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God, Justice, and SocietyAspects of Law and Legality in the Bible$

Jonathan Burnside

Print publication date: 2010

Print ISBN-13: 9780199759217

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199759217.001.0001

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New Laws For A New Age

New Laws For A New Age

(p.389) 12 New Laws For A New Age
God, Justice, and Society

Jonathan Burnside

Oxford University Press

Abstract and Keywords

This chapter looks at how the biblical laws of marriage, divorce, and sexual relations were interpreted during the Second Temple (or intertestamental) period, with reference to the writers of the Dead Sea Scrolls and the followers of Jesus. It shows that there is considerable fluidity between literary genres that are nowadays regarded as distinct and that the early chapters of Genesis were often crucial to legal interpretation. Despite fundamental differences between the Qumran community and the New Testament writers, the laws of marriage, divorce, and remarriage were important to both groups as a means of championing a particular attitude towards Moses, the purposes of God, and the eschaton (the end of the present age). The chapter argues that interpretations of biblical law (including on the question of divorce and remarriage) helped to define the identity of both religious groups, particularly in relation to their opponents.

Keywords:   Dead Sea Scrolls, divorce, Jesus, marriage, Moses, remarriage, sexual relations, Second Temple period, Qumran

So far in this book, we have explored a number of substantive legal topics in order to gain a sense of how biblical law operates, both as a system and as applied (see “How to use this book”). It’s now time for us to consider more directly some of the ways in which biblical law has been interpreted by Jewish communities in the biblical period. This is important because it allows us to see how biblical law has been applied in the context of different social groups. We can thus explore a significant aspect of biblical law as a legal phenomenon, namely, the way in which it is used to define a given community that accepts its norms as authoritative. As we do so, we’ll find that what’s interesting about this is the way in which the application of biblical law plays out very differently, depending on the nature of the group in question. In particular, we’ll see that the differences in application between these groups can be explained, in part, by the fact that each is telling a different story of what it means to “be Israel.” Once again, we find that law and narrative are closely intertwined.

The question of how biblical law plays out in different communities in the biblical period is a complex one that could be approached from many different angles. The simplest approach is probably to take a single substantive topic and to see how the issues have been interpreted by different communities, which are roughly contemporaneous. As far as a given time is concerned, there are advantages in looking at Israel’s history toward the end of the “Second Temple” period. This is the stretch in Israel’s history that covers the rebuilding of the Temple in Jerusalem, which was completed in 516 BC, to the destruction of its Herodian manifestation in AD 70. For much of this time, Israel was without full political independence: conditions which helped to incubate intense debates about the application of biblical law toward the end of this period. Within the scope of this chapter, we cannot take more than a few Jewish groups as examples. Therefore, it will focus on those for which we have good extant materials. This means concentrating on the community at Qumran—by the shores of the Dead Sea—and the followers of Jesus of Nazareth.

I. In the shadow of the temple

Both of these groups have plenty of shared concerns, including for example, purity and behavior on the Sabbath. Depending on the topic, we could draw different conclusions about how these groups interpreted biblical law. A study of the purity and Sabbath laws would tend to emphasize the exclusivity of the Qumran group as opposed to the inclusivity of the Jesus group. However—and (p.390) again to keep things simple—it makes sense to choose a topic that we have already explored in previous chapters. For this reason, we will choose marriage and divorce as our substantive issues and see how these are handled by the Qumran authors and by Jesus.

Before we do so, we need to sketch briefly the background to the Second Temple period. The story of Israel is a complex one.1 Israel’s triumph on entering the land was marred in subsequent generations by the social chaos described in the book of Judges, while the early flowering of Israelite monarchy under Saul, David, and Solomon quickly gave way to the divided kingdoms of Israel and Judah in 930 BC. The northern kingdom of Israel, with its capital in Samaria, was conquered by the Assyrian kings Shalmaneser V and Sargon II in 722 BC, and its peoples lost to history. The southern kingdom of Judah, with its capital in Jerusalem, capitulated to the Babylonian king Nebuchadnezzar II in 597 BC. Its peoples were deported to Babylon between 597 and 586 BC, whereupon the original Temple built by Solomon, was burned. From 537 BC on, there would be successive waves of Israelite repatriation to Jerusalem which culminated in the building of the Second Temple.

However, Israel’s return from captivity in Babylon was a mixed blessing. Her fortunes were only partially restored. The people—at least what was left of them—were back in the land, but they were still under Persian oversight. Even when the time of the Persians had passed, Israel remained under the thumb of successive pagan overlords, culminating in Rome.2 It was a long period of national frustration, which served only to deepen the desire for freedom. This hope was articulated by a variety of Jewish groups who gave differing accounts of where Israel had gone wrong and what she had to do to put things right with her ancestral God. Among these competing visions of what Israel’s future would look like, there was talk of a new messianic age. Common to all factions, however, was a concern for the proper interpretation and application of biblical law, which is the focus of this chapter.

II. Secrets from the desert

We begin by exploring attitudes toward biblical law among the community that lived at Qumran, on the shores of the Dead Sea. Our insight into this group is derived from the Dead Sea Scrolls which were discovered by accident at Qumran in 1947. Of course, “we have little way of knowing which of the sectarian laws found in the scrolls were the product of the Qumran community and which had been inherited from previous pre-Qumranic contexts or were shared with other (p.391) Jewish groups.”3 Therefore, we must be careful not to overgeneralize. We can draw conclusions only about the interpretation of biblical law as it appears in the Dead Sea Scrolls in their final form.4 In addition, “there is no reason to assume that the Qumran documents, deposited in the caves over a lengthy period of time, … derive from a group or groups that had a unified sense of the way in which scripture was to be read or a single conception of the message that it was to convey.”5 Nevertheless, we can still ask the question: what do the Dead Sea Scrolls tell us about the interpretation of biblical law during the Second Temple period?

A. The joy of sect

In order to begin to answer this question, we need to build up a picture of how the group saw itself as an interpretative community. It is clear that the sect, like others in Israel, were still waiting for the end of exile. (Even in our own day, we are familiar with breakaway religious groups whose identity is based around a particular interpretation of the apocalypse, for example the Branch Davidians led by David Koresh until 1993). The Second Temple had been built, but national restoration had not followed. Since God had destroyed the first Temple and sent Israel into exile for disobeying his commandments, many concluded that Israel’s continuing exile was the result of her failure fully to observe Torah. This was the urgent challenge of the age. The Qumran group reobligated themselves to following the “revealed” (niglot) laws of Moses that were given to Israel at Mount Sinai, but they also obligated themselves to follow, for the first time, an ever-increasing body of “hidden” (nistarot) laws, which they were privileged to discover through divinely inspired study sessions and exegesis.6

Whoever approaches the Council of the Community (yachad) shall enter the Covenant of God in the presence of all who have freely pledged themselves. He shall undertake by a binding oath to return with all his heart and soul to every commandment of the Law of Moses in accordance with all that has been (p.392) revealed of it to the sons of Zadok, the Priests, the Keepers of the Covenant and Seekers of His will …. (The Community Rule 5:7ff)7

The choice of the word “community” (yachad) to describe their gathering is significant because it conveys the sense of “being one.”8 They were united—and unique. They are correctly described as sectarian because they had “separated themselves to a large degree, both theologically and physically, from the current priestly establishment in Jerusalem.”9 There is considerable evidence that the community modeled itself on Israel encamped at Mount Sinai.10 They were the exclusive members of God’s covenant with Israel: those outside the community were “the men of injustice who walk in the way of wickedness” (The Community Rule 5:11).11 The yachad was “a temporary substitute for Jerusalem”12 and was opposed to the corrupt Hellenism of Second Temple Judaism. The group had a strong sense of eschatology, believing that their actions would hasten the transition between the present age and the next.

Even this brief sketch enables us to see why the interpretation of biblical law was important. It was not a way of passing the time for a bunch of armchair apocalypticists. Instead, it was central to Israel’s political and spiritual survival—the two being inseparable in any case.

We will now turn to look at a range of issues regarding marriage and divorce in the Dead Sea Scrolls. We will begin by looking at some of the ways in which Qumran law regulated marriage, by reference to the cases of the war captive bride and the slandered bride. We will then consider how the Qumran group sought to restrict sexual relations, including possible limits on marriage. We will then turn to consider some further restrictions, including incest and prohibitions on divorce. This approach allows us to work systematically through various sources of law. These include, first, the Temple Scroll which is the longest and probably the oldest document at Qumran. As the name suggests, it is mainly concerned with the Temple and cultic activities. Next we will consider the manuscript known (p.393) as Miqsat Ma’ase Ha-Torah (usually shortened to MMT), which means “Some Observances of the Law.” The style of this document suggests some kind of public letter which may have been addressed to religious leaders in charge of the Temple in Jerusalem. A final source is the Damascus Document, so-called because of its references to “the New Covenant in the land of Damascus” (e.g., Damascus Document 6:19).13 This is a sort of legal anthology which the Qumran community thought should apply to all Jews in the land of Israel. At points, we will compare these documents with each other; however, we will need to remember that they are different documents, intended for different audiences, and probably written with different purposes in mind.

B. Deleting Moses

We begin by considering how Qumran law regulated marriage in the case of the “war captive bride.” This law is set out in the Temple Scroll (63:10–15). It is based on Deuteronomy 21:10–14, although there is no explicit quotation. Qumran law modifies the biblical text in several significant ways. In Deuteronomy, it is the woman herself who discards her old identity (by trimming her hair, paring her nails, and discarding her clothes), whereas in the Temple Scroll, the man does these things to her. This is because the Qumran interpreter understands verse 12, which begins with the phrase, “you shall …,” to mean that the soldier performs the actions.14 Qumran legal interpretation can be very literal.

The Qumran author also adds to Deuteronomy 21:10–14 by limiting what the woman can touch and eat. These additions recall the rituals required of new entrants to the Qumran community (The Community Rule 5:16; 6:17, 20–21; 7:19–20). The sect also had seven-year “quarantine” provisions for “straying” members (Damascus Document 12:5–6) who were required to serve some kind of “probationary period.”15 The writer of the Temple Scroll thus makes a connection between Deuteronomy 21:10–14, which governs the admission procedure for entry to the covenant community of Israel and the entry requirements for his own congregation. Accordingly, extra laws are grafted onto Deuteronomy to bring it into line with the sect’s worldview.

Finally, and most remarkably of all, we discover that the Qumran author changes the third person reference to God in the MT (“… and the LORD your God delivers them into your hands”; verse 10) into a first person verb (“… and (p.394) I deliver them into your hands”; Temple Scroll 63:9ff).16 Re-presenting commands that were mediated by Moses into commands given directly from God to the people is a characteristic of the Temple Scroll and makes it “a very unusual form of rewritten Bible.”17 The effect is to “eliminate the intermediacy of the lawgiver Moses and present the whole as direct divine revelation.”18 Ironically, the Temple Scroll asserts that “much more of the Pentateuch derives directly from God than the Pentateuch itself [claims].”19 Biblical law is thus re-presented to promote Qumranic ideology. Elbowing Moses to one side is consistent with the sect’s belief in their ability to discern the “hidden” laws (nistarot). After all, if they are capable of receiving direct divine inspiration, who needs Moses?

