This Article examines the intersection of law, religion, and culture in the evolution of polygamy in the Jewish tradition. It traces the development of Jewish thought on polygamy over time by assembling and analyzing relevant discussions, arguments, decisions, and biblical interpretations from the time of the Hebrew Bible passages, when plural marriage was an accepted part of Jewish society, to the early Middle Ages when the practice was formally and conclusively rejected. In doing so, the Article attempts to untangle the various influences--both practical and doctrinal, internal and external--on the evolution of marriage law in Jewish communities. These findings highlight the mutable nature of marriage norms within a religious community, the adaptability of religious doctrine to the practical needs of the community, and the potentially progressive force of religious morality in advancing women's rights.
INTRODUCTION: POLYGAMY AND RELIGION IN PUBLIC DISCOURSE
Judaism's relationship with polygamy has always been fraught with tension and perhaps can best be summed up by the fact that the word for co-wife in Hebrew is tzarah, literally "trouble." As many know, the practice of polygamy was once considered part and parcel of Jewish culture, at least in theory, but nowadays that is no longer the case. The story of Jewish polygamy has no clear-cut ending; there was no one defining moment or document that shifted the Jewish societies in Western Europe away from polygamy and into monogamy. But over time, these norms did shift for reasons we examine in this Article.
For the past several years, the issue of marriage and of marital forms in particular has been a prominent feature on both the national (1) and international stage. (2) Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. (3) While public discourse over marriage in the United States and around the world has focused primarily on gay marriage, the issue of legalizing plural marriage has been gaining considerable attention in recent years. (4) In the United States, TV shows such as TLC's Sister Wives, HBO's Big Love and Showtime's Polyamory: Married and Dating have brought the concept of plural marriage into the nation's collective living room. Polyamory, the practice of having more than one intimate relationship at a time with the knowledge and consent of everyone involved, has even been called "the next civil rights movement." (5)
The discussion of polygamy presents valuable angles for reconsidering the contemporary marriage debate. First, plural marriage raises novel questions beyond those presented by gay marriage because it turns not on the idea of who can be in a marriage, but rather on the very institution of marriage itself as consisting of a two-and-only-two part unit. Second, plural marriage, unlike gay marriage, represents an alternative bundling of marital principles that may be described as "traditional" within a broad range of cultures and religious communities. (6) In this context, an examination of what a religious tradition has had to say about marriage over time can inform our understanding of what religion is capable of saying about the topic today.
This Article will focus on the history of polygamy in the Jewish tradition and will examine why, after millennia of experimentation, a religion walked away from a practice it had once legitimized. We will follow this history through the various streams of Jewish law and tradition, and watch as the debate slowly shifts from a question of legality to morality, from "could" to "should." We will focus on three historical realities over time that make sense of this evolution:
First, all of Jewish law is, at its core, an act of holding multiple values in a dialectic tension. The rabbi, before he rules on the permissibility of the chicken, for example, is first supposed to inquire about the finances of the individual asking and take into account the time of day on the Sabbath Eve. (7) The law has areas that shift, contextually, when multiple legitimate values are at play. And so just because a particular action may be legal in one generation or time period, does not mean that other arguments do not exist that would militate against its continued legality, nor does it mean that additional factors might not very well come into play in the future that would shift that sometimes precarious balance in the opposite direction.
Second, for centuries, despite the fact that Jewish communities tended to be almost entirely monogamous, the rabbis made sure that polygamy was still legal on the books, if only to demonstrate the superiority of the rabbinic versus sectarian or Christian exegesis. At this point in history, the moral value of monogamy outweighed the advantages of polygamy enough, but only enough so that it was not practiced popularly on the practical side, but the law still recognized the important polemical advantages the theoretical aspect that its legality provided--especially if, on the ground, it was not costing the community anything since no one was taking advantage of this particular allowance.
Third, the time eventually came when this calculus forever shifted. The outside pressure of an increasingly monogamous, secular and Christian legal world gradually grew, and at just the right moment it combined with multiple Jewish developments and concerns, including at the forefront an internal pressure that had been building in the Jewish world to fix the perceived gender inequalities of Jewish family law. Taken all together, the benefits of officially outlawing polygamy now outweighed the benefits of even keeping it legal just on the books, and so the above-mentioned factors led to the promulgation of two decrees, commonly known as two of the bans of Rabbeinu Gershom. (8) One dealt with unilateral divorce, and one dealt with polygamy. Both served as an attempt to legitimize Jewish family law both internally and to the outside world.
In tracing these strands of Jewish law's historical development, this Article sheds light on the ways in which marriage norms within a religious community are mutable across time and place, religious doctrine can adapt to the practical needs of the community, and religious morality can ultimately serve as a progressive force in advancing women's rights.
Part I of the Article provides some initial background on the basic assumptions about polygamy in Jewish society as well as a primer for navigating the basic sources and authorities of Jewish law. Part II outlines the prevailing patterns, themes, and concerns about polygamy in the Old Testament. Parts III, IV, V, and VI analyze the evolving legal and scholarly commentary and interpretations of the Old Testament text as well as changing marriage practices in the Second Temple, Tannaitic, Amoraic, and Gaonic periods respectively. Part VII, VIII, and IX discuss the formal ban against polygamy in the Rishonim period and its relationship to Judaism's evolving conception of marriage generally. Finally, Parts X and XI discuss the geographic and temporal scope of the ban and their connection to the internal and external factors that motivated it.
The Background Information
It is important at the outset to make one thing clear: the issue of polyandry was never a discussion. The Seventh Commandment proclaims, "Thou shalt not commit adultery," (9) and adultery is defined as sexual intercourse between a married woman and a man other than her husband. (10) Polyandry under Jewish law is by definition adultery, since it involves a married woman having more than one sexual partner. (11) The Talmud in Kiddushin unequivocally states that: "A woman cannot be the wife of two [men]." (12) Our discussion of polygamy, then, is really all about polygyny, and while polygyny may have always been uncommon de facto, in the rabbinic tradition it was certainly recognized de jure.
A survey of the sources reveals several underlying reasons for the practice of polygamy. Perhaps most importantly in a society that valued children, having many wives increased the man's chances of having many children. Wives were often seen as providing spiritual protection in that they kept their husbands from straying sexually; some have suggested that the practice of polygamy resulted from the chastity enforced on a husband while his wife was pregnant or nursing. (13) In addition, while it was prestigious and a sign of prosperity to be able to afford many wives, it also provided an economic advantage: having many wives and children provided a ready labor supply. Historically, plural marriage served political purposes through the forming of alliances. Occasionally, it was also used to provide support for the helpless in times of surplus women.
A Jewish Law Primer
In order to better understand the flow of tradition this Article will summarize, a brief introduction to the history of Jewish law is necessary. Jewish law, or halakha, denotes the entire corpus of the Jewish legal system from its earliest sources in the Bible to contemporary responsa. It includes public, private, ritual, and civil law. It legislates not only that which is legal (things that law can compel or prohibit) but also the ethical and moral dimensions of daily life, and it includes obligations both interpersonal and between Man and his Maker. (14) The term halakha was first employed by the early Rabbis (called Tannaim, approximately 10-220 C.E.) to refer to an oral ruling handed down by the religious authorities (as in the phrase halakha leMoshe miSinai, a law given to Moses at Sinai). It later took on a broader scope, meaning the accepted or authorized opinion when a ruling was in dispute. Eventually, halakha became the general term for the whole legal system of Judaism. Halakha is...