Sex, Marriage and Family in World Religions (17 page)

c h a p t e r s i x : t h e q u a l i t y o f i n t e r c o u r s e It is known that every pious and modest person only speaks with soft words and gentle language and a pleasant spirit; he does not speak with grandeur . . .

Therefore, make your head light with regard to woman, and do not engage in excessive idle chatter with her . . . Therefore, you should bring her in with words that draw in her heart, and settle her thoughts, and make her happy in order to meld your consciousness with her consciousness, and your intentions with her intentions. And speak a few words that enhance her love, connection, desire, will, and courtship, and a few that draw her into fearing the heavens, and piety, and modest ways. And talk with her about the ways of modest and pious women, and how from them come children that are fit, suitable, and 62

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pure, fitting for the crown of the Almighty, bearers of Torah and fear of the Lord, grand and holy, and doers of good deeds. . . . And so it is fitting for a man to bring in his wife with good words, some of them courting her and some of them dealing with fear of God, and he will converse with her in the middle of the night, or in the pre-dawn hours of the night. And he will not have intercourse with her against her will, and he will not rape her. . . . And it is not fitting to argue with her or hit her about matters of copulation. . . . Rather it is fitting to draw in her heart with charm, seduction, and other proper and settling things, so that their intentions will be one for the sake of heaven. It is also not fitting to have intercourse with one’s wife when she is sleeping, because she has not agreed, but one may wake her with words of will and desire. . . .

In conclusion: when you see for yourself that you are fitting to have intercourse, make sure your wife agrees with you; do not hurry to arouse your desires and set aside your arousal in order to settle your wife’s thoughts and bring her into the ways of love and will, so that she will be fertilized early, in order that her seed will be like mortar and your seed will be like bricks. . . .

May the Almighty Lord, in His mercy, open our eyes with the light of his Torah, and merit us to connect with the deeper meaning of his Torah, and to bear children who are ready to fear and serve Him. Amen and amen.

[Ch. Chavel,
Kitvei Rabbenu Mosheh ben Nahman
(Jerusalem: Mossad Harav Kook, 1964), vol. 2, pp. 315–337, translated by Michael J. Broyde]

EXCHANGE BETWEEN NAPOLEON AND THE

JEWISH “SANHEDRIN” ON ISSUES OF MARRIAGE

In the seventeenth and eighteenth centuries the Enlightenment and the rise of the nation-state allowed Christian society for the first time to imagine Jews as fellow citizens, equal under the law. “Emancipation” of the Jews began in France with the Revolution and spread slowly throughout Europe over the next 130 years.

Christian society, however, was wary of allowing in a group that was so distinctive in language, practice, and belief. Worries persisted whether Jews would truly integrate into the majority culture. In 1806 Napoleon assembled Jewish leaders to answer a set of questions related to the Jews’ acculturation.

Chief among them were those that concerned marriage and divorce, but they included Jewish obedience to civil law, service in the army, and willingness to engage in all types of work.

In many ways these questions and their answers epitomize the Jews’ condition in the modern period. Jews are welcome into the modern state—but usu-ally on the condition they abandon their distinctiveness and assimilate.

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Document 1–57

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n a p o l e o n ’ s i n s t r u c t i o n s t o t h e a s s e m b l y o f j e w i s h n o t a b l e s ( j u l y 2 9 , 1 8 0 6 ) His Majesty, the Emperor and King, having named us Commissioners to transact whatever relates to you, has this day sent us to this assembly to acquaint you with his intentions. Called together from the extremities of this vast empire, no one among you is ignorant of the object for which his Majesty has convened this assembly. . . .

Far from considering the government under which you live as a power against which you should be on your guard, you will assist it with your experience and cooperate with it in all the good it intends; thus you will prove that, following the example of all Frenchmen, you do not seclude yourselves from the rest of mankind.

The laws which have been imposed on individuals of your religion have been different in the several parts of the world: often they have been dictated by the interest of the day. But, as an assembly like the present, has no precedent in the annals of Christianity; so will you be judged, for the first time, with justice, and you will see your fate irrevocably fixed by a Christian Prince. The wish of His Majesty is that you should be Frenchmen; it remains with you to accept the proffered title, without forgetting that, to prove unworthy of it, would be renouncing it altogether.

You will hear the questions submitted to you, your duty is to answer the whole truth on every one of them . . .

Is it lawful for Jews to marry more than one wife?

Is divorce allowed by the Jewish religion? Is divorce valid, when not pronounced by courts of justice, and by virtue of laws in contradiction with the French code?

Can a Jewess marry a Christian, or a Jew a Christian woman? Or has the law ordered that the Jews should only intermarry among themselves?

In the eyes of Jews are Frenchmen considered as brethren or as strangers?

In either case what conduct does their law prescribe towards Frenchmen not of their religion?

t h e a s s e m b l y o f j e w i s h n o t a b l e s : a n s w e r s t o n a p o l e o n ( 1 8 0 6 ) Resolved, by the French deputies professing the religion of Moses, that the following Declaration shall precede the answers returned to the questions proposed by the Commissioners of His Imperial and Royal Majesty.

The assembly, impressed with a deep sense of gratitude, love, respect, and 64

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admiration, for the sacred person of His Imperial and Royal Majesty, declares, in the name of all Frenchmen professing the religion of Moses, that they are fully determined to prove worthy of the favours His Majesty intends for them, by scrupulously conforming to his paternal intentions; that their religion makes it their duty to consider the law of the prince as the supreme law in civil and political matters; that consequently, should their religious code, or its various interpretations, contain civil or political commands, at variance with those of the French code, those commands would, of course, cease to influence and govern them, since they must, above all, acknowledge and obey the laws of the prince.