C. Loose talk and Loose Women

Reading further on down the Temple Scroll, we find another example of how Qumran law regulated marriage, this time in the case of the “slandered bride” (cf. Chapter 11). Temple Scroll 65:7–16 faithfully parallels Deuteronomy 22:13–21 (apart from some small variations). However, an additional piece of manuscript, known as 4Q159—one of a collection of Qumran ordinances on biblical law—differs significantly from the biblical text.

We saw in Chapter 11 that there are several problems with the traditional view that Deuteronomy 22:13–21 punishes the daughter for her loss of virginity. We argued that since not all virgins have intact hymens or bleed the first time they have sexual relations, the “cloth” cannot be used to provide conclusive evidence in a capital case. We also noted that the traditional view does not explain why this girl is stoned at the entrance to her father’s house when this does not happen to other betrothed girls who misbehave (Deuteronomy 22:23–24). As a result, we argued that Deuteronomy 22:13–21 is concerned with whether or not the parents can produce evidence of their daughter’s menstrual stains and hence evidence of whether or not she was pregnant at the time of the marriage.

4Q159, interestingly enough, gets around both of these problems. First, there is no examination of a cloth by town elders (cf. Deuteronomy 22:17). Jeffrey Tigay notes that a feminine adjective is used in relation to the examination, which indicates that the examiners are female. Accordingly, he thinks it “virtually (p.395) certain”20 that the bride herself is the subject of the examination. Second, there is no reference at all to the woman being stoned at the entrance to her father’s house.

This being so, it is perfectly possible that Qumran law was concerned with the loss of virginity, unlike the text in Deuteronomy. If so, it would represent an escalation in the seriousness of the offense. It means that whereas the loss of virginity goes unpunished in biblical law, it merits the death penalty in Qumran law. Such intensification when compared with biblical law is not inconceivable, given the escalating concern for purity at Qumran.21 On the other hand, it may be the case that Qumran law, like the underlying biblical law, was concerned with the question of paternity. If so, the purpose of the medical examination might have been to check the woman’s menstrual cycle and/or for signs of pregnancy.

III. Sleeping with the enemy

Further restrictions on marriage are spelt out in the laws of Miqsat Ma’ase Ha-Torah (MMT B 75–82):

And concerning fornication practised by the people, they should be s[ons of] holiness, as it is written, {Israel} is holy (Jeremiah 2:3). And concerning [his clea]n animal, it is written that it shall not be mated with a different kind. And concerning [his clothes], it is written that they shall [not be of mixed] material. And he shall not sow his field and vine[yard with two kind]s. For they are holy and the sons of Aaron are most h[oly]. And you know that some of the priests and [the people mingle] [and they] unite and defile the [holy] seed and also their [seed] with whores …. (MMT B 75–82)22

These laws are consistent with other laws in MMT which “ramp up” the holiness quotient when compared with biblical law. Thus, whereas biblical law regards the high priest as “most holy” and the priests as “holy,”23 MMT regards the Israelites as “holy” and the priests as “most holy.” From a Qumranic perspective, the rhetoric is a way of maximizing holy personnel, both in terms of their (p.396) numbers and their degree of sanctity. This reclassification has considerable implications for marriage. In particular, the biblical requirement that the high priest marry within “his own kin” (Leviticus 21:14) is now extended to all priests.

Although MMT B 75–82 uses the phrase, “it is written … ” to indicate its scriptural basis, it does not cite the underlying biblical laws of Leviticus 19:19. The Qumran author thus offers us another implicit interpretation of biblical law. MMT B parallels the ban on fornication with the ban on mating different kinds of animals, before moving on to other prohibited “mixings.” The legal interpreter uses biblical law in a metaphorical sense to promote a sectarian agenda. In keeping with this flexible approach, the writer inverts the order of the mixings in Leviticus 19:19 by putting clothing before seed. This rearrangement, of course, links in with the charge that the priests are defiling their “seed.”

The Qumran legislators are selective in their use of biblical law. In this case, it is notable that MMT B 75–82 draws on Leviticus 19:19 rather than the somewhat similar laws of Deuteronomy 22:9–11. It is likely that the author was familiar with Deuteronomy 22:9 because he incorporates the Deuteronomic prohibition on mixing seed in field and vineyard, whereas Leviticus 19:19 just refers to a field (although the writer may, of course, have been relying on a variant reading of Leviticus 19:19).

There are two reasons why the Qumran exegete would have preferred Leviticus 19. First, Leviticus 19:19 belongs to a wider section (19:1–37) which begins with the command to be “holy” (19:2) and closes with the command to “faithfully observe all My laws and My rules” (19:37). This call to be separate chimes with the argument in MMT B 75–82.24 The Qumran writer chooses the interpretation that will amplify his message.

Second, we note that the following verse—Leviticus 19:20—regulates the sexual relationship between a free man and a betrothed slave woman. There is thus a precedent in biblical law itself for juxtaposing Leviticus 19:19 with sexual relations. However, although Leviticus 19:20 only prohibits this sexual relationship, Qumran law uses Leviticus 19:19 as a springboard to prohibit sexual relations between all Israelites and non-Israelites. It is thus a good example of the way in which the community at Qumran takes biblical categories (here, prohibited mixings) and radically expands their application. Critical theorists might argue that this is simply a way of trying to derive biblical authority for a sectarian position that has no basis in the Bible. This is, however, to miss the point. As far as the Qumran author is concerned, there is no distinction between the sectarian laws of MMT B 75–82 and the biblical law of Leviticus 19:19.

(p.397) IV. another brick in the wall

We turn to another manuscript—the Damascus Document—which also contains a polemic about fornication. This time it is directed against the so-called “builders of the wall,” which seems to have its roots in the biblical text of Ezekiel 13:10.25 The immediate context (Ezekiel 13:9–16) concerns a wall that has been built by the people and which is then daubed over with plaster by false prophets. Ezekiel prophesizes that this wall will be brought down by the wrath of God. The Qumran group uses this imagery to attack the “safe orthodoxy’ of those living outside the community who are doomed because they are following a false commandment.26 The “builders of the wall” refers to “all-Israel-outside-Qumran.”

The “builders of the wall” (Ezekiel 13:10) … are caught in fornication twice by taking two wives in their [masculine possessive pronominal suffix] lifetime, whereas the principle of creation is “Male and female created he them” (Genesis 1:27). Also, those who entered the Ark went in two by two (Genesis 7:7–9). (Damascus Document 4:20–5:1).27

The key question is what is meant by “taking two wives in their [masculine form] lifetime”? The ambiguous phrasing ensures that the subject is deeply contested among Qumran scholars,28 and there is, at present, no consensus in sight. Geza Vermes29 summarizes the key positions as being: (1) a ban on concurrent polygamy (i.e., more than one wife at the same time) as well as remarriage following divorce (consecutive polygamy); (2) a ban on concurrent polygamy but not divorce; (3) a ban on divorce but not concurrent polygamy; and (4) a ban on consecutive polygamy, that is, any second marriage, even after the death of the first wife.

The scriptural references in Damascus Document 4:20–5:2 uphold the ideal of monogamy: “[one] male and [one] female created he them.” Likewise, the reference to “two by two” in Genesis 7:7–9 also points toward monogamy. The references to Genesis 1:27 and 7:7–9 indicate Qumranic antipathy toward polygamy, although whether the sectarians are objecting to concurrent or consecutive (p.398) polygamy remains to be determined. P. Winter30 argues that there would have been no need to express the ban using the masculine form if the goal was to prohibit concurrent polygamy while Bernard Jackson31 contends that Damascus Document 4:20–5:2 bans consecutive polygamy. This is in keeping with the sect’s asceticism. A ban on consecutive polygamy “reinforces the view that marriage, where permitted, is itself a concession, required for pragmatic reasons in order to support the eschatological project … the ideal remains celibacy.”32 If this reading is correct, it amounts to a radical reinterpretation of biblical law, which permits both concurrent polygamy and remarriage for ordinary Israelites (see Chapter 10).

Regardless of whether the polemic is directed against concurrent or consecutive polygamy, we can draw some conclusions about Qumranic legal method. First, we note that law is derived from carefully chosen narratives. Genesis 1:27 and 7:9 are selected because they set a “precedent for monogamy.”33 Notably, the Qumran exegetes do not see the need to include the full quotation to make their point. The “two by two” quotation continues with the words “male and female.” These words are not cited even though they actually make the connection with Genesis 1:27. They explain why these verses together define marriage exclusively in terms of two heterosexual persons.34 The Qumran writers assume that the audience is sophisticated enough to make these connections for themselves. The Ark story also suggests that monogamy is normative, even for beasts. This suits the Qumran writer’s polemical style because it implies that anyone who engages in polygamy behaves worse than a beast. Law and narrative are used to promote a sectarian agenda.

However, it is not simply a question of law and narrative; there is also the question of which narratives. The Qumran exegetes draw on Genesis to condemn fornication rather than, say, stories from The Book of Kings that question the wisdom of polygamy (e.g., 1 Kings 11:3–4). In this respect, Damascus Document 4:20ff is typical of a Qumranic tendency to privilege the first half of the book of Genesis (cf. some biblically based apocryphal works at Qumran, including Jubilees and the Genesis Apocryphon).35

(p.399) A. Kings and Courtesans

The section of the Damascus Document we have just been considering (4.20–5.1) continues with a provision relating to the king. This explicitly cites Deuteronomy 17:17:

And concerning the prince it is written, “He shall not multiply wives to himself” (Deuteronomy 17:17). (Damascus Document 5:2)36

The introductory formulation can be seen as referring to a special rule for the king. Some scholars have taken Damascus Document 5:2 to mean that the king should be monogamous.37 However, if the formulation is setting out a different rule for the monarch, which is not permitted for the rank and file, then the provision may allow for consecutive polygamy (Damascus Document 4:20–5:1). This makes sense as a way of ensuring that the king will produce heirs, otherwise “the eschatological leadership would disappear with him.”38 If this reasoning is correct, then the real issue is the extent of the multiplicity. He may have wives but not too many (cf. Mishnah Sanhedrin 4:2, which places the maximum at 18). The king is in a class of his own in this respect. However, there are limits even for the king.

