Cupid and Other Animals: Why Get Married? (Column 141)[1]
With God's help
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In recent years, many people have begun asking why get married at all. Why can’t things be left informal? Is it not preferable for couples to decide to live together out of love, without halakhic or even legal formalization? The question is sharpened by the feeling that formalization involves significant halakhic restrictions and recourse to a conservative system (the Chief Rabbinate), which means the loss of the couple’s freedom to conduct themselves as they wish.
Shared life is supposed to express love and an emotional bond between the couple, and formalization seemingly interferes with that. In effect, this is an attempt to impose on the couple a bond they do not always want. After all, if they want to live together, they will do so even without a formal contract, and if not—why should they bind themselves with a contract that will hinder them from realizing their wishes? More generally, formalization intervenes in the process and turns it from something spontaneous and natural into something cold and alienating.
Many draw the practical conclusion and live together without marriage ceremonies, certainly without religious ceremonies. Civil law already recognizes such couples and grants them legal and social status as ‘common-law spouses’ (which of course introduces some legal formalization into the picture, but exempts them from the burdensome and intimidating religious formalization).[2]
It is important to understand that, from a Jewish perspective, this is not a marginal or incidental question. Formalization is in fact the essence of marriage. Maimonides, at the beginning of the Laws of Marriage, describes the development of the marital relationship before and after the giving of the Torah as follows:
"Before the giving of the Torah, when a man would encounter a woman in the marketplace, if he and she wished to marry, he would bring her into his home and have relations with her privately, and she would thereby become his wife. Once the Torah was given, the Jewish people were commanded that if a man wishes to marry a woman, he must first acquire her in the presence of witnesses, and afterward she becomes his wife, as it is said: 'When a man takes a woman and has relations with her.'[3].
And these acquisitions are a positive commandment from the Torah, and a woman is acquired by one of three means: by money, by a document, or by intercourse. By intercourse and by a document this is from the Torah, and by money it is by rabbinic enactment. These acquisitions are what are called kiddushin or erusin everywhere, and a woman who is acquired by one of these three means is called mekudeshet or me'oraset.[4].
Before the giving of the Torah, marriage was a natural process in which the couple would decide to live together and, without any ceremonial or other preliminary stage, enter their home and begin their shared life. The Torah introduced the innovation that this was not enough, and required the addition of a formal prelude (called kiddushin, or erusin) whose role is to formalize this process and place it within a halakhic and contractual framework of commitments, with obligations and rights, prohibitions and commandments, and the like.
It is worth noting that almost all of the halakhic obligations of the couple that arise from the relationship are rooted in kiddushin rather than in nisu’in, the marriage proper. Nisu’in is that natural dimension involved in building the marital unit, the dimension that existed even before the giving of the Torah. Therefore there are almost no halakhic restrictions and directives regarding the manner of the nisu’in, since this is not a ceremony with formal significance. Kiddushin, which were added at the giving of the Torah as a prelude before the nisu’in, establish the principal legal and halakhic relations between the couple and between them and the world. It is no wonder that nearly all Talmudic and halakhic discussion of the mode of execution and legal significance of the marital bond revolves around kiddushin rather than nisu’in.
The meaning of this is that, from the standpoint of Jewish law, formalization is not a secondary matter; it is the essential dimension that it adds beyond the natural process of marriage and shared life itself. A sharp expression of this dimension can be seen in the huppah ceremony: beyond the atmosphere of the ceremony itself, and perhaps also the blessings, which can be perceived as part of it, there is a series of acts with formal halakhic significance that are the very essence of the ceremony: the giving of a ring in the presence of qualified witnesses, very unspontaneous recitations of pre-scripted texts, the signing and delivery of the ketubah (a legal agreement between husband and wife), and perhaps the clearest expression of all is the public reading of the ketubah. The moved audience hears what the husband’s obligations toward the wife are in the event of conflict and separation, how much and exactly what he has obligated himself to, how and from where this will be collected from him, and more. The reading of the ketubah is not part of the core ceremony and is a later addition whose main purpose is to separate the kiddushin from the nisu’in, but the fact that they chose specifically the reading of such a prosaic and alienating text, so far removed from the festive and elevated atmosphere of the event, is telling. It is hard to ignore that there is here a deliberate intention to sharpen the formal significance of the ceremony, and not allow us to focus specifically on the emotions and the inner bond between the couple.
