The Relativity of Marital Law (as Part of the ‘Legal’ Component of Halakhah)

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The Relativity of Marital Law (as Part of the ‘Legal’ Component of Halakhah)

Sent on 6/4/2008

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The Relativity of Marital Law (as Part of the ‘Legal’ Component of Halakhah)

A few years ago, a discussion took place here that was opened by our old friend Orva Parach (who flew away and is no more. Alas for the loss), about monetary law in the Kovno Ghetto. After the discussion, I wrote an article that I appended to the end of the thread (if I remember correctly). The conclusion was that in a place where legal anarchy prevails and property is ownerless for anyone who wants it, that is, where legal property rights are not recognized, then the halakhic laws (‘You shall not steal’) will not apply either.

These remarks are based on the well-known approach of R. Shimon Shkop (Sha’ar 5), according to which the prohibition of ‘You shall not steal’ is an additional layer on top of the legal laws of ownership, granting them halakhic sanction. In their absence, the prohibition of ‘You shall not steal’ will not exist either.

Similar questions can be asked regarding quite a few halakhic contexts that have a similar structure. That is, wherever halakhah is an additional tier built on top of the universal human tier, and its purpose is only to grant halakhic sanction to the universal tier, there is room to ask what the law would be in a society in which the first tier does not exist.

Now, with regard to the laws of marriage, there is good reason to see them too as built on a two-tier model. There is a universal tier, described by Maimonides at the beginning of Hilkhot Ishut, in which a man meets a woman in the marketplace and brings her into his home, and they become a married couple. The Torah erects on top of this a second tier, that of betrothal as a preliminary stage, and adds various halakhic rules to it, such as the application to her of the prohibition concerning a married woman, and the like. It seems to me reasonable to say that the Torah merely grants halakhic sanction to the universal concept of marriage.

Therefore, marriage in halakhah is not effected as a specifically halakhic act, and according to some views formal testimony is not required, and so forth; rather, he need only bring her into his home, nothing more. That tier remains as it was, in its universal form.

I have already written here in the past that the dissolution of marriage is also carried out in those same two stages (the dissolution of the marital bond: from the moment he sets his mind on divorcing her, he does not have relations with her and has no rights to the fruits of her property, and perhaps does not inherit from her either, and the like. And afterward, the dissolution of the betrothal and her being permitted to others).

If there is indeed a structure here similar to that of monetary law, the resulting picture is that everything belonging to the ‘legal’ part of halakhah is built in this way. These are the areas of marriage and civil law (Even Ha-Ezer and Hoshen Mishpat). The halakhic parts (Orah Hayyim and Yoreh De’ah) usually have a different character, but this is not the place to elaborate.

My question is whether one can infer from this picture (assuming it is correct) the parallel conclusion to the one presented above: in a place where the institution of marriage is not recognized, and everyone acts lawlessly and commits adultery with another man’s wife (as in the generation of the Flood according to the Sages), and this is anchored in law and accepted custom, that is, there is no significance there to couplehood, would the prohibition of adultery also be nullified in such a situation? Would there be no prohibition concerning a married woman in such a place?

Note carefully: I do not mean the claim that if he lives in such a place, then he betroths her on the understanding that she will be permitted to the entire world, and therefore his betrothal has no significance. That is not such a great novelty. What I mean to argue is that if a norm of promiscuity regarding couplehood prevails in society, then even if both of them seriously intend their betrothal, it does not take effect. Exactly as in monetary law.

Underlying this is the conception that couplehood and marriage are a social structure. And, as is well known, ‘witnesses required for the validity of the act’ are understood by some later authorities as representatives of society, which grants legal-social sanction to the betrothal. And where there is no such sanction, there is no betrothal, even if the witnesses intended to testify and the couple intended to enter into betrothal.

This sounds reasonable to me, but I am interested in whether you agree, and whether there is a source that could substantiate this hypothesis.

I would be glad to hear views also regarding the two-tier model itself, both with respect to the laws of marriage (as for monetary law, there have already been disputes over R. Shimon’s position, and that is less interesting at the moment), and with respect to the distinction between the legal part and the halakhic part. And then regarding the conclusion from this model, according to which the prohibition concerning a married woman would have no significance in a society that is fundamentally promiscuous.

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Source (the “Stop—People Think Here” forum): http://www.bhol.co.il/forums/topic.asp?topic_id=2390455