Further monarchical provisions relating to marriage are found in a different manuscript, the Temple Scroll. The so-called “Law of the King” (56:12–59:21) states:

He [the king] shall not acquire many wives that they may not turn his heart away from me. (Temple Scroll 56:18–19)39

This time, Deuteronomy 17:17 is not cited. Notably, the Qumran exegete departs from the original text of Deuteronomy 17:17 which reads “… [the king] shall not have many wives, lest his heart go astray.” Temple Scroll 56:18–19 is therefore not a paraphrase but an exegesis of Deuteronomy 17:17. As far as the commentator is concerned, the problem with polygamous marriages is not the marriages themselves but the sort of wives the king marries. This interpretation seems to be derived from Deuteronomy 7:4 “for they [foreign women] will turn your children away from Me to worship other gods ….”40 At Qumran, Deuteronomy 17:17 is understood in the light of Deuteronomy 7:4. This is a classic example of the way in which “the Temple Scroll interprets the laws of the Pentateuch as it paraphrases, rewrites and rearranges them.”41

(p.400) A little further down the same Scroll, we find further provisions relating to the king:

… He [the king] shall not marry as wife any daughter of the nations, but shall take a wife for himself from his father’s house, from his father’s family. He shall not take another wife in addition to her, for she alone shall be with him all the time of her life. But if she dies, he may marry another from his father’s house, from his family. (Temple Scroll 57:15–19)42

Some scholars claim that the Qumran author here draws upon the biblical text of Leviticus 18:18.43 This prohibits the taking of a woman and her sister, which was understood in the Qumran tradition to refer to “a woman and another.” On this basis, they argue that Temple Scroll 57:15–19 prohibits (concurrent) polygamy. However, Leviticus 18:18 is not cited in Temple Scroll 57:15–19, and this is significant. After all, if the Qumran legislators understood Leviticus 18:18 as an explicit ban on polygamy and if they sought to ban polygamy in the Damascus Document, why would they not cite Leviticus 18:18 in support of this (assumed) position in the Temple Scroll?44 In addition, if the phrase “He shall not take another wife in addition to her” refers to polygamy, then the following phrase “for she alone shall be with him all the time of her life” is redundant.45 It therefore seems as though Temple Scroll 57:15–19 does not prohibit concurrent polygamy on the part of the king but divorce. The king is not allowed to divorce his wife; but if she dies, he is allowed (commanded?) to take a new wife.46 Again, this is something which the ordinary member of the community is not allowed to do (Damascus Document 4:20–5:1).

B. All in the Family?

Further restrictions on marriage are found in the Damascus Document, this time marriage between uncles and nieces:

And each man marries the daughter of his brother or sister, whereas Moses said, “You shall not approach your mother’s sister; she is your mother’s near kin” (Leviticus 18:13). But although the laws against incest are written for men, they also apply to women. When, therefore, a brother’s daughter uncovers the nakedness of her father’s brother, she is (also his) near kin. (Damascus Document 5:7–11)47

(p.401) At Qumran, the practice of uncles marrying nieces is understood to be implicitly condemned by Leviticus 18:13, even though the biblical text does not explicitly state this. Unlike other examples so far, we have a citation formula (“Moses said … ”) followed by a verbatim quote of the law in question. And also, for once, we have an explicit methodology. This takes the form of reasoning by analogy. The Qumran author here recognizes gender equality, which we will return to in the New Testament texts (see below). It is thus an excellent example of what Moshe Bernstein calls a “simple sense”48 reading, as opposed to the “extreme eisegesis” we sometimes find in Qumran law.

Why does the Damascus Document go out of its way to provide us with such an explicit citation and interpretation? Bernstein49 notes that explicit textual support is often used in respect of laws that are the subject of dispute between the Qumran community and its opponents. In other words, the more contentious the issue, the more important it is to show that God is on your side. Flavius Josephus tells us that there were a number of uncle-niece marriages during this period (e.g., Jewish Antiquities 12:186–189), particularly in the royal court (e.g., Jewish Antiquities 17:19). There are good reasons for thinking that uncle-niece marriages reflect Second Temple practice, especially among the Pharisees. Permission for uncle-niece marriages is also found in rabbinic texts (Tractate Yevamot 62b–63a). Some scholars go so far as to say that the incest laws are one of the few examples where we see “direct criticism of the halakhic practices of the Pharisees.”50 Adopting a simple sense reading merely highlights the folly of the opposition.

This prohibition in the Damascus Document is not explicitly stated in biblical law. If one takes a legal (i.e., literal) approach to biblical law, one could claim that Qumran law extends the biblical laws of incest. On the other hand, if one takes a narrative approach to biblical law, there is nothing necessarily new about the Qumran interpretation. The ban on uncles marrying nieces is simply part of the paradigm case of Leviticus 18:13. If so, the difference between the Damascus Document and Leviticus is the fact that the Qumran writer felt the need to spell out the prohibition.

Within the overall literary context of the Damascus Document, the uncle-niece ban is part of the condemnation of the “builders of the wall” (see Damascus Document 4:19–5:1, above). This raises the question whether there is any relationship between the ban on “taking two wives in their lifetime” and the ban on uncle-niece marriage. According to Tractate Yevamot (part of the Babylonian Talmud which is concerned with levirate marriage), the simultaneous marriage of a man to a woman and his niece was a matter of real practical concern (p.402) (e.g., Mishnah Yevamot 1:2).51 It may thus be the case that the prohibitions mentioned in the Damascus Document are “closely related to one another and are, in fact, two aspects of the same phenomenon.”52

This incest ban is also prohibited in the Temple Scroll:

A man shall not take the daughter of his brother or the daughter of his sister for this is abominable. (Temple Scroll 66:15–16)53

This goes further than the Damascus Document by adding the concluding words, “for this is abominable.” This evokes the comparable judgement upon male homosexuality in Leviticus 18:22 (“it is an abomination”). Here, the Qumran interpreter borrows from other biblical laws to express his belief that uncle-niece marriage is as immoral as sex between men.

C. A Biblical Law Frappuccino

We turn finally to the end of the Temple Scroll, which deals with a number of sexual offenses. They include, first of all, the rape of the betrothed woman (66:4–9). The case parallels Deuteronomy 22:25–27 (see Chapter 10), although the source is not cited. But whereas the paradigm case of Deuteronomy 22:25 describes the location of the offense as being “the open country,” the Temple Scroll specifies “a distant place hidden from the city.” This implicit interpretation expands on the Pentateuchal text, making it clear that the location is one where the woman’s cry of help cannot be heard.

Immediately after that, we find the following law, which purports to be about seduction:

When a man seduces a virgin who is not betrothed, but is suitable to him according to the rule, and lies with her, and he is found out, he who has lain with her shall give the girl’s father fifty pieces of silver and she shall be his wife. Because he has dishonoured her, he may not divorce her all his days. (Temple Scroll 66:8–11)54

This illustrates another characteristic of the Temple Scroll, namely, the tendency to gather in one place disparate laws that are united by a similar theme. Here, the laws of Exodus 22:15–16 and Deuteronomy 22:28–29 are blended into one. The result is a sort of biblical law frappuccino. The Qumran synthesizer begins with the language of Exodus 22:15 but drops the reference to “seizing’ which is present in Deuteronomy 22:28. The rest of the law then flows into the remainder of Deuteronomy 22:28–29. A further consequence of the blending is (p.403) that the ban on divorce in Deuteronomy is also applied to seduction in Exodus. The idea seems to be “to produce a ‘better organised’ Torah than the Mosaic one.”55 Rather than seeing the literary presentation and canonical organization of the biblical texts as a guide to interpretation and understanding, the Qumran author sees it as an obstacle. The proper interpretation of biblical law requires rearrangement.

The problem with this attempted merger is that the two cases are different. Exodus 22:15–16 is concerned with seduction (which implies manipulation and persuasion), whereas Deuteronomy 22:28–29 deals with what we would nowadays call rape (which involves physical force; see Chapter 10). The Qumran interpreter is most likely aware of the difference because he omits the reference to “seizing.” What then is gained from joining two different cases? Presumably some claim to equivalence between the two cases is being made, although in what direction is hard to tell. Seduction is regarded as seriously as rape and vice versa. It is possible that the Qumran author objects to “post-rape marriage” and wishes to reduce it down to a case of seduction where, presumably, he thinks it is fair to make the woman marry the man. At any rate, it is fair to say that while biblical law preserves the distinction between two different offenses, Qumran law abolishes them.

V. Biblical law at qumran

To sum up, what do the Dead Sea Scrolls tell us about the interpretation of biblical law toward the end of the Second Temple period? It is clear that although the Qumran writers regard the biblical texts as authoritative, they still feel free to reinterpret them and represent them. Indeed, it is because they see the texts as speaking directly to their own time—and because they see their group as uniquely placed to understand them—that they have an interpretative approach which strikes us moderns as somewhat flexible. Sometimes there is an explicit—and indeed verbatim—citation of Scripture, while at other times, there is no indication of the underlying biblical text. Sometimes there is a paraphrase: at other times, an exegesis. Then again, there may be an implicit interpretation which in turn may be at odds with the underlying text. Occasionally the reading is a literal one; more often it is fluid, pictorial, and associative. Finally, there is evidence of considerable discretion and flexibility: texts are chosen because they suit the sect’s worldview and agenda, while others are discarded. These interpretive norms seem remarkable to us because their idea of authority is different to what we have seen elsewhere in our discussion of biblical law. This is because (p.404) Qumranic perceptions of legitimate interpretative authority are at every point shaped by the community’s eschatological worldview.

Metaphor and narrative are used at Qumran to reshape the traditional boundaries of biblical law, along with various interpretative methods, such as reasoning by analogy. These interpretations expand the scope of biblical law to cover new situations while advancing ideological claims about the community and its legitimacy as authoritative interpreters of Torah. They also promote a sectarian agenda which highlights the distinctiveness of the Qumran community against other religious groups in Israel. The Qumran texts are an excellent example of what happens when authority is located in an interpretative community. The Qumran community believes that it is in possession of its own authority to be able to present its Jewish tradition—and biblical law—in new and binding ways.

VI. Law in the hands of jesus

We turn from the Qumranic application of biblical law to marital issues to explore Jesus’s handling of the laws relating to marriage, divorce, and remarriage. There is a wide diversity of positions within the Christian church on how to read Jesus’s teaching on this subject. They range from Roman Catholic/extreme Protestant positions which see marriage as indissoluble, through to those that permit remarriage during the lifetime of the former spouse in exceptional circumstances (e.g., the Church of England). The spectrum also includes more liberal positions in other denominations which regard remarriage as a matter of individual conscience. In some cases, this is tantamount to the view that marriage is something that can be ended at will. The controversy surrounding this issue in recent decades (divorce only became legal in the Republic of Ireland in 1997) means that it provides a good illustration of the central issue in this book, namely, how do we understand and apply biblical law?

Certainly, the early church in the first five centuries was near unanimous in its view that remarriage following divorce for any reason is adulterous.56 Its view of the divorce and remarriage texts remained the standard position of the Western church until the sixteenth century, when a more liberal view was put forward by the theologian Erasmus in 1519. This was subsequently adopted by Protestant theologians such as Jean Calvin, Martin Luther, and William Tyndale. The Erasmian/Protestant view differs from the position of the early church by (p.405) allowing divorce and remarriage for adultery and desertion, a position enshrined in the influential Westminster Confession of Faith (1648).57

We will explore the question of how to understand divorce and remarriage by reference to the various Gospel accounts of Matthew, Mark, and Luke, as well as Paul’s First Letter to the Corinthians. This will show us how the biblical laws relating to divorce and remarriage were handled by Jesus and his followers and in a way that contrasts with the community at Qumran. Again, we will see that the way in which biblical law is interpreted depends on the wider story being told of what it means to “be Israel,” at this point in her history. For simplicity’s sake, we begin with the more straightforward accounts in the Gospels of Mark and Luke, before dealing with the more complicated case of Matthew.

