The story of Jewish polygamy.
The composition of the Mishna by Rabbi Judah HaNasi in the beginning of the third century, and its dissemination and acceptance in the Jewish legal academies both in Israel and elsewhere, led to a clear break in the way scholars worked to pass on the tradition. (170) The generations that followed the Tannaim were called Amoraim ("those who recount the law") because they worked to interpret and deliver the authoritative Mishnayot. Memorization and constant recitation were the cultural ideal. (171) Polygamy continued to be legal according to Jewish law during this period, which lasted until the codification of the Babylonian Talmud around 500 C.E. From what we know, however, it continued to be rare in practice, probably even more so than before. (172) Talmudic debate and legislation regarding multiple wives is frequent, but seems to have been mostly academic. (173) While the two Talmuds contain a great deal of biographical information about many sages over the centuries, there is not a single undisputed reference to any of the Amoraim actually having more than one wife.
While Jews had been living outside of Israel in Babylonia since the Destruction of the Temple in 70 C.E., the traditions until this point had been quite fluid and connected, with Israel as the accepted source of authority. In the Amoraic period, as demonstrated by the emergence of the two Talmuds, two distinct communities began to take shape. While the Amoraic period is said to have lasted until 500 C.E., in truth the Amoraim in the land of Israel were only active until approximately 370 C.E. The earlier close of the Jerusalem Talmud was probably due to the political reality in Israel: in 351 the Roman commander Ursicinus wreaked vengeance on the Jews of Tiberias, Sepphoris, and Lydda, the seats of the three academies, because of their revolts against the army. (174)
There is much discussion in rabbinic literature about how to account for some of the differences between the Babylonian and Jerusalem Talmuds. Some assume that they represent the difference between two contemporary but different traditions, perhaps based on geographical and political influence. The Jews who remained in Israel during this period were under Roman rule, and were thus exposed to Roman views (and subject to Roman laws) about monogamy. The Jews in the Babylonian exile, however, were in close proximity to the polygamous Zoroastrian religious culture of Persia. Others, however, downplay these differences, noting that if you align the different Tannaitic and Amoraic layers of the two Talmuds, the corresponding strata are remarkably similar. They thus assume that what the two Talmuds really preserve is the difference between two stages of the development of a single shared tradition. (175) Regardless, though, of whether the differences were due to time and/or place, to some extent the material that we have preserved from the Jewish communities of Israel and Babylonia must be examined separately, with Israel coming first. (176)
In 212 C.E., all Jews living in the Roman Empire became Roman citizens, and were therefore subject to severe penalties for the practice of polygamy. In 285 C.E. Diocletian specifically extended the prohibition against polygamy to all the inhabitants of the Roman Empire, and in 324 C.E. Constantine the Great became ruler and Christianity became the official religion of the Roman Empire. (177)
On December 30, 393, Emperor Theodosius (with Arcadius and Honorius) prohibited Jews from practicing polygyny, stating: "None of the Jews shall keep his custom (morem) in marriage unions, neither shall he contract nuptials according to his law, nor enter into several matrimonies at the same time." (178) The imperial legislation was apparently not entirely successful, however, even outside of Israel, because in 537 Justinian issued a novel ruling that granted an exemption from laws against polygyny to the Jews of Tyre; in 535 he had prohibited 'abominable marriages,' and two years later, upon tearful supplication from the Jews, he somewhat relaxed his position. (179)
While some scholars, such as Lowy, (180) contend that Roman legislation (such as the aforementioned laws) did not serve as a deterrent for Jewish polygamy, (181) most assume that it played a fairly large role. As Salo Baron puts it, "[n]o matter how little Jews were inclined to obey Roman legislation when it differed from their own, public violation of imperial criminal law throughout a lifetime, open to denunciation from any quarter, necessarily became unusual." (182)
Others point out that the law bears on all those marriage customs that were peculiar to Jewish law, such as the degrees of permitted kinship, and legal age for marriage, in addition to any mention of polygamy. In fact, its formulation even permitted a more general interpretation; one could read it as condemning even the Jewish marriage ceremony itself. (183) They observe that clearly Imperial authorities never effectively implemented the law, because it was precisely this halakhic corpus that remained a constant throughout Jewish history. In fact, we have a textual witness to the already monogamous character of the Jewish family in the first half of the fifth century on the one hand, and to the enforcement (or lack thereof) of the Imperial legislation against polygamy on the other. In Theodoret's Commentary to Paul's First Epistle to Timotheus, we find the following: "Formerly, both Greeks and Jews used to contract simultaneously marriages with two, three, or even more wives. Even now some copulate with concubines and prostitutes, although the Imperial laws forbid to marry two women at the same time." (184)
A. The Jerusalem Tradition
Discussing the various cases of the Mishna, the Jerusalem Talmud contains some legal rules about polygamy, (185) but the most important traditions about polygamy in the land of Israel during this time were actually preserved in the Babylonian Talmud. During the Amoraic period there was constant contact as well as correspondence between the centers of Jewish learning in Israel and in Babylonia, and so both Talmuds contain views from Amoraim who lived far away. In fact, for the most part the two rabbinic centers are not portrayed as being equal in authority or in prestige; in general, the Babylonian scholars considered themselves subordinate to the Israeli sages, who had a more direct connection to the tradition. Thus we find the fourth generation Babylonian Amoraic Sage Abaye, in Babylonian Talmud Pesachim 51a, remarking: "since we are subordinate to them, we do as they do." (186) Therefore, it is not surprising that the Israeli traditions are quoted frequently and respectfully.
Babylonian Talmud Yevamot 65a quotes Rav Ammi, an Amora from Israel who was active from 290-320 C.E. He holds that if a husband whose wife has not borne him children wants to take another wife:
He must in this case pay her [his present wife] the amount of her ketubah. For I hold that whoever marries a wife in addition to his [present] wife must pay [the present wife] the amount of her ketubah (the price stipulated in the marriage agreement for the husband to pay in the event of the termination of their marriage, either by his death or by their divorce). (187)
Falk maintains that Rav Ammi's ruling "expresses a fundamental change of outlook ... a new precept, based on his own personal conclusions ... [his ruling] for the first time, reflects a belief in monogamy on principle, as expressed by a rabbinical teacher, without any support from the law or from tradition." (188)
Falk claims that this ruling must have been "inspired by beliefs and customs common in the Roman world of that time, which were also propagated by the provincial administration." (189) He notes that the Mishna had already laid down a number of cases in which the court obliged the husband to grant his wife a divorce and pay her ketubah. The common denominator in those cases is that relations between the couple have become strained, "either because the husband treats his wife in an oppressive manner, or as the result of a grave infirmity on his part." (190) Falk therefore deduces that, for Rav Ammi at least, and probably reflecting the beliefs and customs common in the Roman world, bigamy was an injustice. Rav Ammi's statement is expressed without any support from a law or tradition; it is simply a sentiment. (191) It is particularly poignant when contrasted with the very next line in the Talmud, a quote from the Babylonian Amora Rava:192 "Rava said: A man may marry wives in addition to his first wife, provided only that he possess the means to maintain them." (193)
Outside of a legal context, the Babylonian Talmud records that both Rabbi Ammi and Rabbi Assi (both of whom were sages who lived in Israel and were active between 290 320 C.E.) were sitting before Rabbi Isaac, who told them a parable about a man who had two wives, one young and one old: "The young one used to pluck out his white hair, and the old one used to pluck out his black hair. Finally, he was bald on both sides." (194)
Again, despite the fact that polygamy was still discussed and approved of at least in legislative contexts in Israel during the Amoraic period, comments like these reflect a progressively more negative attitude toward polygamy and a moral leaning towards monogamy on the part of the Talmudic rabbis. (195) In the Babylonian Talmud's Avot D'Rabbi Nathan (one of the minor tractates), Rabbi Yehuda ben Beteira, an Amora from Israel, also comments negatively on polygamy:
Rabbi Yehuda ben Beteira says, "Job thought to himself, for what would be my portion from God above, and my heritage from the Almighty on high? (196) If Adam was intended to have ten wives, they would have been given to him. But he was intended to marry only one wife. So too my wife is enough for me. My portion is enough." (197)
And in the Midrash Genesis Rabbah, redacted in Israel, (198) the rabbis describe the bigamy of Lamech in quite an unflattering manner. It says that Lamech, like other men of the antediluvian period, took two wives so that one could be used for procreation and the other for sexual pleasure. The Midrash says that Addah (the wife for procreation) was "like a widow," and Zilla "like a harlot." (199)
Regardless of the law, it was difficult for men in Israel in those days to marry more than one wife at a time, due to a combination of factors, including: difficult economic conditions, Roman influence over Jewish communities, and, in some places, contracts actually stipulating monogamy.
B. The Babylonian Tradition
The Jewish community in Babylonia presents an interesting foil. Unlike in Roman society where monogamy was the norm, in Persia, polygamy, "continued down to the Sassanian period, at least among the aristocracy that could afford a plurality of wives." (200) The statement of Rava quoted above, to the effect that a man may marry wives (no number is given) in addition to his [first] wife, so long as he has the means to maintain them, seems to typify this different attitude. (201)
Some assume that Rava and Rav Ammi represent two different traditions, one in and one out of Israel. (202) Lowy, however, rejects the idea that Rava is disagreeing with Rav Ammi. He points out that while Rav Ammi was head of the Academy at Tiberias in Israel, he was also greatly influential in Babylonia. (203) According to Lowy:
It is impossible to presume that Rava contradicts Rav Ammi. While the Talmud opposes them to each other for the purpose of analyzing the sugya (discussion), it is almost certain that their original sayings were not meant in this sense, and that only for the final literary reflection were their sayings made into a controversy. Not only do we never find elsewhere in the Talmud a controversy between them, but Rava always accepts the authority of Rav Ammi.204 Rava's words, "a man may marry as many wives simultaneously as he can afford to maintain" are merely his own way of repeating the ancient tradition about this legal freedom. (205)
It is also possible that Rava's words contain the wry secret of polygamy in Talmudic times; a legally acceptable but, practically speaking, near-impossible option. The insertion of the difficult law that the husband must secure for each wife both adequate maintenance (206) and full conjugal rights tended to make polygamy even more obscure than it had been in the past, while keeping it legal on the books. (207)
Indeed, while polygamy remained legal in the legal-theoretical sense, in the Amoraic period even in Babylonia it was becoming clear that people did not like the practice, and that the way people really felt about polygamy already touched upon the legal system in practical ways. The law, for instance, is that a judge or witness who is instrumental in allowing a woman to remarry may not thereafter marry that woman himself, lest we have reason to suspect that his original testimony or opinion was tainted by some level of personal interest. But if at the time of the trial the judge or witness was married, and then his wife died at some later point, he can marry the woman, because the idea of polygamy, and therefore the idea of scheming towards polygamy, was viewed as farfetched. (208)
Elsewhere in the Babylonian Talmud we come across the idea that the High Priest, at least, should only have one wife at any given time. (209) In regard to everybody else, the Mishna in Yevamot 4:11 states that if a man has four married brothers that have all died, he may perform levirate marriage with all four widows. An anonymous opinion in the ensuing Talmudic discussion adds on a disclaimer, however, stating that this is so provided that he can in fact support them. (210) The source then states that regardless of financial means, a
man should not take more than four wives so that each wife can receive at least one marital visit a month. It is interesting to note that earlier in that same discussion, the Talmud states that a young man should not marry an old woman, or vice versa. The implication here is that in order to avoid discord in the home, a man should marry someone who is close to him in age. The whole discussion then is framed upon ensuring the quality of the marital relationship, with quantity of marital partners as only one factor to be considered. (211)
Babylonian Talmud Pesachim 113a records a conversation between Rav (an Amora from Babylonia, active from 220-250 C.E. (212)) and Rav Assi (from Israel, active from 290320 C.E. (213)) wherein one of them gave the other some practical advice: Rav said, "Do not marry two women. But if you do marry two, then marry a third." (214)
Perhaps Rav was speaking from experience; the only actual reference to any Talmudic sage being a polygamist comes from a cryptic passage in Babylonian Talmud Tractate Yoma, which is again repeated in Babylonian Talmud Yevamot 37b, and it also involves him.
Babylonian Talmud Yoma 18b contains the following story about the two great Babylonian Amoraim, Rav and Rav Nachman (another Babylonian Amora, active from 250-290 C.E.) (215): "Whenever Rav came to Ardashir he would announce: 'Who will be [my wife] for a day?'" (216)
Since Rav and Rav Nachman were both married, (217) taking additional wives would make them polygamists. However, many commentators and modern scholars have focused on this passage, offering several other explanations for Rav and Rav Nachman's unusual practice. The mere fact that scholars resist taking it literally testifies to the general assumption that even in Babylonia, during this time, such things were just not done. Moreover, these were two of the absolute greatest sages of their generation; even if polygamy happened it is strange to think that such saintly people would engage in such a seemingly strange form of it. Aside from the general stories told about both of them and their piousness, (218) Rav's court is actually famous for having flogged people for contracting marriages without previous arrangements. (219)
Some scholars suggest that they only took their "wives for a day" to escape the Persian royal "gift" of a concubine when they visited a city, since some Persian princes are known to have taken the refusal of their "gift" as a serious affront. (220) In order to avoid complications, they went so far as to marry a local "wife for a day," despite the fact that they did not generally approve of the practice of bigamy. (221) Others suggest that when Rav and Rav Nachman had trouble with their primary wives, they would take a secondary "wife for a day" to threaten them. (222) Still others propose that they did this when their primary wives had their menstrual periods, (223) or that they were really just "issuing proclamations stressing the importance of arranged marriages." (224) Lowy points out that both of these cities were well within the limits of the Jewish settlement, and so it was not likely that Rav and Rav Nachman considered them "hiding places" where they could behave differently than they otherwise would. (225)
The other possibility is that these stories are true. The Talmud itself did not have a problem with the retelling on its face, and in keeping with the notion of influence by surrounding culture, marriage for a definite period of time was definitely part of the widespread practice in Sassanian Persia. (226) In both Yoma and Yevamot, the story is immediately compared and contrasted with the ruling of Rabbi Eliezer ben Yaakov (a Tanna who was active from 80-110 C.E.):
But surely it has been taught [in a baraisa]: (227) Rabbi Eliezer ben Yaakov says: "A man should not marry a woman in one county and then go and marry a woman in another country, lest [the children from the two marriages one day] meet each other and [unknowingly] a brother will marry his sister (or a father marry his daughter) [and thus the brother and his sister (or the father and his daughter) would produce illegitimate children]...?" They say: The Rabbis were famous. (228)
The anonymous Amora thus distinguishes between Rabbi Eliezer Ben Yaakov's ruling, which would normally prohibit a man from marrying two women in different countries, and the cases of Rav and Rav Nachman, who were famous enough that their offspring would be well known as their children.
The key to the Talmudic passage however, seems to lie in the continuation of the Talmudic discourse. After the above-cited interjection, the Talmud then goes on to ask how it was possible for these women to become engaged and married on the same day, when Rava had said that an engaged woman must wait seven clean days in her menstrual cycle before she can consummate the marriage? The Talmud answers and gives two possibilities:
The Rabbis would send their agents in order to inform [the prospective brides seven days in advance]. And if you prefer, I could say that the private meetings of three Rabbis were only for the purpose of being closeted up with [the women]. As a master said, "One who has bread in his basket is not like one who does not have bread in his basket." (229)
The answer is right there in the text: the Rabbis did this to curb their own desires, but never to really marry these women long term. In the Yevamot version of this piece, the unit ends with one more statement attributed to Rabbi Eliezer ben Jacob which really seals this interpretation: "A Tanna [taught]: Rabbi Eliezer ben Jacob says, 'A man shall not marry his wife with the knowledge that he will divorce her, as it is said 'Do not devise evil against your neighbor, for he resides in security with you.'" (230)
The Rabbis then must never have intended these to be real marriages.
The above-mentioned discussion, with its various questions, quotations, and concerns, expresses the general feeling toward polygamy, concubinage, (231) and nominal polygamy (i.e., towards having second wives at all, of any status or for any period of time) at this point in history. Simply put, it is one of an uncomfortable legal acceptance, but a growing social concern. (232)
Monogamy, on the other hand, seems to be generally and genuinely praised. Sayings phrased in the singular form about the goodness of a wife abound throughout the Talmud, and, while indirect, do paint the picture of a more companionate and singular union. In regard to his wife, a proper husband "loves her as himself, but honors her more than himself." (233) We are told that in a home where the wife is the daughter of a God fearing man, the husband has God for a father-in-law. The Talmud asks: who is rich? He whose wife's actions are comely. (234) Who is happy? He whose wife is modest and gentle. (235) We are told that when a man's wife dies, it is as if he has seen the destruction of the Temple; his world is darkened, his step is slow and his mind is heavy. She dies in him and he in her. (236) We are told that marriages are made in heaven, (237) that a man's happiness is in all of his wife's creations, (238) and that God's presence dwells in a pure and loving home. (239) Indeed, the word often used in marital contexts to describe a couple is zivug ("a pair"), which only makes sense if it is describing a monogamous marital home. (240)
If it is true then that most of the Talmudic and Midrashic material suggests a clear preference for monogamy, and if, as the evidence suggests, most Jews were in fact living monogamously, why do the Talmuds contain so much legal material about polygamy?
Baron suggests that the sages insisted on the continued validity of the positive principle, however unrealistic, in conscious opposition to Greco-Roman ideas of monogamy and in an effort to maintain an ancestral heritage against the influx of foreign ideas and institutions. (241) Lowy agrees in part, recognizing that if the Rabbis favored monogamy and yet did not explicitly advocate it, and if, moreover, they tried to keep it alive, at least academically, it must have been a conscious effort. He contends, however, that the sources do not really indicate that much of a difference in attitude towards polygamy between the Jewish communities in Palestine and in Babylonia. (242) He therefore thinks that the stubborn clinging to legalized polygamy was not so much a reaction to Greco-Roman influence, which was only a problem in Israel, (243) as it was a response to Jewish sectarians. Whether it was the Zadokite or Damascus Document with its focus on Genesis 1:27 ("[I]n the image of God he created them, male and female he created them." (244)) and 7:9 ("[M]ale and female, came to Noah and entered the ark, as God had commanded Noah." (245)), or the Samaritans' and Karaites' focus on Leviticus 18:18 ("Do not take your wife's sister as a rival wife and have sexual relations with her while your wife is living." (246)) the heretical influence might have been the real polygamic spur in the Rabbinic side.
