Of Re-marriage after Divorce

If a man, for some fault, divorce his wife, and she marry another, who in turn divorces her or dies (Deuteronomy 24:1-3), her former husband may not take her back, this would be an abomination, etc. (4).—EVV. do not render the Heb. constr. The law is one conditional sentence, of which the apodosis begins with Deuteronomy 24:4. It is not a law instituting divorce or prescribing the procedure though it states this as part of the special case which it puts (and here may be quoting from an earlier code). It is a law for a particular purpose, the prohibition of a man’s re-marriage to a wife whom he has divorced and who, meantime, has been another’s. It is not in the direct form of address, nor marked by D’s phrases till its close; and therefore, like others similarly constructed (e.g. Deuteronomy 22:13-21), which it further resembles in its opening, and in the phrases hate her, he may not, and put or send her away, it may all be an older law, except for D’s closing formula. The quotation of the law in Jeremiah 3:1 does not prove that the prophet had also the closing formula before him, for the term land which the Heb. text has there, instead of wife, may be, as the LXX shows, the mistake of a copying scribe.

Among the Semites a man paid a price for his bride, Heb. môhar, who thus was his property and he alone had the right of divorce. There were exceptions. Among the Babylonians sometimes no môhar was paid, and the wife for special reasons could divorce her husband (Johns, op. cit. 142 f.); among the later Jews the wife might divorce if the husband was a leper, or on similar grounds (Mishna, ‘Kethuboth,’ Deuteronomy 7:10); and an Arab husband frequently divorced his wife on her own importunity (cp. the case cited in Ar. Des. i. 232) or under pressure from her relatives, who returned the môhar. But the payment of the môhar and the husband’s sole right to divorce were the general rule. Semitic lawgivers accept the latter as an existing institution and regulate it, usually in the wife’s interest. By Ḫammurabi the divorced concubine has her dowry returned with maintenance for her children (§ 137). A wife may be divorced for barrenness but takes the môhar and her marriage portion, or, if there is no môhar, a sum according to her husband’s rank (138–140). An evil wife may be divorced without compensation, or remain a slave in her husband’s house while he marries another (141). Disease is not sufficient ground for divorce; the husband may take a second wife but must either maintain the first in his own house or, if she will, send her to her father’s with her marriage portion (148 f.). And we have already seen (on Deuteronomy 22:22) that remarriage was regulated in case of the man’s desertion. Among the ancient Arabs divorce was allowed and the divorced couple could re-marry, but this the Ḳoran regulates by forbidding re-marriage till the wife has first married another and been divorced by him—the opposite of D’s law but apparently with the same intention of making divorce a more serious and difficult affair than it was popularly conceived to be. Among the Arabs of to-day a woman is lightly passed to another husband, Doughty, Ar. Des. i. 237, 465, etc., etc.; Jennings-Bramley, PEFQ, 1905, 137, 213 ff.: ‘I do not remember having met a man who had not divorced several wives.’ He states this facility of divorce as one reason for the absence of intrigues among them, cp. 218. If a wife for good cause run to her relatives, her father returns the môhar, 1907, 25. Arabs E. of the Dead Sea permit a divorced couple to re-marry without requiring the wife to be meantime married and divorced by another man, if a victim is first sacrificed (Janssen, Rev. Bib. 1906, January).

