|Jesus on Divorce: The "Exception Clause" Issue|
The older form of this article is available on my other website, tektoonics.com.
The following passages are sometimes placed in opposition:
Mk. 10:11 He answered, "Anyone who divorces his wife and marries another woman commits adultery against her.
Mt. 19:9 I tell you that anyone who divorces his wife, except for marital unfaithfulness, and marries another woman commits adultery."
A "problem" is alleged in that Matthew includes an additional phrase, "except for marital unfaithfulness", not found in Mark.
Some critics say that the phrase was added to reflect the needs of the early church; and maybe it was, but that by no means requires that Jesus never added that qualification on His own at some point, perhaps in a different context or teaching. Matthew could simply have conflated two of Jesus' separate teachings, which is no crime.
But the most likely reason for the difference is that Matthew was spelling out what Luke and Mark leave implicit within the social context. The divorce debate in Jewish circles in Jesus' day pitted the followers of Hillel against those of his rival, Shammai. Hillel took a more liberal view, permitting divorce in a variety of circumstances (even if the wife spoiled a meal!); Shammai, only in the case of adultery. In both Jewish and Greco-Roman society, Blomberg notes in his commentary on Matthew, "divorce and remarriage were universally permitted and often mandatory following adultery."  Hagner's commentary on Matthew  adds: "Rabbinic Judaism required a husband to divorce an unfaithful wife." (m. Sota 5:1, m. Yebam 2:8; also Qumran literature, 1QapGen 20:15; Marcus Bockmuehl notes these passages and ties it not to Hillel and Shammai, but to halakhah on Deut. 24:4; neverthless his point is the same: the exception was presupposed -- Marcus Bockmuehl, "Mt. 5:32, 19:9 in Light of Pre-Rabbinic Halahkah," NTS 35 (1989), 291-5) In other words, both sides agreed on the exception which Matthew adds, and by the same token, Jesus could certainly have safely presupposed it without any fear of misunderstanding.
There's no direct statement about the exception. Therefore the contradiction stands.
A direct statement is not needed. Here we bring in, more or less verbatim, a note we have now used several times in other essays:
Malina and Rohrbaugh note in their Social-Science Commentary on John [16ff] that the NT was written in what anthropologists call a "high-context" society. In such societies people "presume a broadly shared, well-understood, or 'high' knowledge of the context of anything referred to in conversation or in writing." Readers were required and expected to "fill in the gap" because their background knowledge was a given. Extended explanations were unnecessary.
In contrast, we in the modern US are a "low-context" society. We assume little or no knowledge of he context of a communication. This is in part because we have so many specialized fields requiring specialized knowledge. Thus we expect background to be given when communication is given between fields. This is in contrast to the ancient world where there was little specialized knowledge.
Malina and Rohrbaugh set forth in summary a point we may use regarding the "adultery exception":
"The obvious problem this creates for reading the biblical writings today is that low-context readers in the United States frequently mistake the biblical writings for low-context documents. They erroneously assume that the author has provided all of the contextual information needed to understand it."
Thus the high-context ancients would look at Mark and Luke's words and grasp, "Of course, adultery is an exception." They did not need it spelled out for them. They would not look at Matthew on one hand, and Mark and Luke on the other, and think, "Jesus is contradicting himself here." They would assume that the "adultery exception" was behind Mark and Luke's words.
Because of the high-context "semantic contract" between text and reader, one can only claim contradiction here by reading the text in a way it was never meant to be read.
Instone-Brewer shows further (Divorce and Remarriage in the Bible: The Social and Literary Context, 9) how this high context worked itself into the legal situations of the ANE and in the time of Jesus. Ancient Near Eastern marriage covenants were usually oral, but some were written, and only under certain circumstances (a large dowry, unusual stipulations). Otherwise there were certain stipulations that were obvious and were seldom written out.