It is safe to assume that Christian monogamy is based on the same inheritance of heterodox exegesis. According to Lowy, this might account for Jesus' silence on the issue of polygamy; he didn't feel the need to explicitly advocate for monogamy because that is what was taken for granted in his sect. He did, however, say that, "Whoever shall put away his wife, and marry another, commits adultery," (247) and the implications are quite clear: if polygamy were permitted, the marriage of a second wife after divorce would certainly not be considered adultery. As it were, the Jewish Christians at least, were known to be completely monogamous. (248) Also in common with the other sects, Jesus himself in Matthew 19:4-5 ("And he answered and said, 'Have you not read that He who created them from the beginning made them male and female, and said, for this reason a man shall leave his father and mother and be joined to his wife and the two shall become one flesh.'") and Mark 10:6 ("But at the beginning of creation God 'made them male and female.'") quotes Genesis 2:24 ("Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall become one flesh.") and 1:27 ("[I]n the image of God he created them, male and female he created them."), and seems to make the exact same exegetical moves based on the Creation story that the other sectarian Jews did. In fact, he even strengthens it, by using more specific terminology; in his version the unambiguous "two" shall be one flesh, as opposed to the slightly more ambiguous "and they" in the original verse. Later, Tertullian would pick up on and use Genesis 1:27 and also 7:9 to strengthen his arguments. Such Biblical exegesis certainly ran counter to traditional Jewish teachings, and the manner in which the Rabbis understood the meaning of these texts. However, since their own moral convictions prevented their giving expression to any outright opposition to monogamy, the Rabbis were in somewhat of a quandary. The least they could do then to oppose such heretical interpretation was to at any rate try and uphold the theoretical feasibility of polygamous freedom in the academic setting. (249) Lowy writes:
[In order] to counterbalance [the Jewish sectarians who claimed to recognize a Biblical commandment in monogamy], the Rabbis clung rigidly to an ancient legal freedom as expressed in the law, even if it was out of keeping with their own ethical feeling. It seems that, although they were opposed to polygamy on grounds principally moral, because the sectarians had proscribed polygamy on the basis of an alleged Biblical injunction, they could not themselves openly and explicitly condemn it. Social conditions did not warrant such radical preaching, since in reality the Jewish family life was, as a rule, monogamous. They were thus in the happy position of being able to afford to retain in their legal doctrine the traditional right of polygamy, and this academic tendency was emphasized, so as "to lend no support to the words of them that say that monogamy was a biblical commandment." (250)
Such an idea of a polemic legal stamp was certainly not unheard of or unattested to; just in the area of family law, for instance, both the sectarians and the early Christians sought to place severe limits on divorce, (251) and so the Rabbis, despite the fact that they also did not like divorce, (252) went out of their way to record the fact that even if a husband simply found someone that he liked better than his current wife, that alone was grounds enough to legally divorce her. (253) Similarly, the Rabbis promoted uncle-niece marriage, considered incest by all sectarians, quite possibly simply to assert the orthodox position against what they considered the sectarians' faulty exegesis, and to defend the traditional system against the possibility of heretical schism. (254)
Conversely, the factors that led the Rabbis to push for polygamy in the academy might also explain why there was no polygamy in practice. Outside of the ivory tower, Romans and sectarian Jews were both preaching against the practice, which led to a culture that frowned upon the taking of a second wife. Satlow (255) however notes that even this does not tell the whole story. According to Satlow, the lack of polygamy was not just a reaction to Romans or to "other" Jews, it was even closer to home. The Rabbinic Jews living in the land of Israel had been exposed to the same Biblical stories as their sectarian brethren, and had also increasingly developed a view of marriage as "natural" and rooted in creation, i.e. in the same primordial and paradigmatic coupling of Adam and Eve that the other sects had focused on. Despite their ideological justifications for it, and the precise legal readings that exegetically allowed for it, their own internal intellectual environment had also clearly led them to adopt a practically monogamous outlook. These positions were therefore, at least partially, outgrowths of an internal theological development based on a shared canon with others, not just of influence by completely external factors.
VI. Gaonic Period and the Early Rishonim
The title "Gaon" was given to the heads of the two Babylonian academies, in Sura and Pumbedita. While the positions existed in the Amoraic era, the title began to be consistently used towards the close of the sixth century, at the end of the Persian rule, when Mar Rab Hanan was appointed Gaon of Pumbedita, and it was used until the death of Hai, the last Gaon of Pumbedita, in the year 1038. (256) The primary sources regarding polygamy in both the Geonic and Rishonic (early commentators) eras are from early responsa literature (records of legal questions posed to rabbis, and their answers), and eventually, as they developed, the early legal codes.
Before we shift to Babylonia, however, it is important to remember that there was still an independent Jewish community in Israel even during this period. A number of sources preserve testimony about polygamy in Israel during the post-Talmudic period, (257) but generally speaking, the halakhic tradition recognized the woman's right to insist on monogamy, as per Rabbi Ammi's ruling. According to Mordechai Akiva Friedman, this explains why in the dozens of ketubot we have found in Israel from the period of the Geonim, no commitment is made by the husband not to engage in polygamy, and no consequences are discussed if he does. Presumably, this was because the recognized halakha stated that if she wanted to demand a divorce in such a case she had that right, there was no need to stipulate this in writing. (258)
Sherira ben Hanina Gaon (906-1006 C.E.) was the head of the academy of Pumbedita from 968-1006 C.E. (259) In one of his responsa, Sherira Gaon held that if a man was married for ten years and his wife remained barren, but the man could not afford to divorce her (i.e. pay her ketubah), and he could also not afford to take and support a second wife, he must remain with the first wife and not take a second. (260) The implication is that if he could afford a second wife, he could take one, which is consistent with the view of the Amora Rava, the historic head of Pumbedita. (261) A second responsa makes this point explicitly:
We have seen it thus: every man according to his means, without there being any set rule. As the Merciful One wrote (Deuteronomy 17:17): "Nor shall he multiply wives to himself' and we learned (Mishna Sanhedrin 2:4): "But only eighteen"--this reference is to the king ... but an ordinary man ... need not restrict himself, as long as he can support each one in food and clothing. (262)
Sherira's views were also accepted in practice in Spain and North Africa. (263) Another responsum from the Pumbedita academy, written by Rav Hai Gaon (939-1038), explicitly holds that the halakha follows Rava, and that a man can have more than one wife. (264)
While still not disallowing the practice of polygamy completely, the tradition at Sura did seem to track closer to the ruling of Rav Ammi. Historically, this makes a lot of sense; although he left to Israel at an early age, Rav Ammi was born and raised in Babylonia, and began his studies under Rav, in Sura. (265) Hilai Gaon, a ninth century Gaon of Sura, wrote that if a man's first wife is not agreeable to his taking a second wife, she can force him to pay her ketubah, even against his will. (266) Similarly, although the Sura tradition favored levirate marriage to chalitza, Hilai ruled that if a widow did not want levirate marriage since the brother-in-law was already married, the brother-in-law could be compelled to perform chalitza instead. (267)
Notwithstanding the continued legal tolerance for polygamy, what we do find in the Geonic period is the continued seeming disapproval of the practice by the general populace. Epstein, for instance, points to the extant ketubot from wealthy families that were found in the Cairo Geniza, ketubot that contained clauses such as the following:
[H]e may not marry or take during the bride's lifetime and while she is with him another wife, slave-wife, or concubine, except with her consent, and if he does ... he shall from this moment be under obligation to pay her the ketubah in full, and release her by a bill of divorce by which she shall be free to remarry. (268)
Towards the end of the Geonic era, rabbinic authorities began to move to the satellite communities in other parts of the world. (269) While there are some references to cases of polygyny found in the responsa of the North African and Spanish rabbis, such as Rabbi Isaac Ben Jacob Alfasi (1013-1103, considered by many to be the last of the Gaonim, by others the first of the Rishonim), (270) it seems that they were in a similar position to their Gaonic forebears. While it was legally permissible to have multiple wives, it was not widely practiced, even in Sephardic (Jewish communities of Spanish, Portuguese, or North African descent) enclaves. (271) Some Jews in Spain and other areas regulated bigamy by inserting clauses in the marriage contract protecting the wife against the husband's decision to take another. (272) In one responsum, Rabbi Alfasi deals with a case in which a woman whose husband had married a second wife insisted that he pay her a fine of two hundred
dinars. Rabbi Alfasi reports that this was in fact the custom in Spain from early times, (273) perhaps reflecting a compromise position between Rava and Rav Ammi: the husband did not have to divorce her, but was communally sanctioned. (274) His student, Rabbi Joseph ben Meir HaLevi ibn Migash (1077-1141 C.E.) mentions a woman whose husband undertook that in the event that he married another wife, he would be obliged to pay the first wife her ketubah. (275) Falk claims that these clauses, called "Kairouan clauses" after the city in which they originated, are "characteristic of a society where polygamy is the rule, yet which nevertheless evince trends towards monogamy." (276)
In the Ashkenazic communities, primarily in Germany and Northern France, no mention is found of stipulations in Jewish marriage contracts to protect the first wife in case the husband decided to take another wife. (277) It is quite possible that this was a reflection of the difference in surrounding society; the Sephardic Jews lived amongst the Muslims, who also had these prenuptial agreements, and the Ashkenazic Jews amongst the Christians, who did not. (278) In the eleventh or twelfth century, however, something drastic occurred: polygamy was officially prohibited by rabbinic decree for the Jews of Germany and Northern France.
VII. The Ban of Rabbeinu Gershom
The decree to end polygamy is famously attributed to Rabbeinu Gershom ben Judah of Mayence (960-1040 C.E.), and is commonly referred to as the Cherem DiRabbeinu Gershom (the ban of our teacher, Gershom) because the decree was fortified by a device that put a ban on anyone who transgressed it. (279) With a genius not only for scholarly pursuits but also for practical communal organization, Rabbi Gershom achieved not only the establishment of Jewish learning in his country but also the uniting of the scattered Jewish communities into a unified federation. (280) He established takkanot (decrees) regulating the relations of the communities to one another and to their members, and other edicts in civil law, (281) and while the communal ordinances were quite significant and innovative in his day, what Rabbi Gershom is most famous for are his decrees in the religious arena, particularly in the area of family law. (282) The delivering of the edict banning polygamy probably happened sometime around the year 1030 C.E., at a synod of scholars under the presidency of Rabbi Gershom, at one of their meetings in connection with one of the customary large fairs (although, as we will see, some scholars do question whether Rabbi Gershom was truly the originator of the ban). (283) As compared to the ketubah clauses, this ban prohibited polygamy even with the wife's consent, presumably because such practice was contrary to public conceptions of morality at that time. (284) Eventually, the ban was extended to all of Ashkenazic Jewry, though the Sephardic communities never officially adopted it. The ban was revolutionary in that it prohibited something expressly permitted by the Old Testament, a bold move in rabbinic interpretation and innovation.
It is important here to stop and place this ban in its proper historical context. First, as we have seen, for a long time, the Jewish community in Christian lands had been, practically speaking, an almost completely monogamous one. (285) One consequence of this reality was that when a man wanted to marry someone other than his wife, his only option was to get divorced, whether his wife agreed to it or not. This led to the often-overlooked second part of Rabbeinu Gershom's legislation: the ban on polygamy was in fact accompanied by a related ban on unilateral divorce.
VIII. Judaism's Approach to Marriage, Generally
In order to fully appreciate this development, we will briefly address the history and structure of the Jewish marriage laws that led to this historic moment. (286) The two different viewpoints that developed over the course of Jewish history saw marriage as either a partnership model, wherein either side has an unfettered right to exit, or as a corporate model, in which one party cannot exit merely by deciding that they want to leave. Divorce law therefore developed as a reflection of marriage; in fact, the Biblical verses describing divorce appear almost incidentally in the context of describing the remarriage of one's divorcee.
In general, marriage in Judaism is a contractual agreement requiring the mutual consent of both parties, unconditionally given. In regard to divorce, however, Deuteronomy 24 states:
When a man takes a wife, and marries her, then it comes to pass, if she finds no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorce, and gives it in her hand, and sends her out of his house, and she departs out of his house, and goes and becomes another man's wife, and the latter husband hates her, and writes her a bill of divorcement, and gives it in her hand, and sends her out of his house; or if the latter husband die, who took her to be his wife; her former husband, who sent her away, may not take her again to be his wife. (287)
Talmudic authorities took these verses to mean that the husband has a unilateral right to divorce his wife without fault, while the wife has no reciprocal right to divorce her husband except in cases of hard fault. The majority opinion in Jewish law maintains that there was no right to dower (ketubah) under biblical law, although there is an opinion which states that there was a limited right to dower, restricted to first marriages of virgin brides, in the amount of two hundred zuz. (288) Biblical family law appeared imbalanced in other ways as well; as we have been discussing, a man could be married to more than one wife, any of whom he could divorce at will, whereas a woman could be married to only one man at a time, and had no clearly defined right of exit aside from perhaps hard fault. (289) If the husband and wife no longer wished to live together, the husband could just marry another woman as long as he continued to support his first spouse.
The biblical rules of divorce could thus be summarized as follows: The husband had a unilateral right to divorce (and have had to pay dower absent fault in some marriages).
The Talmud attempted to mitigate the disparities between men and women by creating a minimum dower for all brides, which became, by rabbinic decree, a precondition to any marriage. Thus, while the right to divorce remained unilateral only for the husband, it was now at least somewhat restricted by a clear financial obligation to compensate his wife if he so exercised this unilateral provision, absent any judicially declared fault on her part. The Talmud even recorded views that if the husband cannot pay the financial obligation he is prohibited from divorcing his wife. (290) In order to protect herself from a frivolous divorce, the woman could also insist on a dower higher than the minimum amount promulgated by the rabbis. In addition, the Talmud clearly enunciated the right of the wife to sue in cases of fault, including such grounds as provable repugnancy and impotence. In such a case, the husband was required to divorce his wife (and in most cases pay the dower as well). Finally, divorce could be by mutual consent, subject to whatever financial agreement the parties wished to follow. (291)
Nonetheless, a significant imbalance in exit rights remained because marriages could still be polygamous but not polyandrous, and if the husband and wife no longer wished to live together, the husband had the legal right to simply marry another woman, so long as he continued to support his first wife. As a general rule, she could not, under such circumstances, sue him for divorce, although she could perhaps restrict his right to remarry with a special ketubah provision. (292) As it was under biblical law, marriage remained fundamentally a partnership for the husband and a corporate structure for the wife. The Talmudic rules could therefore be summarized as follows:
1) The husband had a unilateral right to divorce and had to pay dower absent fault.
2) There was divorce by mutual consent with dower to be determined by the parties. There was a right to divorce through a judicial declaration of "hard" fault: if by the woman, with no dower; if by the man, with dower. (293)
Shortly after the close of the Talmud, during the Gaonic times, the rabbis of that period changed or reinterpreted (294) the substantive understanding of Jewish law to vastly increase the right of a woman to sue for divorce. All a woman had to do was leave the household for a certain period of time and she had an automatic right to divorce, according to most opinions, with a full or partial right to dower. In addition, it appears from the responsa literature that when a marriage needed to end and a divorce from the husband was not forthcoming, the rabbis of that era felt that they had the power to step in and annul it. (295) The husband still had a unilateral right to divorce, and had to pay dower absent fault. Thus, during the Gaonic period, Jewish divorce law worked as follows:
1) The husband had a unilateral right to divorce and had to pay dower absent fault.
2) The woman had a unilateral right to divorce, and if she exercised it, she received dower.
3) There was divorce by mutual consent with dower to be determined by the parties.
4) There was divorce through a judicial declaration: if by the woman, with no dower; if by the man, with dower. (296)
Within a hundred years of the Jewish expulsion from Babylonia, however, there was full abandonment of the rules used by the geonim in favor of a number of different alternatives.
The great Sephardic authority Rabbi Moshe ben Maimon (Maimonides, 1135-1204), like all of the authorities after him, ruled that Jewish law did not possess any annulment power, but liked the Gaonic idea of making marriage a partnership for everyone involved. He therefore greatly increased the woman's rights, expanding the obligation upon a husband to divorce his wife for fault to include even the case of her simply asserting (without any proof) that "he was repugnant to her." (297) In such a circumstance, a Jewish court could compel the divorce under threat of court sanction, including physical coercion. This gave both men and women the unilateral right to divorce, with no dower paid when the woman initiated the divorce absent cause, and dower paid when the husband initiated divorce without cause. This no-fault divorce system remains the normative law in only small portions of the Sephardic Jewish community today (such as Yemen). Again, it was based on a partnership understanding of marriage; when either side wants out, Jewish law allows him or her to leave. (298) European Jewry also ruled that Jewish law did not possess any annulment power, but took a divergent approach, which becomes important again for our discussion of what exactly happened to Jewish polygamy. Rabbeinu Gershom felt that rather than expanding the rights of the woman, in order to equalize the rights of the husband and wife it was necessary to restrict the rights of the husband, and prohibit unilateral no-fault divorce by either husband or wife. Divorce was limited to cases of provable fault or mutual consent; fault itself was vastly redefined to exclude cases of soft fault, such as repugnancy, and in only a few cases of serious fault could the husband actually be forced to divorce his wife or the reverse. (299)
Although no extant copy of the original document remains, according to tradition this edict was in fact part of the very same decree that prohibited polygamy, placing considerable pressure on the man in a marriage that was ending to actually divorce his wife, since without a proper divorce procedure neither could remarry. According to this approach, Jewish law permitted divorce through only mutual consent or very significant fault; when there was no finding of fault, little (perhaps other than imposition of a support obligation) could be done to encourage the couple to actually get divorced. Absent hard fault, this view saw marriage as entirely corporate in nature; it took the consent of both parties to enter and the consent of both parties to exit. (300)
And so, as we have seen, not one but many factors favored the establishment of a strong fonn of marriage at this moment in history; externally, the influence of the Christian tradition, (301) and internally both the Ashkenazi aspiration to maintain the Palestinian monogamous model, which accorded well with their own worldview, along with the growing desire of the community to grant increased stability to marriage and certainty to a woman. (302) One could say that these moves shifted the model of marriage away from one of male dominance to one of companionship; men could no longer marry new wives in addition to their older ones or get rid of older ones for newer models, and so young people looking to get married would be even more selective for compatibility, and married couples would continue living together into old age. (303)
IX. Rabbeinu Gershom's Inspirations and Influence
Scholars such as Zacharias Frankel insist that even before the famous ban on polygamy, monogamy
had been accepted previously as a general custom, and was merely reinforced by the imposition of the ban ... polygamy had in any event begun to disappear from medieval Jewish society, since public opinion had come to disfavor it, and Gershom Meor HaGolah (the Light of the Exile) merely summarized this attitude. (304)
Truth be told, eleventh century Ashkenaz is fairly well documented, with extant halakhic rulings, commentaries, custom books, liturgical poems, and even historical chronicles memorializing and archiving medieval Jewish life, and none of them makes mention of anyone marrying a second wife, with the rare exception of a case of mitzvah, i.e., barrenness or levirate marriage. (305)
In regard to the question of precise authorship, Rabbi Meir Katzenellenbogen of Padova wrote that Shimshon of Sanz was actually the originator of the ban, (306) and that the reason behind it was "for since we are in exile, we should not take many wives, nor beget many children, since we would not be able to rear them nor fend for them properly." (307) Others assume that it was done by later rabbis, who then pinned responsibility on Rabbeinu Gershom, a figure whose shoulders were broad enough that the legislation would stick. (308)
Regardless of whether or not the ban was actually Rabbeinu Gershom's work, two responsa of Rabbi Eliezer ben Nathan illustrate that: a) monogamy was the general practice in the beginning of the twelfth century, and b) that there had been some kind of community-wide proclamation made on the subject. In one, he notes that there has been a fundamental change, writing that: "[T]his was the rule in former generations, when a man married a second wife.... But in our generation, when one cannot marry a second wife." (309)
And in another, he explains the reason for the change and seems to cite to the famous edict: "Today, however, when a communal ordinance prohibits polygamy and [compulsory] divorce, we do not act according to this rule." (310)
There are three possibilities then: that the ban happened just as tradition would have it and forbade a real practice; or, alternatively, that it was merely a codification of already present feelings and existing social praxis; (311) or it is also possible that it was something somewhat aspirational, an ideal that was announced in a channeling sort of way and that gained more and more acceptance over time as traditional and social values coalesced around an understanding of the family norm until it finally took hold. (312) No matter its origins, within a couple of centuries the ban was known by Rabbeinu Gershom's name, and his students were encouraged to enforce it strictly, as though it were a biblical commandment. (313)
A twelfth-century responsa from Eliezer ben Joel HaLevi makes it clear just how seriously the ban was enforced: a husband whose wife was demented came before the Communal Council and asked for an exemption from the ban in order to be able to marry a second wife. The Council at first refused to even hear his case, and when they finally did, they refused to grant the exception, holding that it be "preferable that one soul should be lost than that an enormity be carried out as precedent for generations to come." (314) This was so even though it was suspected that he was living with another woman in secrecy; the rabbis wanted to do nothing that would even on its face upset the validity of Rabbeinu Gershom's ban.
