Premantal in Ancient Judea: The Evidence of the Babatha Archive arld the Mishnah (Ketubbot1.4)*

Tal Ilarl TheHebrew Universityof Jerusalem

This article discusses one aspect of matrimonialpractice in second-cen- 1 tury CE Judea:whether a man and a woman could or would cohabit before they were officially married.I shall examine a marriagecontract from the Babathaarchive discovered in the Judean desert; this contract contains a clause that specifies that a couple had lived togetherfor some time before the marriagecontract was drawn up. This statementmay be perceivedas contradictingthe pictureof matrimonialpractices derived from Jewish legal sources. In dealing with such contradictionsit is possible to adopteither an apologeticor a provocativeapproach. This articleprofesses to apply a provocativeapproach to the problemby acceptingthe contentof this clause at face value and suggestinga fresh interpretationto a passage

*This article was first presented at a faculty seminar on the Babatha Archive of the Classics Department of the Hebrew University of Jerusalem in 1991. I thank Professor Hannah Cotton for inviting me to present it in that forum. I also wish to thank Professor D. R. Schwartz of the Hebrew University for reading an earlier draft and making some suggestions. I wrote the final draft of this article at the Harvard University Divinity School during my 1992-1993 fellowship as a visiting lecturer and research associate in the Women's Studies in Religion Program. I am grateful to the program and its director, Constance Buchanan, for making the resources of the school and university available to me to conduct much fruitful research and to complete this and other studies.

HTR 86:3 (1993) 247-64

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions 248 HARVARD THEOLOGICAL REVIEW from the Mishnah.This mishnahattests differentmatrimonial practices in Galilee and Judeaand suggests that premaritalcohabitation was sometimes practicedin Judea, but certainly not in Galilee. The PalestinianTalmud interpretsthe mishnah,obviously apologetically,by assigning the Judean practice of premaritalcohabitation to the aftermathof the Bar Kokhbah revolt, as a result of the impositionof the jus primae noctis ("theright of the first night").The contractfrom the Babathaarchive predatesthe Bar Kokhbahrevolt, however, and thus attests a Judeanpractice of premarital cohabitationthat is not connected to the Roman decree. In the article I shall suggest two possible interpretationsfor this practice.I shall conclude by arguing that the jus primae noctis in Jewish sources belongs, as has been shown for all other instances of the motif, to folklore and not to history. g TheMarriage Contact of SalomeKomais Recently, a new Greek documentfrom the Cave of Letters has been published,together with the now famous Babathaarchive.l This archive and other documentsthat were discoveredby Yigael Yadin in the Judean desert in the early 1960S2date from the aftermathof the Bar Kokhbah revolt (135 CE). Jewish survivorsfrom nearbyEin Gedi fled to the caves in the desert, taking their documentswith them. Apparentlythey all died in the cave. The documentI shall discuss here was designated"Papyrus Yadin 37- MarriageContract" and hadbelonged to a certainSalome Komais3 of Maoza,

lNaphtali Lewis, The Documents from the Bar Kokhba Period in the Cave of the Letters, vol. 2: Greek Papyri (Jerusalem: Israel Exploration Society, 1989) 130-33. 2Yigael Yadin, Bar-Kohkba: The Rediscovery of the Legendary Hero of the Last Jewish Revolt Against lmperial Rome (London: Weidenfeld & Nicolson, 1971). 3The name of this woman is interesting. This is one of the rare instances of a woman with both a Greek and a Hebrew name. She is mentioned once in the document with both names and henceforth only as Komais. Whether Komais is a name or a nickname is of some interest as well. As a name, only the masculine Komaios is recorded (see Gustav E. Benseler and Wilhelm Pape, Worterbuch der griechischen Eigennamen [2 vols.; Braunschweig: Vieweg, 1863] 1. 690; and Peter M. Fraser and Elaine Matthews, A Lexicon of Greek Personal Names, vol. 1: The Aegean lslands, Cyprus, Cyrenaica [Oxford: Oxford University Press, 1987] 269). The contract that I am discussing states that Salome is also called Komais (KaBol)R£vllv), which may indicate that this is not a real name. The Greek word KoRaco means "let the hair grow long," or, idiomatically, "plume oneself, give oneself airs" (LSJ, s.v. KoRaco, 975). Each of these meanings can explain the use of the word for a nickname. According to a relatively old rabbinic halakhah, a man who his should state in the bill all names and nicknames his wife had: "Rabban Gamaliel the elder decreed (1pnul) that [he] should write. . . woman so-and-so (n:l* ulss) and all names she possesses" (m. Git. 4.2). Perhaps the practice of the divorce bill has been here (and elsewhere) carried over to the marriage contract.

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions TAL ILAN 249 who marriedJesus son of Menahem.The documentincludes variousinter- esting aspects, such as a clause in which the husbandassumes responsibil- ity for the supportof his wife "in accordancewith Greek custom"(vo,ux 'EXB11VIKE,));4 the presenceof a guardian(Exltposo) who representsthe bride, as is customaryin Greekand Romanlegal systems;Sand the size of the bridal settlement(ninety-six denarii) which does not agree with the Jewish legal traditionof two hundredzuz for a virgin and one hundredfor a or divorcee (m. Ketub. 1.2).6 One clause in the documentstates that "Jesusson of Menahem.. . has taken Salome. . . to live with her as also before this time" (ov,u8lsal T [ov 'Illoouv ,utt'] avilg . [ K]al spo tovtov tov %povov). This statementraises severalquestions with relationto the nearlyuniversal world view of Jewish society and Jewish matrimonialpractices during the Romanperiod as reflectedin Jewish sources.This view maintainsthat girls were kept segregatedin their homes before they were marriedso as to insurethat they enteredmatrimony as virgins;their husbandswere selected by theirfathers, and seldom did the brideget a chanceto meet her prospec- tive ,much less to live with him, beforenuptials took place.7When describingthe mishnaic system of women, Neusner made the following statement: It is beyondthe Mishnah'simagination for a man and a womanto live togetherwithout the benefit of a betrothal,a marriagecontract and a consummationof marriage.I cannotthink of a single rule which takes account of the possibility of cohabitationother than under normal, legal procedures.8 Neusner'sstatement summarized the legal situationof the issue that we are discussing, as it is found in the Mishnah.Even if this rigid view is actually our impressionfrom these subjective, tendentious,and strongly motivatedbodies of data, the Mishnah9and the Talmud,and even if people