Similarly in Israel. No O.T. oracle or law institutes divorce. But the husband’s right of divorce is accepted or permitted—cp. our Lord’s teaching, Matthew 19:8—and is put under regulations of which those in D are in the interest of the wife and either punish the husband for his evil behaviour to her by withdrawing the right to divorce, Deuteronomy 22:19; Deuteronomy 22:29, or ensure deliberation on the husband’s part before he completes the act, by subjecting it to the condition of a good reason and of legal procedure, yet without lessening his responsibility, Deuteronomy 24:1 ff. The other codes have nothing similar in temper to this. H forbids a priest to marry a divorcée and allows the divorced daughter of a priest to return to her father’s house, Leviticus 21:7; Leviticus 21:14; Leviticus 22:13; P prescribes that the vow of a divorcée shall stand, Numbers 30:9 (10). The second marriage of a divorcée is nowhere sanctioned, not even in Deuteronomy 24:2, where (as the Heb. syntax makes plain) it is merely a fact in the case legislated for. But this shows that the practice was usual just as among the Arabs, and in the earlier history there is an instance of the remarriage of a divorced couple—David and Michal—after her marriage to another man (1 Samuel 18:27; 1 Samuel 25:44, 2 Samuel 3:14 ff.)[147]. Steuernagel thinks that, as among the Arabs under the Ḳoran, so in Israel the marriage of a divorced wife to another man and her divorce from him had been regarded as the necessary condition of her re-marriage to her former husband, and that D’s law means that even if she has meantime been married to another, the former husband must not take her back. But for the existence of such a condition in Israelite practice there is no evidence. We must be satisfied with this—that D’s law tends to make divorce a much more serious affair than it was usually conceived to be in Israel, and so to check the too-frequent practice of it by diminishing the possibilities of re-marriage which tempted men to divorce their wives with a light heart. D would forbid that easy passage of a woman between one man and another, which seems to have often happened in Israel, and which meant the degradation or defilement of the woman herself. If such be the motive of the law it is in harmony with D’s other measures for the elevation of woman, Deuteronomy 5:21, etc.

[147] No legal divorce is mentioned in this case. And there was none in the case of Hosea (1–3) which on other grounds is of too special a nature to be relevant here.

When a man taketh a wife] Deuteronomy 22:13.

then it shall be … that he shall write her, etc.] Rather, and it come to pass … that he write her, etc. The apodosis does not commence here but in Deuteronomy 24:4.

some unseemly thing] As in Deuteronomy 23:14 (15), the nakedness of a thing, something indecent or repulsive, LXX ἄσχημον πρᾶγμα. The expression is so indefinite that it gave rise to controversy in the Rabbinic schools; that of Shammai understanding by it unchastity, that of Hillel any physical blemish or other, even the most trivial, cause of dislike. It cannot be adultery for this was punished by death. The words suggest some immodest exposure or failure in proper womanly reserve.

bill of divorcement] Lit. of separation. Bill, Heb. sepher, used of any missive (e.g. 2 Samuel 11:14 f.) or legal deed (Jeremiah 32:11), as well as book, LXX βιβλίον. Something in legal form, and possibly procurable only from some public authority. Yet, notice, there is no mention of elders here as in the procedure in Deuteronomy 22:13-21. The later Jews called such a document geṭ, and the procedure in connection with it is prescribed in the Mishna, ‘Giṭṭin.’

and give it … her … and send her …] Two further formal steps of personal service of the deed, and the husband’s own solemn dismissal. So his responsibility in the matter is not weakened.

2. And she depart … out of his house, and go and become another man’s] Still part of the protasis of the sentence, stating the facts of the case.

3. Still the protasis; delete if and if.

4. after that she is defiled] Ambiguous indeed, as the most carefully chosen terms of some laws often are. But the natural meaning is that she is unclean to the former husband by her union with the latter. It cannot be a matter of indifference to him that she has been another’s, as (presumably) the popular humour took it. Such easy passage of a woman from one man to another did defile her: it is an abomination before Jehovah (notice the peculiar construction before and the absence of thy God after the divine name). She was, therefore, taboo, or unlawful to her first husband. Marti suggests that the uncleanness may have a demonistic origin (cp. Deuteronomy 22:9-11). This, of course, may have been the motive of the original law, but if so, it has disappeared from its present form.

thou shalt not cause the land to sin] Sam., LXX ye shall not, etc. Cp. Deuteronomy 22:9.

which the Lord thy God is to give thee, etc.] See on Deuteronomy 4:21.

5. Exemption of the Newly Married. He shall not go out with the army, nor be under other (public) obligation for a year, for the sake of his house and wife.—See introd. to Deuteronomy 20:1-9, and on Deuteronomy 20:7, which refers to military service alone. The addition here recalls such royal levies as in 1 Samuel 8:16, 1 Kings 5:13 ff; 1 Kings 15:22. Cp. the Babylonian levies which were for service both with the army and on public works (Johns, op. cit. ch. 19). The position of the law just here may be due to its having the same opening as the previous law.

charged with any business] Lit nor shall there pass over upon him [obligation] with regard to any thing, LXX (omitting preposition before any thing) nor shall any business be thrown upon him.

free for his own household, etc.] free, Heb. naḳî (1 Kings 15:22) LXX ἀθῷος. One year, till the child be born. For cheer his wife Vulg. (with different Heb. points) read be happy with his wife.