In the Gospel According to Mark, Jesus’s teaching on the subject is prompted by a test question from the Pharisees: “Is it lawful for a man to divorce his wife?” (Mark 10:2). This indicates, as the Dead Sea Scrolls attest, that divorce was heavily debated in Second Temple times. Jesus responds tactically with a counterquestion (“What did Moses command you?”; Mark 10:3) which transforms the “doorstep interview” into a dialogue. The resulting exchange illustrates the differences between Jesus and the Pharisees regarding the interpretation of Torah:

[The Pharisees] said, “Moses allowed a man to write a certificate of divorce, and to put her away.” But Jesus said to them, “For your hardness of heart he wrote you this commandment. But from the beginning of creation, ‘God made them male and female’. ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’. So they are no longer two but one flesh. What therefore God has joined together, let not man put asunder.”(Mark 10:4–9)

As far as Jesus is concerned, the Pharisees’ emphasis upon the permissory nature of Deuteronomy 24:1 exposes “hardness of heart” both on the part of the Pharisees and the original recipients of this law from Moses. The term “hardness of heart” (sklerokardia) is also used in Mark 16:14 to describe the disciples’ initial refusal to believe in the evidence of Jesus’s resurrection. Its use in Mark 10:5 implies “lack of faith, ignorance [and] blindness”58 on the part of Jesus’s questioners and the original recipients of the law. It implies that those who do not know that “one must not put away one’s wife are somehow lacking in insight into the fundamental message, are failing in the faith itself.”59 This is not the first time that a link has been made between character and the ability to discern (p.406) the correct interpretation of biblical law (cf. Deuteronomy 15:9; see Chapter 7). “The tactics of Jesus’s argument have the effect of achieving a striking identification between his questioners and the law of Deuteronomy 24:1: “What did Moses command you? …With a view to your hardness of heart Moses wrote this commandment for you.” They are firmly associated with that commandment which Jesus abrogates ….”60 As N. T. Wright confirms, “Jesus was not debating with the Pharisees on their own terms, or about the detail of their own agendas. Two musicians may discuss which key is best for a particular Schubert song. Somebody who proposes rearranging the poem for a heavy metal band is not joining in the discussion, but challenging its very premises.”61 As we saw in relation to Qumran law, the interpretation of marriage and divorce laws is a way of clarifying group identity.

My argument is that implicit in Jesus’s teaching at this point is a distinction between legality and morality, that is, between what is halakhically permissible in Jewish law and what is morally right. This distinction is implicit in Jesus’s words themselves. It is the difference between Jesus saying “[Moses] wrote you this commandment” (Mark 10:5) and “Let not man put asunder” (verse 9). In my view, Jesus makes the radical claim that it is halakhically permissible to divorce in circumstances when it is not morally right to do so.

Jesus’s approach to the question of divorce and remarriage contrasts with that of the Pharisees because the starting point for Jesus’s understanding is not Deuteronomy but Genesis. The quotation from Genesis 1:27, which emphasizes the separateness and the “two-ness” of the man and the woman, is a foil for the quotation from Genesis 2:24, which expresses the fusion and ‘one-ness” of marriage. But although Jesus starts with Genesis, he goes beyond it. He makes “a man’s and a woman’s becoming one flesh the reason why the man should not divorce the woman.”62

We saw above that Genesis 1:27 is also used as an authority in the Damascus Document concerning marriage and, possibly, divorce. However, the Damascus Document is at best only a partial parallel to Jesus’s approach.63 For starters, Jesus combines Genesis 1:27 with Genesis 2:24—which the Qumran interpreters did not do. He then produces from these texts something new. “Jesus does not limit himself … to the way in which the quoted statements were intended to (p.407) be taken.”64 There is a freedom and a creativity in Jesus’s approach to the law that is different to Qumran. This gives us an important insight into Jesus’s handling of Torah. “The exposure of the will of God by Jesus came not by way of straight deduction from the law of Moses, but either totally independently of that law or by means of a dialectic within, and between, different parts of it.”65 In fact, what is remarkable about Jesus’s exegetical technique is this: Jesus combines two distinct and unrelated texts that have nothing to do with divorce, and this leads to something new that does address the issue. This method actually mirrors the content of the texts themselves (two-ness leading to one-ness and a new entity).

The theological argument which Jesus presents from these materials is thus that the marriage relationship is permanent and indissoluble. Marriage is “the establishing (by God) of that one-ness which is the goal of creation.”66 Jesus’s account of marriage sees God not just as a witness (per Malachi 2:14 and Proverbs 2:16–17) but the One who joins the couple together. There is a binary opposition between God and man and between “joining together” and “putting asunder.” Divorce is wrong because it undoes God’s work.67 The use of the word “let …” in the phrase “let not man put asunder” (Mark 10:9) implies that the divine fusion can be reversed, although it should not be. Divorce is an act of “anti-creation.” It thus stands in opposition to Jesus’s kingdom work which seeks the restoration of God’s creative intent.

This means that Jesus’s teaching on marriage and divorce—like that at Qumran—has an eschatological dimension. David Catchpole writes that “in the antithesis between Deuteronomy 24:1 and Mark 10:9 there is expressed an underlying antithesis between the old age and the new.”68 There is a presupposition that the “new age” represented by Jesus and his kingdom is already breaking in and that this will see the renewal of creation. “Where there is hardness of heart, divorce is inevitable and lawful. But where the kingdom has been preached … it is now possible to attain to the purposes of the Creator. In the kingdom, divorce is not so much forbidden as it is unnecessary. There is now another way of dealing with it.”69 Jesus’s teaching concerns more than simply “divorce laws”: it “belongs inside the central concerns of the mission of Jesus and the proclamation of the present impact of that kingdom.”70

(p.408) Jesus’s division between law and ethics—between that which is legally permissible and that which is morally right—is one expression of the coming kingdom. As applied to divorce and remarriage, the distinction raises the possibility that legal divorce can lead to moral adultery. This is exactly the issue that Jesus goes on to address with his disciples, in private:

And he [Jesus] said to them [the disciples], “Whoever divorces his wife and marries another, commits adultery against her [that is, the divorced wife because she is still his spouse]; and if she divorces her husband and marries another, she commits adultery.” (Mark 10:11–12)

As far as Jesus is concerned, the kingdom of God is associated with clear standards on the absolute commitment of marriage. The private setting gives Jesus’s teaching “special emphasis.”71 It signifies that obedience on this issue is a crucial part of the disciples’ identity. As at Qumran (despite the difference in substantive content), Jesus’s teaching on divorce and remarriage is presented as being a core part of the disciples’ identity. The same is true of Paul’s teaching on divorce (see below). We will see that Paul distinguishes between Christian spouses, for whom divorce is not presented as being an option, and mixed marriages (Christian and not-Christian) for whom, in his view, divorce is an option, although even here it is a last resort (1 Corinthians 7:15).72

Jesus’s teaching to his disciples in Mark 10:11–12 reappears in Luke’s Gospel. Here, once again, it is given special emphasis as private instruction:

Every one who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery. (Luke 16:18; Jesus speaking)

This teaching is also repeated by the apostle Paul in the First Letter to the Corinthians:

To the married I give charge, not I but the Lord, that the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband)—and that the husband should not divorce his wife. (1 Corinthians 7:10–11)

This is one of very few places where Jesus’s words are quoted in the New Testament outside the Gospels. (The variation in terminology here simply reflects the difference in perspective).

Jesus’s private instruction spells out the implications of his theological argument. If marriage is an indissoluble, two-in-one-flesh communion then the remarriage of a legally divorced partner must constitute moral adultery. Again, we need to (p.409) recognize that Jesus is making a distinction between what is legal and what is ethical, in line with Mark 10:5–9.

A. Traditional Radicalism

Jesus’s citation of Genesis is, at one level, deeply traditional. But it is also extremely radical. Jesus’s teaching on marriage and divorce is thus an example of what we might call “traditional radicalism.” Mark 10:1–12 is revolutionary for four reasons.

First, Jesus distinguishes between legal and moral divorce. The person who legally divorces thinks he or she has a legal and a moral right to remarry. But Jesus states that the person who legally divorces and remarries is committing moral adultery. Such a person thinks they are morally free to remarry; but, in fact, they are not because the divorce is morally ineffective. In this sense, the divorce has been legally operative but not morally effective. The person who divorces and remarries still ends up committing adultery because the marriage bond is not broken. Jesus’s teaching thus radically cuts down the operation of divorce because it denies its effectiveness. At the same time, Jesus’s teaching expands the use of adultery to cover cases of legal divorce. Jesus is saying that it is possible for someone to legally divorce and to legally remarry but that this constitutes moral adultery.

Second, by labelling remarriage after a divorce “adultery,” Jesus increases the scope of the offense of adultery (cf. the way in which the Qumran interpreters expanded the scope of the offense of fornication; see above). From the point of view of biblical law, this is not without precedent. We saw in Chapter 11 that biblical law sees adultery as an expansible category. In Leviticus 20, for example, we saw that the Decalogue heading of “adultery” in verse 10 gives rise to a series of sexual relationships that can be characterized as “forms of adultery” (verses 11–21). Indeed, we saw that one of the sexual relationships in this list actually takes the form of marriage (Leviticus 20:14, which concerns the man who marries a woman and her mother). This means that even in biblical law, we can identify a marriage that is nevertheless classified as a form of adultery.

Third, as part of this expansion, Jesus also extends the range of victims. We saw in Chapter 11 that a man is typically thought of as committing adultery against the husband of the woman with whom he has sexual relations (see Chapter 11). In Mark 10:1–12, Jesus radically extends the breadth of the typical understanding of adultery by saying that it can also be committed against his own wife. This means that the adultery by the husband is also an offense against himself. It follows from this extension that husbands and wives are treated equally for the purpose of adultery. The husband’s behavior constitutes adultery against his wife and vice versa (cf. 1 Corinthians 7:3–4). On the subject of sexual equality, we should note that Mark 10:12 takes it for granted that wives could divorce their husbands (10:12). This is not surprising because it is consistent with a narrative reading of Deuteronomy 24:1–4 (see Chapter 11). Mark also refers to (p.410) Herodias, who had divorced her husband, Philip, in order to marry Herod Antipas (6:17).

Finally, Mark 10 is revolutionary because, at a stroke, Jesus abolishes polygamy. Jesus’s reasoning—that marrying another after divorce constitutes adultery—presupposes monogamy because if polygamy was legitimate, there would no problem with remarriage to another woman. Again, there are parallels with the Qumran texts to the extent that these also prohibit polygamy.

B. Outlawing Moses?

So far, Jesus’s teaching on marriage and divorce is consistent with the kind of thing that Jesus would say: it is clear, radical, and revolutionary. We have seen elsewhere how Jesus intensifies the jubilee in the form of “releasing debts” and forgiveness (see Chapter 7). It also fits the way that Jesus’s teaching conflicts with first-century Jewish practice (e.g., Mark 7:9–13, 14–15). Likewise, it coheres with Jesus’s use of Torah, generally, inasmuch as Jesus’s direct quotation of biblical law in his ethical teaching is “minimal”73 and prefers instead “the authority of an early ideal.”74

Does Jesus’s handling of Torah in Mark 10:1–12 abolish Moses? Jesus’s treatment of Deuteronomy 24:1–4 reflects a complex attitude. He makes a “careful distinction between what God had said (in Genesis) and what Moses had said (in Deuteronomy).”75 He also allows God’s creative intention to question “the tacit approval of divorce within the Mosaic tradition.”76 For some commentators, this constitutes an abolition of the law. As Catchpole avers, “What Moses commanded, the historical Jesus rejects.”77 After all, it is Jesus himself who calls Deuteronomy 24:1 a “command” (10:3) and not merely a concession, per the Pharisees (10:4).