40n this clause, see Ranon Katzoff, "Papyrus Yadin 18 Legal Commentary," lEJ 37 (1987) 239-42; Abraham Wasserstein, "A Marriage Contract from the Province of Arabia Nova: Notes on Papyrus Yadin 18," JQR 80 (1989) 105-30. sSee, for example, Rafal Taubenschalg, The Law of Greco-Roman Egypt in Light of the Papyri (New York: Herald Square, 1944) 123-26. 6For further examples of contemporaneous monetary settlements, see Pierre Benoit, Josef T. Milik, and Roland de Vaux, Discoveries in the Judaean Desert, vol. 2: Les grottes des Muraba'at (Oxford: Clarendon, 1961) 248, 255. 7For a very conservative description, see, for example, Leonard Swidler, Women in Juda- ism: The Status of Women in Formative Judaism (Metuchen, NJ: Scarecrow, 1976) 141. 8Jacob Neusner, A History of the Mishnaic Law of Women (5 vols.; Leiden: Brill, 1980) 5. 266. 9On the Mishnah and the regulation of women's lives, see Judith R. Wegner, Chattel or Person? The Status of Women in the Mishnah (Oxford: Oxford University Press, 1988).

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions 250 HARVARD THEOLOGICAL REVIEW did not exactly act out the restrictedrealities prescribedby these sources, it seems remarkablenevertheless that informationabout an earlier,highly informalrelationship between a man and a woman would actuallybe de- lineated in a marriagecontract signed by two Jews. Thus in this second-centuryCE marriagecontract drawn by Jews, we encounterthe highly unusualstatement that the couple had cohabitedbe- fore they were formallymarried. The following discussionis an attemptto place this unusualclause within a historicalperspective. In orderto do so, however, I must first ascertainthat linguistically and legally this is the correctreading of the Greek sentence. g GO,U,(3105 What exactly does AV,UX13IOO,the verb used in the documentto signify the act of living together, mean? In various documents this verb and AV,UX13IOg,the noun derivedfrom it, signify marriedlife. This verb is also employed in anotherJewish-Greek marriage document discovered in the Judeandesert and publishedsome years ago: a remarriagecontract, that is, a second marriagecontracted by the same couple (Elai son of Simon and Salome daughterof YohananGalagoula) after a formal divorce.l° Sources indicate that remarriagewas not an uncommonphenomenon in Jewish society.ll The documentstates that Elai had previously been marriedto Salome (spoPyevo,ut[vllv].. . oVV8IOV), divorcedher, and now wished to take her againas his wife "outof a need for communallife" (a[U]y81Xotog %aplv). On the other hand,yaEx, which is the more commonterm for the act of marriage,is absentfrom Salome Komais'marriage contract, but appears both in the Wadi Muraba'atdocument of Elai and Salome (E1[ yvval]K. a Pya,uttllv)l2 and in another Jewish-Greek marriage contract, that of Salamzion,Babatha's stepdaughter (yvvalKav yaEqv 1r p0c, ya,uov),l3 where the term AV,UX13IOgiS absent. What then is the linguistic differencebetween the two terms?The lexi- cons indicatethat while the verb AV,UX13IOOdescribes the ongoing activity of marriedlife, the verb yaEx denotes the single action of taking a wife

°Benoit, Les grottes des Muraba'at, 243-54. llFor example, Herod remarried his first wife, Doris, after the execution of his second wife, Mariamme the Hasmonean (Josephus Bell. 1.451; Ant. 16.85). See also m. Git. 4.7; t. Yebamot 13.5. Benoit, Les grottes des Muraba'at, 248. 3Lewis, Greek Papyri, 78.

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions TAL ILAN 251 in marriage.l4It is thereforenot at all surprisingthat the Muraba'atremar- riage documentof Elai and Salome would employ the term AV,U13lOX to describethe previousmarriage of the couple. Similarly,the use of yaEx in the marriagecontract of the virgin Salamzion,Babatha's stepdaughter, is also easily understood;Salamzion is simply taken as a wife. Even the yaEx in the Elai and Salome documentdescribes the actual renewedact of taking Salome as a wife. We may thus summarizethe evidence and connect it with the Salome Komais document.The use of the verb AV,U13lOO indicates an ongoing cohabitationof the couple, which is interruptedin orderto make it official in marriage.Pya,u£ is absent because it is unnecessary,since Jesus does not performa single act of taking a wife. We have indeed understoodthe text correctly.Salome Komais and Jesus son of Menahemhad been living togetheras a marriedcouple without actually contractingan official mar- riage. How then should we understandthis informationagainst the histori- cal backgroundof Jewish society in second-centuryJudea?

g Modesof lnterpretation Ancient texts such as Salome'smarriage contract seem to suggest a pic- ture of ancient society quite divergentfrom the conservativeimpression given by othertexts-such as the Mishnah-that many considernormative. Recent and not so recentresearch of these texts gives rise to two diametri- cally opposite attitudes:the "apologetic"and the "provocative."Obviously the promotersof the provocativeinterpretation are the ones who describe the counterinterpretationas apologetic,while the championsof the apolo- getic view designatethe view of their opponentsprovocative. I thereforedo not use these two terms in a derogatorysense here, althoughI shall even- tually situate myself within the latter.

