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Deuteronomy 24:1-4 and the Issue of Divorce \\ — \\ J. Carl Laney
Professor of Biblical Literature \\ Western Conservative Baptist Seminary, Portland, Oregon
Divorce and remarriage have become regarded by many evangelicals as viable solutions to intolerable marriages.
Most of those who seek a biblical basis for this opinion interpret Deuteronomy 24:1–4 as providing grounds for divorce and the right of remarriage in cases of adultery or sexual sin.1
Is there adequate textual evidence for this interpretation?
Did Moses affirm the right of divorce for sexual sin?
Is the remarriage of a divorced person without moral consequence?
What application may Christians make of the legal precepts found in Deuteronomy 24:1–4?
*The Background and Context*
Not long after the fall, God’s standard of one man married to one woman was violated (Gen 2:24; 4: 19).
By the time of Moses, divorce had become a custom even among Israelites (Deut 24:1–4).
And so the issue was addressed by Moses.
The importance of this Deuteronomy passage in Jewish thinking is seen in the fact that it served as the background for the Pharisees’ comments on divorce when they questioned Jesus (Matt 19:1–12; Mark 10:1–10).
The Book of Deuteronomy gives a restatement of the Mosaic Covenant for the benefit of the second generation of Israelites in the wilderness.
Deuteronomy 24:1–4 is part of a larger section that expands and applies the basic stipulations of the covenant (5:6–21 ).
As observed by Kaufman,2 the Decalogue seems to provide the basis for the instruction given in Deuteronomy 12–26 .
Kaufman suggests the following structure and arrangement:
| Commandment | Deuteronomy | Description |
|   |   |   |
| 1-2 | 12: 1–31 | Worship |
| 3 | 13: 1–14:27 | Name of God |
| 4 | 14: 28–16:17 | Sabbath |
| 5 | 16: 18–18:22 | Authority |
| 6 | 19: 1–22:8 | Homicide |
| 7 | 22: 9–23:19 | Adultery |
| 8 | 23: 20–24:7 | Theft |
| 9 | 24: 8–25:4 | False charges |
| 10 | 25: 5–16 | Coveting |
Highlighting the significance of this structure, Kaiser comments that “the entire second discourse of Moses (Deut 5–26) is a single literary unit that convincingly demonstrates that the moral law informs the statutes, judgments…and commands of God.”3
Following this analysis, the text at hand would serve to illuminate and expand the prohibition against theft, in this case, the wrongful and illegal taking of a spouse.4
*The Structure*
It is crucial to note that this passage does not institute or allow for divorce with approval.
Deuteronomy 24:1–4 merely treats divorce as a practice already existing and known.5
Grammatically the passage is an example of biblical case law in which certain conditions are stated for which a particular command applies.
The protasis in verses 1–3 specifies the conditions that must apply before the command in the apodosis in verse 4 is followed.
In other words 24:1–4 describes a simple “if…then” situation.
The legislation specified in 24:1–4 actually deals with a particular case of remarriage.
Grammatically the intent of this law is not to give legal sanction to divorce or to regulate the divorce procedure.
The intent of the passage is to prohibit the remarriage of a man to his divorced wife in cases of an intervening marriage by the wife.
Unfortunately the structure of the passage has not always been reflected in the English translations.
The King James Version, for example, places the apodosis at the end of verse 1 (“then let him write her a bill of divorcement”).
The implication of this translation is that the Law requires that a husband divorce his offending wife.
This translation, also found in the American Standard Version (1901) and the English Revised Version, has contributed to the confusion seen in the divorce-remarriage controversy.6
*The Circumstances of Divorce (24:1-3)*
The first three verses of Deuteronomy 24 describe the situation of a woman who is twice divorced by different men or once divorced and then widowed.
It should be carefully noted that divorce is neither commanded nor commended.
The circumstances leading to divorce are simply described as a part of the case under consideration.
The verses do not indicate that divorce is necessarily sanctioned under such circumstances.
As Hurley observes, “Verse 1 does not focus on the grounds for the divorce as such, but rather discusses the first divorce only to set the stage for the following discussion.”7
In this particular case the wife lost favor with her husband because of “some indecency” in her (literally, “nakedness of a thing” or “a naked matter”).
The precise meaning of the phrase עֶֶרָוַת דָּבָר is uncertain.
Consequently it became the subject of heated rabbinic debates on divorce.