That, in consequence of this principle, the Jews have, at all times, considered it their duty to obey the laws of the state, and that, since the revolution, they, like all Frenchmen, have acknowledged no others.

First Question:
Is it lawful for Jews to marry more than one wife?

Answer: It is not lawful for Jews to marry more than one wife: in all European countries they conform to the general practice marrying only one.

Moses does not command expressly to take several, but he does not forbid it. . . . Although this practice still prevails in the East, yet their ancient doctors have enjoined them to restrain from taking more than one wife, except when the man is enabled by his fortune to maintain several.

The case has been different in the West; the wish of adopting the customs of the inhabitants of this part of the world has induced the Jews to renounce polygamy. But as several individuals still indulged in that practice, a synod was convened at Worms in the eleventh century, composed of one hundred Rabbis, with Gershom at their head. This assembly pronounced an anathema against every Israelite who should, in future, take more than one wife. . . .

Second Question:
Is divorce allowed by the Jewish religion? Is divorce valid
when not pronounced by courts of justice by virtue of laws in contradiction with
those of the French Code?

Answer: Repudiation is allowed by the law of Moses; but it is not valid if not previously pronounced by the French code.

In the eyes of every Israelite, without exception, submission to the prince is the first of duties. It is a principle generally acknowledged among them, that, in every thing relating to civil or political interests, the law of the state is the supreme law. Before they were admitted in France to share the rights of all citizens . . . they had the ability to divorce their wives; but it was extremely rare to see it put into practice.

Since the revolution, they have acknowledged no other laws on this head but those of the empire. . . .

Third Question:
Can a Jewess marry a Christian, and a Jew a Christian
woman? Or does the law allow the Jews to marry only among themselves?

Answer: The law does not say that a Jewess cannot marry a Christian, nor a Jew a Christian woman; nor does it state that the Jews can only marry among themselves.

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The only marriages expressly forbidden by the law, are those with the seven Canaanite nations, with Amon and Moab, and with the Egyptians. . . . The prohibition in general applies only to nations in idolatry. The Talmud declares formally that modern nations are not to be considered as such, since they worship like us, the God of heaven and earth. And, accordingly, there have been, at several periods, intermarriages between Jews and Christians in France, in Spain, and in Germany: these marriages were sometimes tolerated, and sometimes forbidden by the laws of those sovereigns, who had received Jews into their dominions.

Unions of this kind are still found in France; but we cannot deny that the opinion of the Rabbis is against these marriages. According to their doctrine, although the religion of Moses has not forbidden the Jews from intermarrying with nations not of their religion, yet, as marriage, according to the Talmud, requires religious ceremonies called Kiduschin, with the benediction used in such cases, no marriage can be religiously valid unless these ceremonies have been performed. This could not be done towards persons who would not both of them consider these ceremonies as sacred; and in that case the married couple could separate without the religious divorce; they would then be considered as married civilly but not religiously. . . .

Fourth Question:
In the eyes of Jews, are Frenchmen considered as their brethren? Or are they considered as strangers?

Answer: In the eyes of Jews Frenchmen are their brethren, and are not strangers.

The true spirit of the law of Moses is consonant with this mode of considering Frenchmen.

When the Israelites formed a settled and independent nation, their law made it a rule for them to consider strangers as their brethren. . . .

Respect and benevolence towards strangers are enforced by Moses, not as an exhortation to the practice of social morality only, but as an obligation imposed by God himself.

A religion whose fundamental maxims are such—a religion which makes a duty of loving the stranger—which enforces the practice of social virtues, must surely require that its followers should consider their fellow citizens as brethren . . .

Yes, France is our country; all Frenchmen are our brethren, and this glorious title, by raising us our own esteem, becomes a sure pledge that we shall never cease to be worthy of it.

Fifth Question:
In either case, what line of conduct does their law prescribe
towards Frenchmen not of their religion?

Answer: The line of conduct prescribed towards Frenchmen not of our religion, is the same as that prescribed between Jews themselves; we admit of no difference but that of worshipping the Supreme Being, every one in his own way.

The answer to the preceding question has explained the line of conduct which the law of Moses and the Talmud prescribe towards Frenchmen not of 66

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our religion. At the present time, when the Jews no longer form a separate people, but enjoy the advantage of being incorporated with the Great Nation (which privilege they consider as a kind of political redemption), it is impossible that a Jew should treat a Frenchman, not of his religion, in any other manner than he would treat one of his Israelite brethren.

[Paul Mendes-Flohr and Jehuda Reinharz, ed.,
The Jew in the Modern World:
A Documentary History
(New York: Oxford, 1995), pp. 124–126, 128–131.]

CONTEMPORARY DEVELOPMENTS IN JEWISH

MARRIAGE CONTRACTS

As Jews integrated into the state, they naturally came under the jurisdiction of civil law—including marriage and divorce, which traditionally were within the domain of Jewish law. The new reality meant Jews were under dual jurisdiction, inevitably leading to tension between the two. Divorce was the more serious issue, since a marriage not terminated properly had grave consequences (see Doc. 1–43).

Judaism’s denominations in America responded differently. Reform Judaism saw civil divorce as sufficient and did not require any religious rite. Conservative Judaism added a clause to the
ketubah
whereby the civilly divorcing couple agrees to have their marriage also terminated in a Jewish court. Orthodoxy, which insisted Jewish law was exclusively normative, recently developed a civil prenuptial agreement that creates financial consequences for the husband if the couple no longer lives together yet remains religiously married. These radically different solutions were not uniformly recognized by all Jews, contribut-ing to denominational strife.

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