Deuteronomy 24:5 to Deuteronomy 25:4. Thirteen Laws of Equity and Humanity

Besides the humane temper common to most of them, and a few cue-words, there are no apparent reasons for their being grouped or for the order in which they occur. They have various openings, mostly conditional, otherwise negative. Three are not in the direct form of address, and two only close with this; the rest are in the Sg. form, except one mixed of Sg. and Pl. Some are peculiar to D, others have parallels in E and H. In particular note the separation of the three laws on pledges, and their use of two different terms for ‘pledge.’ All this suggests a compilation from different sources.

6. Mill or Upper Millstone not to be taken in Pledge. This would be to pledge life itself. Milling (as largely still in Palestine) was mainly domestic, the first indispensable duty of the day; the sound of the millstones as sure a sign of a living family as the light of the candle (Jeremiah 25:10, Revelation 18:22; see Jerus. i. 375 f.). The mill, like the Western ‘quern,’ consisted of two stones, as the dual form of the Heb. name indicates (reḥaim, cp. Ar. raḥâ, Baldensperger, PEFQ, 1904, 263), of which the upper, Heb. rçkeb, rider, LXX ἐπιμύλιον, was the lighter and more easily lifted (Jdg 9:53).

This law is peculiar to D, and related to the next but two (10–13), which however is in the direct form of address, as this is not, and uses ‘abat for pledge instead of ḥabal (lit. bind) as here. The position of the law is natural after the previous one. In Israel, lands, houses and children were mortgaged (Nehemiah 5:3; Nehemiah 5:5), in Babylonia and Assyria slaves, lands and houses (Johns, op. cit. ch. 24). Of such pledges there is nothing in D, but note the next law. ‘The ancient Common Law of England provides that no man be distrained by the utensils or instruments of his trade or profession … Cook (sic), I Inst., fo. 47.’ (M. Henry.)

7. Against Manstealing. If a man be found (see Deuteronomy 21:1, Deuteronomy 22:22) stealing a brother (see on Deuteronomy 15:2) Israelite, and playing the owner (see Deuteronomy 21:14) he shall die: so shalt thou put away the evil, etc. (Deuteronomy 13:5 (6)). The parallel in E, Exodus 21:16, has stealing a man; for D’s substitution of Israelite see on Deuteronomy 15:2, Deuteronomy 22:1-4. Ḫammurabi (§ 14) decrees death to the kidnapper.

8, 9. Precautions in Leprosy. Israel shall diligently observe these as taught by the priests under divine command, remembering how God treated the leprous Miriam on the way from Egypt.—Full of deuteronomic phrases; on take heed, see Deuteronomy 4:9; observe and do, Deuteronomy 4:6; observe to do, Deuteronomy 5:1; priests = Levites, Deuteronomy 18:1; as I have commanded, Deuteronomy 8:1; remember, Deuteronomy 7:18, Deuteronomy 25:17; in the way as ye came, etc., Deuteronomy 23:4 (5), Deuteronomy 25:17, etc. The accumulation of these formulas, as in several secondary passages, along with the changes between the Sg. and Pl. forms of address (confirmed by Sam., LXX), suggests that the passage has been expanded by editors. In 8 b read all the Torah (Sam., LXX) that the priests the Levites teach you. If 8 b is original to D this Torah need not be the detailed instructions on leprosy now found in P, Leviticus 13 f., but some earlier priestly Torah from which those have developed; but if 8 b is secondary its reference will be to Leviticus 13 f. Deuteronomy 24:9 refers to Miriam’s seclusion from the camp, Numbers 12:14 f. (So even Calvin.)

Steuern. holds as original only the first clause of 8 and 9a, and revives the opinion (as old as the Vulgate, and favoured by Michaelis, Knobel, etc.) that the law is a call, not to take such precautions in a plague of leprosy as are illustrated by Miriam’s seclusion, but (by general obedience) to guard against the leprosy which fell on Miriam as the punishment for disobedience. Against this is the Heb. construction, in the plague of leprosy; so Steuern. suggests that the original reading was from the plague, etc. But all this interpretation renders the appeal to Miriam’s case much less natural.