The Septuagint’s translation, ἄσχεμον πρα̂γμα (“some unbecoming thing”), is equally obscure.
The phrase may refer to some physical deficiency—such as the inability to bear children.
This may be suggested by a possible parallel between Deuteronomy 24:1–4 and an old Assyrian marriage contract.8
The expression appears only once elsewhere in the Hebrew Scriptures, where it serves as a euphemism for excrement (Deut 23:14, Heb 15 ).
This suggests that the “indecency” in Deuteronomy 24:1 may refer to some shameful or repulsive act.
Isaksson takes it to refer to the wife’s indecent exposure.9
In the first century conservative Rabbi Shammai interpreted the phrase as referring to marital unchastity, while Rabbi Hillel interpreted it more broadly to refer to anything unpleasant (/Gittin/ 9:10).
It seems unlikely that עֶֶרָוַת דָּבָר could refer to adultery since this was punishable by death (Deut 22:22–24; Lev 20:10), not divorce.
Murray offers five additional reasons why the “indecency” of Deuteronomy 24:1 cannot refer to adultery.10
He concludes that it must refer to “some indecency or impropriety of behavior” short of illicit sexual intercourse.11
Whatever the precise meaning of עֶֶרְוַת דָּבָר, the grammar makes clear that Moses was describing a case, not prescribing a course of action for dealing with an offensive wife.
The passage describes the actions of a husband in dealing with his offending wife.
According to custom the husband wrote out a certificate of divorce and delivered it to the wife.
The essential words of this document became fixed in Jewish tradition and are recorded in the Mishnah, “Behold, you are free to marry any man” (/Gittin/ 9:3).
The passage then states that the wife left her husband’s home and became another man’s wife.
Sometime after the second marriage, the woman was again divorced or widowed (Deut 24:2–3).
*The Issue of Case Law*
Many expositors have concluded that since Deuteronomy 24:1–3 does not prohibit divorce and remarriage, both are approved by God.
This conclusion is inconsistent with the context of the passage (v.
4) and with the nature of biblical case law.
The covenant entered into by God and Israel at Mount Sinai contains the obligations imposed on and accepted by the Israelite people.
These covenant stipulations take two basic forms: apodictic and casuistic.
Apodictic (derived from the Greek ἀπό, “from,” and δείκνυμι, “to show”) laws are stated in imperative terms such as “you shall not….”
Casuistic (derived from the Latin /casus/, “case”) laws are stated in the form of cases.
If certain circumstances occur, a certain law must then apply.
The protasis-apodosis sequence (“if…, then…”) is the most frequent indicator of biblical casuistic law.
Deuteronomy 24:1–4 is such an example.
Deuteronomy 12–26 contains the detailed stipulations of the covenant.
This section elaborates the basic demands of Deuteronomy 5–11 by providing examples and applications in the religious life (12:1–16:17 ), political life (16:18–20:20 ), and social life (chaps.
21–26 ) of the nation.
Apart from the case under consideration, Deuteronomy 12–26 contains 31 examples of case law.
In 19 of these examples the protasis contains a situation that is either immoral or has some negative connotation.12
The other 12 present situations that appear morally neutral.13
Deuteronomy 25:11–12 is an example of case law in which the protasis contains a situation that is immoral or has negative connotations.
A woman who seizes the genitals of a male opponent to help her husband in a struggle shall have her hand cut off.
No one would dare suggest that the case being described is presented with approval.
Many other similar examples could be cited.
What is the implication for the study of Deuteronomy 24:1–4?
Just as legislation on harlotry (23:18 ) in no way authorizes harlotry, so a law on divorce and remarriage is not authorization for them.
The presentation of the case does not constitute divine approval of the actions described.
The context (including the apodosis) must be considered in order to discern whether the situation is merely being described or whether the actions described have divine sanction.
Too often interpreters have discussed 24:1–4 as if God sanctions divorce and remarriage.
The characteristic grammar of biblical case law argues against this.
In fact the text itself is far from approving the second marriage, as is evident from verse 4.
*The Prohibition against Remarriage (24:4)*
The main point of this example of biblical case law appears in the apodosis (the “then” clause) of verse 4 .
Here it is clear that the law relates not to the matter of divorce as such, but to a particular case of remarriage.
Moses declared that a man may not remarry his former wife if she has in the meantime been married to another man.
Even though her second husband should divorce her or die, she must not return to her first husband.
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