Sexual faithfulness is one example of an unwritten stipulation that seldom appears in written marriage covenants; yet since all ANE law codes prescribed the death penalty for adultery, it was obviously something that was highly valued.
By Jesus' time, the Hillel-Shammai debate likewise made laying out the exception superfluous. In this and other legal matters, the legal schools abbreviated their answers  as did the rabbinic literature. Because few could read, rulings were "abbreviated down to their absolute minimum and were arranged in balanced phrases that were easy to remember. Anything that was implicit or obvious was omitted for the sake of brevity."
This makes the rabbinic debates sometimes difficult for a low-context modern to follow outside of their social context.
What about Romans 7:2-3? Paul said that a divorced woman who remarries while her husband is alive commits adultery, but Matthew 5 has an exception for the cause of fornication.
The "adultery exception" still remains in the background, as a high-context "assumed" clause. As Instone-Brewer notes, such exceptions could be omitted from Greco-Roman documents as well as rabbinic ones. Here is an example from a marriage contract dated 92 BC:
And it shall not be lawful for Philiscus to bring in any other wife but Apollonia, nor to keep a concubine or boy, nor to have children by another woman while Apollonia lives.
Like Romans 7, if this is read woodenly one might think that the husband could never remarry while his wife was alive. But that would be "contrary to everything we know about Greco-Roman marriage contracts" in which "no fault" divorce was allowed for either partner. The absence of a "divorce provision" can hardly be understood as a denial of the right to divorce; so likewise in Romans 7 the absence of an "adultery exception" does not deny that it exists behind it. The same may also be said of 1 Cor. 7.
The point is that too much is made over that "the rule is stated without any exceptions." In so noting critics fail to account for the nature and construction of ancient legal codes, which were primarily didactic in nature. Few if any laws were designed, or intended to, lay out every possible exception to the rule.
For example, Exodus 22:1 reads, "If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep." This says "if a man" and it uses the Hebrew word for a male person; it is not a generalized "man" as in human. So does this law allow that a woman may steal and ox or a sheep and kill it and sell it, and suffer no consequences? Does it also mean one may steal a goat, or a cow, or would it later allow us to steal all manner of critters from horses to ostriches? After all, only oxen and sheep are specified.
Note that this was before the time when the term "man" was used to denote both men and women. Exodus was not written at a time when "universal gender" language was in use.
Jesus still should have noted the exception explicitly, because he was asked specifically about what conditions apply to the rules about divorce. If that is the specific subject Jesus was asked about, then to be accurate Jesus should state whether there are any exceptions.
This is simply a low-context demand, but even so, the Pharisees' question, followed upon as it is by the reflection upon the background acceptance of divorce as a reality in Deut. 24, shows that their interest was not with cases of adultery and whether that was an exception or not, for their purpose was to exploit the concession of Deut. 24 as though it were a command, and which the liberal Hillel school of the Pharisees took as an allowance to divorce for such trivial things as spoiling a meal.
Since both Hillel and Shammai agreed that adultery was an exception for which it was lawful to put away a wife, there is no way that the question, "Is adultery an exception?" could have been on their minds or have been the subject, to any degree, of the question. They are testing Jesus to see which side of the Hillel/Shammai debate he fell on. If it were otherwise, their specific question would have been, at some point, "Is it lawful to put a wife away for adultery?"
Social data regarding the regulations of adultery is very relevant in context. On the other hand, that the matter is stated as an absolute is of no relevance; the restrictions on Sabbath work were also stated as absolutes, yet clearly it was recognized by Jews that there were "exceptions" (lifesaving measures, getting an animal out of a pit) in certain circumstances in spite of the "absoluteness" of the command.
Speaking of "formal contradiction" between the Gospels on this matter is a case of imperialistically imposing Western demands for precision upon texts and peoples who neither recognized nor required such precision.