Once monogamy became the rule, it often took precedence even over man's highest duty of procreation; thus, in the view of some leading authorities, (315) it was better for a man to remain childless than to violate Rabbeinu Gershom's ban. (316) Still, it is interesting to note that the ban "never assumed such extensive authority as would enable it to annul the validity of any marriage carried out in defiance of it." (317)
We established above that the rarity of polygamy was probably due in part at least to the influence of the Christian environment (and perhaps the greatest proof of this relationship is the simple fact that in the French and German communities in which the ban was accepted, the predominant culture was Christian and monogamous, while in the Muslim neighborhoods, where polygamy was upheld, the ban was never really established), and indeed Rabbi Jacob Emden's responsa, in which he describes the ban as a result of Christian pressure, is probably the most well known source for the reason behind its promulgation. (318) We must stress, however, that the ban also reflects a continuation of the internal Jewish trend and moral development towards monogamy. Moritz Gudemann points out that the Christians of the Rhinelands at that time, and even centuries later, were not always above polygamy, (319) and that even in the Orient, where polygamy was acceptable to the host population, and where the ban had less authority, the Jewish people for centuries had already been developing formal working tools and devices to maintain monogamous standards, such as the insertion of clauses into the marital agreement. (320) The divide between Christian and Muslim lands cannot, therefore, be the only factor.
Among the reasons given for Rabbeinu Gershom's ban (other than Christian influence), and for arguing against polygamy in general both in the Eastern European context and worldwide amongst the Sephardim, are the following: strict monogamy was instituted to prevent people from taking advantage of their wives; (321) it was intended to avoid potential infighting between rival wives; (322) Rabbeinu Gershom was concerned lest the husband be unable to provide properly for all his wives (especially during the difficult times of Exile); (323) there was a concern that a man might marry two wives in different locations who would not know about each other, (324) which could lead to forbidden relationships between offspring; (325) the ban was intended to avoid the inherent rivalry and hatred between rival wives, which could also lead to the transgression of a number of biblical violations; (326) and, in a reversal of the argument from a moral religious consensus across Judeo-Christian thought, it has been suggested that the ban was adopted from Christian practice and laws not because the Jews agreed with it in principle, but simply to avoid Christian attacks against Jews who, if left alone, might otherwise have acted differently. (327) Avraham Grossman, however, notes that drawing too many conclusions from Christian practice and influence one way or the other is hard; based on the evidence, if, in practice, the communities were already behaving in an almost identical fashion, and if the idea was one of conformity for better or for worse, then the edict would be practically superfluous. (328) Mordechai Akiva Friedman suggests that maybe this was merely a declarative act, affirming the fact that the ancient tradition of Rav Ammi had in fact been preserved and passed over to Ashkenaz (and, perhaps, either showing solidarity with or at least openly conforming to the Christian community). (329) Still, edicts were usually introduced to meet a real need, not just as declarative statements, and so this does not seem like it would have been reason enough for the ban on its own.
Along this line of thinking, however, some scholars, such as Simon Eppenstein, have suggested that around the beginning of the eleventh century there was a migration of Jews from Oriental countries to Germany, and that when these Jews arrived with two wives Rabbeinu Gershom was afraid that they would end up having undue influence on the nature of his monogamous community, leading to the official ban. (330) Salo Wittmayer Baron (331) conjectures that perhaps it was the literary sources, especially those responsa from the well-respected geonim, that arrived from Oriental lands at that time containing documentation of official permission to marry more than one wife, that led Rabbeinu Gershom to feel he had to take a stand. The influence was not limited to books, however; some heads of Ashkenaz communities in Rabbeinu Gershom's time actually traveled to Babylonia, particularly the academy of Pumeditha in order to study under the tutelage of Rabbi Hai Goan. One example of an Ashkenaz scholar studying in Babylonia is Rabbi Elijah, who established the Torah center in Northern France, having studied extensively under Rabbi Hai in Babylon and having made several pilgrimages to the Holy Land. (332) The geonim were greatly respected in Germany and the rest of Christian Europe, and as their views, which were radically different than those of the European community in practice, became better known, had Rabbeinu Gershom not clarified the matter once and for all, their opinions might otherwise have caused quite a stir. A few scholars, like A.N.Z. Roth, (333) note that for any of the above mentioned reasons, or simply just because, there may even already have been German Jews who themselves actually became bigamists, and whose viewpoint Rabbeinu Gershom now felt he practically needed to stand up to and protest against. As mentioned above, however, there is no internal (Ashkenazic) evidence for this type of practice in the quite considerable extant literature from the Jewish community of that time period. (334) Falk notes that the position of women in Jewry had changed for the better. They were now accorded more respect, as evidenced by the higher dowries they brought their husbands; the higher level of compensation those husbands agreed to in their marriage contracts to secure against the event of death or divorce; and the fact that they tended to run all domestic and business affairs in their husbands' often long absences. (335) We even have evidence of women conducting negotiations with other Jewish and Gentile merchants, as well as feudal princes. (336) Given their status in society, people now thought it unjust that the "mainstay of the house" (337) should have to share her privileges with a co-wife. (338) Rabbi Nissim of Gerona (the Ran) suggests that Rabbeinu Gershom's concern in imposing the ban may not have been only the welfare of the women, but also that of the men, and of overall domestic harmony: "[Pjerhaps this ban was intended, not only for the benefit of the women, but also for that of the men, so that they will not bring conflict into their homes." (339)
Grossman himself believes that the main motivation and impetus for the decree was the economic activity of German Jews during Rabbeinu Gershom's lifetime. Many were engaged in international trade and stayed for lengthy periods of time in remote lands, including predominantly Muslim countries. (340) They are mentioned frequently in the responsa of Rabbi Gershom and of his student, Judah HaCohen. (341) Explicit testimony of the hardships and burden this placed on the Ashkenazic Jewish family at that time can be seen in the edict of Rabbenu Tam (Rabbi Jacob ben Meir) from the mid-twelfth century, prohibiting Jewish traders from being away from home for more than a year and a half, and requiring them to remain at home for at least half a year upon returning from a journey. (342) The reality that husbands did not always hurry back can be seen in (among other sources) the responsa of the Spanish sages and the Geniza sources; it is hardly surprising then that some men chose to marry second wives while they were away. (343) They would then return home after either divorcing or abandoning their new wives. Maimonides' edict, issued in Egypt during the twelfth century, bears directly on this point:
That Maimonides enacted edicts on behalf of the welfare of Jewish women; namely: that no woman be married to a foreign Jew, who is not from the community of Egypt, unless he brings proof that he is not married, or takes an oath to this effect on a Pentateuch. And any foreign man who married a woman here and wished to go out to another country is not allowed to leave, even if his wife agrees to this, until he writes her a (conditional) divorce and gives it to her ..., (344)
The historical reality of shifty businessmen, combined with the wealth and power of the Jewish community at large and the desire of fathers to protect both their daughters and their dowries, along with the rising social status of Jewish women in this society, all contributed to the coming of this tipping point in Jewish family law. (345)
Another interesting point to consider in relation to the Jewish development of formal legislation against polygamous practice is the development of the Canon law itself. As early as 326 C.E., the Catholic Church banned both polygamy and concubinage. (346) In Germany in the ninth century, however, it became common practice for Christian men to take a concubine. Church authorities warned men to put an end to this practice, but not by divorcing their wives. Falk claims that even though Jews were no longer practicing polygamy, they were witnesses to these debates about concubines, and these developments were yet another prompt for women to demand equality, (347) and then for Rabbeinu Gershom to issue his ban. (348) At a church synod held in Rome in 826, the ban on polygamy was once more promulgated, and the prohibition soon made its way into the legislation of Emperor
Lothair. (349) Shortly thereafter, Pope Nicholas I used Tertullian's exhortations in his own writings to warn against bigamy. In the tenth century, Regino of Prum complained not only of bigamy but of general licentiousness, including the practice of men divorcing their first wives without justification in order to wed another (more echoes of Rabbeinu Gershom's first decree). (350) In his book, compiled around the year 1020, Buchard of Worms enumerates all the laws of the Church enacted up to that date, including regulations against bigamy and licentiousness in general. (351)
Despite the fact that ancient authorities had already flatly forbidden it, in 1274 the medieval canonists adopted and repeated the ban against polygamy, including it in the long list of forbidden sexual unions; polygamy in this sense was a mortal sin and a serious crime, and, if done with knowledge and intent, once convicted by a church court, such a polygamist faced a temporary ban from the Eucharist, and, interestingly enough, a ban or excommunication in serious cases. England passed a parallel statute in 1276, as did many other nations within a few years, including, perhaps, in reality, the Jewish nation. (352) On November 11, 1563, the Council of Trent still felt the need to condemn anyone who claimed: "It is lawful for Christians to have several wives at the same time, and that it is not forbidden by any divine law," (353) perhaps reflecting the slow and gradual acceptance over time of the Jewish ban against polygamy. Tremors of all these movements were undoubtedly felt by the Christians' Jewish neighbors, and surely factored into the subtle calculus of the shift away from polygamy towards monogamy.
X. The Limits of the Ban
The various sources that refer to Rabbeinu Gershom's decree differ in regard to its intended duration. Many authorities held that the ban was heavily restricted, and was set to expire at the end of the fifth millennium, in the year 5000 of the Jewish calendar, corresponding to 1240 C.E. (354) Others held that the ban was not at all limited in duration. (355) Regardless of whether it was originally set to expire in 1240 C.E. or any other time, it remained in force after such time (likely due to its overall acceptance and reflection of society), and later generations have continued to accept it as absolutely binding. (356) Thus, wherever the ban was accepted, it now appears to have the force and status of law for all time. (357) This seems to be based, if not entirely on then at least in accordance with, a responsa of the Maharshal, a leading authority in Poland in the thirteenth century. In 1240, he wrote a responsum in which he noted:
Most of the decrees of Rabbenu Gershom Me'or Hagolah were formulated with no mention of time; moreover, with respect to the decree on bigamy, he wrote that this can only be permitted with the consent of one hundred sages ... and even then, they shall not permit it unless they see good reason for doing so. How can there be good reason, changing for the better, when, on the contrary, due to our many sins each succeeding generation is more lowly and worsens from day to day? (358)
Maharshal also noted that the conditions which gave rise to the ban in the first place in the fifth millennium still applied equally in his day in the sixth, and that eminent Ashkenazi rabbis had upheld the full validity and legal weight of the ban even after its supposed expiration date. (359)
An interesting in-between opinion is given by the prominent sixteenth-century Polish Ashkenazic authority Rabbi Moses Isserles in his Darkhei Moshe: he claims that the edict had lapsed but the prohibition was still valid, as a matter of minhag, or prevailing custom. (360) As noted above, the ban against polygyny does not include a clause that annuls the second marriage of a man who breaks the law by disregarding it. Such a marriage would still be legally valid, (361) although since it is a prohibited marriage, the first wife could either require the court to compel her husband to divorce the second wife or ask the court to order the husband to give her a divorce. (362)
In regard to the conflict between positive commandments and the cherem, there were two main issues. First, in terms of what to do with a levirate marriage requirement that would involve a married brother taking on a second wife (i.e., his brother's widow), this was not really a problem in France, where chalitza was already the preferred method even in cases that did not involve polygyny. (363) In Germany, however, where levirate marriage was still practiced, (364) authorities were split on this issue and remained so for quite some time. (365) Rabbi Jacob ben Moses Moelin (1360-1427) allowed a man to take a second wife in such a case. (366) This was also the practice in the Spanish communities that did not accept the ban for themselves, but did enforce it on German Jewish immigrants. (367) In contrast, the sixteenth century Italian authority Rabbi Judah Minz held that the cherem overrides the commandment of levirate marriage. (368) Similarly, authorities were divided on the question of whether or not the ban against polygyny should be suspended in order to fulfill the duty of procreation in the case of a barren wife, with some approving, (369) and others, including Rabbi Minz, holding that the ban should still apply even if the result was that the husband would remain childless. (370) Two German authorities even quote responsa of Rabbeinu Gershom himself permitting a second marriage under these circumstances, although others are quick to respond that those may have been from before the ban. (371) The Maharshal writes that conduct unbefitting a wife, such as licentiousness or immodest behavior, constituted just cause for waiving the ban, (372) but for divorce suits based on anything but the wife's behavior (including, but not limited to, levirate marriage, barrenness, or madness), the ban was upheld. (373) Even in those cases where cause was found for waiving the ban, however, the preference was to waive the enactment forbidding a man to divorce his wife unilaterally, as opposed to the enactment against polygamy. (374)
One situation in which it was quickly decided that the ban did not apply was where a wife accepted baptism and left the husband's home. It was assumed without question that the ordinance protecting the Jewish home against polygamy had never been intended for this purpose, and after it could be established that this was really a voluntary abandonment (as opposed to an involuntary captivity), the husband would be allowed to marry a second wife. (375) Later, the custom became for the man to divorce his wife unilaterally though a court-appointed agent, (376) again reflecting the preference to suspend the ban against coerced divorce before that of polygamy. (377)
Recognizing that sometimes even the suspension of the other enactment would not help, (378) and that these and other emergency cases might be at odds with the ban, the early authorities provided for the possibility of suspending it in special cases, by joint decree of a hundred rabbis from at least three territorial divisions. (379) When utilizing this mechanism, the husband must also leave the wife a valid bill of divorce and her full ketubah payment in escrow with the court. (380) Scholars are unsure if this dispensation was so early as to actually be part of the original ban itself (381) or was simply a later addition made by either Rabbeinu Gershom or others. (382) Regardless, Rema's conception of the ban, as still binding but now based on custom and not law, leads to the following statement in his commentary: "In any event, it seems to me that at the present time one does not need the approval of a hundred rabbis to waive it, since the period of the edict has already elapsed and no waiver is necessary at all." (383) In respect to the Shulchan Aruch's ruling, that the ban on polygamy did not apply in the case of levirate marriage, Rema adds: "The same rule applies in every case where fulfillment of a precept is held in abeyance, as in the case of a man who has lived with his wife for ten years, and she has not given birth ... but there are some who disagree and hold that the ban of Rabbeinu Gershom is to be enforced even in the case of a precept and even in the case of levirate marriage." (384) In regard to a case that did not directly involve a commandment, such as insanity or unwillingness on the part of the wife to accept a valid divorce, Rema writes that, "in those cases ... one should rule leniently and permit the husband to marry another woman." (385)
Despite the fact that certain kinks needed to be worked out, over time Ashkenazic Jewry accepted the Jewish ban against polygamy as binding for all time, at least in those communities where polygyny was forbidden by the dominant religion, Christianity, and was therefore forbidden by government law. (386) According to Epstein, by the thirteenth century, although the ban had still not been fully accepted, its existence was already enough to create a legal presumption that the average marriage was a contract for monogamy. (387) While it is true that we do have testimony from France that in that same time period (the thirteenth century) polygamy was still being practiced on the fringes, (388) and the same is true of Italy in the first part of the thirteenth century (389) (even until the sixteenth century, Italian rabbis permitted a childless husband to marry a second wife without formally suspending the ban, even though it had already been accepted, (390) without feeling the need to make use of the formal procedures for getting around it. Interestingly enough though, the permission of the rabbis was not enough; the Pope had to grant it as well (391)), still, for the most part, soon after the decree of Rabbeinu Gershom had caught on, in that part of the Jewish world polygamy was gone for good.
In those countries where polygamy was permitted by the dominant religion of Islam, the ban was not officially adopted. (392) Maimonides never even mentions the cherem of Rabbeinu Gershom, although his legal code, the Mishneh Torah, contains numerous references to polygyny. (393) In Hilchot Ishut, 14:3, Maimonides states:
A man may marry several wives, even one hundred, either at the same time or one after the other, and his wife may not prevent him, provided he can supply each one with the food, clothing, and conjugal rights that are due to her. But he may not compel them to dwell in one courtyard, but rather each one [must be allowed to reside] by herself.
Practically speaking, these requirements mean that it would only have been possible for men who were extremely affluent to practice polygamy and afford to have more than one wife. In addition, following his discussion of conjugal rights in the very next paragraph, Maimonides offers a further limitation on the practice of polygamy: "Therefore the sages have commanded [in Babylonian Talmud Yevamot 44a] that a man shall not marry more than four wives, even if he has a lot of money, so that he can provide them [each wife] with conjugal relations once a month." (394) It is interesting of course to note that Islam also allows a man to marry up to four wives simultaneously, provided that he can support them. Each is entitled to a separate dwelling and an equal portion of the husband's time and companionship. (395)
Although the ban never took hold in Spain and Provence, from the late thirteenth century and on, beginning with Rabbi Shlomo ben Aderet (Rashba), the rabbis there acknowledged that it was in fact binding for the Ashkenazi Jews who had moved into the region. (396) He did, however, view the ban as much less radical in its restructuring of family law, as just a temporary attempt to address a problem of the day, and make sure that husbands did not arbitrarily hurt their wives. As such, not only did he maintain that the ban was of limited duration, (397) in any case where the husband had legitimate halakhic grounds on which to contemplate marrying a second wife, whether it was her fault or not, Rashba maintained that the ban did not apply. (398) When Spanish Jewry first began arriving in Ashkenazi lands in large numbers (after the expulsion from Spain in 1492), Rashba's view was introduced to Ashkenazic Jewry by Rabbi Joseph Colon (Maharik). (399)
As we discussed however, despite the fact that Jewish communities in Islamic countries did not ever formally adopt the cherem, it was still probably never very common to have more than one wife. (400) As we have seen, in some communities women included explicit stipulations in their marriage contracts prohibiting the husband from taking a second wife without the first wife's consent or the permission of a rabbinic court. (401) The Cairo Geniza does contain some legal documents and letters reporting or referencing cases of bigamy, although in general the reasons given were the same as cases in which such marriages may even have been allowed under the Ashkenazic exceptions to the rule, i.e., in cases where the first wife was barren for ten years, or of levirate marriage, or where the first wife was insane and could not legally accept a divorce. (402) There is, however, evidence of some local ordinances prohibiting the taking of a second wife, not as strict or as comprehensive as Rabbeinu Gershom's ban, but still perhaps influenced by it. (403) Thus, while polygamy was not officially outlawed, it seems that it was only practiced rarely, perhaps due to an internal moral aversion that had been growing throughout the entire Jewish world in prior centuries, even in Talmudic times when and in places where polygamy was still widely permitted. (404) The main difference between Jewish communities in Christian versus Islamic lands seems to have been the objective versus subjective nature of the disapproval of polygamy, manifested in whether or not there was a choice for the first wife to consent to the husband taking a second wife in communities in which the ban was not accepted.