The ApologeticApproach: In the studyof texts dealingwith women,the apologetic attitude is promotedby conservativescholars who set out to demonstratethat the documentin questiondoes not really contradicttheir perceptionof the ancient world, ancient Christianity,or, as in this case, ancientJudaism. All that needs to be done is a readingof the documentin light of what we ''know.''15

14LSJ,s.v. ya£co, 337; ol),BIoco, 1657; Friedrich Preisigke, Worterbuch der griechischen Papyrusurkunden (2 vols.; Berlin: Weidmann, 1925) 1. 282; 2. 508. I5For an interesting example of this sort of apologetic attitude one may review the litera- ture on a text from Qumran that suggests that could bear witness in the sect's tribunal against their (lQSa 1.10-11). This text, which seemed in its present form incon-

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This sort of apologetic has alreadyappeared in relationto the Salome Komais contract.Here are some examples. (1) OrphanedMinor: In his minimalcommentary on the document,the editor, NaphtaliLewis, stated, Jewish custom is reflected in all probabilityin the statementthat the bridal pair are to live henceforth.. . "as also before this time." In Greekpapyri from Egypt thereare instancesof couples living together as man and wife in what is termedas "unwrittenmarriage" (aypaeos yaRos), which was sometimes later convertedby a written contract into eyypaeos yaRos. Close as that parallel may be, however, in [PapyrusYadin] 37 the expression"as also before this time" implies that the bride and groom had been living together since the day of their betrothal,in keeping with a Jewishpractice of the time when the bride was both an orphanand a minor.l6 Lewis's statementbetrays a tension between the two interpretationsthat occurredto him. Since he was a scholarof Egyptianlegal documents,l7he was inclined to identify this clause with similarlegal situationsfamiliar to him from Egyptianpapyri. In his legal commentaryon the Babathaarchive, however, Lewis collaboratedwith Jewish scholars,who were assignedthe task of producinga legal commentaryon the documentsin light of Jewish legal traditions.The commentaryhas not yet been published,but this re- mark is undoubtedlyan indicationof how the scholars involved in this projectintend to approachthe documents.In a lectureon the legal contents of the Babathaarchive and their relevanceto Jewish law, Ranon Katzoff defendedthe position taken by Lewis in the above passage by statingthat accordingto halakhaha man could only live with a woman withoutbeing officially marriedto her if she was a minorwhose fatherwas dead and who was marriedoff by her motheror brothers.l8Such a marriagewould only become valid when the minorgirl assumedadulthood and consentedto the marriage(m. Yebamot13.2). Katzoff,it appears,inferred from this halakhah that only after this consent would a marriagecontract be officially written. This interpretationseems to me a typical talmudic "pilpul,"designed to explain away a contradictionbetween a legal case and the law by dismiss- ceivable to scholars, was emended by Joseph M. Baumgarten (Studies in Qumran Law [Leiden: Brill, 1977] 183-86), and his emendation was accepted by Lawrence H. Schiffman (Sectarian Law in the Dead Sea Scrollsourts, Testimony and the Penal Code [BJS 33; Chico, CA: Scholars Press, 1983] 62-63). Lewis, Greek Papyri, 130. l7See, for example, Naphtali Lewis, Life in Egypt under Roman Rule (Oxford: Clarendon, 1983). l8Ranon Katzoff, In the Faculty Seminary of the Classics Department in the Hebrew University, Jerusalem, 1990.

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions TAL ILAN 253 ing the case as reflectinga very specific and rare legal situation.This sort of argumentis found often in the talmudictext and a specific terminology was developedfor it by the talmudicrabbis (R9sp st; "It is not difficult"). (2) Marriage Contractand "Ketubbah":From a very differentquarter and with a very differentagenda comes the claim that this documentshould not be studied in the light of Jewish law at all, since it is really not a ketubbahbut rather a typical Greek marriagecontract.19 This argument, intendedto wrestthis and similardocuments from the handsof the talmudists and place them in those of the classicists, suggeststhat in a confusedworld where many legal systems operatedside by side and where some proved much more efficient than others, prudentpeople armed themselves with two documents,each suitablefor a differentlegal system-the ketubbahfor the Jewish courts and a contractin Greek for its Romanequivalent. Such an argumentcould easily be employedby the apologists:surely Jesus had writtena properketubbah for Salome Komais at their actual nuptials,but later, just to be on the safe side, he also composed a Greek marriage contractwhich stated that the couple had alreadybeen marriedfor some time. Komais took this documentwith her to the cave but carelessly left behind her Hebrew (or more likely Aramaic)ketubbah. This explanationsounds very logical. At this point, however, it cannot be corroboratedat all, and there is circumstantialevidence that appearsto negate it. In the Judeandesert both Greekmarriage contracts and Aramaic ketubbothave indeed been discovered.20The Babathaarchive, however, seems to me to be the typical place for a double documentsituation to appear.Babatha was a very tidy person who treasuredher paperworkand preservedit in full. Indeed, the Aramaicketubbah from her second mar- riage has been preserved.21She has no correspondingGreek marriage con- tract,however. This, of course, could be coincidence,and perhapsBabatha never did receive a Greek documentfrom her husband.One may even claim that Babatha'sfamily did not believe in supplementingthe Aramaic documentwith a Greekone. Babatha,however, also preservedthe marriage contractof her stepdaughter-thisone in Greek.The stepdaughteralso had only one document,strangely not of the same variety as Babatha's. It seems to me that there exists a much betterexplanation for the bilin- gual documentsituation: the time factor. Of the three Aramaicdocuments extant from the Judeandesert, the two with dates that have been preserved

19Thisis the case put forwardby Wasserstein,"Marriage Contract," 121. 20Benoit,Les grottes des Muraba'at,109-17, 243-56; Lewis, GreekPapyri, 76-82, 130- 33. 21Yadin,Bar-Kokhba, 237-38.

