Isn't Jesus revoking Moses' permission for divorce?

Someone emailed:
Are you arguing, that Jesus did not overturn Deut 24:1 but merely interpreted the ervath davar in Shammaite fashion (the exception clause in Matthew being a clear allusion to the grounds for divorce given in Deut 24:1)? If so, then Jesus did not use the creation texts to overrule Moses, but merely used them to invalidate an improper "for any reason" interpretation of Deut 24:1.

If I understand you correctly (and I'm not sure that I do), then this reading is problematic, it seems to me, even for Matt 19. Even Matthew's version--Mark's version is, of course, more emphatic--infers that Jesus is revoking a permission to divorce given by "Moses": "Moses allowed you to divorce your wives, but from the beginning it was not so." So if Jesus understood Deut 24:1 as permitting divorce only on the grounds of adultery (a la the Shammaites) and Jesus viewed the creation texts as overruling this Mosaic permission, then Jesus could not have permitted divorce on the grounds of adultery. But Matthew clearly does permit it on the grounds of adultery in his exception clause.

Therefore Jesus (in Matthew's view) could not have subscribed to the Shammaite interpretation of Deut 24:1 but must have subscribed to the Hillelite interpretation: Moses did not command you to divorce for any reason but allowed you to divorce for any reason. The Hillelite interpretation of Deut 24:1 is correct; the Shammaite interpretation is wrong. Nevertheless, says Jesus in Matthew 19, the creation texts, "from the beginning," overrules this Mosaic permission--except (Matthew says) in cases of adultery. So Jesus (in Matthew's version) ends up with a position similar to that of the Shammaites but gets there not by strictly interpreting Deut 24:1 but rather by overruling Deut 24:1 through an appeal to creation texts.

This view too has its problems since the exception clause in Matt 5:32 clearly reproduces in Greek the Shammaite understanding of ervath davar as davar ervath. Clearly Matthew is thinking of the grounds for divorce given in Deut 24:1. And yet he appears to be saying that Moses in Deut 24:1 did not restrict the meaning of ervath davar to sexual immorality (adultery).

Reply: Hmm - I think I understand what you are saying. You appear to be saying that Matthew 19 records Jesus alluding to Shammai to show that Hillel is wrong and then, by his own special reasoning, Jesus comes to a conclusion which kind of agrees with Hillel; but Mt.5 still alludes to Shammai as though Jesus is agreeing with him.

The special reasoning of Jesus (as I understand you) depends on the phrase "Moses allowed you to divorce your wives, but from the beginning it was not so" which was Jesus' response to their question "Why did Moses command one to give a certificate of divorce?" Jesus' answer meant (according to your reading) "Moses did not commanded divorce for 'Any Cause', but only allowed it, and anyway, the creation narrative overrules Moses permission".

This is a clever point, but I have difficulty with it - partly because Mt.19 & Mt.5 appear to disagree with each other (though this might be cleared up) and mainly because this leaves Matthew responsible for adding "except for porneia", and we are back with Mark's question as the original, ie "Is it lawful to divorce your wife?"
My problem with Mark's question is that it is meaningless - divorce is in the law, so of course it is lawful. I agree that Mark's version was probably the original question, but my contention is that any 1st C reader would have expanded it into Matthew's version by adding "... for 'Any Cause'". Any modern reader would do the same thing with the equally meaningless question, "Is it lawful for a 16-year old to drink?" - only a pedant or a lawyer paid by the word would bother to add "... alcoholic beverages".

Your point relies on a phrase which I haven't dealt with in my book - "but from the beginning it was not so" (Mt.19.8). My understanding of this depends on two considerations. First the "but" is DE not ALLA, so I would not expect to read this as a negation or contradiction or replacement of the phrase which precedes it, but as a comment or (at the most) a contrast with it. Second, the concept which it contrasts with is hardheartedness, as suggested by the word order: "Moses, because of your hardheartedness, allowed you to divorce your wives, but from the beginning it was not so."

