The Supposed Hillel-Shammai Debate
The previous chapters examined how the Jewish Scriptures
and the broader Second Temple Jewish milieu understood divorce and remarriage—a
background essential to the application of the criterion of discontinuity, but
what of the later rabbinic materials and their potential for this criterion?
The late second-century CE Mishnaic tractate Giṭṭin discusses divorce documents
and closes in 9:10 by discussing the grounds for divorce. Deuteronomy 24:1
posits “the same of a thing” (‘erwat dābār). The Mishnah claims that the
house of Shammai had inverted the phrase to place the emphasis on the word
“shame” (‘erwat). The wife who is to be divorced must have done
something shameful. As Meir puts it: “Hence, the contrary to what is claimed in
many treatments of the subject, the House of Shammai does not limit the grounds
of divorce to adultery. Any action that would bring shame upon her husband
qualifies as grounds for divorce.” (Meir, Law and Love, 93) This would,
of course, include adultery. (10For other Shammaite grounds for divorce, see
their interpretation of Exod 21:10-11 in m. Ketub 5:6) In contrast, the house
of Hillel emphasized the word “thing” (dābār) of the phrase. In other
words, any thing could be grounds for divorce. Rabbi Akiva therefore
thought that finding a more beautiful woman could be grounds to divorce a wife.
He justified his position with another phrase in Deut 24:1: “if she (the first
wife) does not find favor [ḥēn].” The Hebrew word ḥēn used in
Deut 24:1 can also be translated as “grace” or “beauty.” Reading it as such,
the house of Hillel, much like Philo and Josephus, considered virtually
anything a ground for divorce.
The gospels do not identify differences in the Pharisaic
position; they question Jesus on his divorce teaching, and he responds to them
as a group. Josephus adheres to a generous Hillel-like position on divorce with
no suggestion that there were other views. Further, for the Pharisees to have
convinced Jesus to agree with one or the other subgroup would not have
demonstrated their point that he was taking a position opposed to Moses, as
they attempt in their other confrontations with him. Finally, the Jewish
divorce rate in Judea is thought to have been around 4 percent. (Joachim
Jeremias, Jerusalem in the Time of Jesus, 371) In view of this low
divorce rate, it would have been counterproductive for Hillelites arguing for a
more generous divorce policy to get Jesus to agree with the more conservative
Shammaites in order to discredit him. (William F. Luck, Sr., Divorce and
Re-Marriage: Recovering the Biblical View, 2nd ed. [Richardson, TX:
Biblical Studies Pres, 2009], 152) That Jesus was being pressed by the Hillel
position to side with the Shammai position does not seem obvious.
John Meier faults New Testament interpreters for not
realizing that m. Giṭṭin is the first attestation in Jewish literature of a
dispute over the proper grounds for divorce. “As far as datable documents are
concerned, this is something startingly new in Judaism. “(Meier, Law and Love,
95). Josephus, Philo, and Deuteronomy all presume the near-absolute rite for a
husband to divorce his wife. (Instone-Brewer [“Jewish Greek and Aramaic
Marriage,” 235] mistakenly describes Hillel’s “new ruling” as effectively giving
men the same generous divorce rights as in Greek Law. There is no evidence that
Jewish men ever were lacking those rights) CD IV, 19-V< 9 condemns polygyny
and likely also remarriage after divorce. Apart from Jesus, pre-70 CE Judaism
provides no extant of a discussion concerning the sufficient grounds for a
divorce. As Meier writes:
Therefore, despite the almost universal tendency on the
part of NT exegetes to explain Jesus’ prohibition of divorce against the
“background” of the debate between the House of Shammai and the House of
Hillel, this tendency may actually be a prime example of the anachronistic use
of later texts to explain earlier ones. That is, a text written down for the
first time at the beginning of the 3d century A.D. (the Mishna) is called upon
to elucidate a teaching of Jesus reaching back to the early part of the 1st
century A.D., with written attestation in the 50s by Paul and ca. 70 by Mark.
Considering the dearth of any clear attestation of the dispute over the grounds
of divorce between the Houses in the pre-70 period, we would do well, at least
initially, to explain Jesus’ teaching on divorce solely in light of what is
truly prior to and contemporary with the Palestinian Judaism of the 1st century
A.D. (Meier, Law and Love, 95)
Meier thus pleads for an interpretation of early
Christianity in the light of contemporaneous or earlier documents, especially
since those documents do not offer any hint of the debate in the later Mishnaic
texts. Meier’s plea accords with Jacob Neusner’s groundbreaking body of work:
What cannot be demonstrated prior to 70 CE should not simply be assumed on the
basis of later rabbinic sources. (A. Andrew
Das, Remarriage in Early Christianity [Grand Rapids, Mich.: Eerdmans,
2024], 79-81)