All this, of course, only sharpens the question raised above. Why does the Torah see in this such an important and fundamental value? Why is this dimension emphasized so strongly, even in the midst of the ceremony? Why not suffice with a natural process of shared life and a spontaneous celebration before it?
Preliminary note: legal and halakhic formalization
At first glance, questions about the importance and necessity of formalization ought not to be directed specifically at Jewish law. As I mentioned above, every legal system in the world formalizes marriage within its own framework. It requires couples to register through some legal process (before a judge or at city hall) in order to be recognized as spouses for every legal purpose. But the similarity between the two contexts is superficial, not essential. No legal system sees formalization as something the couple needs in order to improve their relationship. It is a purely legal need, whose purpose is to regulate the couple’s status from society’s standpoint. Legal systems do not see it as their business to improve relationships or even to indicate the ideal ways of doing so. In conventional legal thinking, this is a matter left to the citizens themselves. The role of a legal system is regulation and the prevention of social and legal chaos. Jewish law, by contrast, definitely does instruct us how to live and act properly. It is therefore no surprise that when the Torah speaks of formalization, it is perceived as an ideal model of marriage from its perspective. The Torah is not concerned only with registration or the regulation of the couple’s social status; it defines what it sees as the ultimate relationship. Halakhic formalization is regarded as a necessary stage in building sounder and more complete marriage, not merely as a need to regulate matters of personal status in legal terms.
One implication of this difference is that, from the standpoint of legal systems, an unformalized relationship is not an offense. At most, the couple will not receive legal recognition for their relationship. Jewish law, by contrast, sees a couple living without marriage as violators, and such a relationship as problematic, and certainly not whole.
Cupid and Other Animals
The ethos of love that underlies a relationship is highly romantic. It is a central source of inspiration for ballad writers, filmmakers and playwrights, writers of heart-stirring novels, and other purveyors of the intense experiences that shape our lives. Greek mythology describes this through Cupid’s arrow, which is lodged in the lover’s heart and plants within him love for the beloved. This expresses the spontaneous awakening of natural love, and indeed the ethos described above. Love awakens on its own. It is not the fruit of planning but the result of a chance encounter (or perhaps one prearranged by the gods of love, who play with us like marionettes). Artists idealize this spontaneous feeling and the following after it[5].
The halakhic-Torah antithesis seems to contradict this conception head-on. This is certainly true of the conservative groups that favor arranged matches (by the parents), without many meetings and certainly without living together before marriage—in effect, without giving ‘Cupid’s natural arrow’ a chance to awaken love. It looks like a cold and alienated business transaction. But even if we belong to more modern religious groups, religious marriages still contain a central formalized dimension, if only because Jewish law grants no legitimacy to mere natural life in a flexible and simple partnership. These matters involve the implementation of a plan—that is, formalization—thinking about shared goals and the management of life, having children (the commandment to be fruitful and multiply) and how to educate them, and so forth. Not exactly material for ballads and romances.
The songs of praise for natural love shape our most basic conceptions of it, and they are what give rise to the questions described above. But naturalness is not such an exalted ideal. In real life, the spontaneous and natural approach fails again and again. I will argue below that formalization and formalism are the seasoning that completes natural couplehood.
Halakhic Man
In his book Halakhic Man, Rabbi Soloveitchik describes the difference between the outlook of Halakhic Man and that of an ordinary person. An ordinary observer can be stirred by the beauty of a spring in nature or an impressive sunset and sink into aesthetic and experiential admiration of the sublime sight. For Halakhic Man, that same landscape evokes associations of purity and impurity (such as one who has immersed that day and must still wait for sunset), immersion in spring water and in flowing water, and the like. Through the physical world that God created, and in which we live and act, he discerns a world of ‘shadows,’ legal statuses, and legal situations, all of them the work of human hands. Halakhic Man believes that the deeds of flesh and blood are more beautiful than those of God. He believes that these shadows are in fact the real thing, since they are what govern the physical world. The physical world itself is the shadow and vapor, lacking real substance in his eyes, whereas Jewish law and spirit are more real and more stable. Halakhic Man sees the halakhic essences hovering above our physical reality, and his gaze is focused precisely on them.