It is interesting to note that despite the fact that polygamy was more accepted in Islamic lands, this did not make for a more pleasant polygamous household. A document written by a young son of a polygamous man who had immigrated from Spain to Egypt talks about how happy he was when his half-siblings (the children of the second wife, his own mother's co-wife) died, and in it he also prays that the second wife herself should die as soon as possible. (405) The Rashba in one responsa notes that although people do have second wives, he has never heard of a single family in which such a marriage was successful. (406) A generation later, interlocutors writing questions to the Rosh described polygamous families as "filled with arguments, resentment, and divorce," (407) and a generation after that the Rivash noted that, "there is no one who brings dispute into his home like one who takes another wife into his home." (408)
We should take a step back here and revisit the issue of concubinage in the Jewish world. The Talmud made a concerted effort to regulate the concubine; she was seen as possessing an intermediate status that did not have all the rights of a wife but was not to be considered like a prostitute. (409) Already in Talmudic times, the manner of discussion as well as the divergence of opinions and traditions indicate that concubinage was no longer in practice. (410) Maimonides protested vigorously against concubinage, and sought to eliminate it by claiming that it was a right limited to the kings of Israel, not the common man. (411) While some authorities disagreed but prohibited it anyway, (412) other authorities permitted it, (413) some noting that it was legal but warned against the moral evils involved. (414) There is little evidence of any actual Jewish concubinage in the Middle Ages, (415) and the understanding was that even the rabbinic authorities who permitted it did not consider it ideal. (416) Eventually it came to be universally prohibited, and is thought of as connected to if not part of the ban. (417) What we see in the slow erasure of the practice of concubinage is just another small step on the march toward companionate monogamy in the Jewish marriage tradition. (418)
XI. The Story Behind the Story
A careful reading of the Shulchan Aruch finds that, even if it was only in the background of the discussions when the ban against polygamy was being contemplated, the real reason why the ban has stayed and stuck on, first amongst the Ashkenazim and then over the centuries across all of Jewry, so that by the year 2013 anything but monogamy in Judaism is unheard of, is simply because anything but monogamy does not produce the kind of loving, intimate, companionate marriage that the Rabbis wanted to promote in order to inspire marital happiness, social growth, child development, and economic enhancement. (419) This development can be seen in the conversational subtext between the author of the Shulchan Aruch, Rabbi Joseph Caro, a Sephardic Jew living at a time before the ban became really normative in Sephardic lands, and the commentary of Rabbi Moshe Isserles of Ashkenazic descent and leadership.
The Laws of Marriage open up with the following discussion: the Shulchaun Aruch writes, "Every man is obligated to marry a woman in order to reproduce ... " (420) (Note the focus on the legal imperative), to which the Rema responds with an exposition on the virtues of the marital relationship: "Anyone who is without a wife lives without blessing, and without Torah, and is not called a person. Once one marries a woman, all of one's sins are forgiven, as the verse states, 'one who finds a wife finds goodness, and obtains the favor of God.'" (421)
The same subtext plays out just two paragraphs later: Rabbi Caro describes how the court will force someone who has waited past the age of twenty to get married, (422) and Rabbi Isserles writes that this is not our custom anymore. Rather, even if one doesn't get married at an age when they should, because they have not found the right person, or even if they found someone they want to marry but the woman is sterile or too old to have children, despite the fact that traditional Jewish law would compel the court to force him to marry someone capable of reproduction so that he could fulfill the Divine command to be fruitful and multiple, the custom is not to do so. (423)
Having defended the policy option of companionate marriage based on love and bringing blessing, as opposed to the more functional marriage Rabbi Caro describes, based on law and having children, the attempt to codify the monogamous custom is made once again in the discussion of polygamy. The Shulchan Aruch states, "[a] man may marry many women, so long as he can support them all ... Rabbi Gershom decreed that one may only marry one wife at a time ... but the decree was not accepted in all lands." (424) To which Rabbi Isserles adds, "[o]nly in a place where you know that it was not accepted does it not apply. But ordinarily, it applies everywhere." (425)
Notwithstanding the possibility of polygamy as an option in Jewish law, the Jewish tradition settled on monogamy as the only option that could really bring those blessings that Rabbi Isserles described, going so far as to enact strong decrees with weak foundations against even biblical precepts to enforce this new ideal. (426)
There really is nothing new under the sun. (427) Whosoever thinks that society today has a monopoly on the questions surrounding the complex family structure and marital definition has never studied the Jews of antiquity.
Jewish law, from the perspective of a Jewish law practitioner, is a sometimes-shifting scale that allows for adaptive modality in changing circumstances. Values are held in dialectic tension, and there is always enough leeway and flexibility to provide an answer for literally every situation on this earth. (428) Why was polygamy allowed? Because in some situations, having it available as a tool or as an option was useful, whether to increase the number of viable children being born, to feed the needy, for political stability, or for any other of a number of conceivable reasons.
At some point though, the reality began to change, and society moved away from this model of male-centric marriage.
For a while, due to circumstances both internal and external to the Jewish community at large, polygamy remained legal on the books if not in practice. As time went on, however, more and more factors came to bear on the question of polygamy, most of them centering around the quite compatible desires to both fit in with European society for better or for worse, and to create a more equitable and stable Jewish family life, whether by cutting off the possibility and stemming the flow of unilateral divorces by men, or by making sure that angry or even just uninterested husbands could not simply marry other women and abandon their original families, or in general by making sure that people chose their partners for the right reasons. There was a feeling, stemming from the Babylonian tradition and demonstrated in the capstone commentary of Rabbi Moshe Isserles, that only monogamy could really bring the kind of close companionship that a marriage really needs to be called blessed.
Change this big was slow to come, however. Especially as time passed, and the rabbis of the Talmud became legends, the idea of drastically rethinking anything in family law must have seemed more and more daunting and unlikely. To do so would require an authority figure with tremendously broad shoulders.
A man of such stature arose in the persona of Rabbeinu Gershom, "the Light of the Exile," and whether it was actually him, or whether he was just the authority figure on which the ban was eventually hung, the medieval decree against polygamy came to be known forever by his name.
Once the tipping point was reached, polygamy never really made a comeback. In contrast to the rabbis of earlier eras, the rabbis of the Middle Ages no longer felt the need to even nominally cling to their heritage of polygamy, at least in Ashkenazic lands. Perhaps once the Jews were no longer living under the rule of the Roman Empire, the fear that national and cultural Jewish identity would be overtaken subsided. (429) The Church, with its divergent and anti-polygamous exegesis, was no longer recognizable as another branch of Judaism, and sectarian influence in general had also largely died out. Eventually, the ban of Rabbeinu Gershom made legal what was for most people already likely the practical reality of the day, except in exceptional cases such as levirate unions and barren wives. Despite the fact that certain details needed to be worked on and thought about, questions about how it played out on the fringes should not overshadow the overwhelming success of the enactment. (430) For the most part, and now forever, polygamy is gone.
Interestingly, despite the fact that polygamy was very consciously removed (one step at a time) from the realm of practice, it was never removed from the theoretical discussions in the study hall, nor was its practice ever retroactively whitewashed or hidden like some shameful thing in the tradition, even after it was banned. Ashkenazic Jewish polygamy was simply mounted in its rightful place as a museum piece in the hall of Jewish history, and life carried on.
A Midrashic teaching, dated roughly from around Rabbeinu Gershom's time, shows how comfortable Jews were talking about their polygamous ancestral heritage (perhaps this openness is a vestige of the fierce sectarian pride which led them to keep it so alive for so long in the academy, or, alternatively, maybe it is a nod to the fact that by the time it finally happened the ban was really just declaratory; it just goes to show that polygamy was not a hot-button issue and so was easy to talk about and reference without causing any stir). The Midrash here has God himself asserting that, at least historically speaking, polygamy was a good and viable option for Jewish marriage. Exodus Rabbah 1:14, speaking about Pharaoh's decree to kill all the male Hebrew infants, stated: (431)
If it is a son, you will kill him ... The Holy One Blessed be He said, "Whoever gave you [Pharaoh] this counsel is a fool. You should have killed the females. If there are no females, from where will the men marry wives? A woman cannot marry two men, but one man can take ten wives, or a hundred. So, 'the princes of Zoan are idiots, the wisest of Pharaoh's counselors is a poor counsel,' (432) because they gave him this counsel."
In Exodus Rabbah then, polygamy is comfortably right back where it had been for the last several centuries in practice, and where it has been ever since; occupying a prominent place on the shelf of history in the study hall/ivory tower, important both for the values it once held and in reference to the values that led to its decline.
Unlike the arguments in contemporary debates either lauding (433) or castigating (434) polygamy the Jewish tradition over time has refused to categorize polygamy, as inherently either evil or good, but has instead recognized the institution as another tool that has a time and a place, the abuse of which is wrong and the support of which is sometimes a good idea. Over time, Jewish law developed a recognition that polygamy fundamentally changes the nature of the marital relationship and might not be a good idea unless exigent circumstances, such as war or famine, call for it.
In particular, Judaism's growing concern about the practically unworkability of polygamy with a companionate form of marriage presents an example of the way in which religious morality can serve as a progressive force in reshaping legal and social institutions to improve conditions for women over time. (435) This same potential is reflected in other advances in family law promoted by the Jewish legal system, including divorce, the forbidding of marital rape, the idea that women could own property, and mandatory prenuptial agreements specifying a large alimony in the event of divorce. Yet, despite the historical attentiveness of Jewish law to women's interests, (436) modern scholars and policy advocates have failed to recognize the ways in which religious discourse has informed and can continue to shape contemporary debates over women's human rights. While it is true that religious thought cannot currently be considered at the forefront of the academic and advocacy/policy discussions of women's rights, without the tremendous groundwork that religion laid, it is very possible that these debates would not exist at all. This Article would argue then that we should approach perceived conflicts between religious practice and women's human rights with a sense of humility and a nuanced, contextual understanding, recognizing the potentially progressive nature of religious morality instead of immediately labeling particular practices discriminatory or chauvinistic. In the conversations between law, religion, and culture, an issue like polygamy can demonstrate how religious doctrine may well serve as a guide for how to balance and protect the practical rights and well-being of members of society, taking into account what people in a particular culture, time, place, and setting might want and need.
(1) See Carl E. Schneider, Moral Discourse and The Transformation of American Family Law, 83 Mich. L. Rev. 1803 (1985).
(2) See Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989).
(3) In addition to the option of religious marriage available to same-sex couples in various religions and denominations, civil marriage has recently become open to same-sex couples in the state of Massachusetts as of May 2004. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Since that time, and as of March 2014, seventeen states--California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington, as well as the District of Columbia and two Native American tribes--have legalized same-sex marriage, representing 38% of the U.S. population. Where State Laws Stand, Freedom to Marry (Dec. 20, 2013), http://www.freedomtomarry.org/pages/where-state-laws-stand; see also In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004); Tying the Knot, Globe & Mail (July 15, 2003), at A9 (discussing two Canadian provinces, Ontario and British Columbia, since summer 2003). The Netherlands has recognized same-sex marriage since April 2001; Belgium has recognized it since 2003. See Wet wan 21 december 2000 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van het huwelijk voor personen van hetzelfde geslacht (Wet openstelling huwelijk) [Text of Dutch Law on the Opening Up of Marriage for Same-Sex Partners (Plus Explanatory Memorandum)], Stb. 2001, nr. 9 (Neth.), translated in Kees Waaldijk, Text of Dutch Act on the Opening Up of Marriage for Same-Sex Partners, in Legal Recognition of Same-Sex Partnerships 455,455-56 (Robert Wintemute & Mads Andenaes eds., 2001); Note, Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United States and Europe, 116 Harv. L. Rev. 2004, 2004 (2003); see also Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. Rev. L. & Soc. Change 277, 376 (2004). When the Supreme Court struck down the federal Defense of Marriage Act (DOMA) in United States v. Windsor in June 2013, the ruling opened the door to federal recognition of same-sex marriage. It may also have some unintended side-effects, easing the path to plural marriage--better known as polygamy--both legally and in the court of public opinion. DOMA defined marriage as "a legal union between one man and one woman as husband and wife." While DOMA obviously prohibited gay marriage (by requiring that a marital unit consist of a man and a woman), it also enshrined the prohibition against polygamy, by requiring that such a union be between only one man and one woman.
(4) See Adrien Katherine Wing, Polygamy from Southern Africa to Black Britannia to Black America: Global Critical Race Feminism as Legal Reform for the Twenty-First Century, 11 J. Contemp. Legal Issues 811, 812 (2001); The Marriage Act, No. 77 (2012), Kenya Gazette Supplement No. 179, available at http://www. kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2012/TheMarriageBill2012.PDF (a recent bill in the Kenyan
Parliament that would legalize polygamy). In August of 2012 the first polygamous civil union was granted in Brazil. See Kate Beioley, First Polygamous Civil Union Granted in Brazil, Arc. Indep. (Aug. 29, 2012), available at http://www.argentinaindependent.com/currentaffairs/brazil-first-polygamous-civil-union-grantedin-brazil/.
(5) See Kirsten Andersen, Polyamory: The Next Civil Rights Movement?, LifeSiteNews.com (Oct. 29, 2012), http://www.lifesitenews.com/news/polyamory-the-next-civil-rights-movement; Stanley Kurtz, Beyond Gay Marriage, Wkly. Standard, Aug. 4, 2003, at 26; see also Jaime M. Gher, Polygamy and Same-Sex Marriage--Allies or Adversaries Within the Same-Sex Marriage Movement, 14 Wm. & Mary J. Women & L. 559 (2008).
(6) Plural marriage has existed since recorded history, across cultures, and across the world. Many of the major world religions, including those in the Western tradition, have supported, condoned, or at least acknowledged the practice of polygamy. See J. Patrick Gray, Ethnographic Atlas Codebook, 10 World Cultures 86, 86 136 (1998); Polygamy, New World Encyclopedia (Feb. 27, 2011), http://www.newworldencyclopedia. org/p/index.php?title=Polygamy&oldid=950022; Campaign Against Polygamy And Women Oppression International (CAPWOI), History of Polygamy, Polygamy Stop, http://www.polygamystop.org/history.html (last visited Apr. 5, 2013); Paul Vallely, The Big Question: What's The History of Polygamy And How Serious A Problem Is It In Africa?, Indep. (Jan. 6, 2010), http://www.independent.co.uk/news/world/africa/the-bigquestion- whats-the-history-of-polygamy-and-how-serious-a-problem-is-it-in-africa-1858858.html (citing a University of Wisconsin study that surveyed more than a thousand societies and found that of these just 186 were monogamous). Cf. Blaine M.A. Robinson, Polygamy, BlaineRobison.com (Feb. 17, 2013), http://www. blainerobison.com/concerns/polygamy.htm (listing 40 men in the Bible with multiple wives).
(7) See, e.g., Shulhan Arukh, Yoreh Deah 69:6, 11.
(8) There was a third such ban that dealt with not opening other people's mail, but that is not relevant for our purposes.
(9) Exodus 20:13; Deuteronomy 5:17.
(10) See Numbers 5:11-31; Babylonian Talmud, Sanhedrin 51b; 84b; Maimonides, Mishneh Torah, Laws of Marriage, Ch. 24.
(11) The Babylonian Talmud in Kiddushin 7a records this distinction as a matter of social fact:
Rava said "[if a man said], 'Be betrothed to half of me,' [the woman] is betrothed. [If he said], 'Half of you is betrothed to me,' then she is not betrothed." Abaye said to him, "How does 'Half of you is betrothed to me,' differ so that she is not betrothed? [Is it because] the Merciful One said '[When a man takes] a wife ...', and not 'half a wife'? Here too, the Merciful One said 'a man', and not 'half of a man.'" [Rava] said to him, "Now, a woman for a pair [of husbands] is not fit. But a man, is he not fit for two [wives]? And this is what he is saying to her; 'If I wish to marry another, I will marry [her]."'
Babylonian Talmud, Kiddushin 7a (translation by author) (citing Deuteronomy 24:1).
(12) Rashi, commenting on the Babylonian Talmud, Kiddushin 7a.
(13) See generally, Jewish Marriage 25 (Peter Elman ed., 1975).
(14) Halakha encompasses practically all aspects of human behavior and experience: lifecycle events, joy and grief, agriculture, commerce, personal, social, national and international concerns, etc. Reflecting this comprehensive understanding of the function of law, the Hebrew word halakha is derived from the word halach (literally, "to go"), following the statement, "Enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow." Exodus 18:20. It is the legal system that outlines the way for properly living every aspect of one's life. 15
(15) See Mark Goldfeder & Ira Bedzow, Early Modern Period: Jewish Law, in The Oxford Encyclopedia
of the Bible and Law (Pamela Barmash et al. eds., 2013) [hereinafter Goldfeder & Bedzow, Early Modern Period: Jewish Law].
(16) See Babylonian Talmud, Makkol 23b.
(17) See generally Emmanuel Rackman et al., Halakhah, Law in Judaism, in Encyclopaedia of Judaism (Jacob Neusner et al. eds., 2d ed. 2005) [hereinafter Rackman et al., Halakhah].
(18) For example, the Written Law prescribes: "You shall not do any work on the Sabbath"; the Oral Law defines exactly which acts of labor constitute a violation of this injunction. See Babylonian Talmud, Shabbat 73a.
(19) See generally Moses Maimonides, Maimonides' Introduction to His Commentary on the Mishna (Fred Rosner trans., 1994) [hereinafter Maimonides, Introduction to Commentary].
(20) See Rackman et al., Halakhah, supra note 17, at 789.
(21) See id.
(22) See Goldfeder & Bedzow, Early Modern Period: Jewish Law, supra note 15, at 787.
(23) See generally Gerald J. Blidstein, Halakhah: History of Halakhah, in 6 Encyclopedia of Religion 374247 (Lindsay Jones ed., 2d ed. 2005).
(24) See Maimonides, Introduction to Commentary, supra note 19, at 791.
(26) See Babylonian Talmud, Beitzah 3b; Jerusalem Talmud, Erokhin 3:4.
(27) See Mishna, Avot 1:1.
(28) See Michael J. Broyde & Mark Goldfeder, Contemporary Jewish Religious Movements: Orthodox, in The Oxford Encyclopedia of the Bible and Law (Pamela Barmash et al. eds., forthcoming 2014) [hereinafter Broyde & Goldfelder, Orthodox],
(29) Maimonides, Introduction to Commentary, supra note 19.
(31) Primarily in that it does not deal with laws seen only as relevant to a Temple-based society.
(32) The Article focuses on historic and legal sources, and so, for the most part, will not discuss aggadaic (homiletic or non-legal) or kabbalistic references to polygamy and proto-polygamy, unless and insofar as they do come to bear on the authoritative understanding of the Jewish position.
(33) Ability to divorce freely and polygamy are frequently linked. Condemnation of divorce, both historical and even extant in the current pushback against the so-called American divorce revolution, along with popular romantic terms like "soulmate" and "one and only" point towards an even stricter ideal model of monogamy, an idea that Elizabeth Emens has called the fantasy of "supermonogamy." See Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N. Y.U. Rev. L. & Soc. Change 277, 376 (2004).
