Q&A: The Legal Status of a Concubine
The Legal Status of a Concubine
Question
According to the Rabbi’s approach that someone who is competent to do so should rule on the basis of the Talmud, would there be room nowadays to permit the institution of a concubine, as Zvi Zohar argues in his article in Akdamot? After all, in the Talmud (Sanhedrin 21a) it seems quite clear that there is a status of concubinage without kiddushin, whereas Maimonides’ ruling (Laws of Kings 4:4) that this applies only to a king is novel and does not appear in the Talmudic texts. And although almost no halakhic decisor after him permitted it—the only one who did so directly, and even claimed this was common in Spain, was the Yaavetz—do you think there is room to follow the Talmud and permit religious couples nowadays to conduct themselves in light of this rule?
Answer
There’s no such thing as “permitting” or “forbidding” in that sense. The question is whether it is permitted or not. See Rabbi Shmuel Ariel’s critique of his article in the following issue there. That is as far as Jewish law is concerned. In my opinion, quite apart from Jewish law, it is certainly not appropriate to do such a thing.
Discussion on Answer
Because the Torah wanted couplehood to be established through kiddushin. And the proper way to build a home is in a framework that binds both sides.
“Because the Torah wanted couplehood to be established through kiddushin. And the proper way to build a home is in a framework that binds both sides.” What do you mean by that? My understanding is too limited to grasp it.
Life without kiddushin is a relationship without commitment. And the Torah wanted relationships to be preceded by kiddushin.
1. “The Torah wanted relationships to be preceded by kiddushin” — how do you know that? If a concubine is forbidden, then fine. But if a concubine is permitted, then either the Torah does not necessarily determine that a relationship is constituted by kiddushin, or it does not necessarily determine that commitment is required for a relationship. In any case, it is not clear that one can infer anything about couple-commitment from the biblical family models… that seems like a kind of anachronism.
2. “Life without kiddushin is a relationship without commitment” — is that an empirical claim or a normative one? If empirical, it needs proof; if normative, it needs a source, and then we are back to the previous question.
3. “When Rav happened to come to Dardeshir he would announce: who will be mine for the day? When Rav Naḥman happened to come to Shekhantziv he would announce: who will be mine for the day?” (Yoma 18b). It is not entirely clear whether there was kiddushin there and what the model of the relationship was. Either way, there was no commitment there.
1. The Torah placed kiddushin before marriage, and it is very reasonable to infer from that that this is what it wants. If there is an option of living with a concubine, then the whole matter of kiddushin is emptied of content. Of course one can play innocent and say that both tracks are possible, and only the marriage track requires kiddushin beforehand, but in my view that is a far-fetched reading. The fact that concubinage is permitted would be just a post facto recognition of a situation. (In my opinion it is not permitted either. One who lives with a concubine nullifies the obligation of kiddushin.)
2. Both empirical and normative. A bill of divorce is not required, and clearly it is easier to break up the package. The Sages required a ketubah so that it should not be easy in his eyes to divorce her. And “whoever divorces his wife—even the altar sheds tears over him.”
3. Indeed, and that really is problematic.
1. Do the Torah and the Sages have a problem with someone who both marries a wife through kiddushin and also keeps a concubine? Aren’t you projecting our values onto the Torah here—exactly what you warn against?
2. On what basis is the empirical claim made? How do we know that a higher exit barrier increases commitment in a relationship? It likely reduces the probability of breaking up the relationship, but maybe it increases infidelity. Has that been examined?
3. If the story in Yoma is problematic, perhaps it is evidence against the importance that Jewish law attributes to the component of commitment?
1. I assume so. How is that different from keeping two wives, where kiddushin is also required? There is always that concern, but as I wrote, this seems to me the more reasonable interpretation.
2. Reasoning.
3. Maybe. You don’t build anything from stories and aggadah.
By the way, it’s not the story that is problematic, but the behavior described in it.
In the letters of Nachmanides (brought in the Rabbi Kook edition of the writings of Nachmanides), there is a letter from Nachmanides to Rabbeinu Yonah in which he lays out at length his position that a concubine is permitted without reservations. At the same time, he qualifies this and says: the law is so, but one should not instruct the public accordingly, because it would lead to stumbling blocks. Rabbeinu Yonah himself, in Shaarei Teshuvah, prohibits concubinage absolutely.
I think that people in second-stage relationships who have children from a first stage are in a pressing situation, and I’ve heard this quite a bit from friends and colleagues at work.
The issue with a concubine, in my humble opinion, is that there were people who did not find a proper match suitable for them, and so they took a concubine (who is a woman of lower status) so as not to neglect the commandment of being fruitful and multiplying. I assume that in the ancient world the matter of social classes was much more significant than it is today. A concubine is still considered the woman of her “husband,” and someone who takes her from him violates theft, but not the severe forbidden-relations prohibition of another man’s wife.
What about a non-Jewish concubine?
What about her?
Why is it not appropriate?