In the light of this, it is very striking that Jesus’s teaching in Luke’s Gospel follows directly on from the claim that:

… it is easier for heaven and earth to pass away, than for one dot of the law to become void. (Luke 16:17; Jesus speaking)

Why did Luke include Jesus’s divorce teaching at this point? This may have been because the liberal attitudes of Jesus’s contemporaries toward marriage and divorce were seen as a prime example of the way in which “the law’ was (p.411) being ignored and set aside. From that perspective, Jesus’s strict teaching on marriage and divorce is not best seen as an example of “annulling” the law but of upholding it. In this sense, then, Jesus’s teaching is not new.

Jesus’s handling of Deuteronomy 24:1–4 emphasises the importance of creation in thinking about biblical law. As Hurst writes, “There is a law of God built into creation—lifelong fidelity—to which Deuteronomy is but an afterthought. If Jesus goes on to say that remarriage after divorce is adultery, it would not represent for him new legislation.”78

If we put all this together, we find that there is a tension at the heart of Jesus’s approach to the biblical material on marriage and divorce. It is both new and not new. It is radical and traditional. This may be part of the reason why we find Jesus’s teaching on this subject difficult. It is hard to see exactly what Jesus is doing. Is he setting the law to one side, or is he upholding it? Jesus’s strange division between law and ethics in Mark 10:5–9 exposes the tension. On the one hand, Jesus ethicizes the law by showing us the point of the rule. But on the other hand, Jesus relativizes the law by downplaying its significance in the light of Genesis.

Jesus’s distinction in the Gospels of Mark and Luke between what is legally permissible and what is morally right inevitably raises the following questions. Can there ever be a moral divorce? That is, can a person be free to divorce in a way that is morally right? This is exactly the question addressed in Matthew’s Gospel.

VII. Adultery—but not as we know it

The Gospel According to Matthew is widely recognized as being the most Jewish of the four Gospels and the one most sensitive to Jewish concerns. We might therefore expect some variation in expression, particularly if there was any anxiety that Jesus’s teaching on marriage and divorce “outlawed Moses.” It is therefore not surprising to find a different formulation of Jesus’s teaching to that found in Mark and Luke.

Jesus’s teaching is discussed in two places in Matthew’s Gospel (Matthew 5:31–32 and 19:1–12). The first discussion occurs in the context of a discussion about adultery in the Sermon on the Mount. The Sermon is not “new law,” as is sometimes thought, but a description of life in the kingdom of God.79 For Jesus, ethics is primarily descriptive: it illustrates how men and women will behave in the kingdom. This lifestyle involves “a higher standard of ethical observance (p.412) than can ever be enforced by law”80 no doubt because it is a question of vocation. We shall return to this question of calling in relation to marriage, below.

The teaching on divorce in the Sermon on the Mount is sandwiched between a prohibition of adultery and an exhortation to truth telling. Both point to a way of living that in practice makes divorce less likely to occur.81 In regard to adultery, Jesus gives two examples of violations of the seventh commandment “which his audience would never contemplate as adulterous,”82 namely, looking at another for the purpose of lust (verse 27–30) and divorce (verses 31–32). This context confirms that, as in Mark and Luke’s Gospel, Jesus’s teaching on divorce radically extends the scope of adultery:

It was also said, “Whoever divorces (apolyse) his wife, let him give her a certificate of divorce.” But I say to you that every one who divorces (apolyon) his wife, except on the ground of unchastity (porneia), makes her an adulteress; and whoever marries a divorced woman commits adultery (moichatai). (Matthew 5:31–32; Jesus speaking)

However, the reference to porneia in Matthew’s Gospel appears to qualify the absolute prohibitions of Mark and Luke. Although some have argued that porneia here has a broad meaning (including “anything that causes the breakdown of a marriage”), its use in conjunction with moicheia, which means adultery, indicates that its use in verse 32 refers to adultery.83 Gordon Wenham and William Heth84 note that porneia is used in the Septuagint and the New Testament as an umbrella term that covers any and all types of unlawful sexual activity, including those found in Leviticus 18 and 20. We have seen in Chapter 11 that the sexual offenses listed in Leviticus 20:10–21, for example, can be classified as adultery and forms of adultery. Attempts to limit porneia to specific kinds of offenses, such as incest,85 are unconvincing because it is not clear that the word is being used with such precision.

A. Permission to remarry?

Jesus’s qualification in Matthew’s Gospel means that there are some circumstances in which it is possible to speak of a moral divorce. It is possible for a disciple of Jesus to divorce in a way that is morally right, namely, when the (p.413) other party has committed porneia. In fact, there is an argument for saying that Jewish law did not simply permit the husband of an adulterous wife to divorce her but actually required him to do so.86 But whether or not the divorce is mandatory or permissive, Jesus’s exception (on the grounds of porneia) seems to mean that the spouse who is not responsible for the breakup can remarry, whereas the spouse who is responsible for breaking up the marriage is forbidden to remarry.

Some scholars go further to argue that it is never possible for either spouse to remarry.87 They argue that Jesus’s exception clause in Matthew only qualifies the phrase “every one who divorces his wife.” This means that while the innocent spouse who has not committed porneia may obtain a divorce, she can never remarry because “whoever marries a divorced woman commits adultery” (Matthew 5:32). They argue that the verb “divorces” in verse 5:32a does not include the right to remarry. This leads them to construct the exception clause in the following terms:

“(1) A man may not put away his wife unless she is guilty of adultery;

(2) Whoever marries another after putting away his wife commits adultery.”88

Their position can be summarized thus: “putting away for reasons other than unchastity is forbidden; and remarriage after every divorce is adulterous.”89 On this reading, there is no tension between what Jesus says in Mark and Luke and what Jesus says in Matthew. In all three Gospels, Jesus represents God’s intention that there should be no exceptions to the ban on remarriage. The church is God’s new creation and so it should be living according to the “one flesh” ideal set out in Genesis 1 and 2.

There are several difficulties with the view that Jesus’s words constitute a ban on remarriage, even in the case of adultery. First, it assumes that Jesus gives the verb “divorce”’ in verse 32a a highly restrictive meaning. Wenham and Heth90 argue that Jesus limits the meaning of divorce to “separation from bed and board.” Indeed, their construction of Matthew’s exception clause only makes sense on this supposition. However, this would have been contrary to Jewish assumptions at the time. Of course, we have seen that Jesus does challenge contemporary Jewish ideas about divorce, but this is not in itself sufficient grounds for thinking that Jesus redefines the meaning of divorce in the way that Wenham and Heth imply. Their argument requires that they attach two different meanings to the verb “divorces” in verses 31 and 32. Thus, verse 31, which draws on Deuteronomy 24:1–4, uses the verb “to divorce” in the sense of “divorce with the (p.414) right to remarry” (“Whoever divorces (apolyse) his wife, let him give her a certificate of divorce”). However, on their view, verse 32 uses the verb in the sense of “separation and no right of remarriage” (“But I say to you that every one who divorces (apolyon) his wife, except on the ground of unchastity, makes her an adulteress; and whoever marries a divorced woman commits adultery”). Wenham and Heth argue that since the word apolyein has a general meaning that does not convey the specifics of whether one could or could not remarry, the word can mean two different things, according to context.91 However, given the sharpness of the distinction that is being made, one would expect this to be flagged somewhere in the text itself.

Second, if, as Wenham and Heth argue, the verb “divorces” in verse 32a refers only to “separation from bed and board,” how can divorce alone make the woman “an adulteress”? They explain Jesus’s saying by claiming that “divorce, except for unchastity, is tantamount to committing adultery.”92 But Jesus says that she is an adulteress, not that she is nearly an adulteress. The reference to “an adulteress” surely implies that she has contracted a second marriage. Again, the view that “divorce” in verse 32 refers to separation with no right of remarriage seems implausible.

My argument is that the exception clause reminds us, once again, of the importance of the distinction Jesus makes between that which is legally permissible and that which is morally right. In Matthew’s Gospel, Jesus seems to be saying that while it is possible to legally divorce in circumstances when it is not morally right to do so; it is sometimes possible to legally divorce in a way that is morally right—when one party commits porneia. However, the person who wrongfully divorces—for reasons other than porneia—and who legally remarries, commits moral adultery.

B. Healing and Teaching

Matthew returns to the subject of marriage and divorce later in his Gospel (Matthew 19:1–12). It is characteristic of Matthew to mention topics or to quote sayings twice (e.g., 3:2=4:17; 3:10=7:19; 3:12=25:29).93 Wenham and Heth helpfully note that in such cases, Matthew “tends to abridge so that some of his remarks can only be understood in the light of the fuller text.”94 This creates the sensible presumption that the exception clause “except for porneia” should be understood in the same way in both passages.

Nevertheless, there are important differences between the contexts of the two sayings. Matthew 5:31–32 does not record any interaction with Jesus’s listeners, whereas Matthew 19:1–12 begins with a debate with the Pharisees (cf. Mark 10). (p.415) Matthew opens his second pericope on divorce by tracking Jesus’s movement into:

… the region of Judea beyond the Jordan and large crowds followed him [Jesus], and he healed them there. And Pharisees came up to him and tested him by asking, “Is it lawful to divorce one’s wife for any cause?” (Matthew 19:2–3)

It is striking that Jesus’s teaching on divorce occurs in the context of physical healings. The restoration of persons to God’s original creative intent is consistent with the teaching that follows, which is a call to return to the ideals of Genesis. There is an implied contrast between “healing,” which implies wholeness, and “putting asunder,” which implies woundedness. The context further underlines Jesus’s tension with the Pharisees whose preoccupation with grounds for divorce—and hence “uncreation”—is opposed to Jesus’s concern for wholeness and “recreation.”

There is also a contrast between the setting of Jesus’s teaching in Matthew’s Gospel and that of Mark. In Matthew, the implications of Jesus’s teaching are made public, whereas in Mark, they are private. We also find that the Pharisees’ opening question is different. Instead of the general “Is it lawful for a man to divorce his wife?” (Mark 10:2), we have the more pointed “Is it lawful to divorce one’s wife for any cause?” (Matthew 19:3). This phrase alludes to sharp rabbinic debates in Jesus’s day regarding the meaning of Deuteronomy 24:1–4; a record of which survives in postbiblical rabbinic accounts:

The School of Shammai say: A man should not divorce his wife unless he found in her a matter of indecency, as it is said: “For he finds in her an indecent matter.” And the School of Hillel say, Even if she spoiled his dish, since it says “For he finds in her an indecent matter.” (Mishnah Gittin 9:10)

To judge from surviving writings, the liberal Hillelite position appears to have been dominant in the first century (e.g., Josephus Antiquities 4:253), and it seems that the Pharisees in Matthew 19:3 assume this majority position.