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chronologicallyprecede22 the three dated Greek documents.23With the destructionof the temple, the power of Jewish courts was much curtailed, and they became institutionsof arbitrationrather than effective law-en- forcementinstruments. It soon became obvious to the holdersof the docu- ments that for enforcementof all laws, includingmarriage settlements, the pagancourts should be approached,and these unfortunatelydid not usually read Aramaic. The Jews thus resorted to writing Greek marriagedocu- ments. I shall now briefly enumerateother possible apologeticexplanations that may be given for the ozR,ZI°Spassage in Salome Komais'marriage con- tract and then attemptto discardthem as well. (3) "Ketubbah"Written after Marriage:It may be suggestedthat Jesus and Salome were marriedaccording to Jewish law, but only at a later stage wrote down their marriagecontract. This notion,however, certainly negates the main gist of Jewish ketubbahlegislation: Said Meir: A man may not keep (Rns) his wife even one hour without a ketubbah.(b. B. Qam. 89a) Further, aggadah, the literary-poeticcomposition produced by rabbinic circles, bears out this approach: A betrothedman and woman (lnol:sl :1ns) who were capturedby gentiles were marriedoff one to the other. She said to him: "Please, do not touch me, since I have no ketubbahfrom you." And he did not touch her until the day he died. (b. Git. 57a) (4) :It may be suggested that until the time when Jesus handed Salome her marriagecontract, she was only his concubine(w:5C) since the rabbinicsources make the distinction: Whichis a wife and which is a concubine(C:5X)? Rabbi Meir says: A wife has a ketubbah,a concubinedoes not have a ketubbah.(y. Ketub. 5.20, 29d) Most scholars are of the opinion, however, that concubinageas a legal institutionwas dead by the Second Temple period.24

22Benoit, Les grottes des Muraba'at, 110-11 (117 CE); Yadin, Bar-Kokhba, 239-46 (124- 127 CE). 23Benoit,Les grottes des Muraba'at, 248-50 (124 CE); Lewis, Greek Papyri, 77 (128 CE); 131 (131 CE). Lewis himself (p. 130) has noted this chronological development, but has assigned it to fashion. 24See, for example, Louis M. Epstein, Marriage Laws in the Bible and the Talmud (Cam- bridge, MA: Harvard University Press, 1942) 62-76.

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(S) The Minimal "Ketubbah":According to the Mishnah,if a man does not actually write a ketubbah,he is neverthelessobligated to provide for his wife accordingto a standardset of rules. For example, If he did not write her a ketubbah,a virgin collects two hundredand a widow one hundred.(m. Ketub.4.7) It may be suggestedthat at first Jesus had thoughthe need not write a ketubbahbecause, in event of divorce or death, he would comply with the norms set out by the ,but eventuallyhe came to the conclusionthat these were too heavy and he thereforeformulated his own marriagecon- tract.While the amountscited in rabbinicsources are, as mentionedabove, eithertwo hundreddenarii for a virgin or one hundredfor a widow, Salome Komais' contract guaranteesthe wife only ninety-six denarii. The sums stipulatedin rabbinic halakhah,however, are minimum amounts, and a husbandis only allowed to pay his widow or divorcee more but certainly not less. The sum in Salome'sketubbah is thus also not in accordancewith rabbinicdictums. The apologetic approachhas thus producedtwo interpretations,and I have suggestedthree others,all of which harmonizethe ov5loS clause in the Salome Komaisdocument with the laws preservedin rabbinicliterature. I suppose other explanationsof this sort could also be suggested, but I believe that I have demonstratedthe extent to which these are devised more to preservethe writers'worldview than to reveal the meaningof the new source. The victim of this attitude is history. Thus, a new approachis requiredif we are to produce a more credible historical account. This approachcan appropriatelybe named "provocative."

The ProvocativeApproach: The provocativeinterpretation of passages aboutwomen is championedthese days by feministscholars. In her ground- breaking work on women leaders in the ancient synagogue, Bernadette Brooten, after tracing all the apologetic explanationsof functionaltitles found for women in synagogue inscriptionsfrom the Greek and Roman world, concluded, Ratherthan trying to fit these inscriptionsinto our preconceivedno- tions of what women were (or are) and of what Judaismwas, would it not be more reasonableto take these inscriptionsas a challenge to our pre-conceptions,as traces of Judaism of which we know very little?25

25Bernadette J. Brooten, Women Leaders in the Ancient Synagogue (BJS 36; Chico, CA: Scholars Press, 1982) 32.