(34) Genesis 1:28.
(35) Genesis 9:1.
(36) While marriages were clearly often contracted for the creation of progeny or for political alliance, Claire Gottlieb notes: "The element of romance is also not entirely lacking in the Biblical saga, especially from the Patriarchal narratives to the end of the United Monarchy." Claire Gottlieb, Varieties of Marriage in the Bible and Their Analogues in the Ancient World, at ix (1989) (unpublished Ph.D. dissertation, New York University) (on file with New York University). The Babylonian Talmud develops the parameters of this commandment to procreate in Yevamot 61 b-64a (translation by author), quoted in Robyn Weiss Frisch, Haray Aten Mekudashot Li: A Study of Polygamy in Judaism from Biblical Through Rishonic Times, at 19 (2000) (unpublished Ph D. dissertation, Hebrew Union College--Jewish Institute of Religion, Brookdale Center) (on file with author); see also Shulchan Aruch, Even HaEzer 1.
(37) See Psalms 127:3-5 ("Children are a heritage from the Lord, offspring a reward from Him. Like arrows in the hands of a warrior are children born in one's youth. Blessed is the man whose quiver is full of them. They will not be put to shame when they contend with their opponents in court.") (translation by author).
(38) It is interesting to note, however, that the Torah never speaks of their union as a "marriage" per se, unless one translates the words ish and isha in Genesis 2:23 as "husband" and "wife" (a valid translation although not the common one) as opposed to "man" and "woman," as they are usually translated. The verse would then read: "Then the man said, 'This one at last is the bone of my bones and the flesh of my flesh. This one shall be called "Wife" (Isha) for from "Husband" (Ish) was she taken.'"
(39) While it is true that late Jewish mysticism believed in a demon woman named Lilith who is said to have been the first wife of Adam, such an understanding has never been used in a historical or legal normative context for family law. See Israel Abrahams, Jewish Life in the Middle Ages 114 (1932).
(40) Genesis 2:24.
(41) See Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism 257 (1991). From a Christian point of view, see also William B. Kessel, Address at the Ariz. District Pastoral Conference First Lutheran Church, Prescott, Ariz. (May 5-6, 1998) (citing Lutheran Cyclopedia 626 (Erwin L. Lueker ed., 1975)):
The fact that polygamy was (e.g., in the Old Testament) and is practiced does not justify it. Scripture does not present it as God's intent, or as God-pleasing, or as an example to follow. Is it possible, however, that God permitted polygamy to stand among the patriarchs to serve as a bad example or warning? Consider the plight of Abram and Sarai. Their polygamous household was anything but tranquil (Genesis 16:4-6). Problems between the co-wives translated into difficulties with their children (Genesis 21:9-11). Later Jacob loved his wife Rachel more than her co-wife and sister Leah (Genesis 29:32). This led to jealousy between the two (Genesis 30:1, 8). Then again, there was bitter strife between Elkanah's two wives Hannah and Peninnah (1 Samuel 1:2). However, if God permitted polygamy to stand as an example not to be followed, then one wonders why conflict among David's wives--Michal, Abigail, Ahinoam, Maacah, Haggith, Abital, Eglah, and Bathsheba--is not mentioned. Likewise familial disputes between Solomon and his 700 wives and Rehoboam and his dozen-and-a-half brides escape the lasting censor of Scripture.
(42) See David Daube, The New Testament and Rabbinic Judaism 76 (1956).
(43) See infra Part V.A. for Rabbi Yehuda ben Beteira's statement that Job's rationale was: "If Adam was intended to have ten wives, they would have been given to him. But he was intended to marry only one wife. So too my wife is enough for me. My portion is enough." He does not even cite to a specific verse, a clear sign that he is speaking aggadaically, and not with legal precision. Daube, supra note 42, at 76-77.
(44) Daube, supra note 42, at 78; see infra Part V.B. (discussion of the Zadokite fragments, and accompanying notes).
(45) See also Tosefta, Yevamot 8:5.
(46) The man, however, seems to have no similar limitation, but must continue to try and have children with other women. In fact, the famous statements of Rava and Rav Ammi discussed at length below come up in the context of a discussion of a man who wants to marry another woman in order to test his virility. See infra note 193 and accompanying text; Babylonian Talmud, Yevamot 65a.
(47) See Babylonian Talmud, Ketubot 77. The relationship between divorce and polygamy is also highlighted here, and will come up again in the discussion of remedies for gender-based inequalities built into the structure
of Jewish marriage laws.
(48) See also Isaiah 50:1; Jeremiah 2:2; Ezekiel 16:8; Proverbs 12:4, 18:22, 19:14, 31:10-31.
(49) See Frisch, supra note 36, at 22-23.
(50) Exodus 21:7-9.
(51) Exodus 21:10 (translation by author).
(52) Deuteronomy 21:15-17.
(53) Deuteronomy 25:5-10; see infra Part IV (discussing Levirate Marriage).
(54) Indeed, while the text of the Bible itself does not specifically state that a married brother can perform levirate marriage, and so one might have thought this was ambiguous, the Rabbis in the Mishna, Yevamot 4:11 state unequivocally that: "Four brothers married four women and died. If the oldest of them [i.e., the remaining brothers] wants to take them all in levirate marriage, the authority is in his hand." Note that there were several other options available here: the younger brothers could each have taken a wife, or the oldest brother could have done chalitzah, the un-shoeing ceremony, an alternative to levirate marriage, on all but one. Clearly, avoiding polygyny was not a priority here.
(55) Deuteronomy 17:17. This verse actually reflects the exact opposite ambiguity of the verse in Genesis; the word here is nashim (plural of isha) and although it usually is not in this context, could also be translated as "women," which would presumably include concubines as well as full-fledged wives. Note that the Damascus document of the Dead Sea Scrolls sees this not as a prohibition on the king alone, but as an indication that the king should be an example to his people, who should all refrain from having multiple wives.
(56) Deuteronomy 21:10-14.
(57) See Frisch, supra note 36, at 26. "Note that throughout the biblical and Talmudic literature, the only references we find to actual polygamists are among the rich and powerful. This is not to necessarily say that the common man could not be or was not also polygamous, just that we lack any evidence that this was in fact the case." Id. at 9 (quoting Rachel Biale, Women and Jewish Law: The Essntial Texts, Their History, & Their Relevance for Today 50 (1984)).
(58) Id.; see, e.g., Genesis 34:7 (Jacob and his children).
(59) See Frisch, supra note 36, at 26 (quoting Gottlieb, supra note 36, at 86).
(60) See Chaim Pearl, Marriage Forms, in Jewish Marriage, supra note 13, at 24-25.
(61) Genesis 4:19; see also Midrash Genesis Rabbah 23:3 (seeming to find Lamech's polygamy distasteful, as he kept one wife for pleasure and one for children).
(62) Rabbi Shlomo Yitzchaki of France, (1040-1105); see Rabbi Shlomo Yitzchaki, commenting on Genesis 4:19.
(63) Frisch, supra note 36, at 28.
(64) By the time that Abraham married his second wife, Keturah, Sarah had already died. See Genesis 25:1.
(65) Genesis 22:20-24.
(66) The text to Genesis 36:11 does not mention his wife's name, only his sons' names, but Genesis 36:12 tells us that Timna was his concubine and bore him an additional son, Amalek. Genesis 46:10 implies that Jacob's son Simon had a second wife, a Canaanite woman, although it is not clear if those wives were, in fact, concurrent. The text to Genesis 36:11 does not mention his wife's name, only his sons' names, but Genesis 36:12 tells us that Timna was his concubine and bore him an additional son, Amalek.
(67) Judges 8:30 (Gideon had seventy sons of his own issue, for he had many wives).
(68) 2 Samuel 12:8.
(69) 2 Samuel 3:2-5, 14.
(70) 2 Samuel 5:13.
(71) 1 Kings 11:3.
(72) 1 Chronicles 7:14.
(73) 1 Chronicles 8:8-9.
(74) 2 Chronicles 11:21, 23.
(75) 2 Chronicles 13:21.
(76) 2 Chronicles 24:3.
(77) Gottlieb, supra note 36, at 86 (citing Roland de Vaux, Ancient Israel Vol. 1, Social Institutions 25 (1965)) (noting that Elkanah traced his lineage back to Kohath, the son of Levi, so in reality he was not an ordinary commoner). In general, Samuel, like all the Biblical books, records the activities of the elite. But see Yalkut Shimoni, 1 Samuel 1:2; Midrash Shmuel, 1 Samuel 1:2; Pesikta Rabasi, ch. 43 (seeming to justify Elkanah's polygamy due to Penina's barrenness).
(78) See 1 Chronicles 7:4 (implying that polygamy may have been common at that time amongst the tribe of Issachar).
(79) 1 Kings 11:4-5; see Frisch, supra note 36, at 30.
(80) See Moses Mielziner, The Jewish Law of Marriage and Divorce 28 (1884) [hereinafter Mielziner, Jewish Law 1884], Mielziner also sees such commandments as the prohibition to neglect one's conjugal duties toward one's wife on account of another (Exodus 21:9) as designed to make polygamy practically difficult.
(82) See Pearl, supra note 60, at 27.
(83) See Frisch, supra note 36, at 38.
(84) Genesis 29:30.
(85) 1 Samuel 1:1-6.
(86) Deuteronomy 21:15-17. In De Vertutibus 115, Philo of Alexandria echoes the Rabbinic sentiment that if one takes a "beautiful captive" as a wife, jealousy will ensure when the older wife is superseded by a newer wife. Philo of Alexandria, On Virtues: Introduction Translation, and Commentary (trans. Walter Wilson, 2011).
(87) See Victor Harold Matthews & Don C. Benjamin, Old Testament Parallels: Laws and Stories from the Ancient Near East 47 (1997); see also John C. Jeske, Genesis, in The People's Bible 145 (Roland Cap Ehlke & John C. Jeske eds., 1991); Stuart A. West, The Nuzi Tablets: Reflections on the Patriarchal Narratives, 10 Bible and Spade 68(1981).
(88) Genesis 30:3.
(89) Genesis 30:9-13.
(90) For our purposes, the terms amah (handmaid), shifchah (maid or female slave), and pilegesh (concubine) all refer to the concubine.
(91) Although not always; after Hagar conceives from Abraham when Sarah could not, Sarah is lowered in her eyes, and responds by treating Hagar harshly. See Genesis 16:4-6.
(92) Classical Roman law, for instance, allowed members of the Senatorial order to take as concubines women who they would otherwise not be permitted to marry. Since the relationship was devoid of legal basis, it did not stand in the way of another, legal relationship. See F. Schulz, Classical Roman Law 137 (1951). In the year 325 C.E., however, an edict was issued forbidding a man to take a concubine in addition to his wife, while a later version expressly prohibited the taking of a second wife while the first was alive. These decrees received further confirmation at the Councils of Toledo (400 C.E.) and of Rome (402 C.E.). See Ze'ev W. Falk, Jewish Matrimonial Law in the Middle Ages 22 (1966) [hereinafter Falk, Jewish Matrimonial Law].
(93) Louis M. Epstein, Marriage Laws in the Bible and the Talmud 8-9 (1942) [hereinafter Epstein, Marriage Laws].
(94) Moses Mielziner, Jewish Law of Marriage and Divorce 28 (2d ed. 1901) [hereinafter Mielziner, Jewish Law 1901],
(95) See Frisch, supra note 36, at 38 (citing Gottlieb, supra note 36, at 87).
(96) Genesis 31:50.
(97) Epstein offers an interesting conjecture that perhaps Egyptian culture affected Jewish monogamy in one very particular way, i.e., outlawing polygamy amongst the priests. Epstein, Marriage Laws, supra note 93, at 10. The Mishna assumes that the High Priest had only one wife (Mishna, Yoma 2a), and we see a later reflection of this in the New Testament (1 Timothy 3:2 and Titus 1:6), which prohibits polygamy to bishops.
(98) Russell K. Ryan, And Then There Was One: An Analysis and Comparison of Polygamy Among Jews and Mormons, in 9 The Jewish Law Annual 209 (Institute of Jewish Law ed., 1991).
(99) Ephraim Neufeld, Ancient Hebrew Marriage Laws 118 (1944). He does, however, think that bigamy alone might have been somewhat common, although many do disagree.
(100) After the destruction of the First Temple in 586 B.C.E., the Jewish people went into exile in Babylonia. When the Persian King Cyrus defeated Babylonia in 539 B.C.E., he offered the Jews living under his rule the chance to return to their homeland and rebuild the Temple. While some did return, many remained in Babylonia and other areas in which they had settled during the Diaspora. See David J. Goldberg & John D. Rayner, The Jewish People: Their History and Their Religion 51-53 (1992).
(101) Elephantine, in 6 Encyclopaedia Judaica 311,312 (2007).
(102) Frisch, supra note 36, at 52 (citing Aramaic Papyri of the Fifth Century, B.C. 45 46 (A. Cowley ed., (citations omitted) 1967)). Other such examples of agreements wherein the husband writes that he will refrain from taking a second wife because of an agreement with the first one have been preserved in similarly written Babylonian and Assyrian documents. See Monogamy, in 14 Encyclopaedia Judaica 447, 447-48; Falk, Jewish Matrimonial Law, supra note 92, at 5.
(103) See also Louis M. Epstein, The Jewish Marriage Contract: A Study in the Status of the Woman in Jewish Law 125 (2005) [hereinafter Epstein, The Jewish Marriage Contract] (noting that while the clause prohibits polygamy it does permit concubinage).
(104) Falk, Jewish Matrimonial Law, supra note 92, at 4-5, quoted in Frisch, supra note 36, at 53.
(105) Id. at 5.
(106) Not forbidden in the Torah. See Babylonian Talmud, Yevamot 62b.
(107) See Robert Eisenman, James the Brother of Jesus: The Key to Unlocking the Secrets of Early Christianity and the Dead Sea Scrolls 40, 81, 104 (1997), cited in Frisch, supra note 36, at 58; see also Lena Cansdale, Qumran and the Essenes: A Re-evaluation of the Evidence 53 (1997).
(108) Florentino Garcia Martinez, The Dead Sea Scrolls Translated: The Qumran Texts in English (Wilfred G.E. Watson trans., 1994). To have two wives at once is, for the author of the Damascus Document, a breach of the ordinance of creation. Book of Covenant of Damascus, in 5 Encyclopaedia Judaica 397, 398 (2007).
(109) Genesis 1:27 (translation by author).
(110) Deuteronomy 17:17 (translation by author). The word "prince" (nasi) here is a clear reference to the king. See 2 The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English Translations: Damascus Document, War Scroll, and Related Documents 21 n.41 (James H. Charlesworth ed., 1995).
(111) As mentioned above, Rabbinic exposition, apparently even sectarian exegesis, required an explicit commandment as an anchor before it would use a homiletic verse to fill in the gaps. Thus the Zadokite's turn to the Deuteronomic verse concerning kings as their base text, probably relying on a similar tradition to that which the Rabbis quote in the Babylonian Talmud in the name of Rabbi Shimon ben Yochai; "all Israelites are considered sons of kings." See Daube, supra note 42, at 85-96.
(112) Damascus Document 4:20-5:5, translated in 2 The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English Translations: Damascus Document, War Scroll, and Related Documents 19, 21 (James H. Charlesworth ed., 1995). The author of the scroll here wishes to preempt the argument from history that David, God's beloved servant, was polygamous and never criticized for it, noting that it was not David's fault since in David's day the Torah was inaccessible; it had been sealed and hidden until Zadok (most likely Zadok the High Priest in Solomon's time) arose. The author does note, however, that David was still punished for having Bathsheba's husband Uriah killed.
(113) See Charlotte Hempel, Damascus Texts (2000); see also Sidney White Crawford, The Temple Scroll and Related Texts, Companion to the Qumran Scrolls 81 (2000) ("CD 4.205.5 prohibits polygamy ('taking two wives') and, evidently, divorce ('in their lives')."); Johan Maier, The Temple Scroll: An Introduction, Translation & Commentary 16 (1985); Lawrence H. Schiffman, Reclaiming the Dead Sea Scrolls 82-83 (2000); Ben Zion Wacholder, The New Damascus Document: The Midrash on the Eschatological Torah of the Dead Sea Scrolls: Reconstruction, Translation and Commentary 196 (2007); Joseph M. Baumgarten, The Laws of the Damascus Document in Current Research, in The Damascus Document Reconsidered. Jerusalem, Israel Museum, Shrine of the Book 51-62 (1992).
(114) Monogamy, in 14 Encyclopaedia Judaica, 447, 447-48 (1973).
(115) Louis Finkelstein, Jewish Self-Government In the Middle Ages 23 (1972); see also Adolf Neubauer, Geschichte des Karaertums 46 (1866), quoted in Marriage and its Obstacles in Jewish Law: Essays and Response 62 (Walter Jacob & Moshe Zemer eds., 2001) [hereinafter Marriage and its Obstacles].
(117) Temple Scroll Column LVI, Verse 18, translated in Florentino Garcia Martinez, The Dead Sea Scrolls Translated: The Qumran Texts in English (Wilfred G.E. Watson trans., 1994).
(118) Schiffman, supra note 113, at 130, quoted in Frisch, supra note 36, at 62-63.
(119) See Lena Cansdale, Qumran and the Essenes: A Re-evaluation of the Evidence 53 (1997), quoted in Frisch, supra note 36, at 63.
(120) King Herod had nine wives according to Josephus. Flavius Josephus, Antiquities of the Jews, Bk. XVII 1.3 (Allen Wikgren ed., Ralph Marcus trans., 1963).
(121) Cansdale, supra note 107, at 53 (discussing the rules of relationships). Though Josephus wrote in Antiquities of the Jews, Bk. XVII 1.2, that it is "an ancestral custom of [the Jews] to have several wives at the same time," Josephus himself, who was married to three different women, was never married to more than one woman at a time. Isaiah M. Gafni suggests that Josephus needed to include these explanatory notes in his text because of the monogamy of the Roman Empire. Isaiah M. Gafni, The Institution of Marriage in Rabbinic Times, in The Jewish Family: Metaphor and Memory 21 (David Kraemer ed., 1989); see also Louis Ginzberg, An Unknown Jewish Sect 19 (Jewish Theological Seminary Am. trans., 1970). Ginzberg cites another Zadokite document which took the Levitical law (18:18) against marrying a woman and her sister to refer to simply "a wife together with another one," a definite linguistic possibility but also definitely not part of the mainstream Jewish tradition. The Karaites would later use a similar exegesis.
(122) Joshua ben Sirach, Ecclesiasticus 26:6, translated in The Apocrypha (Edgar J. Goodspeed trans., 1989) (c. 200-175 B.C.E.).
(123) Mat 37:11.
(124) Id. at 25:1; see also id. at 26:19-24, 37:11.
(125) Id. at 26:1-4.
(126) In general, it is important not to overestimate the value of these scrolls even to the Dead Sea Sect living in Qumran. While it is possible and even likely that these scrolls did represent their philosophy, it is also possible that they were part of a larger collection or library, or that they reflected the views of one small group or even one individual.
(127) See Michael L. Satlow, Family, Jewish, in Encyclopedia of Ancient History 2629, 2629-30 (2013); see also Michael L. Satlow, Jewish Marriage in Antiquity 325 (2001) [hereinafter Satlow, Jewish Marriage in Antiquity].
