Vayeshev (Rambam)

Pre-Marital Sex, Rambam and the Zeitgeist

Parshat Vayeshev reads like a catalogue of human vices and evil behavior: it is filled with familial hatred and jealousy, violence, treachery, lust and sexual misbehavior. Two illustrations of the latter relate to our topic, that of sexual relations outside of the marital bond. In one, the incident of Judah and Tamar, Tamar represents herself as a prostitute so as to become pregnant through a member of her deceased husband’s family; in the second, we see Joseph’s temptation by Potiphar’s wife and his flight from her illicit embrace. This Shabbat is also the first day of Hanukkah, which symbolizes the conflict of Judaism with Hellenism—a conflict in which the attitude towards the body and sexuality is one of the issues at stake. Hence, it is a suitable occasion to examine the nature of marriage and the related issue of the halakhic standing of pre-marital sexual relations—an area in which the mores of general society have undergone dramatic change within the lifetime of many of us.

A statement made by Maimonides at the very beginning of Hilkhot Ishut, “The Laws of Personal [i.e., Marital] Status,” is of central importance for the halakhic discussion of our topic. This treatise is one of the longer ones in the Mishneh Torah, presenting as it does one of the major subjects of Jewish law: the legal structure of marriage, which is the central pillar of family law. The actual legal presentation of the subject is prefaced by two chapters defining the terms to be used; these are in turn preceded by the following introduction:

1. Prior to the giving of the Torah, a man would meet a woman in the marketplace; if he and she wished to be married, he would take her into his home and have intercourse with her in private, and she would become his wife. Once the Torah was given, Israel were commanded that if a man wishes to marry a woman, he must first ‘acquire’ her in the presence of witnesses, and thereafter she becomes his wife; as is said, “When a man takes a wife, and goes into her “ [Deut 24:1].

2. And this act of acquiring a wife is a positive injunction of the Torah. And a woman is acquired in one of the following three ways...

The Rambam here goes on to briefly enumerate the three ways in which a woman may be “acquired”—that is, the stage of marriage known as kiddushin, in which the woman is publicly designated as being set apart for a particular man. These three ways are later elaborated in greater detail, along with the other laws of kiddushin, from Ch. 3 on.

4. Prior to the giving of the Torah, a man would meet a woman in the marketplace, and if he and she wished to do so, he would pay her fee and have intercourse with her by the side of the road, and go on his way. And this is what is known as a kedeshah (harlot). Once the Torah was given, harlotry was forbidden, as is said, “There shall not be a harlot from among the daughters of Israel” [Deut 23:17]. Therefore, whoever has relations with a woman for purposes of harlotry, without kiddushin, is subject to corporal punishment by Torah law, because he had intercourse with a harlot.

What is striking in this halakhah is Rambam’s attempt to reconstruct the early ways of humanity, how things were done in ancient, primeval times, before the giving of the Torah—albeit his interest is not merely antiquarian. This passage is somewhat reminiscent of the first chapter of Hilkhot Avodah Zarah (see HY V: Lekh Lekha), in which he describes the origins of paganism in terms of a certain error made by mankind in hoary antiquity. Here, pre-Torah practice represents a kind of unformed, shapeless, unpolished stage of human society—a layer of pre-civilization, a coarse, primitive stage which preceded the humanizing, civilizing, structuring, teaching influence of the Torah. The sense gained from his tone here is that the Torah represents not only an external, heteronomic law (hukkah), but somehow embodies civilization itself.

The picture painted here is symmetrically balanced: in pre-Torah times, there were two kinds of connection between man and woman, each of which begins with a meeting “in the marketplace”: if they wish to be married, they go and do so “between themselves”; if they want sex for immediate gratification (or, from the woman’s viewpoint, for money), they may do so. Sex is portrayed here as a natural urge, as simple as drinking water, without what some would call “moralistic judgments” being attached to it. After Torah, the former was structured, formalized, and kiddushin, as a preliminary stage of “sanctifying” or “acquiring” the woman, was added to the elemental act of marriage as a man simply taking a wife into his home; the other option, of free or unstructured sex, was by contrast prohibited.

The significant point here that strikes me upon reading this passage is that before the Torah, sexual arrangements, whether for marriage or transient sex, were a private matter. After the Torah, structure, law, and communal norms were introduced—marriage needed to be preceded by a public act of kinyan, or publicly betrothing the woman. At the risk of gross anachronism, one could say that the basic concept in the pre-Torah stage is an ethic of sex as “the private concern of two consulting adults.” Interestingly, a medieval historian of my acquaintance recently commented to me that, over the course of history, we find a process, first of socialization, and later of sacralization, of sex and marriage, in both Judaism and in Christianity. This culminated in the transformation of marriage into a sacrament solemnized by the clergy in medieval Christian Europe and, among Jews, the institution of the rabbi as mesader kiddushin as a sine qua non of Jewish marriage at about the same time, even if not codified in the halakhah. With the secularization of both individual life and society in the modern era, we find the reverse process: the desacralization and desocialization of marriage, culminating with the situation familiar to us today, in which nearly half the couples in Europe live together without formal marriage; with the widespread acceptance in the Western world of “premarital sex”; and, in general, with a situation in some ways very similar to that described by Rambam as the pre-Torah dispensation.

Interestingly, the pre-Torah scheme described above also corresponds to the scheme of Noahide law. The Noahide code prohibits to the “righteous Gentile” only the most serious sexual offenses of the Torah—adultery, incest between matrilineal relatives, homosexuality, and bestiality. Harlotry is, by its omission, presumably permitted. Marriage is a private arrangement: Hilkhot Melakhim 9.8 defines marriage, for purposes of the Noahide sanctions against adultery, in terms identical with the pre-Torah arrangement described here. Rambam adds there that Noahide marriage may be dissolved by one or both parties simply deciding that they no longer wish to be married, “without a written document” (is this phrase a covert gibe at the practice of the Muslims among whom Rambam lived?)—i.e., packing their bags and moving out. In brief, the arrangements described here are reminiscent of those common in contemporary society, even if not generally viewed by their participants as necessarily constituting “common-law” marriage.