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Brooten'sbook, which suggestedthe possibilitythat titles for Jewishwomen such as ap%lovvayoil ("headof synagogue"),should be taken at face value, was very provocative when it appeared.Today, after ten years, Brooten'sbook has nearlybecome a classic, extensivelyquoted and greatly acclaimed. The interpretationI wish to suggest for this text, along the same lines, is of a provocativenature. I proposethat the text shouldbe takento mean exactly what it claims. Some men and women in Jewish society of second- centuryPalestine did indeed live togetherout of wedlock. Moreover,this claim can actually be verified from rabbinicsources themselves. g RabbiiicSources Rabbinic sources, primarily the body of laws that evolved into the Mishnahand other tannaiticcorpora, set out to describethe way Judaism shouldideally function.These conceptionscan hardlybe takenas historical descriptions.Legal tannaiticrulings, however, were not createdin a vacuum, but composedwithin a society that functionedaccording to ancientances- tral customs,various foreign influences,and a confusinglegal system. Try as they would, the rabbis could not ignore these elements. They could, however, bend and mold them to fit into their system. When confronted with a custom or norm that had taken hold in society, they explained it either as an outlandishstreak of their halakhahor as a transgressionof it. Nevertheless, it is exactly these glimpses into practices opposed to the general ethos of the rabbis that should be consideredreliable historical matter.Pericopes in rabbinicliterature that describea reality similarto the one emergingfrom the ov,u,BIoiclause in the marriagecontract of Salome Komaisare of this nature.They are garbledand apologetic,indicating that the tendency to explain away did not begin in modern times. Once the apologeticsare strippedoff, however, we are left with viable information on Jewish social history in the second centuryCE. First, the rabbiniclegal system recognizes a form of marriagethat is institutedthrough sexual intercourse: In three ways is a woman acquired. . . through money, writ or inter- course. (m. Qidd. 1.1) This text posits intercourseas a valid marriageform-equivalent in all aspects to the writ-which may be interpretedas the contract. Rabbinic literatureis elsewhere critical of this marriageform (b. Qidd. 12b), but in the relatively old mishnaic tradition,it is presentedas fully legitimate.

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Further,rabbinic literature suggests that there were regionaldifferences in the expectedrelationships between groom and brideprior to nuptials.The Mishnahcontains the following statement: He who eats at his -in-law's in Judea not in the presence of witnesses does not have a virginity claim, because he is intimate (nnbnZz) with her. (m. Ketub. 1.5)26 The issue underdiscussion here is the virginitycharge that a husbandmay level against his wife following the wedding night. It is the husband's privilege to divorcehis wife withoutcompensation if she was found not to be a virgin. This traditionmaintains that this privilege was reservedonly for Galileans, since Judeangrooms were callous towardunmarried maid- ens. The traditionhere is anonymous,but since it voices criticism of the lax customsof Judea,it was probablyformulated by someonefrom Galilee. Thus, as an outsiderwho wishes to disassociatehimself from this practice, the formulatormay not even be attemptingto providea fair pictureof the custom, much less alert us to all its social implications. The Tosefta also enumeratesa numberof differencesin the matrimonial practicesof Judeansand Galileans: Rabbi Judah said: In Judea, to begin with, they would bring the bride and bridegroom together for one hour before they entered the bridal chamber (nBln),27so that he will get accustomed to her (;1n :: 1mbs^8), and in Galilee they did not do so. In Judea they would feel the bodies (I'sCBt:) of the groom and bride one hour before they entered the bridal chamber, and in Galilee they did not do so. In Judea they would produce two companions (18:8msns),one from the house of the groom and one from the house of the bride, and in spite of this they only produced them for marriage (78R1C:),and in Galilee they did not do so. In Judea the two companions would sleep where the bride and groom slept, and in Galilee they did not do so. Whoever does not act accord- ing to this custom does not have a virginity claim. (t. Ketub. 1.4)28

26Aninteresting interpretation of this mishnahis found in Zeev Falk, Introductionto JewishLaw of the SecondCommonwealth (2 vols.; Leiden:Brill, 1978) 2. 284. In his opinion, this mishnahrefers to a poor groom,who worksfor his prospectivefather-in-law in orderto earn the . 270n the regionaldifferentiation between this concept and that of the hometakingof the wife (On::b),see Adolf Buchler,"The Induction of the Bride and Bridegroominto the nnn in the First and Second Centuriesin Palestine,"Livre d'hommaged la memoirede Dr. Samuel Poznanski(Warsaw: n.p., 1927) 82-132. 28Fora discussion of this source and its parallels in the Talmuds,see A. S. Hershberg,

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This traditiontells of several customs followed by Judeanson their wed- ding night, but not by Galileans.It is recountedby Rabbi Judahbar Elai, whose Galilean-Ushanorigin is well attested.Taken by itself, it may ap- pearto describestricter measures in Judeathan in Galilee,ultimately making Galileansineligible to file virginity suits. It should, however, be taken as related to and commentingon the previously discussed mishnah, as its position in the Tosefta indicates. Since Judeanswere notorious in their premartialsexual license, when a Judeanhusband wished to file a virginity suit he had to make sure that several precautionsdesigned to guard his wife's virginity on enteringwedlock had been followed. In Galilee, where the unmarriedcouple was never suspected of any misconduct,no such precautionswere necessary. The BabylonianTalmud, however, understandsRabbi Judah'sstatement as contradictingthe mishnah. Its discussion of his statementbegins by positing it against the mishnah,as an indicationthat the bride and bride- groomwere not intimatebefore the nuptialsin all cases. At a second stage Judah'sstatement itself poses exactly the problemI have delineatedhere: takenon its own, it suggests a stricterpractice in Judeathan in Galilee. To counterthis difficulty Abbayye suggests emendingthe text: Said Abbayye:(The text should)always. . . (be) transmitted:"whoever acts" [insteadof "whoeverdoes not act"]. (b. Ketub. 12a) This emendationsuggests that Abbayyeunderstood the actionstaken by the Judeansprior to the nuptialsand describedin this statementas the same as the actions describedin the mishnah(that is, eating at the father-in-law's house). Rava, Abbayye'straditional adversary, stood behindthe integrityof the text and suggestedan extendedversion in orderto solve the difficulty: Said Rava to him: But it is transmitted"whoever does not act," hence said Rava, this is what is intended:"Whoever does not act according to Galileancustom in Galilee but acts accordingto Judeancustom in Galilee does not have a virginity claim." (b. Ketub. 12a) Ravaalso took this statementas describingthe samesituation as the mishnah. Both rabbistook it for grantedthat in Judeathe premaritalrestrictions were less severe than in Galilee.29 Thus far we have been able to establish that Galileanrabbis and their followers viewed Judeanmatrimonial practices as faulty because the hus-