(128) See JackN. Lightstone, Roman Diaspora Judaism, in A Companion to Roman Religion 345, 362 (2007); see also Michael L. Satlow, Marriage and Divorce, in Oxford Handbook of Jewish Daily Life in Roman Times 15 (Catherine Heszer ed., 2008).
(129) As the last of the "pairs" mentioned in the Mishna in Avot who were responsible for maintaining the chain of tradition of the Oral Law, and the author of the "seven rules of Hillel,'" the first compilation of the technical exegetical that are to be used when expounding on the Biblical text, Hillel is generally credited as changing the way that Torah was taught and laying the foundations of a new era. See Stephen G. Wald, Hillel, in 9 Encyclopaedia Judaica 108-10 (2007).
(130) Herman L. Strack & Gunter Stemberger, Introduction to the Talmud and Midrash 149-50 (2d ed. 1996), cited in Frisch, supra note 36, at 75. According to Rabbinic tradition it was redacted by Rabbi Chiyah bar Abba (an Amora, one of the rabbinic sages from the second through the fifth century living in Israel, active from 290-320 C.E., and the last prominent scholar to be mentioned in the Tosefta), a relative and student of Rabbi Judah HaNasi, in the late third or fourth century C.E. in Israel. See Tosefta, in 20 Encyclopaedia Judaica 70-72 (2007).
(131) Lawrence H. Schiffman, From Text to Tradition: A History of Second Temple and Rabbinic Judaism 183 (1991).
(132) See Frisch, supra note 36 at 86.
(133) See, e.g., Yevamot 15:4, where a co-wife is disqualified from testifying on behalf of a woman that her husband is dead, since, as the commentators explain, there is a fear that due to the dislike co-wives have for each other one will testify about the other falsely, so that she will marry someone else and then be prohibited to the original husband. See also Yevamot 4:11,6:5, 6:6, 13:8.
(134) "Do not uncover the nakedness of your brother's wife."
(135) "If a man marries the wife of his brother, it is indecency."
(136) Frisch, supra note 36, at 88.
(137) Falk, Jewish Matrimonial Law, supra note 92, at 9.
(138) For more examples, see Mishna, Gittin 3:1, 8:7, Kiddushin, 2:6-7, Sotah 4:3, Sanhedrin 2:4.
(139) A disagreement between the Houses of Shammai and Hillel recorded in the Mishna, Yevamot 1:4.
(140) In demonstration of the fact that the law is in accordance with the view of the House of Hillel.
(141) See Jerusalem Talmud, Yevamot 4:12:
Four of the brothers: A story: there were thirteen brothers, and twelve died without children. They came before Rabbi [Judah] requesting to be taken in levirate marriage. Rabbi said to [the brother-in-law], "Go initiate levirate marriage." He said to him, "I can't." Each one of the wives said, "I will pay maintenance for my month." The brother-in-law said, "Who will pay maintenance for the intercalated month?" Rabbi said, "I will pay maintenance for the intercalated month." And he prayed for them, and they left him. Three years later, they came carrying thirty-six children. They came and stood themselves before Rabbi's courtyard. [Some people] went up and told him, "There is a crowd of children below that want to greet you." Rabbi looked out from the window and saw them. He said to them, "What is your business?" They said to him, "We want you to pay the intercalated month." And he paid the intercalated month.
(142) Babylonian Talmud, Sukkah 27a:
R Judah went and busied himself for his son's [marriage] into the household of Rabbi Yose ben Zimrah. They agreed for him to go to the Great House [the Academy] for twelve years. They promenaded her in front of him, he said to them, "Let them be six years." They promenaded her in front of him, he said to them, "1 will consummate [the marriage] and then go." He felt shame before his father, [Rabbi Judah] said to him, "You have the mind of your Creator. Originally it is written, you will bring them and you will plant them in the mountain of your inheritance." Exodus 15:17 (referring to the Temple Mount), but in the end it is written, "Make me a sanctuary, so that I may dwell among them ...." Exodus 25:8 (referring to the Tabernacle). He went and sat for twelve years. When he returned, his wife had become barren. Rabbi said, "What will we do? If we divorce her, they will say, 'This poor woman waited in vain.' If we marry [him to] another woman, they will say, 'This one is his wife and this one is his prostitute.'" He prayed for mercy on her behalf, and she recovered.
(143) See, e.g., Babylonian Talmud, Berakhot 19b-20a, where the Rabbis weigh meta-principles against non-fulfillment of specific norms. "The value of human dignity is so great that it supersedes a negative commandment of the Torah"; or, in the Jerusalem Talmud's version; "The dignity of the public (literally 'the many') is so great that it supersedes a negative commandment of the Torah for one hour (i.e., temporarily)." Jerusalem Talmud, Berakhot 3:1.
(144) See Babylonian Talmud, Sukkah 27a.
(145) Josephus, supra note 120.
(146) There has been some scholarly debate over the dating of Targum of Ruth. Many believe it to be Talmudic. See Mielziner, Jewish Law 1901, supra note 94, at 29 n.2. Others consider it to be post-Talmudic, and others claim it originated much earlier among the Sadducees or some other non-Pharisaic sect. See D.R.G. Beattie, The Textual Tradition of Targum of Ruth, in The Aramaic Bible: Targums in their Historical Context 340 (D.R.G. Beattie & M.J. McNamara eds., 1992).
(147) Ruth 4:5-6.
(148) Targum, Ruth 4:5-6.
(149) Pesikta Rabbati 43, cited in S. Lowy, The Extent of Jewish Polygamy in Talmudic Times, 9 J. Jewish Stud. 115, 117 (1958); see also Yalkut Shimoni, 1 Samuel 1:2; Midrash Shmuel, 1 Samuel 1:2.
(150) Canticles Rabbah 1:6, cited in Lowy, supra note 149, at 118.
(151) See Frisch, supra note 36, at 93.
(152) See David Daube, The New Testament and Rabbinic Judaism 75 (1956).
(153) Sacred Writings--Christianity: The Apocrypha and the New Testament From the Revised English Bible 18 (Jaroslav Pelikan ed., 1992). If polygamy were permitted, why would taking a second wife be a problem? See Lowy, supra note 149, at 132.
(154) See FI. J. Schoeps, Ehebewertung und Sexualmoral der spdteren Judenchristen [Evaluating Marriage and Sexual Mores of Later Jewish Christians], 2 Studia Theologica 99, 99-101 (1948), quoted in Lowy, supra note 149, at 132.
(155) See Lowy, supra note 149, at 134.
(156) While it can be argued that the New Testament prohibited polygamy in 1 Corinthians 7:2, which reads, "let each man have his own wife and let each woman have her own husband," that reading is no more conclusive than the "therefore shall a man leave" teaching in the Old Testament. See Epstein, Marriage Laws, supra note 93, at 14. The Gospels of Matthew 19:9 and Mark 10:11 declare that "whosoever shall put away his wife ... and shall marry another commiteth adultery," but there is reason to believe that the word adultery here just means sexual sin. Id. at 14-15.
(157) See Titus 1:6; I Timothy 3:2; 2 Timothy 3:12.
(158) Similar to the Damascus exegetical material. Note, though, that at least in the minds of the Tannaim, the Bible was not doing so when it proscribed multiple wives for the king. In regard to the limitations contained in Deuteronomy 17:17, Tosefta, Sanhedrin 4:5 states: "He shall not multiply for himself if the wives are like Jezebel. But if the wives are like Abigail, multiplying wives is permitted. These are the words of Rabbi Judah .... But a common person is permitted to do all of these things."
(159) At least in a case where there was no good reason, such as bareness, levirate duty, or drought.
(160) Indeed in the early centuries, the Christian teachings clearly assume that polygamy is contrary to Christian morals. See, e.g., Corpus Juris Canonici, described in Epstein, The Jewish Marriage Contract, supra note 103, at 15-16 n.49.
(161) Church Fathers, in 4 Encyclopaedia Judaica 719, 719 (2007).
(162) Who, ironically, some scholars claim may have actually been the Tanna Rabbi Tarfon, the very same Tanna who himself, when the need arose, married three hundred women. See generally J. D. Gereboff, Rabbi Tarfon: The Tradition, the Man, and Early Judaism (1979), cited in Frisch, supra note 36, at 101.
(163) See Frisch, supra note 36, at 97.
(164) Susanna Drake, Slandering the Jew: Sexuality and Difference in Early Christian Texts 34 (2013) (quoting Justin Matryr, Dialogue with Trypho 141:4).
(165) Falk, Jewish Matrimonial Law, supra note 92, at 6, quoted in Frisch, supra note 36, at 98.
(166) Frisch, supra note 36, at 98.
(167) 1 Corinthians 7:1-9, quoted in Gafni, supra note 121, at 17; see also Tertullian, To His Wife (207 A.D.), reprinted in 4 Anti-Nicene Fathers 86 (Philip Schaff ed., 1885), available at http://www.ccel.org/ccel/ schaff/anf04.pdf; St. Augustine, On Marriage and Concupiscence, Book I (419 C.E.), reprinted in 5 Nicene and Post-Nicene Fathers: Series 1 764 (Philip Schaff ed., 1887), available at http://www.ccel.org/ccel/schaff/ npnfl05.pdf.
(168) Midrash, Genesis Rabbah 9:7.
(169) S. D. Goitein, Preface to Jacob Mann, The Jews in Egypt and in Palestine Under the Fatmid Caliphs (1970), quoted in Satlow, Jewish Marriage in Antiquity, supra note 127, at 1.
(170) See Amoraim, in 2 Encyclopaedia Judaica 89 (2007).
(172) The Talmudic term for a spouse, zivug, literally means "pairing," further postulating monogamy. Lowy, supra note 149, at 130; see, e.g., Babylonian Talmud, Sotah 2a; Gittin 90b; Sanhedrin 22a.
(173) The debates tend to center around precise legal theoretical questions in regard to formation and dissolution of marriage, but ignore such mundane issues as how the laws of family purity would be affected, a topic which, if polygamy was actually happening, would definitely have needed to be addressed. See generally Babylonian Talmud, Yevamot.
(174) See Talmud, Jerusalem, in 19 Encyclopaedia Judaica 483, 483-87 (2007).
(176) Falk, Jewish Matrimonial Law, supra note 92, at 7. The truth is, though, that it is not entirely convincing to say that Roman legislation deterred polygamy; uncle-niece marriages were considered incest by the Romans but permissible according to the rabbis. There must have been something else, i.e., some more universal underlying cultural aversion. See Salo Baron, A Social and Religious History of the Jews 2:26 (2d ed. 1983).
(177) See Frisch, supra note 36, at 101.
(178) Satlow, Jewish Marriage in Antiquity, supra note 127, at 189. It should be noted, though, that the decree only covered legal wives, not concubines. See Falk, Jewish Matrimonial Law, supra note 92, at 20 n. 1.
(179) Justinian included Theodosius' edict in his Codex in order to stress the ban again, and the Basilica, compiled by the Byzantine Emperor Leo the Philosopher as a digest of Justinian's laws at the beginning of the tenth century, also contains similar language. See Codex Justinianus 1:97; see also Amnon Linder, The Jews in Roman Imperial Legislation 192-93 (1987). Leo the Philosopher (886-912) would try again to ban polygamy later, also with only limited success. See Joshua Starr, The Jews in the Byzantine Empire 144 (1939).
(180) Lowy, supra note 149, at 116, quoted in Frisch, supra note 36, at 106.
(181) See Mielziner, Jewish Law 1901, supra note 94.
(182) Baron, supra note 176, at 2:226, in Frisch, supra note 36, at 102.
(183) Linder, supra note 179, at 192.
(184) See R C. Hill, Theodoret of Cyrus, Commentary on the Letters of St Paul, quoted in Linder, supra note
179, at 192.
(185) For examples of polygamy discussed in a legal setting, see Jerusalem Talmud, Yevamot 1:1, 1:6, 2:1, 3:3, 3:5, 3:10, 4:1, and 5:3, and Kiddushin 2:6.
(186) Amoraim, in 2 Encyclopaedia Judaica 89 (2007). The Babylonian Talmud also describes Babylonian judges as being the "agents" of the scholars of the Land of Israel who are only empowered to adjudicate certain types of cases that do not require expert, ordained judges only found in the Land. See Babylonian Talmud, Bava Karnma 84b; see also Babylonian Talmud, Sanhedrin 14a. The Shulchan Aruch (Hoshen Mishpat 1) applies the same agency rule to Jewish law courts nowadays, noting that only scholars ordained in the Land can really judge, and that judges today are simply fulfilling the historical agency mandate.
(187) And, the implication is, divorce her.
(188) Falk, Jewish Matrimonial Law, supra note 92, at 8.
(191) Id. But see Lowy, supra note 149, at 120-23, who claims that Rabbi Ammi's statement has been grossly misunderstood when taken out of its original context, i.e., as part two of a three part statement regarding when a wife is entitled to a ketubah payment. All three are cases where the husband wants to stay married after ten years of childlessness. In the first and third cases (husband wants a divorce due to barrenness, wife claims he is the impotent one; husband claims there was a miscarriage to avoid divorce due to barrenness and wife disagrees) the wife is believed and can get remarried, but is not entitled to a ketubah, since she is not commanded to have children and therefore could have stayed and kept trying. In the middle case, where he takes a second wife, since the husband is no longer depending on her to fulfill his obligation, she is entitled to the payment. The innovation here has nothing to do with polygamy then, but rather with the payment of the ketubah.
(192) See Adin Steinsaltz, The Talmud, The Steinsaltz Edition: A Reference Guide 34-36 (1989).
(193) Babylonian Talmud, Yevamot 65a. Interestingly, the first part of the statement is written in Hebrew, and the second part in Aramaic. See Gafni, supra note 121, at 23 (believing that the qualification "so long as ..." was an additional gloss added by a later hand). But see Falk, Jewish Matrimonial Law, supra note 92, at 7 (believing it more likely that Rava himself, who spoke Aramaic, added the gloss to the preexisting rule regarding polygyny). Regardless, the statement preserved and attributed to Rava reflects the view that if he can afford it, a man may marry many wives. See Frisch, supra note 36, at 107-08.
(194) Babylonian Talmud, Bava Kamma 60b (translation by author).
(195) See Frisch, supra note 36, at 104-06.
(196) Job 31:2.
(197) Avot D'Rabbi Nathan Version B, Ch. 2, 9 (Solomon Schechter ed., 1887).
(198) The Midrashic text was probably redacted sometime in the fifth century, although the traditions that it quotes are related in the names of much earlier Israeli Amoraim. See Genesis Rabbah, in 7 Encyclopaedia Judaica 448, 448-49 (2007). Genesis Rabbah also reads like the Jerusalem Talmud, in that it is written in mostly Mishnaic Hebrew with some Galilean Aramaic.
(199) Genesis Rabbah 23:2; see also Jerusalem Talmud, Yevamot Id.
(200) Gafni, supra note 121, at 21 (quoting Mansour Shaki, The Sassanian Matrimonial Relations, in Archiv Orientalni 39, at 338 (1971)).
(201) Note though that to assume that this is typical of the Babylonia/Israel split may be an oversimplification. There may in fact be differences of opinion regarding this matter even within the Babylonian Talmud itself. As mentioned above, the Mishna in Bekhorot 1:7 says that chalitza is preferable to levirate marriage, despite the fact that in Babylonian Talmud Yevamot 39b the Tanna Abba Saul holds that intent is relevant, as discussed above, and despite the fact that Babylonian Amoraim disagreed and said one should always do levirate marriage, since it is a Biblical commandment.
(202) See Ruth Lamdan, A Separate People: Jewish Women in Palestine, Syria, and Egypt in the Sixteenth Century 139, 139 n.3 (2000).
(203) He also notes that while many of Rav Ammi's statements are found in identical form in both the Babylonian and Jerusalem Talmuds, there is no Jerusalem Talmud parallel to his statement in Babylonian Talmud Yevamot 65a, a parallel that would be expected if this were an exclusive Israel tradition. Frisch, supra note 36, at 109.
(204) Here, Lowy, supra note 149, cites, for example, Babylonian Talmud, Gittin 63b.
(205) Lowy, supra note 149, at 124, quoted in Frisch, supra note 36, at 113. Another possibility is that there were a few, like Rava, who supported the idea. See also Babylonian Talmud, Kiddushin 7a, in which Rava also seems to very matter-of-factly support the idea of polygamous marriage; Babylonian Talmud, Kiddushin 80b, where he implicitly approves it; and Babylonian Talmud, Yevamot 63a-b, where he advises one with a bad wife who has a large ketubah to marry a rival.
(206) As we will see later, this came to mean even separate quarters.
(207) See David Werner Amram, The Jewish Law of Divorce 76 n.3 (1897); Mielziner, Jewish Law 1884, supra note 80, quoted in George J. Webber, The Recognition of Polygamous Marriage in Mosaic Law, 49 Law Q. Rev. 19-20(1933).
(208) See Epstein, The Jewish Marriage Contract, supra note 103, at 20 (quoting Babylonian Talmud, Yevamot 25b-26a).
(209) See Babylonian Talmud, Yoma 13 a.
(210) This is consistent with Rava's statement cited above. See supra note 193 and accompanying text.
(211) See glosses of Rema to Shulchan Aruch, Even HaEzer 1, where Rema hammers home this point.
(212) See Steinsaltz, supra note 192, at 32.
(214) Rashi there explains that this is because two wives may conspire against the husband, but if there are three, then the third will check the first two and provide insurance for her husband.
(215) Steinsaltz, supra note 192, at 33.
(216) Babylonian Talmud, Yoma 18b.
(217) See Babylonian Talmud, Yevamot 63a; Berachot 51b.
(218) Regarding Rava, see, e.g., Babylonian Talmud, Taanit 21b; regarding Rav Nachman, see Babylonian Talmud, Megillah 28b.
(219) Babylonian Talmud, Yevamot 52a; Kiddushin 12b.
(220) See Frisch, supra note 36, at 114.
(221) See R. Margoliot & S. Krauss, Maan Hav'ya L'Yoma [Who Will be My Wife?], Sinai, XI 176-79, quoted in Frisch, supra note 36, at 114.
(222) See Gafni, supra note 121, at 24; Lowy, supra note 149, at 126-29. The Talmud in Babylonian Talmud Yevamot 63a and Berachot 51 b makes it clear that they both had difficult wives. Lowy writes: "Not only do their personalities make the contraction of such temporary marriages impossible to credit in them, but the sources themselves indicate that their so-called advertisement for a temporary mate never resulted in a consummated marriage" Lowy, supra note 149, at 127-28, cited in Frisch, supra note 36, at 115 n.360.
(223) See Gafni, supra note 121, at 24.
(225) Lowy, supra note 149, at 128.
(226) Id. at 24-25.
(227) Babylonian Talmud, Yevamot 37b.
(228) Babylonian Talmud, Yoma 18b.
(230) Proverbs 3:29.
(231) Genesis Rabbah 53:5; Leviticus Rabbah 1:13. Both recount the same parable, about a king who has both a wife and a concubine. The king goes openly to his wife, but when he goes to the concubine, he does it in a secretive fashion, "as if it were a shameful and illegal act." While concubinage is discussed on at least the academic level in both Talmuds, see, e.g., Babylonian Talmud, Sanhedrin 21a; Jerusalem Talmud, Ketubot 5:2, there is no hard evidence that it was actually practiced, and parables like the Midrashic one above most likely reflect the negative attitude towards the practice that was pervasive in that period.