Thus, in these few lines Rambam unintentionally captures the essence of contemporary sexual mores—the conception of sexual life as a private domain, subject to the autonomous, personal decision of the individuals involved, as opposed to the more traditional view, namely, a religious-communal-public approach that sees human sexuality as properly subject to a certain reverence, restrictions, societal involvement, etc. Perhaps it ought to be noted already at this point that, whatever possible heter (permission) for premarital relations may be found in the interstices of the halakhic system under certain circumstances, its value underpinnings will be very different from those of secular culture.

Another interesting point may be inferred from the location of these laws, always a point of significance in the Rambam. Rambam discusses family and sexual life in two separate places in the Yad: the one, Sefer Nashim, “The Book of Women,” in which he presents the various aspects of family law, parallel to Seder Nashim in the Mishnah: marriage, divorce, and such unique halakhic institutions as levirate marriage, penalties for one who seduces a virgin, and the long defunct practice of trial by ordeal for an adulterous woman. The other place, Hilkhot Issurei Bi’ah, “Laws of Forbidden Intercourse” (one of the treatises that comprise Sefer Kedushah, “The Book of Holiness,” alongside the laws of kashrut), details the prohibited forms of sexual connections, from the obvious proscriptions of incest, adultery, etc., through the detailed and complex laws of menstruation, and down to the special laws governing marriages forbidden to kohanim and various miscellaneous prohibitions. There is but one exception to this clear-cut division: the prohibition against kedeshah appearing in our above-cited passage, §4, the only prohibited sexual act found specifically in Sefer Nashim.

Why is this so? Because, unlike the manifold prohibitions in Issurei Biah, this rule relates neither to the identity, biological or marital status or history of the partner, but rather to the social and interpersonal context within which sexual relations occur. The Torah presupposes marriage (or, in some views, some other clearly-defined relationship between the man and woman: see below) as the proper framework for sexual life. The reverse side of this is that relations occurring in a totally free context, simply because the parties feel like it, are prohibited, as a concept fitting only to the pre-Torah world. For the Jew, the free and easy approach of hefkerut, promiscuity, contradicts the Torah ideal of civilization, which lies at the essence of its approach to sexuality. Sexuality is perhaps that area in which the average person most poignantly and strongly experiences the intersection and conflicts between instinct and consciousness, between body and spirit, between nature and culture—in brief, those things which most exemplify the paradoxes and contradictions of our humanity. And it is precisely for that reason that, on the most essential level, Torah comes to bring order to that which is most potentially chaotic, and to teach the supremacy of consciousness, law, value and choice over nature and instinct.

Before turning to the next section of this essay (to be posted at a later date), in which I present an halakhic analysis of the issue presented here by the Rambam, a few comments are in order on the tie-in to our parsha. In Genesis 38, where we are told that Judah saw a woman whom he thought was a harlot and went to her, the incident is described in a matter-of-fact manner, implying that Judah’s behavior was acceptable. This corresponds to Rambam’s description of pre-Torahitic mores. On the other hand, if the woman was from a “respectable” family and not one who was a member of the special class (of semi-outcasts, then as now) who were known as whores, she was subject to the strictest censure.

Two different words are used in the Hebrew to describe Tamar in her persona as prostitute: in verse 15 she is called a zonah, while in verses 21-22, when Judah returns to the place to look for her, so as to pay her fee and recover his pledge, she is called a kedeshah. The word zonah is clearly the common word for a harlot; the term kedeshah, which is the same one as used in Deuteronomy 23:17, suggests sacred or ritual prostitution (from the same root as kadosh, “sacred”), such as is known from pagan temples of the ancient Near East. But it is difficult to see any reason for the change here (for example, the suggestion of Gunther Plaut, in his The Torah: A Modern Commentary, that Judah used the latter term “to give the relationship a somewhat more acceptable status” is unconvincing); the two words seem to be used here almost interchangeably, as synonyms—kedeshah is understood here in a secular sense. One may surmise that whatever difference may have existed between the two terms had long been forgotten (like tart, whore, strumpet, harlot, floozy, etc., in English). Interestingly, the halakhic tradition clearly distinguishes between the two, on another basis: zonah refers to a category of women prohibited to the kohanim, members of the priestly families, in Lev 21:7; while kedeshah refers to the broader, more universal law that is the subject of our passage, referring to any unattached woman who engages in promiscuous or casual sex. (Both are used in some contexts to refer to a woman who sells her favors, but neither is always used thus. The verbal form liznot means to stray, to fornicate, or to be unfaithful, referring especially to marital infidelity, as in the graphic description in Proverbs 7:5-23 and elsewhere; on the other hand, some Rabbinic midrashim claim that Rahab, the zonah from Jericho of Joshua 2, or the "harlot" visited by Samson in Judges 16:1-4, were not in fact “ladies of the night.”)

On the other hand, in the very next chapter the wrongness of adultery is seen as a self-evident part of natural law. Joseph answers his would-be seductress, “How can I do this great evil, and sin against God” (Gen 39:9). The Divine name Elohim, used here, is always associated with natural law, suggestive of that which is part of the structure of the universe; God as Creator, more than as a unique covenantal partner.

(The two remaining sections of this essay—Chapter 2, containing on halakhic analysis of the sources, and Chapter 3, discussing the issue in its larger social context—will follow later.)