"The Betrothal and Nuptial Practices in the Talmudic Period," Ha-'Atid 5 (1923) ss-s7 [Hebrew]. 290ne scholar who has tried to use the sources discussed here for a very different purpose is J. Tabori, "Two Wedding Ceremonies: Alcestis and some Jewish Parallels," Scripta Classica Israelica 6 (1981-82)16-22.

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions TAL ILAN 259 band and wife were suspected of premaritalintimacy. In light of these sources, I shall ultimatelyclaim a Judeanprovenance for Salome Komais' marriagecontract. First, however, I wish to discardanother possible apolo- getic solution, which could employ these very same sources in order to weave Salome'smarriage back into the Jewish halakhicfabric. This solu- tion would suggest that Salome and Jesus were abidingby the well-docu- mentedJewish customof a prolongedbetrothal, according to the customof Judea. g The JewishBetrothal Practice Halakhahmaintains that there were two stages in the Jewish marriage:30 the lCrnSP(literally "consecration") which is followed by a betrothalperiod (X:nntat)and then the nuptials,in which the husbandbrings his bride home or under the canopy (nrrl). This period, in which the daughteris neither totally underthe authorityof her father,nor yet controlledby her husband, is one of the most complex from the halakhicpoint of view.3l Neverthe- less, the rabbis recommendeda long betrothalperiod: A virgin is given twelve monthsfrom [the moment]when her husband demandedher (il5Xmilnn), so that she may maintain(O:nb) herself. And just as they let the womanthey also let the man maintainhimself. (m. Ketub. 5.2) This period differedfrom the periodthat followed the nuptialsonly in that the betrothedcouple were not permittedto have sexual intercourse;in order to insure this, the bride remainedunder the roof of her father.The bene- diction that is recited even today in a Jewish weddingrefers to this situ- ation: . . . and He has forbidden(n:R) us the betrothed(nlons) but has permitted(nbnil) us the marriedwomen (nlrls:). (b. Ketub. 7b) This custom also explainsJoseph's dilemma when, accordingto the Gospel of Matthew,he discovered that Mary, his betrothed,was pregnant,even though he had not yet marriedher (Matt 1:18; compareLuke 1:27). From the context of m. Ketub. 1.4 we may infer that the editors of the Mishnahmay have understoodthe situationof the bridegroomat his father- in-law'shouse as pertainingto that of the betrothed,but as yet unmarried

30This is the view of most commentators, but some suggest a tripartite process: 1S:nns ("matchmaking"), 1S:nns ("betrothal"), and 1Ss5C:("marriage"); see Hershberg, "Betrothal and Nuptial Practices," 75-102. 3liacob Neusner, "From Scripture to Mishnah: The Origin of the Mishnah's Division of Women," JJS 30 (1979) 140; Wegner, Chattel or Person, 17-18.

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions 260 HARVARD THEOLOGICAL REVIEW couple. The bride may be suspectedof associatingwith her futurehusband while the latter either visits or actuallyresides at the house of his father- in-law. Into this halakhicsetting an apologist may wish to insert the situ- ation of the Judeandesert marriagecontract. This very solution, however, creates another halakhic difficulty. The questionwhether the ketubbahwas handedto the bride at the betrothalor at the nuptials is by no means a minor one. Although this issue is still debated,all agree that therecan be no doubtabout the case of the abducted Alexandrianwomen. Hillel the Elder expoundedsecular texts (:1b:n71Ct sm:). When the Alexandrianswould betrothwomen, someone else would come from the marketand abduct her. This case was broughtbefore the rabbis and they suggested(lcp:) declaringtheir sons bastards(:8nt:n). Hillel the Elder said to them: Produce before me your 'ketubbot. These were broughtto him. And it was writtenin it: "Whenyou enter my house you shall be my wife accordingto the law of Moses and Israel."(t. Ketub. 4.9)32 This case is dated to the time of Hillel the Elder (ca. 10 BCE). It tells of women who were betrothedto one man but ultimatelymarried another. Their sons were not declaredbastards on the strengthof a clause found in the marriagecontract the women possessed, which had been given to them at their betrothal.To what extent this traditionis telling a true story is questionable.Even if it is wholly fictitious, however, its formulatorsas- sumed that women alreadypossessed marriagecontracts during their be- trothalperiod; they may thus be applyingto Hillel'stime a practiceprevalent in their own day. The earliest attestationof the story of the Alexandrian brides is tannaitic,and it can thus be viewed as a late contemporaryof the Babathaarchive. Even if, therefore,the handingof the marriagecontract was conceived by the tannaimas takingplace at the betrothal,the Salome Komias contract,although it presupposesa long betrothal,still contradicts tannaitichalakhic rulings, because it was handedto the bride at the end rather than the beginning of this period.33Therefore, the Judean desert documentdoes not fit into this model. g The PalestiniarlTahTlud Let us now returnto the mishnaictext of Ketub.4.1. The Judeanprac- tice describedin it may not actuallyassume a situationof betrothal.In fact,

32Compare y. Ketub.4.8, 28d; y. Yebamot15.3, 14d; b. B. Me. 104a. 33Seealso Adolf Buchler,Studies in Jewish History (Jews College Publications1; Lon- don: OxfordUniversity Press, 1956) 126-59; Asher Gulak,"Betrothal Contract and Posses- sions Acquired Orally According to TalmudicLaw," Tarbi$ 3 (1942) 361-76 [Hebrew].