Jesus rejects the Pharisees’ basic assumption that Deuteronomy 24:1–4 should be the starting point of the debate and takes them back, as we have seen, to Genesis. We have already considered how this tactic could be seen as rejecting the authority of Moses. This is why the Pharisees respond by asking why Moses had authority to permit divorce in the first place (“Why then did Moses command one …?”; Matthew 19:7). Jesus responds by identifying their interpretation as a symptom of hard-heartedness. It is in this context that we find the repetition of the so-called “Matthean exception”:

And I say to you: whoever divorces his wife, except for unchastity, and marries another, commits adultery. (Matthew 19:9)

As in Matthew 5:31–32, Jesus is saying that while it is possible to legally divorce in circumstances when it is not morally right to do so, it is sometimes (p.416) possible to legally divorce in a way that is morally right. Once again, the person who wrongfully divorces—that is, for reasons other than porneia—and who legally remarries, commits moral adultery.

Why does Matthew include Jesus’s exception when Mark and Luke do not? The answer seems to lie in Matthew’s general sensitivity toward Jewish concerns. Insofar as the word porneia covers adultery, there is enough evidence to indicate the possibility that the porneia exception reflects a Jewish movement toward a mandatory divorce of the adulterer’s wife.95 If so, it is only to be expected that Matthew would include information that was relevant to his primarily Jewish audience.

VIII. Adulterers cannot benefit

We have seen that Jesus’s teaching in Mark and Luke appears to absolutely prohibit divorce and remarriage, while Jesus’s teaching in Matthew appears to grant an exception on the grounds of porneia. How do we make sense of this apparent discrepancy? Understanding the New Testament’s handling of biblical law is not too far removed from the general problem we have been considering throughout this book, namely, how do we do biblical law? Once again, we find that we have a choice between adopting a rule-based literal approach or a narrative paradigmatic one. Can the texts be resolved by either, or both, of these approaches?

First, if we approach Jesus’s teaching as a set of rules and in a legalistic fashion, then we will encounter problems because Jesus’s teaching in Mark and Luke does not refer to any exceptions, whereas Matthew does. This implies that the absolutist position in Mark and Luke’s Gospels is not the whole story, an impression that is confirmed by Paul’s additional exception in First Corinthians. Even the prohibitive language of Mark 10:5–9 is undercut by the phraseology of Mark 10:9—“let not man put asunder”—which implies that human beings have the power to end a marriage.

However, even on a rule-based approach, there is a possible way of harmonizing the texts. Matthew 5 states that if the husband legally divorces his wife for a reason other than porneia, it is a wrongful divorce and hence ineffective. The result is that when the woman legally remarries, she commits moral adultery. On the other hand, if the husband divorces the woman for porneia, he is not guilty of causing her to be an adulteress, either (a) because she is an adulteress already (since porneia is the reason why he is divorcing her); or (b) because she committed the porneia, and so she is responsible for his ending the relationship. (p.417) Either way, she is not free to remarry because the marriage has come to an end through her own fault.

In my view, it follows that what Matthew’s Gospel adds to Mark and Luke is the possibility that one spouse can divorce the other if the other spouse is at fault in ending the marriage. The spouse who has committed porneia is responsible for it and cannot remarry, whereas the party who has not committed porneia is free to remarry. It is a true divorce—legally and morally—but only for the party who is not at fault.

A. The nuclear option

This fits with Mark and Luke’s Gospels where Jesus says that neither spouse, as one party to the marriage, has power to bring it to an end. This is because if you do something to end it, you can never remarry. What Matthew adds is that if the marriage is formally dissolved because of what the other person has done, then the innocent party is not prevented from remarrying.

This is also compatible with Paul, who identifies at least one other circumstance other than porneia—desertion:

To the rest I say, not the Lord, that if any brother has a wife who is an unbeliever, and she consents to live with him, he should not divorce her. If any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him … But if the unbelieving partner desires to separate, let it be so; in such a case the brother or sister is not bound. For God has called us to peace. (1 Corinthians 7:12–13, 15; Paul speaking)

To put it another way, while there are justifiable grounds for divorce, it is not possible for you to rely upon them if you are responsible for bringing about the end of the marriage. This means that, in effect, the commission of porneia or the act of desertion are informal modes of divorce. Adultery and desertion are equivalent to ending a marriage. There is a power to divorce—but it should never be used (“let not man put asunder …”). Adultery and desertion are the “nuclear option”; however, it is best not to have your finger on the button.

Jesus’s teaching in Matthew’s Gospel envisages the moral—but not the legal—possibility that one party is “as if they are married,” and the other party is not. What this means is that the person who is not responsible for breaking up the marriage is allowed to enter another one. However, the person who is responsible for the divorce is not free to remarry because this person is regarded as morally married, even though there has been a legal divorce. There is an element of poetic justice here. The party who takes marriage seriously and is not responsible for the divorce can have another marriage; but the party who despises the marriage and precipitates a divorce is not allowed to enter into another one.

The irony is that the person who breaks up the marriage cannot benefit from his or her wrong. The divorce is morally ineffective—for them. They are still regarded as married and so cannot remarry. Some might argue that this reading (p.418) suffers from the same objection as that levied against Wenham and Heth, above, inasmuch as this too involves a “double sense.” It means that “divorce” for the innocent party means “divorce with the right of remarriage,” whereas “divorce” for the guilty party means “separation with no right of divorce.” However, my argument is that this difference in meaning reflects a distinction that is present in Matthew 5:31–32, where Jesus distinguishes between that which is legally valid and that which is morally effective. As I have argued above, Jesus’s response to the Pharisees assumes that divorce can be legally permissible but morally ineffective. This is why a legally permissible divorce can result in moral adultery.

If we put together Jesus’s teaching in Matthew, Mark, and Luke, we can, in my view, reach the following conclusions. Jesus is saying that the legal act of divorce can be a wrongful repudiation of marriage. But there are some circumstances in which the legal act of divorce is not a wrongful repudiation of marriage if the other party is at fault. In these circumstances, divorce gives legal effect to the fact that the marriage has been repudiated. (This is a different way of harmonizing the Gospels to that suggested by Instone-Brewer96).

Of course, we can think of different ways in which marriage can be repudiated. The question is: when is it ethically appropriate to make use of that legal power to divorce? This is the question Jesus addresses in Matthew’s Gospel. Jesus proclaims that if you make use of it in certain circumstances, then it is not wrongful; but if you do it in other circumstances, then it is wrongful. The bottom line is that you cannot benefit from your wrongdoing.

This approach ties in with rabbinic practice which did not, on the face of it, allow marriage between the guilty party and the suspected paramour (Sotah 5:1; and even if marriage was possible, the husband could not have sexual relations with her. In a polygamous context, this would not have been such a problem, for the husband). This is broadly consistent with Jesus’s teaching; that adulterers cannot benefit from their wrong.

It might be objected that this approach is unfair since no party is ever wholly responsible for breaking up a marriage. But this merely recognizes that there are ups and downs in any marriage and, since this is the case, it is all the more important not to add to it through porneia or desertion. Jesus’s teaching thus provides protection for both parties in the marriage because there is never any incentive to end it by porneia. Instead, there is every incentive to stay in the marriage precisely because it is “the only one you’ve got.” This means that Jesus’s exception in Matthew’s Gospel does not encourage porneia as a way of getting out of a failed marriage. Nor does Luke punish the wife who has been wrongfully divorced by her husband.

(p.419) Although Jesus’s teaching makes sense in terms of rules, a strictly casuistic approach leaves too many questions unanswered. Jesus identifies porneia as providing a moral ground for divorce, and Paul—dealing with a situation that Jesus never had to deal with —identifies a further ground of desertion. This raises the question of whether there are any additional grounds for divorce, such as emotional and material neglect (cf. Exodus 21:10–11). Another question is the status of the second marriage. What about the man who wrongfully divorces and legally remarries? Jesus claims that this is adultery. But what is the true status of the “morally adulterous marriage”? Is the fact that the parties are married sufficient to distinguish it from a “straightforward” adulterous relationship? If so, is it a full marriage? Or is it a defective marriage? Or is it really a form of serial polygamy?

The danger of a legalistic approach to Jesus’s teaching is that it takes us back to the very debate that the Pharisees wanted to have with Jesus—and which Jesus sets to one side. The problem with a casuistic approach is that we end up adding exception after exception and one clarification clause after another. Ironically, we end up reading Jesus like Moses at the very point where Jesus separates himself from Moses.

To conclude, Jesus’s teaching sets out a very clear rule; but that does not necessarily mean that all of its ramifications are worked out. This is indicated by the way in which Paul identifies desertion as an additional ground. It raises the possibility that Jesus is not advocating a casuistic approach and might instead be envisioning a calling. If so, the rule and its implications are to be understood and applied in the light of the calling.

B. Ethics and Calling

Another way of resolving the different accounts might simply be to reject a casuistic approach. It may simply be a misreading of the material to think about reconciling the texts in terms of their exceptions. Instead, we could try to resolve Jesus’s teaching by taking a narrative paradigmatic approach.

It is sometimes said that the problem we have with Jesus’s teaching in the Gospels of Mark and Luke is that it appears to be “an overstatement in which universal language [regarding divorce] is used to teach a non-universal truth.”97 However, we have already had reason to question whether the Bible does in fact reflect any straightforward commitment to universalism (see Chapter 3). What we found instead was evidence of norms known to everyone to whom they apply and that this was not inconsistent with some form of moral pluralism. We also saw that the expression of moral virtues, consistent with a particular call and commitment, could vary from one person to the next. In that regard, it is notable (p.420) that Jesus’s teaching on marriage and divorce does appear to be presented in terms of a response to a calling.

C. The shock of Torah

This is explicit in Jesus’s debate with his disciples in Matthew 19:10–12, which immediately follows Jesus’s debate with the Pharisees in Matthew 19:3–9. The disciples protest at Jesus’s teaching (19:10) by saying, “it is not expedient to marry” (verse 10). This triggers a peroration from Jesus on the subject of eunuchs (19:12) which is prefaced by Jesus’s remark: “Not all men can receive this saying (ton logon touton), but only those to whom it is given” (19:11). This clearly introduces the idea of a calling. But to what does the calling refer?

It seems clear the “saying” in verse 11, and hence the calling, refers to Jesus’s teaching on marriage and divorce in verses 4–9.98 The ones who “can accept” Jesus’s teaching because it has been “given” to them are those who obey Jesus’s teaching in relation to marriage and divorce. Those who can respond to the call of marriage should do so. This is consistent with Jesus’s use of Genesis, which implies a “universal” calling to marriage. Matthew 19:4–6 confirms that the “default” position is marriage, and Jesus sets out three reasons why people might not marry and might discern that they have a calling not to marry (verse 12).