10. When thou dost lend] See on Deuteronomy 15:1 ff.

any manner of loan] Lit. loan of anything, cp, Deuteronomy 23:19. Besides money or victuals, it might be a slave, a working animal or a plough or other instrument.

fetch his pledge] Lit. take in pledge his pledge (Deuteronomy 15:8, give a pledge). In this case the borrower would make his selection of what his pledge should be.

10–13. Of Taking and Restoring Pledges. The lender must not invade the borrower’s house to select a pledge for the loan, the borrower shall bring it out (Deuteronomy 24:10 f.); if he be poor, the pledge, usually his outer robe in which he sleeps, shall be restored by sunset (Deuteronomy 24:12 f.).—In the Sg. address throughout and in temper and phrase characteristic of D; but the two parts may be borrowed from earlier sources: Deuteronomy 24:10 f. because of neighbour, not brother as usual with Sg. (see on Deuteronomy 15:2); and Deuteronomy 24:12 f. adapted from E, Exodus 22:26 f. (25 f.; E’s ḥabal, pledge, becomes ‘abat, so as to fit Deuteronomy 24:10 f.), with the religious motive differently expressed. See further on Deuteronomy 24:6. Cp. Ezekiel 18:7; Ezekiel 18:12; Ezekiel 33:15; Code of Ḫammurabi, § 241.

13. sleep in his garment] Heb. salmah (Deuteronomy 29:4 and E, Exodus 22), transp. from the more frequent simlah (Deuteronomy 8:4, Deuteronomy 10:18, Deuteronomy 21:13, Deuteronomy 22:3; Deuteronomy 22:17), the large outer robe which the peasant can dispense with by day while at work, but which he almost invariably sleeps in; cp. Amos 2:8, Job 22:6, Proverbs 20:16.

and it shall be righteousness unto thee] Characteristic of D (cp. Deuteronomy 6:25). E, Exodus 22:27 (26): when he crieth unto me I will hear; for I am gracious.

14. poor and needy] See on Deuteronomy 15:11.

within thy gates] See on Deuteronomy 12:17. The preceding in thy land, omitted by Sam., LXX, is a gloss.

14, 15. Payment of the Wage-earner. Whether Israelite or gçr, if he be poor, his wage is to be paid the day he earns it; if he has to appeal to God it will be sin to thee.—Sg. with brother (not neighbour) and other deuteronomic phrases. Parallel to H, Leviticus 19:13 : thou shalt not oppress thy neighbour … the wage of a hireling shall not stay overnight with thee till morning. Cp. Malachi 3:5, Tob 4:14, James 5:4. Ḫammurabi fixes the daily money wages of labourers and artisans (273 f.), in other cases wages in kind are paid yearly (257 f., 261).

15. his day] Cp. Job 14:6, Matthew 20:2.

setteth his heart] Lit. lifteth up his desire (nephesh). The Heb. term with its several meanings suggests how his life depends on his wage. Being poor he cannot be indifferent to it.

cry against thee, etc] Cp. Deuteronomy 24:13, Deuteronomy 15:9. And it be sin unto thee, see on Deuteronomy 15:9.

16. Responsibility for Crime is Individual. The opposition of this principle to that which prevailed in many ancient nations (Herod. iii. 119, Esther 9:13 f., Daniel 6:24 (25)), and which seems to have prevailed in Israel (JE, Joshua 7:24, 2 Kings 9:26, cp. Deuteronomy 14:6), when the family was regarded as a moral unit, and the children were put to death with their father in expiation of his crime, is very striking, and the more so that the ethical solidarity of the nation is so constantly assumed by D. It has therefore been doubted whether the law belonged originally to D. Some take it as dependent on Jeremiah 31:29, or Ezekiel 18 on the ground that the principle of individual responsibility is there proclaimed as if for the first time, in opposition to the older ideas. But 2 Kings 14:6 records that Amaziah when putting to death the assassins of his father did not also slay their children—apparently an innovation on the usual practice. The deuteronomic editor of Kings quotes D’s law as the King’s authority for his clemency. But general laws so often rose from individual cases that it is possible that this law (which is not found in any other code) was the result of Amaziah’s innovating example, and is, therefore, one of the several incorporated by D from earlier sources. Note that it is not in the direct form of address nor otherwise deuteronomic in its phrasing. See further Jerus. ii. 113 ff.

