No more important law code for the student of comparative social institutions can be found than that contained in the Hebrew Scriptures and in other documents of rabbinical literature. The Jewish Law is embodied in the Pentateuch, or the Torah, which tradition assigned to Moses as he received it from Jehovah at Mt. Sinai. It is known as the Written Law. Accompanying this are the commentaries upon the written law by a succession of learned rabbis and judges. These are compiled in the Mishna and later embodied in the Talmud. Professor David Amram says: "The study of the laws of the Bible without the use of the Talmud is the study of the law without the commentary; it is an attempt to understand the character of a nation by reading its statute book, and disregarding the judicial interpretation and application of its laws to the daily life of the people."
The origin of Semitic family life is shrouded in the mists of antiquity, but there are traces in the Old Testament of the prior existence of matrilineal descent and of motherright. It is probable that the primitive culture of the Hebrew nomadic tribes was modified and enriched by Chaldean, Egyptian, and other early and more advanced civilizations with which they came in contact in the course of their wanderings. At any rate, by the time they emerged in history they had arrived at a fully developed patriarchal family system similar to that which we found among the Babylonians and Aryan Hindus. By virtue of his rank the husband and father was the supreme lawgiver and judge over his wife, his concubines and slaves, and his children.
Marriages were arranged with the bride's father or nearest male kinsman by a form of purchase-contract which involved a dowry, or by the rendering of service in the case of impecunious suitors. Although the authority of the father was never abrogated, it appears that the wishes of daughters were not always entirely ignored. At marriage the bride passed out of her father's family and became the chattel of her husband. Divorce was an orderly and rigidly prescribed procedure, the voluntary prerogative of the husband only, involving in every instance the writing of a "Bill of Divorcement," called the get--a unique institution among the Hebrews. Even at a later time when the wife acquired the right to sue for divorce it still had to take the form of requiring her husband to write her the get and to free her from the marriage. She never could divorce him.
The position of authority accorded the head of the household in patriarchal society generally, was strengthened among the Hebrews by the theological tradition concerning the creation of man and by the method of the introduction of evil: "And the man said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh."
As a penalty for her importunity, Eve is assigned to an inferior and dependent position: "Unto the woman he said, I will greatly multiply thy pain and thy conception; in pain thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee."
Upon the ground of this priority, absolute authority in the matter of divorce rested originally entirely within the right of the husband, and this right, so far as legal theory was concerned, remained throughout the subsequent Jewish history, although in practice, under rabbinical interpretation, as we shall see, it was modified greatly. He was not even required, at first, to assign the cause upon which his action was based; it was quite a private matter:
"When a man taketh a wife, and marrieth her, then it shall be, if she find no favor in his eyes, because he hath found some unseemly thing in her, that he shall write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife."
It would seem that the husband was the sole judge of what was "unseemly," although throughout the period of the Mishnah it occasioned a sharp dispute between the schools of Shammai and Hillel over the construction put upon the term--the school of Shammai holding to the view that "something unseemly" alluded only to sexual immorality, while that of Hillel contended that it meant "anything offensive to the husband." In any event the divorce was absolute and afforded the wife the privilege of remarriage. Josephus commenting upon the matter says:
"He that desires to be divorced from his wife, for any cause whatsoever; and many such causes happen among men, let him in writing give assurance that he will never use her as his wife any more; for by this means she may be at liberty to marry another husband; although before this bill of divorce be given, she is not to be permitted to do so."
Josephus further cites two instances in which the sole right of the husband to divorce his wife was infringed. This was due, quite obviously, to the influence of Roman customs, prevalent at the time, which permitted women the free right to divorce their husbands.
The first instance is the case of Herodias, who "took upon her to confound the laws of our country, and divorced herself from her husband, while he was alive, and was married to Herod her husband's brother." The second case was that of Salome, the daughter of Herodias, who after quarreling with Costoborus, her husband, "sent him a bill of divorce, and dissolved her marriage with him. Though this was not according to Jewish laws: for with us it is lawful for a husband to do so; but a wife, if she depart from her husband, cannot of herself be married to another, unless her former husband put her away. However, Salome chose to follow not the law of her country, but the law of her authority; and so renounced her wedlock."
We observe, furthermore, that the absolute patriarchal right of the husband in matters of marriage and divorce was undergoing a process of abridgement at an early date. There were two definite limitations prescribed in the Torah, both based upon the misconduct of the man. The first was in the case of the newly wedded husband's false accusation against the bride of antenuptial incontinence. In case of proof that his charge was slanderous: "The elders of that city shall take that man and chastize him; and they shall fine him a hundred shekels of silver, and give them unto the father of the damsel because he hath brought up an evil name upon a virgin of Israel; and she shall be his wife; he may not put her away all his days." The second instance, was in case of rape: "If a man find a damsel that is a virgin, that is not betrothed, and lay hold on her, and lie with her, and they be found; then the man that lay with her, shall give unto the damsel's father fifty shekels of silver, and she shall be his wife, because he hath humbled her; he may not put her away all his days." A modification of this latter provision appears in another place to the effect that if the father refuses to give his daughter to the ravisher, then the guilty man "shall pay money according to the dower of virgins."
To these two limitations provided in the Written Law, the Oral Law added three others, namely, in case the wife had become insane, during any period in which the wife might be in captivity, and if she were too young to understand the nature of her get.
In addition to these legal limitations was the existence of the law requiring the husband to return the wife's dowry in case he "put her away" which acted constantly as a restraining influence.
According to Philo, an interpretation by judicial decision had been placed upon the statutory requirement that the man who had falsely accused the bride of antenuptial incontinence had no option in regard to marrying her and without the right to divorce her, to the effect that the bride might not be compelled to live with the man whose conduct had been extremely odious to her, and that she might exercise her discretion in the matter of leaving him and of requiring him to divorce her.
While the theory of the law which gave exclusive right to the husband to divorce his wife, and in which she enjoyed no reciprocal privileges never was abrogated, it was modified for practical purposes in the Talmud by the assumption that the wife, for adequate reasons, might sue for divorce by the indirect method of requiring her husband to write her a Bill of Divorce and to set her free.
The basis for this interpretation was found in the Torah: "And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do. If she please not her master, who hath espoused her to himself, then shall he let her be redeemed: to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her. And if he espouse her unto his son, he shall deal with her after the manner of daughters. If he take him another wife, her food, her raiment, and her duty of marriage, shall he not diminish. And if he do not these three unto her, then shall she go out for nothing, without money." The assumption here is that there was some lawful authority to which she might appeal in justification of her rights.
This principle of protection of the rights of women once established, it readily became expanded by rabbinical authority and the Mishna inscribes numerous grounds upon which wives could demand gets from their husbands, among which are: refusal of conjugal rights, impotence, loathesome disease, malodorous occupation, refusal to support, desertion, apostasy, licentiousness.
The very striking resemblances between the Jewish divorce law and the Code of Hammurabi will have been noted. There are two probable explanations of these parallelisms. Either the two peoples, though widely separated in time and territory, nevertheless passed through similar processes of development, or the Jews were influenced greatly by historic knowledge of the Babylonians. Most scholars are inclined to the latter opinion.
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