This reading contrasts with those who argue that the “saying” refers to the disciples’ outburst in verse 10: “it is not expedient to marry.” If this is correct, and the referent of Jesus’s saying is to the disciples’ reaction, then it follows that the calling of which Jesus speaks is celibacy. This is how verse 12 has traditionally been understood.99 However, the problem with this reading is that it does not square with Jesus’s teaching regarding Genesis. In the light of this, it is bizarre to interpret Jesus as saying that singleness is the default position. This interpretation is also inconsistent with a subsequent conversation that Jesus has with the disciples later, in Chapter 19. Here, the disciples are witness to another radical exchange between Jesus and a third party (verses 16–22) where the disciples, once again, express astonishment at his teaching (verse 25). On this occasion, it is clear that Jesus’s response in verse 26 (“With men this is impossible …”) does not refer back to the disciples’ shocked reaction in verse 25 (“Who then can be saved?”) but rather continues his teaching in verses 23–24 on the subject of wealth.100 It is almost certain, then, that the same is true earlier in Chapter 19 as well. This means that Jesus’s “saying” in verse 11 refers not to the disciples’ outburst in verse 10 but rather continues Jesus’s teaching in verses 4–9 on the subject of marriage.

(p.421) Consequently, we can see that Jesus’s teaching on marriage and divorce in Matthew 19:3–9 is anchored in the belief that marriage is a calling (19:11–12).

D. Forsaking all others

Indeed, Jesus’s use of the Eden narrative in Matthew 19:4–6 and Mark 10:5–9 indicates that marriage is understood in terms of a calling. The picture emphasizes three things: (1) God, (2) the couple, and (3) work in the forest of Eden (Genesis 2:15–25). “Marriage is instituted by the Creator in the context of meaningful work … the purpose of sex is not in principle the promotion of interpersonal relationship.”101 The Eden story presents a very positive image of marriage: it is a picture of mutual dependency in the service of something greater than the couple themselves. Another striking feature of Eden is the lack of any alternative marital relationship for Adam and Eve. As presented, there are no other human beings around. There is no alternative marriage for them to jump into or reason for them to abandon the marriage they have got. This is important from the point of view of calling. The call of marriage is such that one cannot consider any alternative. The “question of intent”—asked at wedding ceremonies in the Church of England—captures this well. It asks whether the parties are willing to “forsake all others as long as you both shall live?” The marriage should be as if there were no others, as was the case in Eden. This ties the question of calling (“am I called to that sort of exclusive relationship?”) to the narrative image.

E. “Let everyone lead the life which the Lord has assigned to him … ”

The same belief—that marriage is a vocation—is also explicit in Paul’s teaching. Paul starts by repeating Jesus’s “command” that “a wife must not separate from her husband … And a husband must not divorce his wife” (1 Corinthians 7:10–11). He then delivers, on his own authority, an additional exception which is not mentioned by Jesus in Matthew’s Gospel, namely, that the believer in a mixed marriage may consent to divorce by an unbeliever (1 Corinthians 7:12–15). Paul is able to insist both on a prohibition upon divorce and on an exception. This is similar to the combined view of the Gospels. Again, Paul locates this teaching in the context of a calling:

Only, let every one lead the life which the Lord has assigned to him, and in which God has called him. This is my rule in all the churches.

(1 Corinthians 7:17; Paul speaking)

Putting Jesus and Paul together, it seems as though one way of making sense of the apparent dissonance regarding marriage and divorce is to recognize that (p.422) the New Testament situates its regulations in the context of a calling. Even in Mark and Luke’s Gospels, Jesus’s teaching on marriage and divorce occurs in the broader context of what it means for Israel to fulfill her vocation as the people of God. Likewise Jesus’s teaching in Matthew 5 occurs in the context of describing those who are members of the Kingdom of God. This is not too far removed from the character of Torah itself. We saw in Chapter 2 that the priestly covenant of Exodus 19 is understood primarily in terms of a vocation (“you shall be to me a kingdom of priests and a holy nation”; 19:6). In particular, it is clear that obedience to Jesus on the subject of divorce and remarriage was one of the key ways in which the new Israel, which was being formed around Jesus, would fulfill its vocation. The “Kingdom of God” would be a work of new creation (cf. the parallels between the creation of the world and the creation of Israel at Mount Sinai, noted in Chapter 2). The coming of the Kingdom of God in the eschaton (the “end times” or the “end of the present age”) is bound up with the fulfillment of God’s purposes for creation. Jesus’s reference to Genesis in Mark 10:6–8 understands marriage in the light of creation. This means that Jesus’s teaching on divorce and remarriage is not some kind of ethical “optional extra” but is central to his eschatological thinking. As Catchpole writes: “Jesus presupposes … that the End time, which will see a renewal of the Beginning time, has already dawned.”102 To this extent, it is fair to say that the debate between Jesus and the Pharisees reflects “a more basic ideological debate on the status of marriage itself in the imminent eschatological age.”103 Eschatology also helps us to make sense of Paul’s allowance for divorce in the case of the non-Christian who deserts a Christian spouse. Divorce is here allowable precisely because the initiative is taken by someone who is not identified as a follower of Jesus. Paul’s teaching is eschatological in its outlook because it presumes and implements “a distinction between those who are in Christ and those who are not. For Christian couples, divorce is excluded, but for ‘mixed couples’ it is a reluctantly allowed possibility.”104

The idea that Jesus’s disciples were defined by their behavior in relation to divorce and remarriage and that this was a way of fulfilling their vocation as the people of God during the “last days” has parallels with the Qumran sectarians. Of course, there are major substantive differences in the content of Dead Sea Scrolls and the New Testament in relation to divorce and remarriage. Nevertheless, it is true that the members of the Qumran community saw themselves as fulfilling Israel’s vocation in the “end times,” even to the extent of camping out in the desert in a manner that evoked Sinai and that their high standards in relation to divorce and remarriage anticipated the coming Messianic age. Jackson understands the differences between the Dead Sea Scrolls and the New (p.423) Testament on divorce and remarriage in the light of sectarian rivalry, which expressed itself in “‘holier than thou” claims regarding permissible sexual relationships.”105 Jackson’s approach is not too far removed from my argument that divorce and remarriage in the New Testament is understood in terms of a vocation. Some groups, like the Qumran community and the followers of Jesus, see themselves as distinct from others and as endorsing higher standards, and this can be identified with having a sense of calling.

Within the overall context of a calling, it is self-evident that the “call” to faithful marriage precludes the option of divorce. No one who is concerned with responding to the call to marriage could possibly be interested in whether there is an exception on the grounds of porneia, or of having an unbelieving spouse or indeed a range of other grounds that may be permissible but are not articulated. Inherent in the concept of a marriage is the belief that one cannot ditch it. It is simply not possible to speak of marriage in a provisional way. The idea that marriage is a calling also helps to explain why the person who wrongfully divorces is not given a second chance. The person who is to blame for the marriage failing and who has successfully destroyed “what God has joined together” has, by definition, demonstrated a lack of calling to marriage.

Even so, as far as the New Testament is concerned, the outworking of this calling means taking account of problems raised in two particular cases. These are (1) the social pressure to divorce in cases of porneia (which seems to be an issue for Jewish believers), and (2) desertion by the unbeliever (which is a problem for believers in a mixed marriage). Or to put it in different language, even in the run-up to the eschaton, concessions sometimes have to be made. As noted, above, in relation to the Dead Sea Scrolls, certain exceptions were made for the king, even though these did not apply to ordinary members of the community. Even in eschatological teaching, there is an element of eschatological pragmatism.106 This is true, albeit in different ways, both for the Dead Sea Scrolls and the New Testament.

To conclude, there are various ways in which we can make sense of Jesus’s teaching. They include a rule-based literal approach and a totally different narrative paradigmatic approach. From one perspective, Jesus can be read as giving very limited conditions under which couples can divorce (in which case it can all become very legalistic). From another, Jesus sets out an image of what marriage is about, which emphasizes that it is a vocation and a calling. My argument is that there are possibilities for reconciling the different accounts in Mark, Luke, and Matthew under either approach.

What implications does this have for our understanding of the nature of biblical law? I have argued that Jesus’s approach in the Gospels of Matthew and Mark (p.424) ties the rule about marriage and divorce to a central narrative image which is rooted in the idea of a calling. Further support for this approach is found in Paul’s teaching. Indeed Paul explicitly juxtaposes the idea of a calling (“… let every one lead the life … which God has called him”) with that of a rule, or a command (“This is my rule in all the churches”).

Understanding divorce and remarriage means holding onto both the sense of vocation and the rules. There are dangers with an exclusively legalistic approach because we end up being prescriptive about things that Jesus was not prescriptive about. Rules are not enough. They need to be understood in the light of God’s calling; otherwise we will end up having debates around the Pharisees’ agenda. But at the same time, rules are needed to give form and shape to the calling. Without them, the “calling” risks becoming overly subjective. It is a mistake to become fixated on either rules or calling. Rules are one mode of expressing reality, and calling is another. Both are needed to express the reality of marital commitment.

IX. Conclusion

Toward the end of the Second Temple period, biblical law was interpreted and applied in a way that often strikes modern interpreters as tendentious. At times it seems to border on eisegesis rather than exegesis. We find considerable fluidity between genres that are nowadays regarded as distinct, and we discover that the early chapters of Genesis were crucial to legal interpretation. This difference may be partly explained by the fact that the first-century AD was a time when much emphasis was placed by exegetes on understanding what the God of Israel was doing and requiring now, rather than on trying to reconstruct interpretations of “what people thought” in the past. The Qumran community believed that the God of Israel was present and active in the life of their unique community: the New Testament writers, by contrast, believed that Jesus of Nazareth was the means by which God was bringing about the restoration of Israel and the cosmos, in line with God’s original creative intent.

Yet, despite these fundamental differences, we can say that the laws of marriage, divorce, and remarriage were important to both groups as a means of championing a particular attitude toward Moses, the purposes of God, and the eschaton. They also helped to define the identity of both religious groups, particularly in relation to their opponents, and they formed part of a call to renewed and intensified Torah-obedience. Indeed, for both the Qumran community and Jesus’s disciples (in different ways), their behavior on the question of divorce and remarriage was central to their identity. The many differences between Qumran and Jesus show the considerable pluralism that existed within Second Temple Judaism on this single issue. Furthermore, there is evidence of considerable diversity within each group. It is far from clear that the Dead Sea Scrolls (p.425) speak with a single voice on the subject of divorce, and even Jesus’s disciples are shocked by Jesus’s teaching. Our study of divorce and remarriage in the shadow of the Second Temple reminds us that this was a period of great diversity and conflict. It was a time when all the parties believed they were playing for high stakes. This is the background for the topic of the following chapter: the trials of Jesus.

Selected reading

Bibliography references:

Moshe J. Bernstein and Shlomo A. Koyfman, “The interpretation of biblical law in the Dead Sea Scrolls: Forms and methods.” In Biblical Interpretation at Qumran, Matthias Henze ed. (Grand Rapids: Eerdmans, 2005), pp. 61–87.

David R. Catchpole, “The synoptic divorce material as a traditio-historical problem,” Bulletin of the John Rylands University Library of Manchester, 57 (1974), 92–127.

Bernard S. Jackson, Essays on Halakhah in the New Testament (Leiden: Brill, 2008), Chapter 8.

Lawrence H. Schiffman, Reclaiming the Dead Sea Scrolls (Philadelphia: Jewish Publication Society, 1994), especially Chapter 15.

Gordon J. Wenham and William E. Heth, Jesus and Divorce (Carlisle: Paternoster Press, 2002), especially Chapters 2 and 6.