17. nor of the fatherless] So LXX, Syr., etc. Heb. omits nor. Add (with LXX B) nor of the widow.

17, 18. Against Injustice to the Gçr, the Orphan and the Widow, the three classes so earnestly cared for by D, Deuteronomy 24:19-22, Deuteronomy 10:18, q.v., Deuteronomy 14:29, Deuteronomy 16:11; Deuteronomy 16:14. Parallels in E, Exodus 22:21 f., Deuteronomy 23:6 (the poor), 9, on which see Driver’s Exod.; and in H, Leviticus 19:33. The clause against pledging the widow’s raiment is omitted by some LXX codd. and some suggest that its proper place is with 10–13. Its word for pledge, however, is not ‘abat as there but ḥabal as in Deuteronomy 24:6, and its appearance here is natural. On widows’ rights in Babylonia, see Johns, op. cit. ch. xii.

18. thou shalt remember, etc.] Almost exactly as in Deuteronomy 24:22, and Deuteronomy 15:5; cp. Deuteronomy 5:15.

19–22. Of Generosity to the Landless. To the gçr, the orphan and the widow shall be left the gleanings of fields, olive-groves and vineyards. It is interesting that no parallels are found in the earlier legislation of J or E. H, Leviticus 19:9 f. forbids the full reaping of the corners of the field and gathering of the gleanings (repeated Deuteronomy 23:22) and the gleaning of the vines and their fallen fruit; these are for the poor and the gçr. This seems not earlier (Dillm., etc.), but later than D, for the deliberate reservation of the corners is a more developed provision than the allotment of what was left through carelessness. Why D alone includes olives is not clear, except that this agrees with its careful regard of the details of rural life. Both laws sanction an existing practice described in Ruth 2 as dependent on the generosity of the cultivator.

Was there anything more behind it? Attention has been drawn to the fact that some peoples leave the last sheaf on the field under the superstition that it contains the corn-spirit, and being therefore dangerous is easily relinquished to strangers (Frazer, Golden Bough, ii. 171 f., 232 f.). I am told that in the shires of Lincoln and Norfolk it was the practice till 60 or 80 years ago to shape part of a sheaf into a ‘corn-baby’ and to bury it in the field, in order to ensure the next crop. It is possible that in some cases the custom of leaving the gleanings to the poor may have started from such superstitions. But those who see in these the sole origin of the custom ignore the natural promptings of the hearts of simple, peasant peoples to care for the needy. There are no traces of the superstition in D, H or Ruth 2. D’s appeal to the self-interest of the harvesters (that thy God may bless thee, etc.) is rather one of his many illustrations of his favourite principle that obedience to God’s ethical demands will be rewarded by prosperity (cp. Deuteronomy 14:29, Deuteronomy 15:4 f., 10, 18, Deuteronomy 23:20; cp. Deuteronomy 17:20). Otherwise the motives of the laws are purely humane and in both sets the humanity is enforced by religious considerations. In D the motive is characteristically gratitude to God (Deuteronomy 24:22), in H it is as characteristically the simple fact: I am Jehovah thy God.—The duties enforced are observed at this day in Palestine. ‘The poorest among the people, the widow and the orphan, are not infrequently seen following the reapers’; and ‘the poor are often seen after the gathering in of the crop going from tree to tree and collecting the few olives that may have been left’ (Van Lennep, Bible Lands, etc., 78, 128). ‘It is natural with them not to gather stray ears or to cut all the standing ones which would be looked upon as avarice; every bad act is avoided as much as possible “before the blessing,” as the corn is very often called; the law of Moses … is innate with them. The produce of the gleanings … may enable a widow to have bread enough for the winter’ (Baldensperger, PEFQ, 1907, 19). On the Arabs kindness to the sojourner see Doughty, i. 345.

20. beatest thine olive tree] Isaiah 27:6; Isaiah 24:13 (but with another vb. for beating). ‘Some climb into the trees and shake the boughs, while others stand below and beat off the fruit with long slender poles’ (Van Lennep, op. cit. 128).

21. When thou gatherest] Lit. cuttest off, the usual vb. for harvesting grapes (Jdg 9:27). Ingathering, applied to the vintage feast (see on Deuteronomy 16:13), is another vb.

22. And thou shalt remember] See on Deuteronomy 24:18.