At the huppah, Halakhic Man does not experience pink-winged angels and Cupids shooting arrows from somewhere above into the hearts of the guests and the couple, but abstract legal statuses, such as the status of a married woman and the status created by kiddushin, the validity of documents (the ketubah), and valid testimony to establish the fact. From such a perspective, the marrying couple are nothing more than the practical occasion for the application of the status of kiddushin. More generally, the entire physical world is only a medium through which legal-halakhic ideas appear[6]. When one looks at the scene before us in this way, one sees only statuses – not fairies, not angels, and not even human beings.
Every talmudist knows what I am talking about. Those in the know understand that Halakhic Man even becomes excited and undergoes emotional experiences in the course of his interaction with these statuses and abstract essences. He is moved at the huppah like everyone else, but the objects of his emotion are entirely different from theirs. The other side of the coin is his attitude toward Jewish law. Whereas the ordinary person studies Jewish law as a collection of norms that are merely normative constraints on our daily lives, Halakhic Man sees in those norms life itself. Natural physical life is, from his perspective, only the substrate and medium within and upon which the halakhic statuses and essences operate.
Many think this is a detachment from nature, an enclosure within an alienated intellectual-formal world. It appears to subordinate the experiential, emotional, and spontaneous dimension—in fact, the human one—to a frozen and formal world. But is this really a detached and alienated outlook? Is the halakhic perspective merely life in a bubble, or does the formal dimension contribute something to natural life that it lacks without it? Does the Torah, which added the formal dimension to natural couplehood, mean only to impose unclear constraints upon it, or is there here a different conception of the proper way to conduct a relationship, and perhaps life in general?
I want to argue that both perspectives are partial. Halakhic Man, in the description above (which seems to me very authentic), does indeed take things to a detached and problematic extreme, perhaps even a somewhat childish one. But the romantic antithesis is no less mistaken. Ignoring formalization and formalism is a grave error. Natural life is a very incomplete and non-ideal condition, and not for nothing does the Torah instruct us to place the formal framework first, and only within it create the natural relationship. That is a more complete and proper condition.
On Naturalness and Formalization
Indeed, the halakhic-legal-formal framework restricts natural life and does not allow us complete freedom. On the other hand, human beings need a framework. A relationship in which every morning one can get up and leave the house with no intention of returning is a relationship lived under the shadow of a constant threat. That threat darkens everyday life even on days when Cupid is active and emotions are surging. The fear of instability can produce mistrust and make the bond between the couple more difficult. Formalization says that our relationship does not depend on a passing mood. Even a couple that lives together naturally and without formalization experiences quite a few hard moments. Human beings are not exempt from that. Cupid-like romances belong to mythology, not to life. When hard moments come, the couple will of course try to overcome them and get through them. But in formalized marriage they will not only try; they will be obligated to try. Mistrust will not automatically arise just because there is a bad day. Separation is not an everyday existential threat.
Despite the aversion of people raised within the spontaneous ethos to this description, the formal framework actually introduces calm and stability into romantic storms. It enables us to build stable lives together, and this is a fuller and more human romance than the romances about which ballads are written. Formalization introduces depth, trust, and stability, including into the emotional and human bond. The couple commit themselves to one another regardless of moods, difficulties, or temporary crises. A relationship based on momentary emotional and experiential motivations is a shallow relationship. In such a relationship we are acted upon rather than acting. Cupid drives his arrows into us; we do not build our relationship through ongoing work and commitment.
