Gentile courts and the enforcement of Jewish family law: The validity of divorce documents issued by a non-Jewish court
In the Torah, divorce is discussed in four verses in Deuteronomy:
“Suppose a man enters into marriage with a woman, but she does not please him because he finds something objectionable about her, and so he writes her a certificate of divorce, puts it in her hand, and sends her out of his house; she then leaves his house and goes off to become another man’s wife. Then suppose the second man dislikes her, writes her a certificate of divorce, puts it in her hand, and sends her out of his house (or the second man who married her dies); her first husband, who sent her away, is not permitted to take her again to be his wife after she has been defiled; for that would be abhorrent to the Lord, and you shall not bring guilt on the land that the Lord your God is giving you as a possession” (24:1-4; based on NRSV).
On the basis of this biblical passage, the sages ruled that divorce requires a document that has been issued by the husband. Josephus shares this understanding; with regard to Herod’s sister Salome, who sent a document of divorce to her husband, Josephus comments that this “was not in accordance with Jewish law. For it is (only) the man who is permitted by us to do this …” (Jewish Antiquities XV.259; translation by Marcus, LCL; for Josephus, and other Jewish writings from this period, on a wife who divorces her husband, see Jackson, “The divorces”). For the sages, the validity of divorce was crucial for defining the status of the future offspring of a divorced woman and her new partner. If the divorce were not lawful, as when a husband did not issue the divorce document, that woman was still considered married to her prior husband, and any children with that new partner would be defined as mamzerim (sing. mamzer). Following Deuteronomy 23:3, “A mamzer shall not be admitted to the congregation (qahal) of the Lord. Even to the tenth generation, none of their descendants shall be admitted to the assembly of the Lord” (based on v. 2 in NRSV), rabbinic texts hold that, up to the tenth generation, mamzerim cannot marry priests, Levites, Israelites or ḥalalim (the latter are offspring of a priest and a woman who was ineligible to marry into the priesthood; for more on these categories and the status of mamzerim, see the commentary on Mishnah Qiddushin 4:1). This definition of the husband as the sole party authorized to dissolve a marriage differs from Roman practice, where either spouse could unilaterally initiate a divorce (Nathan, The Family, p. 20-21).
The Mishnah presents the scenario of a husband who is compelled to divorce his wife. While this text does not provide the background that prompted the actions taken against this husband, the Jerusalem Talmud (Gittin 9:8, 50d) details several such cases, among them a husband who does not agree to provide for his wife’s material welfare. This mishnah first states that, in a case of forced divorce, a writ is valid if it were issued by an Israelite court but void if issued by a gentile court (although the word “court” is not included in this mishnah, it appears in the parallels discussed below). However, our mishnah then decrees that, if gentiles used violence to coerce the husband to divorce his wife, a writ that originated in a non-Jewish court is valid if it had been executed according to Israelite instructions. Moreover, the gentiles explicitly state that he must act according to Israelite order. Later commentators explain that here the gentile court is operating as an agent for Israel (see Lieberman, Tosefta Ki-Feshutah, Vol. 6-7, p. 143). This text raises several questions that relate to the coexistence of multiple legal systems (legal pluralism) under Roman rule: How did the rabbis view Jews who petitioned for divorce in non-Jewish courts, especially when Jewish law differed from Roman law? What does this case convey about the realities of Jewish engagement with non-Jewish courts on matters of family law? Most importantly, did gentile or Roman courts actually force Jews to follow Israelite divorce law?
Before discussing these questions, let us consider two parallel sources. First, Tosefta Yevamot 12:13:
חליצה מעושית בבית דין של ישראל כשירה. בבית דין של גוים פסולה. בגוים חובטין אותו ואומ' לו. עשה מה שר' פלני אומ' לך.