The act of divorce was no exception to this principle: There were times when divorce was the better option. Note that this is not "situational ethics" as some are wont to define the term; it is a matter of a moral hierarchy, in which one must choose a greater good. (The classic example being, "it is always wrong to lie" -- even about the Jews you keep hidden in your cellar from Hitler's SS?)
In the ancient world adultery was no mere matter of a hop in a sack between consenting partners; adultery was looked upon as a matter in which one man dishonored another man by sleeping with his wife, and this in an agonistic culture in which honor was given the sort of regard we give to paying the bills.
Adultery crossed the boundaries of family in an era when familial lines were clearly and sharply drawn. It was an offense that demanded satisfaction from a human point of view, and since it involved familial boundaries, easily led to "family feuds" of the variety best know not from Richard Dawson, but from the Hatfields and McCoys.
Ancient Israelite law nipped the feud in the bud by requiring both the adulterous wife and the man to be killed (Deut. 22:22) and stop the feud in its tracks. )
Given these conceptions of honor and vengeance, the "adultery exception" was the means of heading off dispute that Jews of Jesus' time used. Divorce excluded the offending parties from the kinship group and therefore gave the families no one to feud with. The punishment was social ostracization.
Why is Jesus changing the law of Moses anyway? Was the law imperfect as it was?
No: The moral law had not changed; men had changed. In the time of Moses, an easy divorce was morally better than not conceding to it, for it allowed a woman to remarry and continue to survive in a much harsher world to live in, in the Ancient Near East.
By the time of Jesus, the conditions that made survival so difficult in the ANE were substantially alleviated and a greater stricture on divorce was more practicable (albeit not at all to be taken to mean, that cases were to be judged in black and white, any more than before).
This has nothing to do with the Hillel-Shammai dispute, in which lines were clear: Both sides allowed for divorce in the case of adultery, and agreement on the subject stopped there. There was not a grand panorama of views under which not specifying the "adultery exception" would have made a difference.
Opinions may have differed beyond the "adultery exception" which everyone understood, but not on adultery as an exception.
Jesus held a non-mainstream view on divorce, and on other topics, so he should have been more explicit.
As we have noted, Jesus' view was not "non-mainstream". Nor were any of his other views on the law. To address some examples offered:
How about Deut. 24:1-2? There is no waiting period until the husband dies, and it allows the woman to remarry, contrary to Jesus' statements that this would be adultery:
Deuteronomy 24:1-2: When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife.
The following analysis is derived from Jeffrey Tigay's Jewish Publication Society commentary on Deuteronomy.
We should first note that Deut. 24:1-2 is not a "law" at all. The whole "law" as such is Deut. 24:1-4. Verses 1-3 are a protasis; they describe a given situation that is expected to happen. Verse 4 is the apodasis, the actual "law" as we understand it.
In fact there is no "law" for or against divorce in the OT law. It was assumed to be a reality, as Deut. 24:1-4 recognizes, and was neither forbidden nor endorsed. So even by modern "formal" standards there is nothing to put against the NT passages.
The interpretation of this passage as a rule, versus as a concession, was at the very heart of the Hillel-Shammai debate over when divorce was permitted. Hillel's school took this as a command. Shammai's school took this as a concession. Jesus sides with the Shammaites on this point, for he agrees that Moses suffered, meaning permitted or allowed, divorce because of hardness of hearts, which isn't the same as allowing it just because your wife burned dinner.
The point of Deut. 24:1-4, in fact, was to keep a first husband from having a financial motive to remarry his first wife; the second marriage, because it ended for an invalid reason [hating or disliking the woman] meant the woman was permitted to have her dowry from the second marriage back, or be awarded a similar amount. The rule was intended to keep the first man from remarrying the women just to get the money.
In Mark 10, Jesus states his view on divorce before the Pharisees. However, later, his disciples ask him about his views on this again. This suggests that they still did not understand his position on the matter. If the issues were clear and indisputable, then the disciples would not have been in the dark about them.
