, as do many other Mishnayot and toseftas throughout the tractate. (133) Perhaps the most important statement about polygamy and levirate marriage, however, comes from outside of Yevamot, from the Mishna in Bechorot 1:7:
   The duty of levirate marriage takes precedence over the duty of
   chalitzah [i.e., the un-shoeing ceremony, in which the
   brother-in-law tells the court that he will not perform his
   levirate duty] in the early days, when their
   intent was to perform a mitzvah, but now when their intent is not
   to perform a mitzvah, the duty of chalitzah takes precedence over
   the duty of levirate marriage.


Leviticus 18:16 (134) and 20:21 (135) make it clear that in general one is forbidden from marrying his brother's wife, even widowed or divorced. Levirate marriage was the exception to this rule, provided that it was done for the right reasons, i.e., to fulfill a religious obligation and not for personal or financial reasons. According to the commentators, if a man performs levirate marriage with ulterior motives, he is considered to be simply indulging in a forbidden union. (136) When it became clear that people were no longer acting with only pure motives, the rabbis ruled that performing chaliztah was the preferable option. According to Ze'ev Falk, when this changed, "naturally the main effect concerned those already married, who were now at liberty to remain monogamous. An internal factor encouraging bigamy among Palestinian Jewry was thus neutralized while there remained the external opposition to polygamy on the part of the administration." (137)

Aside from Tractate Yevamot and the Mishna in Bechorot, many other passages throughout the Mishna also make mention of polygamy in various levels of detail. Chapter 10 in Ketubot, for instance, deals with laws relating to cases where the deceased leaves two or more wives. (138) The numerous matter-of-fact references to polygamy throughout the literature support the image of a world in which polygamy must have existed, at least to some extent. There are, however, only a few specific examples that are recorded in the Talmud. One, cited in both the Tosefta Ketubot 5:1 and Jerusalem Talmud Yevamot 4:12, involves Rabbi Tarfon, a prominent Tanna who was active in the years 80-110 C.E. The passage reports that during a year of drought Rabbi Tarfon, who was a priest, betrothed three hundred women, so that they would, as wives of a priest, be able to eat from the Terumah portion (the heave offering given to the priestly tribe) during this time of hardship. The Jerusalem text, however, makes it clear that the marriages were only nominal. Rabbi Tarfon makes another appearance in the canon in regard to polygamy, in a Tosefta in Yevamot 1:10; having been asked about the status of the children of rival wives, (139) Rabbi Joshua replied:

"Why do you put my head between two great mountains, between the House of Shammai and the House of Hillel? They will destroy my head! However I testify that the family of the House of Alubai from Beit Sevaim and the family of the House of Kufai from Beit Mekoshish are the descendants of rival wives. And high priests have come from them that have presided over sacrifices at the temple." Rabbi Tarfon said, "I want a daughter of a rival-wife to come before me so that I can marry her into the priesthood." (140)

Jerusalem Talmud Yevamot 4:12 contains another story about polygyny, this one involving thirteen brothers, twelve of whom died without leaving children, making their wives eligible for levirate marriage. The widows of the deceased brothers came before Rabbi Judah HaNasi, who told the surviving brother that he should enter into levirate marriage with all of them, apparently unconcerned about the resulting polygamous union. (141) Interestingly, in Babylonian Talmud Ketubot 62a, when the same Rabbi Judah's daughter-in-law became too old to have children after his son finally came back from his studies, he was hesitant to tell his son to marry another woman polygamously, lest "it would be said: The latter is his wife and the other his mistress." Perhaps this is an early reflection of a trend that we will see again later in history, wherein polygamy is allowed when there is a mitzvah (positive commandment) to do so (because technically the law allows it and the rabbis' moral compunction was not enough to override a commandment), despite the fact that it was otherwise frowned upon as somewhat immoral or something to be socially ashamed of. (142) This balancing system is in fact not uncommon in Talmudic literature generally. Out of respect for the biblical commandments, the rabbis used much more discretion in mandating the non-fulfillment of biblical norms (here the practice of polygamy) in a passive way rather than permitting active violations of commandments, something that they felt that they could not do. (143)

Other specific instances of polygamy in the Babylonian Talmud include one involving the major domo of King Agrippas who, in the process of ascertaining his obligations regarding the holiday of Sukkot, mentions that he has two wives, (144) and one involving Rabbi Gamliel II of Yavneh (a leading Tanna who was active from 80-110 C.E.). Babylonian Talmud Yevamot 15a tells us that Rabban Gamliel performed levirate marriage with one of his brother's wives when his brother Abba died childless. In regard to other Jewish sources from the time period, Josephus tells us that two of King Herod's sons, Archelaus and Herod Antipas, had more than one marriage at a time. (145)

Another source of Jewish material discussing polygamy from the Tannaitic period is the Aramaic Targum ("translation") of Ruth.'46 Chapter 4 of the Book of Ruth reads as follows:
   Boaz continued [speaking to the redeemer, saying]: "When you
   acquire the property from Naomi and from Ruth the Moabite, you must
   also acquire the wife of the deceased, so as to perpetuate the name
   of the deceased upon his estate." The redeemer replied, "Then I
   cannot redeem it for myself, lest I impair my own estate. You take
   over my right of redemption, for I am unable to exercise it." (147)


In the Biblical account, the only reason that the redeemer gives for not redeeming is that doing so would "impair his own estate." A simple reading of these verses might imply that this is so because by marrying Ruth he would be required to expend capital for property that would go to Ruth's firstborn son, who would be legally regarded not as his own son, but as the son of Ruth's deceased husband Machlon, as per the rules of levirate marriage.