A forced ḥalitzah (the ritual detailed in Deuteronomy 25:9, whereby a levir formalizes his refusal to marry his brother’s childless widow) – In an Israelite court, [ḥalitzah] is valid (ksherah; thus, the widow may marry someone else) but, in a gentile court (lit. court of gentiles), [ḥalitzah] is void (psulah). But [it may be valid] in a gentile [court in a case where] they beat him (the brother-in-law) and tell him: “Do as Rabbi So-and-So (ploni) tells you” (MS Vienna).
The ḥalitzah ritual is detailed in the discussion of levirate marriage in Deuteronomy: “When brothers reside together, and one of them dies and has no son, the wife of the deceased shall not be married outside the family to a stranger. Her husband’s brother shall go in to her, taking her in marriage, and performing the duty of a husband’s brother to her, and the firstborn whom she bears shall succeed to the name of the deceased brother, so that his name may not be blotted out of Israel. But if the man has no desire to marry his brother’s widow, then his brother’s widow shall go up to the elders at the gate and say, ‘My husband’s brother refuses to perpetuate his brother’s name in Israel; he will not perform the duty of a husband’s brother to me.’ Then the elders of his town shall summon him and speak to him. If he persists, saying, ‘I have no desire to marry her,’ then his brother’s wife shall go up to him in the presence of the elders, pull his sandal off his foot, spit in his face, and declare, ‘This is what is done to the man who does not build up his brother’s house.’ Throughout Israel his family shall be known as ‘the house of him whose sandal was pulled off’” (25:5-10, NRSV).
According to this tosefta, a forced ḥalitzah took place in court if the levir were being compelled to participate in that ceremony. As in the mishnaic discussion of forced divorce, a coerced ḥalitzah is valid if the gentiles adhere to Israelite directives. Moreover, the Tosefta seems to require instruction from a sage.
The second parallel appears in the tannaitic midrash Mekhilta de Rabbi Ishmael (Neziqin [Mishpatim] 1) and may provide the biblical background for this mishnah:
A) ר' אלעזר בן עזריה או'. והרי הגוים שדנין בדיני ישר'. שומע אני יהיו דיניהם קיימין. ת'ל "ואלה המשפטים". את דן את שלהן והן אינן דנין את שלך.
B) מיכן אמרו. "גט המעוסה בישראל כשר. בגוים פסול. ובגוים חובטין אותו ואומ' לו. עשה מה שישר' או' לך".
A) Rabbi Eleazar ben Azarya says: “But behold, [regarding] the gentiles that judge according to the laws of Israel, is it possible (lit. “I hear”) that their verdicts will be [considered] valid? Scripture says: ‘These are the ordinances [that you shall set before them]’ (Exodus 21:1, NRSV). You may judge [according to] their [laws], but they may not judge [according to] your [laws].”
B) Based on this [teaching] (lit. From here), they said:
“A forced [divorce] writ (where a husband is compelled to divorce his wife) – In an Israelite [court, such a writ] is valid (kasher) but, in a gentile [court, it] is void (pasul). But [it may also be valid] in a gentile [court if they] beat him (the husband) and tell him: ‘Do as Israel tells you.’” (Mishnah Gittin 9:8).