Before I say anything about hardheartedness, I'll agree with your emphasis on the contrast between "command" and "allow" - this is a normal rabbinic pair of distinctions. See, eg, t.Shab.13.13b (Z. 14.12): "One should not cast off on the Great Sea less than three days before the Sabbath. To what do these words apply? When he goes down [to the sea] on a permitted matter. But when he goes down on a commanded matter, even if it is the Sabbath Eve, he is permitted." We do not know the date of the latter part of this tradition, though the beginning is a saying by Shammai (according to Sifré Deut.203). In m.Shebu.3.6 the 'compulsory' laws are defined as those which come from Mt. Sinai (i.e. the Written and Oral Torah of Moses) and the 'optional' ones are those which do not (i.e. the rulings of the rabbis).

This implies that the Pharisees wanted to say that divorcing your wife in Dt.24.1 was a command of Moses, and not an innovation of the Pharisees. What were they talking about? They could not have meant that it was compulsory to divorce your wife for 'Any Cause' - otherwise it would be compulsory to divorce her after the first spoilt meal or first wrinkle. But they did, around this time, start to teach that it was compulsory to divorce your wife for adultery. As I say in my book (p.96) it was not universally compulsory before 70CE, but (what I didn't say in my book) it became universally compulsory soon after - cf b.Hag.9b where Judah b. Lakish [T2, just after 70CE] assumes that a cuckolded husband is forbidden to his wife. In other words, most Pharisees already believed that divorcing an adulterous wife was compulsory, but they could not enforce this before 70CE. (It is also possible that the Pharisees meant that it was compulsory to divorce a wife who is not submissive in all things -cf Ben Sira- but this is less likely.)

Jesus had just said that "those whom God has joined, no man SHOULD separate" (Mt.19.6) so they were replying: 'No, this can't be correct, because Moses gives us a situation when one SHOULD separate, indeed MUST separate because it is a command from Moses'. Jesus replied: 'No, Moses only ALLOWED you to divorce'. It is difficult to know whether Jesus is merely saying, 'Moses made the divorce optional, not compulsory' or whether he is also saying 'you have made a rabbinic rule out of the words of Moses' (based on the rabbinic understanding of the contrast between 'command' and 'allow'). Probably this latter nuance is reading too much into the text, but Jesus might have been making a extra side-swipe which the Pharisees alone would understand. THe main meaning is, however, that Moses ALLOWED divorce in the circumstance where the Pharisees taught that Moses COMMANDED it - ie when the wife committed adultery.

Now we can see why Jesus added the word "hardheartedness" at this point. As I pointed out in my book (p.141ff) this would have been recognised as an allusion to Jer.4.4 - the only place where this LXX word (it is created for the LXX, and does not occur in normal Greek) occurs in the context of divorce. This is, of course, where Israel is finally divorced for her hardheartedness after repeated adultery following repeated pleas and warnings by God. God allowed Israel lots of chances to repent, and did not divorce her immediately, as rabbinic law COMMANDED, and only when there was no way forward he took the route which was ALLOWED to men, to divorce her for adultery. My guess is that Jesus expounded this point, but Mark (or the creator of his oral text) had the hard job of abbreviating this into a couple of words. By the way, you will have noticed that Mark gets "command" and permit" mixed up (Mk.10.3) and Mt had to untangle it - successfully, I think.

So when Jesus says (in Mt) "but from the beginning it was not so", it is a wistful reminder that God did not want any divorce any more than he wanted any sin, but both are a painful reality. I can't see that Jesus is trying to reverse the law of Moses by an appeal to the creation order, especially after alluding to the divorce of God in the Prophets.

Anyway, that is the way I read the text, and I'm sorry that I didn't deal with it in the book.

For more see Rabbinic Teaching on Divorce in Divorce & Remarriage in the Bible

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