(232) Note, however, that other readings are possible. For instance, Rabbi Eliezer ben Jacob's calling into question of certain types of polygamy, i.e., long distance relationships, might be read to implicitly grant legitimacy to other types.
(233) Babylonian Talmud, Sanhedrin 76b, quoted in Israel Abrams, Jewish Life in the Middle Ages 114(1993).
(234) Babylonian Talmud, Shabbat 25.
(235) Avot D'Rabbi Nathan 7 (Solomon Schechter ed., 1887).
(236) Babylonian Talmud, Sanhedrin 22a.
(237) Babylonian Talmud, Shabbat 22a-b.
(238) Babylonian Talmud, Bava Metzia 59a.
(239) Babylonian Talmud, Sotah 17a.
(240) See Babylonian Talmud, Sotah 2a; Gittin 90b; Sanhedrin 22a, cited in Lowy, supra note 149, at 117 n.27.
(241) Baron, supra note 176, at 2:227-28.
(242) Lowy, supra note 149, at 115.
(243) As we noted, it also should have engendered a similar approach in regard to other laws as well.
(244) Genesis 1:27.
(245) Genesis 7:9; see Lowy, supra note 149, at 132 (quoting Louis Ginsberg, Eine Unbekante Judische Sekte, MGWJ, LV, at 689-91 (1911)).
(246) Leviticus 18:18, with the word "sister" being understood in its broadest application, i.e., another woman. See Lowy, supra note 149, at 132 (quoting Elijah Basyatchi, Aderet Eliyahu).
(247) Mark 10:11.
(248) Cf. Lowy, supra note 149, at 132.
(249) Id. at 130-31, quoted in Frisch, supra note 36, at 118.
(251) See Matthew 5:32, 19:9; Mark 7:21-22; Luke 18:20; see also Solomon Schechter, Documents of Jewish Sectaries 71-72 (Joseph A. Fitzmyer trans., Ktav Pub. House 1970).
(252) See, e.g., Babylonian Talmud, Gittin 90b ("If a man divorces his first wife, even the Altar cries....").
(253) Mishna, Gittin 10:10. Lowy notes that the strength of the position is made even more clear by the fact that the speaker here is Rabbi Akiva, whose marriage was famously happy and ideal. See Mishna, Gittin 9:10; Babylonian Talmud, Nedarim 50a.
(254) The Zadokites, for instance, derived their prohibition from Leviticus 18:3 and an analogy between men and women. For more, and for a similar discussion regarding intermarriage, see Lowy, supra note 149, at 136-38.
(255) Satlow, Jewish Marriage in Antiquity, supra note 127, at 19.
(256) See Gaon, in Jewish Encyclopedia (1906), available at http://www.jewishencyclopedia.com/ articles/6511-gaon.
(257) See, e.g., Sefer Hamaasim Livnei Eretz Yisrael: Mekorot Umehkarim, quoted in 8 Marriage and its Obstacles, supra note 115, at 69.
(258) Id. Contrast this with the dozens of ketubot in the Cairo Genizah reflecting the practice of Egyptian Jewry. Here there were conditions and penalties, and in fact there is evidence that people violated these conditions notwithstanding the hefty price. See id. at 69-70.
(259) Sherira ben Hanina Gaon, in 14 Encyclopaedia Judaica 1381 (2007). Gaon means "genius" or "honorable sage."
(260) Frisch, supra note 36, at 121 (quoting Benjamin M. Lewin, Otsar Hageonim Yevamot 143 (1928)).
(261) Epstein, The Jewish Marriage Contract, supra note 103, at 21.
(262) Falk, Jewish Matrimonial Law, supra note 92, at 11 (quoting Benjamin M. Lewin, Otsar Hageonim Yevamot 134(1928)).
(264) Teshuvot HaGeonim Shaarei Tzedek 4:30 (Joseph HaCohen Ardit ed., 1972); see also Ch. M. Horowitz, Toratan shel Rishonim, Halakhische Schriften der Geonim 2 (1881).
(265) See Babylonian Talmud, Nedarim 40b-41 a; Ammi Bar Nathan, in 2 Encyclopaedia Judaica 82 (2007).
(266) Shaarei Tzedek, supra note 264, at 4:60, c/uoted in Frisch, supra note 36, at 122.
(267) Id. at 1:52.
(268) Epstein, The Jewish Marriage Contract, supra note 103, at 272, quoted in 8 Marriage and its Obstacles, supra note 115, at 63; see also Jacob Mann, 2 Texts and Studies 177 (1931-38); Shelomo Dov Goitein, 3 A Mediterranean Society 147 (1991) [hereinafter Goitein, Mediterranean],
(269) See Rabbi Abraham ibn Daud, Sefer HaKabalah for the legend of how exactly this happened.
(270) See, e.g., Rabbi Isaac Alfasi, She'elot U'Teshuvot HaRif 282 (1825), where Rabbi Alfasi discusses a question regarding a man who had two wives; see also Avraham Grossman, Pious and Rebellious: Jewish Women in Medieval Europe 79-81 (Jonathan Chipman trans., 2004) [hereinafter Grossman, Pious and Rebellious].
(271) Frisch, supra note 36, at 123.
(272) Falk, Jewish Matrimonial Law, supra note 92, at 12.
(273) Alfasi, supra note 270, at 120.
(274) See Grossman, Pious and Rebellious, supra note 270, at 81, who notes that this can be thought of as a similar approach to the later Germanic ban, just using economics instead of excommunication in the communal edict trying to limit the practice of polygamy. The edict here would have been accepted no later than the beginning of the eleventh century, making it one of the earliest communal edicts knows to us from Spain. Id. (quoting A.H. Freiman and Z. Leiter). However, Grossman himself thinks from the continuation and context of the responsa that the edict in question was about husbands not leaving town without their wives for long periods of time (similar to Rabbeinu Tam's edict, infra note 341 and accompanying text), and not about polygamy at all.
(275) Rabbi Joseph ibn Migash, Teshuvot Yosef ibn Migash 129 (1870).
(276) Falk, Jewish Matrimonial Law, supra note 92, at 12 (citing Teshuvot Geone Mizrach u-Ma'arav 175-76 (Mueller ed., 1888), a responsa from Hanoch (about a case of polygamy)).
(277) Id. at 13.
(278) See Falk, Jewish Matrimonial Law, supra note 92, at 12.
(279) Because the Talmud clearly allows the existence of polygamy, the prohibition was introduced in the form of a takkanah, or rabbinic ordinance. The leading rabbis had the power to order that a person who breaks the rules of the community be excommunicated from the community, and to forbid any contact with him. Thus while there is no biblical or Talmudic punishment for practicing polygamy, the violator is threatened with being banned from the community whose takkanah he has broken.
(280) Finkelstein, supra note 115, at 20.
(281) Including ordinances protecting Jewish tenants, the privacy of letters, and the jurisdiction of the local courts. See id. at 30-35.
(282) Id. at 22-23.
(283) Rabbeinu Gershom ben Judah was one of the first great German Talmudic scholars. His name is connected to numerous takkanot (rabbinic ordinances), of which the ban against polygamy is the most famous. No text of the ban has been preserved, and no reference is made to it until more than a century after its purported promulgation. A responsum written by the famous French commentator Rashi (1040-1105 C.E.) regarding the case of a man who married a second wife because his first wife had borne him no children in their ten-year marriage makes no mention of the problem of the ban or of the need to lift it. See Joel HaKohen Mueller, Teshuvot Chakhmei Tsafat U-Loir 14, 28 (1881). Additionally, the ban was said to have been imposed on the Jewish communities of Speyer, Worms, and Mainz. However, the Jewish community of Speyer was not founded until 1084 C.E., more than fifty years after Rabbeinu Gershom's death. Falk, Jewish Matrimonial Law, supra note 92, at 13-14. If, in fact, it was originally connected with the community of Speyer, it must have been promulgated sometime after Rabbeinu Gershom had died. According to Louis Finkelstein, even if Rabbeinu Gershom was a prime mover behind it, the ordinance must have been established "by a synod [that met under the direction of Rabbeinu Gershom] representing the various communities for whom it was intended." See Finkelstein, supra note 115, at 25. The oldest extant source linking the ban to Rabbeinu Gershom is from circa 1160 C.E. by Rabbi Eliezer ben Joel HaLevi of Bonn (1140-1225) in regard to the question of whether or not the decree nullified the Biblical commandment of levirate marriage in favor of chalitza. In that particular case, the judges did not address that issue but ruled that levirate marriage was inappropriate since the woman was too old to bear children. Later, Rabbi Meir ben Baruch of Rothenburg (1215-1293), among others, attributed the ban to Rabbeinu Gershom. See. e.g., Irving A. Agus, Rabbi Meir of Rothenburg 282-83, 301 (1970) (Responsa 245 and 273). Elsewhere though, Rabbi Meir cites a judgment of Rabbeinu Gershom himself, in which he allowed polygamy consistent with Rava's ruling from Babylonian Talmud, Yevamot 6a. See Teshuvot, Maharam 865. Falk argues that this proves that he was not the author of this decree, although it is also possible that this case came before him in his early years. See Falk, Jewish Matrimonial Law, supra note 92, at 14-15. Many scholars believe that the ban was not actually issued until the twelfth century, and was then retroactively attributed to the highly respected and authoritative Rabbeinu Gershom. Another possibility is that Rabbeinu Gershom made informal pronouncements against polygyny but never himself actually issued a formal ban against plural marriages, and that such a ban was later introduced in his name by his students. Regardless of whether it originated with him, his students, or later in his name, the validity of the ban was never questioned. See Gershom Ben Judah Me'or Ha-Golah, in 7 Encyclopaedia Judaica 551, 552 (2007). For the purposes of this Article, we will take Jewish law's understanding of the ban, with Rabbi Gershom's weight behind it.
(284) Russell K. Ryan, And Then There Was One: An Analysis and Comparison of Polygamy Among Jews and Mormons, 9 Jewish L. Ann. 205, 215 (1991).
(285) In all of the halakhic rulings, commentaries, custom books, liturgical poems, and chronicles, including the memorial books containing the names of those killed during the First Crusade in 1096, there is no mention of anyone marrying a second wife, save a few isolated instances of doing so in "a case of a mitzvah," i.e., barrenness or levirate marriage. See Grossman, Pious and Rebellious, supra note 270, at 73.
(286) See Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America (2001) [hereinafter Broyde, The Abandoned Wife].
(287) Deuteronomy 24:1-4
(288) See Michael J. Broyde & Mark Goldfeder, Divorce in Judaism, in Cultural Sociology of Divorce: An Encyclopedia 622-26 (Robert E. Emery & J. Geoffrey Golson eds., 2013) [hereinafter Broyde & Goldfelder, Divorce in Judaism],
(289) Irving A. Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society 9 (1993).
(290) See Shulchan Aruch, Even HaEzer 117:11.
(291) See Broyde & Goldfeder, Divorce in Judaism, supra note 288, at 623.
(292) See Babylonian Talmud, Yevamot 65a (translation by author). But see the view of Rav Ammi, supra note 187 and accompanying text.
(293) Broyde & Goldfeder, Orthodox, supra note 28, at 624.
(294) Through the use of a mechanism called takanta de-mitivta (lit. "Decree of the Academy"). How exactly it worked is unclear. See Breitowitz, supra note 289, at 50-53.
(295) There is considerable evidence that the era of the geonim was the only one in which the annulment process (mentioned in only a very few cases in the Talmud, and always either pre-consummation or involving bad faith marriages or divorces) was actually used with any consistency or frequency by rabbinic authorities. See Breitowitz, supra note 289, at 62-65 for a discussion of the circumstances under which annulments were performed. There are five places in the Talmud where a marriage is declared terminated without the need for a divorce document, based on the concept that "all Jewish people who marry do so with the consent of the Sages, and the Sages nullified the marriage." Id. See, for instance, Babylonian Talmud, Gittin 33a, Bava Batra 48b. These situations all revolve around marriages under duress or other cases where one of the parties acted improperly.
(296) Broyde & Goldfeder, Orthodox, supra note 28, at 624.
(297) Mishneh Torah, Hilkhot Ishut 14:8-9, 14:14.
(298) Broyde & Goldfeder, Orthodox, supra note 28, at 624.
(299) This insight is generally ascribed to Rabbeinu Tam in his view of meus alay (an assertion of repugnancy). In fact, it flows logically from the view of Rabbeinu Gershom, who not only had to prohibit polygamy and coerced divorce, but divorce for easy fault, as Maimonides' concept of repugnancy is the functional equivalent of no fault, identical in outcome to the Gaonic annulment. See Broyde, The Abandoned Wife, supra note 286, at 142 n.12.
(300) See Goldfeder & Broyde, Orthodox, supra note 28, at 625. See also Broyde, The Abandoned Wife, supra note 286, at 142-43. A second view within European Jewry agreed that there was no annulment power and that it was necessary to restrict the rights of the husband by banning polygamy and by prohibiting unilateral no-fault divorce by either husband or wife. This was true under all circumstances except where the marital estate had ceased to exist and the couple had de facto ended all marital relations. What this did was to include the failure of the marriage as itself grounds for either to coerce a divorce. According to this approach, Jewish law permitted divorce only though mutual consent; failure of the marriage through the end of a marital residence; or very significant fault. This view of marriage had some corporate aspects; while the corporation was running neither had the right to end it; once the corporation ended de facto it could be made to end de jure. Finally, Oriental Jewry agreed that Jewish law did not possess annulment power, and that fault was limited to hard fault; however, they rejected the European decrees prohibiting unilateral divorce by the husband and polygamy. They thus effectively returned to the classical Talmudic rules of regulation and restriction of the husbands' right to divorce by dower contract stipulations. Most decisors ruled that absent fault it was prohibited to divorce one's wife unilaterally if he could not afford to pay the contract. A woman could only sue for divorce in cases of hard fault, such as leprosy. In modern times, nearly all lialachically observant Jewish people (those in America, Israel, and Europe) follow one or the other of the European models of Jewish law divorce.
(301) Which was moving towards a model founded on consent, and a strict condemnation of polygamy.
(302) See Michael S. Berger, Two Models of Medieval Jewish Marriage: A Preliminary Study, in Marriage, Sex, and Family in Judaism 128-31 (Michael J. Broyde & Michael Ausubel eds., 2005).
(303) See Women and Judaism: New Insights and Scholarship (Frederick E. Greenspahn ed., 2009).
(304) Id. at 1. Other scholars, such as Leopold Loew, insist that "polygamy existed both before and after the
issuing of the ban." Id.', see also Frisch, supra note 36, at 128.
(305) See Grossman, Pious and Rebellious, supra note 270, at 73.
(306) Rabbi Meir Katzenellenbogen, Responsa XIII.
(307) Rabbi Meir Katzenellenbogen, Responsa XIV.
(308) For detailed discussions, see works by Avraham Grossman, S. Lowy, and Elimelech Westreich, among others.
(309) Eliezer ben Nathan, Even Ha 'Ezer, Ketubot, quoted in Falk, Jewish Matrimonial Law, supra note 92, at 16 n.2.
(310) Id. at 16 n.4.
(311) See Pearl, supra note 60, at 28.
(312) A survey of responsa points toward a somewhat slow shift from legalized to forbidden polygamy; what starts with wives complaining to courts about husbands taking second wives but ultimately losing the cases moves towards polygamy becoming the exception in rare cases (such as levirate marriage or barrenness) and finally illegal altogether.
(313) Asher ben Yehiel, Responsa HaRosh 43:8. Rosh compares it to the takkanot of the geonim, and notes that the ban is of an even higher status.
(314) Eliezer ben Joel HaLevi, Mavo, quoted in Falk, Jewish Matrimonial Law, supra note 92, at 17 n.l; Solomon Luria, Responsa 65, quoted in Falk, Jewish Matrimonial Law, supra note 92, at 18 n. 1.
(315) See infra note 370 and accompanying text for more on this discussion.
(316) Epstein, The Jewish Marriage Contract, supra note 103, at 27 n.3.
(317) Falk, Jewish Matrimonial Law, supra note 92, at 33 n.49. Canon law, however, did make that move. Interestingly enough though, Jewish people seem not to have taken advantage of this "weakness" in the ban; we find no mention of cases of marriage in defiance of the ban lending further credence to the theory that this
ban was only cementing the reality on the ground. Id. at 34.
(318) Rabbi Jacob Emden, II Responsa 15.
(319) Louis Epstein notes that "the moral level of family life among the Christians of the Rhineland at that time, and even centuries later, was not above polygamy." Esptein, The Jewish Marriage Contract, supra note 103, at 25 (citing 3 Moritz Gudemann, Geschichte des Erziehungswesens 115-19 (1888)); see also Abrahams, supra note 39, at 117-18. Abrahams has an interesting theory that accounts for the split in a different way; he assumes that the Jews around the world had developed a practical code of monogamy, but that in Muslim lands, where it was not the standard, they relapsed into polygamy. Id. at 118-19.
(320) 3 Moritz Gudemann, Geschichte des Erziehungswesens 115-19 (1888), quoted in Epstein, The Jewish Marriage Contract, supra note 103, at 25-26.
(321) Maharik, quoting the Rashba, cited in Darkei Moshe, Even HaEzer 1 n.10.
(322) Mordechai, Ketuvot 291, cited in Darkei Moshe, Even HaEzer 1 n. 12.
(323) Rabbi Meir Katzenellenbogen 14; Rabbi Yehoshua Yaakov Halperin, Sefer Mishkenot Yaakov 1.
(324) See Babylonian Talmud, Yoma 18b; supra note 288 and accompanying text.
(326) Rabbi Moshe Shick, Even HaEzer 4; see also Mishnah, Yevamot 15:4 (assumes that co-wives are liable to give false testimony about the death of a husband in order to get rid of an unwanted rival); Mishnah, Ketubol 10:5 (concerned that they may deal fraudulently with each other in regard to their husband's inheritance).
(327) Rabbi Jacob Emden, II Responsa Sheilai Yaavetz 15.
(328) See Grossman, Pious and Rebellious, supra note 270, at 74. Also important to note is the fact that there are no extant Christian sources accusing the Jews of polygamy anymore at this time.
(329) Mordechai A. Friedman, Jewish Polygyny in the Middle Ages (1986), quoted in Grossman, Pious and Rebellious, supra note 270, at 73.
(330) Simon Eppenstein, Abraham Maimuni, Sein Leben und Seine Schriften (1914), quoted in Grossman, Pious and Rebellious, supra note 270, at 73; see also Avraham Grossman, The Historical Background to the Ordinances on Family Affairs Attributed to Rabbenu Gershom Me 'or ha-Golah ("The Light of the Exile in Jewish History: Essays in Honour of Chimen Abramsky 3, 7-8 (Ada Rapoport-Albert & Steven J. Zipperstein eds., 1988). Roth relies on a shaky foundation to support his claims. Roth, however, points out that it is difficult to imagine that Rabbeinu Gershom instituted the ban on polygamy in order to break apart already existing polygamous marriages of Sephardic migrants to Germany, or to prevent the daughters of Germany's monogamous society from become second wives to Sephardic Jews, or to prevent polygamous marriages amongst Sephardic immigrants.