Section A, cites Rabbi Eleazar ben Azarya, a second-generation tanna who was active in the late first and early second centuries. Whereas some rabbinic sources describe sages who judge according to non-Jewish law (i.e., the laws of the nations; see the commentary on Sifre Deuteronomy 16), here Rabbi Eleazar queries the validity of verdicts issued by gentile judges who follow Israelite law. This case differs from the examples in the Mishnah and the Tosefta where a gentile court seems to receive Israelite (or rabbinic) instruction; in this passage, non-Jewish judges may be familiar with and incorporate Jewish law in their rulings, independent of Jewish requests. On the Roman application of local law, Clifford Ando writes: “In matters other than those related to the Roman familia, practice in the high Empire largely observed a principle of territoriality in choice of law. Statements of principle to this effect emerge from Gaius’ commentary on the standardized edict on jurisdiction issued by provincial governors on their arrival in their provinces, regarding sale of land and eviction (D.21.2.6), as well as multiple instances in Trajan's correspondence with Pliny (e.g., Ep. 10.109, 10.113: ‘I think, then, that the safest course, as always, is to follow the law of each civitas’ [transl. Radice]), as well as the opening lines of a papyrus record of judicial proceedings from the reign of Trajan: ‘It is best that they give judgments according to the law of the Egyptians’ (P.Oxy. XLII 3015)” (“Legal Pluralism,” p. 290; see also Furstenberg, “From Competition to Integration,” p. 30-33). It seems that this passage from the Mekhilta should be read in that context. Indeed, Rabbi Eleazar ben Azarya does not exclude the possibility that Romans may have been experts in Jewish law. In an effort to preclude gentiles from judging on the basis of the Torah, he cites Exodus 21:1: “These are the ordinances that you shall set before them” (NRSV). Since “them” refers to Israelites in this verse, this quotation teaches that non-Jewish judges may not rule according to Jewish law. Thus, this sage teaches that, even though Israelites may judge on the basis of gentile law, the inverse is not permissible.
In Section B, this midrash states that Exodus 21:1 and this tradition from Rabbi Eleazar provide the foundation for Mishnah Gittin 9:8. Therefore, Jewish law is not the sole factor for a valid divorce and ḥalitzah: Jewish authority is also necessary. Moshe David Herr draws on the three sources discussed here to demonstrate that the sages agreed to recognize the authority of gentile courts only to execute verdicts issued by Israelite courts courts; otherwise, they prohibited Jews from turning to non-Jewish courts (Herr, Roman Rule, p. 48; see also Alon, The History, vol. I, p. 335 who reads the ruling by Rabbi Eleazar ben Azarya as a broad restriction against Jews seeking judgments in non-Jewish courts, which he understands as the Roman governor’s court). Significantly, no such general prohibition appears in tannaitic literature.
Scholars have also cited these texts, among others, on the topic of rabbinic authority within the Jewish community. For example, on the passage from the Mekhilta de Rabbi Ishmael, Natalie B. Dohrmann observes: “Given the lack of rabbinic judicial authority in the tannaitic era this passage sounds fanciful––standing against the pervasive reality of the always immanent jurisdiction of Rome.” She also states: “Despite his strong claim to Jewish civil autonomy, Eleazar ben Azariah both rhetorically and specifically concedes a certain impotence to ‘rabbinic courts’ when he acknowledges that gentiles might have to enforce Jewish sentences” (“The Boundaries,” p. 73 and 74). However, only Section A seems to be attributed to Rabbi Eleazar ben Azarya, and the editor appears to have placed Section B in that context.
Scholars have debated the extent to which these sources reflect historical reality or, perhaps, wishful thinking by the sages. Interestingly, these three sources all present cases of a non-Jewish court that explicitly and vocally carries out an Israelite instruction; and, each one requires the exercise of physical measures to compel a husband to release his wife, or a deceased husband’s brother to release his brother’s widow. Moreover, in such circumstances the decisions of the gentile courts are valid, specifically in cases of forced divorce or ḥalitzah, where Jewish and non-Jewish law strongly differ.
The asymmetry between Jewish and Roman law merits reiteration: consent by a husband or his proxy was not a factor in the Roman legal system. Yet, these texts depict a non-Jewish court enforcing a decree that originated from an Israelite court. In that context, Natalie B. Dohrmann writes that “all adherence to Jewish civil authority was voluntary, in the manner of an arbitration” and, “if individuals did submit to voluntary arbitration, the Romans had an interest in enforcing the decision” (however, arbitration requires mutual consent; but here the husband, or his surviving brother, is unwilling to participate in the requisite legal procedure). We may conclude that these texts reflect cooperation between the Israelite (or rabbinic) courts and Roman legal authorities, for the Roman courts are presented executing Israelite decrees.
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