Marriage as Contract
As I described above, at the end of the kiddushin the ketubah is read aloud, loud and clear—a technical and somewhat dry contract that explains in detail from what assets the debt will be collected from the groom if he does not pay, down to the cloak on his shoulders and beyond. This expresses the fact that marriage is first and foremost a contract. A couple who have reached the conclusion that they love one another and want to build a life together enter into a contract that gives a framework to the human and emotional bond between them.
In commercial life too, we all know that it is unwise to act together without a contract. The best of friends who work together will run into difficulties, and if they do not think about this in advance and determine what each commits to the other, in many cases the venture will fail. If by chance it nevertheless succeeds—perhaps someone will write a ballad about them, but one should not be overly impressed by such ballads. Life is more complicated.
Marriage too is a contract, and it is very important to create this formal dimension and not ignore it. The love between the couple is, first and foremost, a motivation for making a contract or covenant between them. But it cannot and should not remain in the stormy natural state in which it existed at the beginning of the process. The formal framework describes that covenant, outlines its bounds, stabilizes it, and gives it depth and continuity.
In today’s world, people tend to forget the contractual-legal dimension of marriage. One indication of this is the indulgent attitude toward infidelity between spouses. Many see it as a kind of acceptable indiscretion that happens to almost everyone, and therefore it is treated with intolerable leniency. Even on the legal plane, this is a breach of contract, and for some reason the natural-spontaneous ethos prevents us from seeing it as we see a commercial breach of contract. This is one of the most important and most sensitive contracts one can imagine, and our society treats its violation with disgraceful levity. Infidelity is perceived as a religious offense, although it is a moral offense and of course also a legal one. It is a breach of contract and a betrayal of trust. The Cupid ethos shapes even our attitude toward legal formalism and morality.
One cannot deny that this is human nature. Infidelity and disloyalty are not a deviation from nature. But that is precisely where the importance of formalization lies. In the name of naturalness and spontaneity, those who advocate life without formal institutionalization sentence themselves to instability and suspicion that in many cases threaten the relationship. Like every agreement between two people—and certainly one so fundamental, involving such deep and intense sharing—marriage too requires formal legal anchoring. As in other areas, anyone who gives up a formal legal anchoring of mutual commitment displays childish and irresponsible thinking. Couples must understand and internalize that the bond between them is not only an expression of spontaneous emotion but also the result of a binding contract with mutual obligations and rights. Without this, even the natural emotional and human dimension may be gravely damaged. Couplehood built on feeling and love is wonderful, and that is how it should be. Contrary to what Halakhic Man thinks, law and formalism are not life itself. But without the legal, contractual, apparently cold commitment in the background, this delicate and unstable structure is more liable to fall apart.
So it is certainly right and important to love one another and experience life spontaneously. But in the background one must remember that mutual halakhic and legal commitment is necessary. Therefore it is very important to formalize the relationship and the mutual bond on the formal-legal plane. Despite the slight clipping of romance’s wings, it seems to me that this is a far healthier and more balanced structure for shared life. Even if, as the poet (Ali Mohar) said, "the main thing is romance," it too needs a stable foundation.
And what about the conservative rabbinic establishment, which sometimes is vexing and burdensome, delays so many people, and naturally and understandably arouses in them an aversion to halakhic formalization? That is indeed a problem that should be solved. But one must understand that giving up formalism and formalization may also damage the very natural relationship we wish to build and create. A pity.
[1] This article is based on remarks I made at the huppah of my son Nahman and my daughter-in-law Keren. It is dedicated to them, and also to the sweet Sophie (Tzofia) and Hadar, who naturally were not present there.
[2] Incidentally, this legal solution is highly problematic, since, as many have already noted, it creates de facto legitimacy for bigamy, with severe legal and emotional complications.
[3] Deuteronomy 22:13.
[4] Laws of Marriage 1:1-2.
[5] I must say that personally I find it hard to understand what value there is in an emotion that arises spontaneously on its own. I respect a person for his decisions and choices, not for events and processes that simply happen to him.
[6] These are, in fact, the legal statuses. See my article: What Is a ‘Legal Status’?, Tzohar 2.