(331) Baron, supra note 176, quoted in Grossman, Pious and Rebellious, supra note 270, at 73.
(332) See Avraham Grossman, Chachmei Ashkenaz Harishonim 56 (1988) [hereinafter Grossman, Chachmei].
(333) A.N.Z. Roth, in Mekharim Be-Hokmat Yisrael Le-Zikhro Shel Y.M. Guttman 110-25 (1946), quoted in Grossman, Pious and Rebellious, supra note 270, at 73.
(334) The evidence Roth points to is an inference from an external Sephardic responsa from Maimonides, (infra note 344 and accompanying text), discussing a polygamous element from the French and Germanic lands.
(335) See Grossman, Pious and Rebellious, supra note 270, at 14.
(337) See Babylonian Talmud, Sanhedrin 22a-b.
(338) Falk, Jewish Matrimonial Law, supra note 92, at 25-26.
(339) Teshuvot HaRan 48, quoted in Grossman, Pious and Rebellious, supra note 270, at 90.
(340) See Irving A. Agus, The Heroic Age of Franco-German Jewry 23-77 (1969); 1-2 Irving A. Agus, Urban Civilization in Pre-Crusade Europe (1965).
(341) See Grossman, Chachmei, supra note 332, at 151-58, 195-210 (discussing Rabbi Judah HaCohen's response); Rabbeinu Gershom, Teshuvot RaGmah 46-52.
(342) Edict of Rabbenu Tam Concerning Absentee Husbands, translated in Elliot N. Dorff & Arthur Irwin Rosett, A Living Tree: The Roots and Growth of Jewish Law 418-19 (1988); see also Finkelstein, supra note 115, at 140-41.
(343) See Rabbi Isaac Alfasi, Responsa of Rif28, 67, 185.
(344) Maimonides, Teshuvot HctRambcim 2:347. Responsa from Alfasi indicate a similar milieu.
(345) The fact that we find this phenomenon mentioned in the Sephardic responsa and not the Ashkenazi literature is to be expected; obviously the problem that needed to be solved was in the country where the Ashkenazi men had married and left the second wife. See Grossman, Pious and Rebellious, supra note 270, at 13-14.
(346) See Ze'ev W. Falk, Nisu'in Ve-Gerushin: Ti Kunim Be-Fine FIa-Mishpahah Be-Yahadut [Marriage and Divorce: Reforms in the Family Life of German-French Jewry] (1961) [hereinafter Falk, Marriage and Divorce],
(347) Or, more likely, for wealthy fathers to do so on behalf of their daughters.
(348) See Asher ben Yehiel, Responsa HaRosh 42:1 (indicating that the basic purpose of the ban of Rabbeinu Gershom was to create a better balance of rights between the husband and the wife).
(349) Falk, Marriage and Divorce, supra note 346, at 23.
(350) Id. at 24.
(351) While there is no direct evidence that even a little "fringe" Christian polygamy was actually being practiced at the time that Rabbeinu Gershom's edict is said to have been enacted, the arrival of the eleventh century did bring about a movement for religious reforms in general, which included the Reformist Popes such as Gregory VII removing priests who did not uphold their vows of abstinence, along with reforms against concubinage, a practice that was still somewhat popular. No doubt tremors of these movements were felt across religious boundaries. Id. at 25.
(352) See Expert Report Prepared for the Attorney General of Canada, In the Matter of the Constitutional Question Act, R.S.B.C. 1986, c. 68, 67-68 (1986).
(353) William B. Kessel, Address at the Ariz. Dist. Pastoral Conference First Lutheran Church (May 5-6, 1998).
(354) Solomon ibn Aderet (1235-1310), a Spanish sage, who claimed to have heard this from the French scholars. The statement is not found in his written responsa, but is quoted by Rabbi Joseph Colon. Rashba did say that the reason behind the decree was because of licentious men who abused their wives. Shlomo Zavlin Havlin, The Takanot of Rabbenu Gershom Me'or Hagolah in Matters of Family Law in Spain and Provence, in 2 Shenaton Ha-Mishpat Ha'ivri 230-31 (1975); see also Finkelstein, supra note 115, at 29, 142-43 (contending that because in all of the French and German discussions of this ordinance there is no such reference, it must be mistaken). Epstein, on the other hand, points out that even though "we have not even the testimony of R. Solomon himself, but of a later scholar quoting him ... legally, because of the great weight of Aderet in Jewish law, even such uncertain testimony given in his name is granted full authority, and the herem is regarded as having lesser binding force in law since the end of the fifth millennium." See Epstein, Marriage Laws, supra note 93, at 26, quoted in Frisch, supra note 36, at 134 n.409. In response to the question of how a tradition of a limited time could have been preserved only amongst the Sephardi rabbis and not the Ashenazi ones, Rabbi Caro suggests that perhaps they knew about it, but deliberately concealed it because of their wish to continue the ban. See Grossman, Pious and Rebellious, supra note 270, at 78.
(355) Asher ben Yehiel (1250-1327), a leader of German Jewry who settled in Spain in 1303, said that the takkanot of Rabbeinu Gershom were "permanent and deeply rooted, as if they had been given on Sinai." See Baron, supra note 176, at 6:136-137.
(356) Ben-Zion Schereschewsky & Menachem Elon, Bigamy and Polygamy, in 3 Encyclopaedia Judaica 691-94 (Michael Berenbaum & Fred Skolnik eds., 2d ed., 2008); see Responsa Rosh 43:8; Shulchan Aruch, Even HaEzer 1:10; Arukh ha-Shulhan, Even HaEzar 1:23; Ozar ha-Posekim, Even HaEzer 1:76.
(357) See Joseph Caro, Shulchan Aruch, Even HaEzer 1:10. There is a debate among scholars as to whether the original ban contained a clause allowing for its suspension in exceptional cases, or whether that clause was attached to the ban at a later time. See Finkelstein, supra note 280, at 142-43,
(358) Solomon Luria, Responsa Maharshal 14, quoted in Elimelech Westreich, The Ban on Polygamy in Polish Rabbinic Thought, 10 Polin 69 (1997).
(360) Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 1:10. The Ritva (Rabbi Yom Tov Asevilli), cited in Rabbi Joseph Caro, Beit Yosef 1:8 (1559) (a commentary on Tur) considers the prohibition to have shifted from public to private law, which would again allow polygamy based upon the wife's consent.
(361) Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 44.
(362) Abraham Tzvi Hirsch ben Jacob, Pitchei Teshuva 5 (on Joseph Caro, Shulchan Aruch, Even HaEzer 154). This sounds a lot like Rav Ammi's ancient ruling. See also Solomon Luria, Responsa Maharshal 14.
(363) See Finkelstein, supra note 280, at 27.
(364) Rabbi Judah HaCohen, a disciple of Rabbeinu Gershom himself, ruled that levirate marriage is permitted but is not to be enforced against the woman's will. Grossman, Pious and Rebellious, supra note 270, at 93.
(365) See Epstein, Marriage Laws, supra note 93, at 26-27.
(366) Yaakov Moelin, Sefer Maharil HaHadashot, Hilchot Chalitza 4 (Shklov ed. 1796); Rabbi Eliezer ben Joel haLevi, quoted in Solomon Luria, Responsa 188; Isaac Or Zarua 1:638, 739; Meir ben Baruch, Responsa 866. As attested to in the Bayit Chadash of Rabbi Joel Sirkis, (commentary on Tur, Even HaEzer 119), this position was accepted in actual practice by the rabbis of Frankfurt, Ashkenaz, and Russia. In regard to a woman who could not give birth, however, Rabbi Moelin ruled differently in practice. See Responsa Maharil HaHadashot 202; see also Westreich, supra note 358, at 74-75.
(367) According to Isaac Halevi Herzog, Otzar HaPoskim, Even HaEzer 1:75, if a man goes from a place where the cherem of Rabbeinu Gershom is in effect to a place where it is not in effect, the cherem "goes on the head" of the individual. See Frisch, supra note 36, at 138.
(368) Rabbi Judah Minz, Sefer She'elot U'Teshuvot 10 (Krakow ed. 1882). According to Rabbi Minz, the cherem has the force of a Talmudic takkanah. See Frisch, supra note 36, at 135 n.430.
(369) See Epstein, Marriage Laws, supra note 93, at 27. Responsa of Rabbi Meir of Rothenburg quote this in the name of Rabbi Gershom himself. See also Westreich, supra note 358, at 73.
(370) Minz, supra note 368, at 10; see also Joseph Caro, Beit Yosef (1559); Rabbi Ishtori Haparchi, Kaftor VaFerach 178 (1322); Joseph Ibn Habib, Nimmuke Yosef.
(371) See Rabbi Simon ben Tzemach Duran, Responsa Tasbez 470; Rabbi Ishtori Haparchi, Kaftor VaFerach 178, 782 (1322), quoted in Finkelstein, supra note 280, at 28.
(372) Presumably since it has been put in place for her protection. See Westreich, supra note 358, at 67.
(373) Finkelstein, supra note 115, at 26,
(374) Rabbi Meir of Rothenburg, Responsa of Maharam 946, quoted in Westreich, supra note 358, at 67; see also Responsa Maharam, Even HaEzer 245, 272, 273.
(375) Finkelstein, supra note 115, at 26 (quoting Responsa Teshuvot Hakme Zarfat ve-Lotir lib).
(376) This is almost never allowed; the agent normally needs to be appointed by the woman herself. Here though, the rabbis relied on another Talmudic principle: one is rightfully allowed to assume that every rational person is a self-interested actor, and that what they would want if they were here, or if they had the capacity to consent, would be anything that is to their benefit. Since in this atypical case getting divorced would save her from the terrible sin of adultery, it was considered to be solely in the wife's benefit.
(377) Finkelstein, supra note 115, at 26 (quoting Israel Isserlein, Pesakim U-Khetavim 246).
(378) E.g., when the woman did not have the requisite capacity to accept a divorce.
(379) The circumstances are usually those in which a woman is obligated to take a get but cannot or will not for some reason. See Joseph Caro, Shulchan Aruch, Even HaEzer 1:10, 115, 119:6. The enactment is usually attributed to Rabbeinu Tam (1100-1171) although some, like Finkelstein, believe that it is earlier, perhaps part of or a product of the generation immediately following the original ban. See Finkelstein, supra note 115, at 28.
(380) See Joel Sirkis, Bayit Chadash, Tur, Even HaEzer 1; Westreich, supra note 358, at 80-83; see also Falk, Marriage and Divorce, supra note 346, at 28. "The Frankish Church also permitted bigamy when one of the partners had been abroad for an extended period," or under other extenuating circumstances. See, e.g., the decision of the Synod of Compiegne, from the year 757. Id. at 28 n. 1.
(381) See Baron, supra note 176, at 6:394.
(382) See Falk, Marriage and Divorce, supra note 346, at 29 n.2, for a discussion of the matter.
(383) Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 1:10. In practice though the courts do try to obtain the Heter Meah Rabbanim (permit of 100 rabbis).
(384) Moses Isserles, HaMapah, Shulchan Aruch, Even HaEzer 1:10.
(385) Id. This was the recorded opinion of Rema's teacher, Rabbi Shalom Shakhna. See Westreich, supra note 358, at 75-76.
(386) Bigamy and Polygamy, in 3 Encyclopaedia Judaica 691-94.
(387) Epstein, Marriage Laws, supra note 93, at 30 (citing Shiite HaGiborim ad Alfasi to Yevamot Ch. 6; Or Zarua I, 181a).
(388) Id. (citing Joseph Caro, Beit Yosef (1559)).
(389) Id. (citing Jacob Anatoli, Malmad ha Talmidim 101b (Lyck ed. 1866)).
(390) Id. (citing Rabbi Meir Padua Responsa 141 and The Takkanot of the Ferrara (1554), quoted in Israel Abrahams, Jewish Life in the Middle Ages 71 (1896)).
(391) Epstein, The Jewish Marriage Contract, supra note 103, at 30 (citing Leopold Low, Gesammelte Schriften 74 (1893)).
(392) Schereschewsky & Menachem Elon, supra note 356. Islam allows polygamy, with Koranic sura 4:3 providing that a man may have up to four wives, assuming that he can deal justly with the co-wives. See M. Hashim Kamali, Islamic Law: Personal Law, in 7 The Encyclopedia of Religion 4705, 4705-12 (Lindsay Jones ed., 2d ed., 2007).
(393) See, e.g., Maimonides, Mishneh Torah, Hilchot Ishut 6:14, 6:15, 17:1.
(394) Id. at 14:4.
(395) See M. Hashim Kamali, supra note 392.
(396) Westreich, supra note 358, at 67 (quoting Havlin, supra note 354, at 231).
(399) Rabbi Joseph Colon, Responsa Maharik 101. Rabbi Joseph Caro, the Sephardic author of the Shulchan Aruch, enthusiastically adopted it, ruling that the ban had expired, and that even an Ashkenazi Jew could marry multiple women, except in Ashkenazi lands where the restriction still held on the strength of custom. In response to the question of how a tradition of a limited time could have been preserved only amongst the Sephardi rabbis and not the Ashenazi ones, Rabbi Caro suggests that perhaps they knew about it, but deliberately concealed it because of their wish to continue the ban. See Grossman, Pious and Rebellious, supra note 270, at 78.
(400) See Rachel Biale, Women and Jewish Law: An Exploration of Women's Issues in Halakhic Sources 51, 205 (1984); see also 12 Encyclopaedia Judaica 259-60 (2d ed. 2007); Epstein, supra note 103, at 31.
(401) Two such documents were found in the Cairo Geniza. See Goitein, Mediterranean, supra note 268, at 143 44. A similar contract is referenced in a responsum by the Sephardic authority Rabbi David Ben Solomon ibn Abi Zimra (1479-1573). In that case, in addition to signing the document the husband took an oath to the effect that he would not take a second wife at the time of the signing of the ketubah. See Rabbi David Ben Solomon ibn Abi Zimra She'elot U'Teshuvot Radbaz 221 (1967).
(402) Goitein, Mediterranean, supra note 268, at 206, cited in Frisch, supra note 36, at 141.
(403) See Grossman, Pious and Rebellious, supra note 270, at 87-88.
(404) Havlin and Assis do present evidence of several cases of bigamy even in Christian Spain, despite its official illegality. They note that these cases tend to be from wealthy upper class families, because in addition to the expensive practice of polygamy itself, one first had to pay for permission from the crown. See Grossman, Pious and Rebellious, supra note 270, at 84-87 (quoting Havlin and Assis).
(405) From the Cairo Genizah, quoted in Grossman, Pious and Rebellious, supra note 270, at 89. The boy also hinted at the fact that the second wife taunted his mother, and the general tone points to an atmosphere of intense animosity and tension. The harsh picture of biblical polygamy, in the homes of the patriarchs, and of Elkanah and David, returns here in full force. Id.
(406) Id. at 85, 90.
(407) Id. at 90.
(409) In the Babylonian tradition she was seen as having neither kiddushin (official marriage status) nor a ketubah. See Babylonian Talmud, Sanhedrin 21a. In the Jerusalem tradition she was of slightly higher status, possessing a ketubah but without kiddushin. See Jerusalem Talmud, Ketubot 5:2, 29b.
(410) See Lowy, supra note 149, at 117. He also quoted the Midrashic story of the king furtively visiting his concubine to make the point that it was considered shameful to have such an arrangement. Id.
(411) Maimonides, Mishneh Torah, Hilchot Melachim 4:4.
(412) See Tur and Shulchan Aruch, Even HaEzer 26:1
(413) Raavad, Mishneh Torah Hilchot Ishut 1:4; Responsa of Rashba 284 (traditionally attributed to Nahmanides); Meiri, Reis Habechira, Babylonian Talmud, Sanhedrin 21 a (seeming to agree with the definition of the Ravaad)\ see Marriage and its Obstacles, supra note 115, at 62.
(414) Responsa of Rashba 284 (traditionally attributed to Nahmanides); Commentary to Genesis 25:6, cited in Marriage and its Obstacles, supra note 115, at 62.
(415) Anson Rainey et ah, Concubine, in 5 Encyclopaedia Judaica 133-36 (Michael Berenbaum & Fred Skolnik eds., 2d ed. 2007).
(416) Marriage and its Obstacles, supra note 115, at 62.
(417) See Rabbi David Ben Solomon ibn Abi Zimra, Responsa Radbaz 4:22, 7:33. "At the present time a woman is permitted to no man except through kiddushin, huppah, sheva berakhot, and ketubah. This applies even more in the case of a married man ... both for the protection of his wife and because his taking a concubine--since he is aware that he must not take an additional wife--can only be for the purpose of prostituting, and this is forbidden in the opinion of all the posekim." Responsa of Rashba 4:314; Otzer HaPoskim, Even HaEzer 1 n. 4; 26, n. 5 (quoted in Rainey et ah, supra note 415).
(418) Some assume that Maimonides' opinion and rejection of the practice might have been influenced by the fact that in day the Sunni Muslims prohibited the practice of mut'ah, or temporary marriage. In this view, his opinion, like perhaps that of Rabbeinu Gershom, was also one affected by and effecting public policy.
(419) See Michael J. Broyde, Jewish Law and the Abandonment of Marriage: Diverse Models of Sexuality and Reproduction in the Jewish View, and the Return to Monogamy in the Modern Era, in Marriage, Sex, And Family in Judaism, supra note 302, 88, 103 [hereinafter Broyde, Diverse Models of Sexuality],
(420) Shulchan Aruch, Even HaEzer 1:1.
(421) Rema, supra note 211 (quoting Proverbs 18:22).
(422) Shulchan Aruch, Even HaEzer 1:3.
(423) Rema, supra note 211.
(424) Even HaEzer 1:9-10.
(425) Rema, supra note 211.
(426) See Broyde, Diverse Models of Sexuality, supra note 419, at 105.
(427) Ecclesiastes 1:9.
(428) See Mishna, Avot 5:22 ("Ben Bag Bag used to say, 'Turn it over, and turn it over, for everything is in it...'").
(429) Frisch, supra note 36, at 148.
(430) Especially because, as in all legal material and responsa, it is the fringe cases that tend to get discussed.
(431) Exodus 1:16.
(432) Isaiah 19:11.
(433) Emily J. Duncan, The Positive Effects of Legalizing Polygamy: "Love is a Many Splendored Thing", 15 Duke J. Gender L. & Pol'y 315 (2008).
(434) See, e.g., Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. Rev. 1501, 1504-06 (1997).
(435) See Babylonian Talmud, Kesubot Ala (giving married women additional rights).
(436) See Rachel Biale, Women & Jewish Law: An Exploration of Women's Issues in Halakhic Sources (1984).
MARK GOLDFEDER *
* Dr. Mark Goldfeder, Esq., is Senior Lecturer at Emory Law School and the Spruill Family Senior Fellow at the Center for the Study of Law and Religion. He is also an Adjunct Professor of Law at Georgia State University College of Law, and an Adjunct Professor in the Department of Religion at Emory University. He received his J.D. from NYU Law, and his L.L.M. and doctorate from Emory University. The author wishes to thank Professor John Witte, Jr., of Emory Law School for his continued guidance and support.
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|Title Annotation:||V. The Amoraic Period through Conclusion, with footnotes, p. 268-315|
|Publication:||Columbia Journal of Gender and Law|
|Date:||Oct 22, 2013|
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