The Targum, however, tells a slightly different story:
   Boaz said: "On that day that you buy the field from the hand of
   Naomi and from the hand of Ruth the Moabite, wife of the deceased,
   you are obliged to redeem and required to act as her brother-in-law
   and to marry her in order to raise up the name of the deceased upon
   his inheritance." The redeemer said, "In such circumstances I am
   not able to redeem myself. Because I have a wife I have no right to
   marry another in addition to her, lest there be contention in my
   house and I destroy my inheritance. You, redeem my inheritance for
   yourself, for you have no wife, for I am not able to redeem." (148)


Interestingly, the redeemer does not say that he is not allowed to marry a second wife, just that it may result in contention in his house, reflecting the already established Biblical view that polygamy, while not illegal, is at the very least inadvisable from a practical household standpoint.

Other Midrashic sources, perhaps of later composition but representing much earlier teachings, include Pesikta Rabbati (circa 845 C.E.). In this midrashic collection, the pious Elkanah's polygamous behavior needs to be justified, and so the rabbis explain that it was because his wife was barren. (149) A parable given in Midrash Canticles Rabbah (which is assumed to be very early) takes it for granted that if a man is marrying a second wife he must have already divorced the first. (150)

The Tannaitic period of rabbinic Judaism corresponds to the time of early Christianity and the writing of much of the New Testament, and so when exploring early rabbinic views of marriage and polygamy one must also consider the views of early Christianity. (151) The Gospels are relatively silent on the marriage front, although some scholars (152) have argued that certain passages seem to set monogamy as the ideal. Matthew 19:9 for example, states: "if a man divorces his wife for any cause other than unchastity, and marries another, he commits adultery." (153) The lack of explicit condemnation is probably due to the fact that on the ground it was taken for granted; indeed, at least for the original sectarian Jewish Christian population, there is evidence that they were completely monogamous. (154)

One of the Church Fathers, however, Tertullian, took the above-quoted passage quite far, in that he opposed not only what we can call regular or simultaneous polygamy, or even what this verse seems to describe on its face, i.e., second marriages after divorce; he also went so far as to proscribe a person's remarriage after the death of a spouse. (155)

Still, there are very few explicit references to polygyny in the New Testament, and it is never banned in the text for the general population. (156 It was not until the Council of Trent in 1563 that the Church issued an unequivocal prohibition on the practice of polygamy. Passages written in the Tannaitic period do, however, mandate that an elder, bishop, or deacon, respectively, may each have only one wife. (157) It is possible, if not likely, that in forbidding their leaders and role models from a certain behavior, the authors of the New Testament were demonstrating their views of the practice in general. (158) It seems that, much like in the case of the Tannaim, (159) for the early Christians there was a grudging legal acceptance but a strong disinclination towards polygamy. Seeing as they were coming from the same traditions and operating in the same locale of the Holy Land, if one group did not directly influence the other, they must have at the very least been exposed to similar ideas and societal values regarding issues of marriage and family. (160)

Proceeding to the world of non-canonical Christian literature, Justin Martyr, one of the Church fathers of the second century, was an important Christian apologist. His Dialogue with Trypho was the first anti-Jewish polemic written in Greek, (161) and is an adaptation of a debate between Justin and a Jewish philosopher. (162) In Chapter 134, Justin writes that Jewish sages in all the lands, even in his own day, permit marriage to four or five wives. Justin condemns the rabbis who, he claims, permit their followers to practice polygyny rather than obey God, and mistakenly cite to the Patriarchs as precedent. (163) Elsewhere, Justin reiterates that the purpose of the Patriarchs' polygamy was "not to commit adultery, but that certain mysteries might thus be indicated by them." (164) As Falk notes, despite the fact that Justin Martyr clearly wrote for polemical reasons, criticizing Judaism to elevate Christianity, one can still infer from his work that the rabbis of his generation did not discount polygamy, at least in principle. (165) On the other hand, one must be cautious when using his writings as a historical source, since although he claims to be reporting on Jewish sages in "all lands," it is possible that he is in fact only describing some anomaly with which he was personally familiar. (166)

If polygamy was not de facto common in Tannaitic times, it was certainly accepted rabbinically de jure. From the Talmudic legal contexts in which it was discussed, polygamous unions per se were most likely to arise in a case where there was a biblical commandment or, as in the case of Rabbi Tarfon in the Jerusalem Talmud, a moral imperative mitigating the discomfort that the rabbis felt towards the practice.

The split between Jewish and Christian views of polygamy is probably rooted in their differing views on marriage as an institution. In Christian minds, at least at the time, marriage was merely tolerated, barely good; Paul famously proclaimed:
   it is good for a man not to touch a woman. Nevertheless, to avoid
   fornication, let every man have his own wife, and let every woman
   have her own husband.... I say this by way of concession, not of
   command ... for it is better to marry than to burn. (167)


In rabbinic thought, however, marriage was considered to be "very good." (168) According to one fragment found in the Cairo Geniza, which has been referred to as the "sermon in praise of a wife," (169) there are in fact twelve good measures in the world, and any man who does not have a wife in his house who is good in her deeds is prevented from enjoying all of them. These good measures are: good, happiness, blessing, peace, help, atonement, a (protective) wall, Torah, life, satisfaction, wealth, and a crown. Based on the discussion of marriage in Babylonian Talmud Yevamot 61b-64a, the anonymous preacher's list of goods might imply in simple mathematical terms that more wives would just equal more goods.
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Title Annotation:Abstract through IV. The Tannaitic Period, p. 234-268
Author:Goldfeder, Mark
Publication:Columbia Journal of Gender and Law
Date:Oct 22, 2013
Words:9761
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