This content downloaded from 198.91.37.2 on Sun, 1 Feb 2015 16:28:47 PM All use subject to JSTOR Terms and Conditions TAL ILAN 261 it is unknownwhether the standardbetrothal period promoted by the rabbis was actuallypracticed by all or by any. I assume that the Mishnahrefers to a periodprior to wedlock, at which some contactbetween a prospective but as yet unmarriedcouple takes place. This descriptionresembles that deducedfrom the Judeandesert contractof Salome Komais,but is not yet close enough.While the Mishnahvoices a suspicionabout premarital sexual misconduct,it does not make an outrightaccusation that Judeanscohabit prior to marriage.Salome Komias and Jesus, however, attest to having actually lived togetherprior to wedlock. The commentaryof the PalestinianTalmud on this particularmishnah, however,suggests that premaritalarrangements in Judeawere more perma- nent than the Mishnahcares to make explicit. Just as an apologetic ten- dency discemed in the Mishnahpointed to Judea as the place where such practiceswere prevalent whereasin Galilee, the seat of the editors of the Mishnah,these practiceswere not followed a new apologetictendency is now found in the PalestinianTalmud, which sets out to excuse the circum- stances that compelled the Judeansto resort to sex out of wedlock. The excuse here is the horrorsof the aftermathof the Bar Kokhbahrevolt. Some sources suggest that after the Bar Kokhbahrevolt the Romans introducedin Palestinethe jus primae noctis, namely,the right of the local govemor to deflower all maidensentering wedlock.34 The PalestinianTal- mud refers to this "event"when it deals with the mishnahon the husband's residing at his father-in-law'shouse: In the beginningthey decreeda destruction(nns) in Judea.. . and they decreed that a soldier (On8On:O8soxpaxlrlS) penetrates(5sn:) first. It was (then) enactedthat her husbandwould come into her (n5sl s:) while she was still in her father'shouse. (y. Ketub. 1.5, 25c)35

AlthoughLouis M. Epstein(The Jewish MarriageContract [New York:Jewish Theological Seminary,1927] 9-15) agreedthat, at the beginning,this was indeedthe practice,he main- tained that later the custom was changed, and the handingover of the ketubbahwas per- formedtogether with the nuptials.My interpretationmay actually suggest the opposite. 34Thedate of the alleged event is subject to some controversy.For example, Samuel Krauss("La fe^te de Hanoucca,"REJ 30 [1895] 3743) datedit to the aftermathof the Jewish revolt in the days of the emperorTrajan (115-117 CE). On the other hand, Samuel Belkin (Philo and the Oral Law [Cambridge,MA: HarvardUniversity Press, 1940] 246) saw in it one of the Antiocheandecrees (168 BCE).The BarKokhban date, championed,among others, by RaphelPatai ("JusPrimae Noctis," Studies of the Centerfor FolkloreResearch 4 [1974] 177-80), seems to me, on accountof the wordnns usually associatedwith the Bar Kokhbah revolt, to be the correctinterpretation. 35Comparealso b. Ketub.3b. The contextand contents of the Babyloniandiscourse on the subject are so blurredthat they need hardlyconcern us here.

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This traditionconnects the impositionof the jus primae noctis with the nnw decrees,which are usuallyassociated with the aftermathof the Bar Kokhbah revolt. As a result, the rabbisenacted an emergencymeasure (nDpn), which was intendedto avert the dangerof Jewish maidens'losing their virginity to Roman soldiers and possibly even conceiving by them. In such a case, the prospectivecouple was actually encouragedto practice sexual inter- course and cohabit out of wedlock in the very house of the bride'sfather. The quasi-historicaljustification for this Judean custom, the jus primae noctis, belongs, however,in my opinion,to the apologeticsof the Galilean rabbis, because in the next sentence the talmudiccommentators go on to claim that although the destruction (nns) was discontinued, the custom was not. (y. Ketub. 1.5, 25c) This claim meansthat in Judeamen and womencontinued to practicesome sort of premaritalcohabitation before the nuptials.The Talmudthen goes on to state that even the daughter-in-law of Rabbi Oshaiah entered (the bridal chamber) pregnant. (y. Ketub. 1.5, 25c) This indicatesthat these matrimonialpractices were followed in of the Judeanrabbis themselves. The admissionof the talmudicsources that the custom of cohabitation priorto marriagewas not easy to uprooteven when the conditionsthat had broughtit about,namely, the jus primae noctis of the aftermathof the Bar Kokhbahrevolt, ceased to exist, also proves, in my opinion, that the cus- tom did not arise from these conditions.Salome Komais'marriage contract, which is datedto August 131 CE and suggests a similarreality of premari- tal cohabitation,predates the Hadrianicdecrees by four years and severs all previouslyassumed connections between the two. We have now surveyedanother form of rabbinicapologetics, one which argues that premaritalcohabitation was only practicedin Judeaunder the extremely hazardousconditions brought about by the jus primae noctis imposed by the Romansin the aftermathof the Bar Kokhbahrevolt. The Judeanmarriage contract of Salome Komais, however, also describespre- maritalcohabitation and predatesthe Bar Kokhbahrevolt. This means that premaritalcohabitation was a local practiceparticular to and common in Judea.What was its significancefor the men and women who followed it?

g The SocialIrnplications of PremantalCohabitation The social and personalimplications of premaritalcohabitation in sec- ond-centuryJudea can also be viewed with either a conservativeor a radi- cal approach.