James C. Vanderkam, “Sinai revisited.” In Biblical Interpretation at Qumran, Matthias Henze ed. (Grand Rapids: Eerdmans, 2005), pp. 44–60.


(1.) See Time line p. xxiii–xxiv.

(2.) See Time line p. xxiii–xxiv.

(3.) Steven D. Fraade, Looking for legal midrash at Qumran, in BIBLICAL PERSPECTIVES: EARLY USE AND INTERPRETATION OF THE BIBLE IN THE LIGHT OF THE DEAD SEA SCROLLS, (M. E. Stone & E. G. Chazon eds.; Leiden: Brill, 1998), 59–79, 75 n. 56.

(4.) Moshe J. Bernstein & Shlomo A. Koyfman, The interpretation of biblical law in the Dead Sea Scrolls: Forms and methods, in BIBLICAL INTERPRETATION AT QUMRAN, (Matthias Henze ed., Grand Rapids: Eerdmans, 2005), 61–87, 64.

(5.) Moshe J. Bernstein, Interpretation of Scriptures, in ENCYCLOPEDIA OF THE DEAD SEA SCROLLS, (Lawrence H. Schiffman & James C. Vanderkam eds.; Oxford: Oxford University Press 2000), vol. I, 376–83, 376.

(6.) Gary A. Anderson, Law and lawgiving, in ENCYCLOPEDIA OF THE DEAD SEA SCROLLS, (Lawrence H. Schiffman & James C. Vanderkam eds., 2 vols.; Oxford: Oxford University Press, 2000), vol. I, 475–77, 476.

(7.) The Complete Dead Sea Scrolls in English, edited by Geza Vermes, revised edition (London: Penguin, 2004), 104.

(8.) Heinz-Josef Fabry, Yahad, in THEOLOGICAL DICTIONARY OF THE OLD TESTAMENT, (G. Johannes Botterweck & Helmer Ringgren, eds.; David E. Green trans.; Grand Rapids: Eerdmans, 1990), vol. VI, 40–48, 48.

(9.) Hannah K. Harrington, Biblical law at Qumran, in THE DEAD SEA SCROLLS AFTER FIFTY YEARS: A COMPREHENSIVE ASSESSMENT, (Peter W. Flint & James C. Vanderkam eds.; 2 vols.; Leiden: Brill, 1998), vol. I, 160–185, 160.

(10.) James C. Vanderkam, Sinai revisited, in BIBLICAL INTERPRETATION AT QUMRAN, (Matthias Henze ed.; Grand Rapids: Eerdmans, 2005), 44–60, 48.


(12.) Elisha Qimron, Celibacy in the Dead Sea Scrolls and the Two Kinds of Sectarianism, in THE MADRID QUMRAN CONGRESS, (Julio Trebolle Barrera & Luis Vegas Montaner eds.; Leiden: Brill, 1992), vol. I, pp. 287–94, 288.


(14.) Lawrence H. Schiffman, Laws pertaining to women in the Temple Scroll, in THE DEAD SEA SCROLLS: FORTY YEARS OF RESEARCH, (Devorah Dimant & Uriel Rappaport eds.; Leiden: Brill, 1992), 210–28, 218–19.

(15.) Schiffman, Laws pertaining to women, p. 220.


(17.) Moshe J. Bernstein, Pentateuch interpretation at Qumran, in THE DEAD SEA SCROLLS AFTER FIFTY YEARS: A COMPREHENSIVE ASSESSMENT (Peter W. Flint & James C. Vanderkam eds.; Leiden: Brill, 1998), 128-59, 154.

(18.) Ibid.

(19.) Ibid., 155.

(20.) Jeffrey H. Tigay, Examination of the accused bride in 4Q159: Forensic medicine at Qumran, J. ANCIENT NEAR EASTERN SOC’Y 22, 129–34, 131 (1993).

(21.) Harrington, Biblical law, pp. 182–84.


(23.) P. P. JENSON, GRADUATED HOLINESS, JOURNAL FOR THE SOCIETY OF THE OLD TESTAMENT SUPPLEMENT SERIES 106 (Sheffield: Journal for the Society of the Old Testament Press, 1992).

(24.) David Rothstein, Gen. 24:14 and marital law in 4Q271 3: Exegetical aspects and implications, DEAD SEA DISCOVERIES 12, 189–204 (2005).



(27.) Translation VERMES, DEAD SEA SCROLLS, p. 197.

(28.) E.g., CHARLOTTE HEMPEL, THE DAMASCUS TEXTS (Sheffield: Sheffield Academic Press, 2000), 82–83; Adiel Schremer, Qumran polemic on marital law: CD 4:20-5:11 and its social background, in THE DAMASCUS DOCUMENT: A CENTENNIAL OF DISCOVERY, (Joseph M. Baumgarten, Esther G. Chazon & Avital Pinnick eds., Leiden: Brill, 2000), 147–60, 147–52.

(29.) Geza Vermes, Sectarian matrimonial halakah in the Damascus Rule, J. JEWISH STUDIES 25, 197–202, 197 (1974), followed by BERNARD S. JACKSON, ESSAYS ON HALAKHAH IN THE NEW TESTAMENT (Leiden: Brill, 2008), 173–74.

(30.) P. Winter, Sadoqite fragments IC 20, 21 and the exegesis of Genesis 1:27 in late Judaism, ZEITSCHRIFT FÜR DIE ALTTESTAMENTLICHE WISSENSCHAFT 68, 289–302, 77 (1956).

(32.) Ibid.

(33.) Jeffrey L. Rubenstein, Nominalism and realism in Qumranic and Rabbinic Law: A reassessment, DEAD SEA DISCOVERIES 6, 157–83, 162 (1999).

(34.) Evald Lövestam, Divorce and remarriage in the New Testament in THE JEWISH LAW ANNUAL (B. S. Jackson ed., Leiden: Brill, 1981), vol. IV, 47–65, 50–51.

(35.) Bernstein, Pentateuch interpretation, p. 137.

(36.) Translation VERMES, DEAD SEA SCROLLS, p. 132.

(37.) E.g., the list provided by Schremer, Qumran polemic, p. 148 n. 3.


(39.) Translation VERMES, DEAD SEA SCROLLS, p. 133.

(40.) Schiffman, Laws pertaining to women, p. 213.

(41.) Bernstein, Pentateuch interpretation, p. 142.

(42.) Translation VERMES, DEAD SEA SCROLLS, p. 214.

(43.) E.g., Schiffman, Laws pertaining to women, p. 216.

(44.) JACKSON, ESSAYS ON HALAKAH, pp. 176–78.

(45.) Ibid., 181 n. 61.

(46.) Ibid., 181.

(47.) Translation VERMES, DEAD SEA SCROLLS, p. 133.

(49.) Ibid.

(50.) Lawrence H. Schiffman, The Pharisees and their legal traditions according to the Dead Sea Scrolls, DEAD SEA DISCOVERIES 8, 262–77, 271 (2001).

(52.) Ibid., 157.

(54.) Ibid., 219–20.

(55.) Bernstein, Interpretation of Scriptures, p. 380.

(56.) Summarized in GORDON J. WENHAM & WILLIAM E. HETH, JESUS AND DIVORCE (Carlisle: Paternoster Press, 2002), 19–44.

(57.) A summary of the contrasts between the early church and the Protestant/Erasmian positions is provided in WENHAM & HETH, JESUS AND DIVORCE, pp. 85–86.

(58.) Quentin Quesnell, Made themselves eunuchs for the kingdom of heaven (Matthew 19:12), CATHOLIC BIBLICAL Q ., 335–58, 352 (1968).

(59.) Ibid.

(60.) DAVID R. CATCHPOLE, The synoptic divorce material as a traditio-historical problem, BULL. OF THE JOHN RYLANDS UNIVERSITY LIBRARY OF MANCHESTER, 57, 92–127, 126 (1974).

(61.) N. T. WRIGHT, JESUS AND THE VICTORY OF GOD (London: SPCK, 1996), 378.

(62.) ROBERT H. GUNDRY, MARK: A COMMENTARY ON HIS APOLOGY FOR THE CROSS (Grand Rapids: Eerdmans, 2000), 532; italics added.

(63.) Catchpole, Synoptic divorce material.

(64.) GUNDRY, MARK, p. 532.

(66.) Ibid., 125.

(67.) Ibid., 123.

(68.) Ibid., 126.

(69.) L. D. Hurst, Ethics of Jesus, in DICTIONARY OF JESUS AND THE GOSPELS, (Joel B. Green & Scot McKnight eds.; Leicester: InterVarsity Press, 1992), 210–22, 219.

(70.) Catchpole, Synoptic divorce material, p. 125.


(72.) Catchpole, Synoptic divorce material, p. 126.

(73.) D. J. Moo, Law, in DICTIONARY OF JESUS AND THE GOSPELS, (Joel B. Green & Scot McKnight eds.; Leicester: InterVarsity Press, 1992), 450–61, 454.

(74.) John Kampen, The Matthean divorce texts reexamined, in NEW QUMRAN TEXTS & STUDIES (George J. Brooke ed., with Florentino García Martínez; Leiden: Brill, 1994), 149–67, 166.

(76.) Ibid., 455.

(77.) Catchpole, Synoptic divorce material, p. 120.

(79.) Ibid., 220.

(80.) Ibid.

(81.) TOM WRIGHT, MATTHEW FOR EVERYONE, 2 vols. (London: SPCK, 2002), vol. I, 47.

(82.) John J. Kilgallen, To what are the Matthean exception-texts (5:32 and 19:9) an exception?, BIBLICA 61, 102–05, 103 (1980).

(83.) See generally DAVID INSTONE-BREWER, DIVORCE AND REMARRIAGE IN THE BIBLE (Grand Rapids: Eerdmans, 2002), 275–79.


(85.) James R. Mueller, The Temple Scroll and the Gospel Divorce Texts, REVUE DU QUMRAN 10, 247–56, 256 (1980).

(86.) JACKSON, ESSAYS ON HALAKAH, pp. 203, 208–10.

(88.) Ibid., 117.

(89.) Ibid.

(90.) Ibid., 129–35.

(91.) Ibid., 133–34.

(92.) Ibid., 71.

(93.) Ibid., 49.

(94.) Ibid.


(96.) INSTONE-BREWER, DIVORCE AND REMARRIAGE, pp. 133–88. For criticisms of Instone-Brewer’s approach, SEE JACKSON, ESSAYS IN HALAKAH, pp. 193–96, 203–11.

(97.) R. H. Stein, Divorce, in DICTIONARY OF JESUS AND THE GOSPELS, (Joel B. Green & Scot McKnight eds.; Leicester: InterVarsity Press, 1992), 192–99, 195.


(99.) Ibid., 268.


(101.) CHRISTOPHER ASH, MARRIAGE: SEX IN THE SERVICE OF GOD (Leicester: InterVarsity Press, 2005), 21.

(102.) Catchpole, Synoptic divorce material, p. 125.


(104.) Catchpole, Synoptic divorce material, p. 126.


(106.) JACKSON, ESSAYS IN HALAKAH, pp. 223–25. (p.426)