As Mark relates the story, Jesus only tells the Pharisees of his view in terms of creation; the disciples ask again and get a precise accounting -- this is perfectly in accord with the ancient teaching paradigm in which insiders were given more detailed information that outsiders. Matthew does not report the differentiation between the "insider" and "outsider" teaching in order to make a cohesive teaching unit, in line with his arrangement principles. There is nothing here to suggest that the issues lack in clarity or foster dispute.
In a programmatic teacher-disciple relationship in the ancient world, there would be a difference in Jesus' answers to the Pharisees as an "outgroup" to whom Jesus gave a public and less clear response, and the disciples as an "ingroup" who got and deserved a more explicit answer, that was nevertheless no different in terms of meaning than the answer given to the Pharisees -- and that answer, again, can only be understood in terms of the difference between the high and low context settings.
There are examples of exceptionless rules in the Bible, so the point about laws not stating exceptions is ineffectual. Look at "thou shalt have no other gods before me," for example.
Nothing I have said here states that there is no such thing as an exceptionless rule; and of course the simpler a rule is, the less likely there would be exceptions. The nature and status of God is a much "simpler" issue than the complexities surrounding human interaction. Determining what rules are in what category is a matter of detailed consideration of the background and social data. The "no other gods" rule does not stand alone; it is expanded upon with pounding-home regularity as the Israelites are also told to destroy pagan altars and religious artifacts (as well as reinforced by the "do not take my name in vain" rule, which stresses the holiness which makes God unique).
This is the sort of background I have provided with the rule for divorce, showing that it rested in a different category and was not "exceptionless" at all. Pointing to rules that are exceptionless does not negate the evidence that this particular rule was not exceptionless.
Well, the 'no adultery' rule was obviously not 'pounded home,' since so many OT heroes had multiple wives and concubines.
First, this is drawing a false analogy between a single law accompanied by secondary laws and admonitions, and a single law contrasted to practice. An accurate analogy here would fail, for it is clear that in spite of the laws pounded home against idolatry, Israel violated these laws as often as often as the Israelites violated the adultery law.
Second, the keeping of multiple wives and concubines did not constitute "adultery" as it was defined in the Bible. It was a means of helping women to be able to survive, but it was not "adultery" by definition.
Finally, the argument fails to consider that the point when the adultery exception was "pounded home" most was in the context of the Hillel-Shammai debate much later, so that appealing to the acts of much earlier OT persons would be out of order to begin with.
Even today, among Jews there is disagreement about what is permitted on the Sabbath. One should not assume that everyone would have agreed on this so much that exceptions would not have to be stated.
This only proves my point. There is disagreement about what is permitted, but all agree that some things are permitted -- it is a matter of degree, as was the difference between Hillel and Shammai on adultery; but all agree that there are thinks not permitted on the Sabbath. There is no Jew, for example, that still follows Sabbath rules, who would agree that you can keep the Sabbath while not doing essential work (though there is certainly discussion over how "essential" is defined).
Mark 10:12 applies to a situation which might arise in Gentile society -- the Roman wife could divorce her husband. So it must have been falsely attributed to Jesus.
Not at all. One of the Herodian queens did indeed divorce her husband, as Josephus points out, and that Jesus' words here therefore were more than relevant to just "Gentile society" in the shadow of the Herodian house which set the moral example for the nation. The king and queen tried to set a different rule for themselves, and Jesus is making it clear that there is no allowance for that. In essence he is correcting a case of a woman trying to get around a rule that states, "If a man..."
In addition, Instone-Brewer [87ff] notes that a recently-published document is a divorce certificate dating from the 2nd century, written by or for a woman, to her husband. The Mishnah also offers evidence that women in the first century brought petitions for divorce. While this was obviously not standard practice, it is clear that women could and did try to initiate the procedure, and that the certificate follows the language of the traditional Jewish court document for the procedure indicates that Jewish courts in Palestine recognized the practice.