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The Radical Approach:It may be suggestedthat premaritalcohabitation was a device that allowed the prospectivecouple to test the groundbefore actuallydeciding to pursuea commonlife together.Such a reconstruction suggests not only a radicaldeparture from the commonview of the tradi- tional Jewish matrimonialcustoms but suggests in additiona society that puts much less value on both virginity and patemity.Premarital cohabita- tion that did not result in marriagecertainly entailed loss of virginity,and in many cases it may also have resultedin conceptionand birth. The in- sistence on a virgin bride and stress on fatherhoodare the pillars of patri- archal society, and in this respect ancientJudaism does not seem to have differed from other patriarchalsocieties. Some evidence for a lenient ap- proach to these issues, however, can be found in rabbinicliterature. The virginity charge is played down in a series of stories in the Babylonian Talmud(b. Ketub. 10a). It would be helpful to this argumentif one could show that these stories are of Judeanprovenance, but unfortunatelyit is impossibleto make such a claim. More promisingis the issue of patemity. In a story that describesa case of Xls: the right of the orphandaughter to reject a husbandchosen for her in her minorityby her motheror broth- ers the PalestinianTalmud tells of a woman who came before the sages with a son on her shouldersand rejectedher husband.Despite the fact that the womanhad bome a child, the rabbisruled that the marriagehad been invalid and releasedher from it (y. Yebamot1.2, 2d; 13.1, 13c). This story apparentlyreflects Judeancustom because the womanwas the daughter-in- law of Rabbi Ishmael a well-knownJudean sage.

The ConservativeApproach: One can explainpremarital cohabitation as a relic of matrlmonialcustoms practicedby an illiteratesociety; only later was the marriagecontract artificially added. This proposalcomes close to the Egyptianaypaoi yapoi36 describedabove in a quotationfrom Lewis. Thus, althoughsuch a marriagewas mockedby the rabbisfor its leniency, it was in realityjust as strict and binding as that promotedby the rabbis themselves.Perhaps m. Qidd. 1.1, which describesmarriage by intercourse, alludes to these older matrimonialpractices, which were later discarded. Althoughfor methodologicalreasons I chose the provocativeapproach in the interpretationof the sources, with regardto the social implicationsI lean towardthis latter, conservativeinterpretation. g JusPrimae Noctis In conclusion,I wish to addressthe generalhistorical plausibility of the jus primae noctis in Judeain the aftermathof the Bar Kokhbahrevolt. This

36See Hans J. Wolff, Written and Unwritten Marriage (Haverford, PA: American Philo- logical Association, 1939).

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questionhas been tackledby RaphelPatai,37 who formulateda remarkable theory. He was well aware of the fact that all medieval literaturethat evokes the custom of jus primae noctis has been proven to be folkloristic and has no historicalbasis.38 On the whole, Patai abidedby these conclu- sions. He argued, however, that a special case should be made for the talmudicsources describing the same sort of custom.He claimedthat since all the sources that are now consideredlegend and depict the practicein Christianmedieval Europe were composedmuch later than the periodthey propose to describe, it is acceptableto discard them. In Judea, on the contrary,in the aftermathof the Bar Kokhbahrevolt, the Romansactually put into practice such a law, as the "reliable"rabbinic sources claim. Patai, as a folklorist, should have known better. If a motif of this sort could have appearedin a sixteenth-centurydocument and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have croppedup in the fourth-or fifth-centuryPalestinian Talmud,falsely describingevents of the second century.39In my opinion, the conclusions of the present article, which make the jus primae noctis narrativeof the PalestinianTalmud nothing more than an apology for an inconvenientJudaic custom that is describedcryptically in the Mishnah, underminePatai's claim.40 From a large repositoryof folkloristicmaterial circulatingworldwide, the jus primae noctis was convenientlydrawn in order to explain and justify a custom that seemed to the rabbisto under- mine their view of properconduct in Jewish society.

37Patai, "Jus Primae Noctis." 38The myth was first rejected by Carl Schmidt, Jus primae noctis: eine geschichtliche Untersuchung(Freiburg: n.p., 1881). For more recent works upholding this view, see Wil- liam D. Howarth, "'Droit du Seigneur': Fact or Fantasy," Journal of EuropeanStudies 1 (1971) 291-312; and Hermann F. W. Schmidt-Bleibtreu, Jus Primae Noctis Herrenrecht der ersten Nacht (Bonn: Rohrscheid, 1988). 39Thejus primaenoctis is now an accepted literary motif in folklore dictionaries. See, for example, Dov Noy [Neuman], Motif Index of Talmudic-MidrashicLiterature (Ph.D. diss.; Ann Arbor Dissertation Series Microfilms, 1954) 725. 40Inthis view I join several previous scholars, who reached the same conclusion based on different evidence. See Israel Levi, "Hanoucca et les jus primae noctis," REJ30 (1898) 220- 31, esp. 231; and more recently Moshe D. Herr, "Persecution and Martyrdom in Hadrian's Days," in David Asheri and Israel Schatzman, eds., Studiesin History(Scripta Hierosolymitana 23; Jerusalem: Magnes, 1972) 101 n. 56.

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