Tuesday, January 1, 2019

Critique of the David Instone-Brewer Divorce and Remarriage Theory

See here for the full paper. The synopsis is below.

Divorce and Remarriage in the Bible, The Social and Literary context, by Dr. David Instone-Brewer is an extensive and controversial book on this important topic (2002, 355 pages).

I explain why I wrote this paper: Instone-Brewer’s theory, while initially plausible, didn’t fit with the innocently divorced wife in Mat. 5:32 being guilty of adultery in remarrying. I wrote this paper to address this conflict and to provide certainty as to the Christian teaching on the topic.

Instone-Brewer’s position is that Jesus’ teachings on divorce and remarriage in Mat. 19:3-12 are dependent upon the Hillelite-Shammaite debate, that Jesus was tested on the legality of the Hillelite ‘Any Matter’ divorce procedure, and that he ultimately replies in agreement with the Shammaite position that Deut. 24:1 only refers to divorce for adultery. This reverses what would otherwise be the plain meaning of the text.

In critiquing Instone-Brewer’s position, we address the historical speculations involved in his reconstruction of the Hillelite-Shammaite debate on Deut. 24:1-4, and the proposed links with that debate in Mat. 19:3-12.

First and most importantly, we assess the positions and meaning of the Hillelite-Shammaite debate on Deut. 24:1-4 to show that the debate was not about permissive vs. restrictive positions on grounds for divorce. We show the debate was instead about the exegetical basis for permitting a divorced woman to remarry after divorce for any cause whatsoever.

Second we address Instone-Brewer’s claim that the Hillelites introduced a specific and permissive ground for divorce that was identified by the legal-technical phrase ‘Any Matter.’ We note that there is no support whatsoever that such a ground for divorce existed, nor that there ever was a divorce procedure identified by that phrase. We also note that the alleged invocation of that legal-technical phrase in Mat. 19:3 fails: ‘every cause’ is not a reasonable match for ‘Any Matter,’ and for this kind of reference the match should be verbally exact.

Third, and in like manner, we address Instone-Brewer’s claim that the Shammaite position was ever summarised or abbreviated down to the phrase ‘except indecency.’ Again we note that there is no support whatsoever for this as a distinctive phrase. And again we also note that the alleged invocation of that distinctive phrase in Mat. 19:9 fails: ‘not for fornication’ is not a reasonable match for ‘except indecency,’ and for this kind of reference the match should be verbally exact.

Fourth, we assess the dating of the Hillelite-Shammaite debate to show that Instone-Brewer fails to provide sufficient evidence that the debate was contemporary with Jesus’ test question from the Pharisees. There is a significant possibility that the debate post-dated Jesus’ test question from the Pharisees, which would destroy the proposed link.

Next we address Instone-Brewer’s attempts to recover the social and literary context of the legal debate, specifically the legal and political context and content of the gospel. Whilst Instone-Brewer’s scholarship in this book and in his other papers is to be credited with developing important aspects of the legal and political context, he has failed to recognise and develop its significance in some important areas, and these limitations builds up to a fundamental error in his analysis of Christian wedding vows and what they mean for divorce and remarriage.

We assess Instone-Brewer’s paper Choosing a Legal System in Early Judaism to develop the legal and judicial context of the legal debates, showing Jesus’ general approach in favour of non-coercive legal administration and a competitive judiciary, as opposed to the coercive legal administration and monolithic hierarchical state judiciaries, and emphasise the political meaning of this.

We also emphasise the propriety of political assessment of the social and literary context and content of Jesus’ teaching by showing an example of Instone-Brewer doing this in his paper 18 Benedictions and the Minim before 70 CE. Instone-Brewer develops that the Pharisees were the drivers of the wording, and argues they used it to attack the Sadducees and the Roman empire. We show that Dan. 9 is the background of the 18. We also show that the paper also proves the national and political nature of the resurrection, a point not developed by Instone-Brewer, intrinsically connecting what would otherwise be disparate points.

We then show that Instone-Brewer fails to apply this legal and political approach to Mat. 5:21-26, and how this approach opens up this text completely differently, showing the barb against the Romans and the well-connected Jewish hangers on who handed him over to the Romans to be executed, and their civil litigation system and coercive civil remedies.

We address Instone-Brewer’s claim that when Jesus ruled that a man who divorces his wife and marries another commits adultery, he didn’t literally mean adultery with all the legal and financial consequences of that being applicable. We show that Instone-Brewer himself documents and develops the social and literary context where ‘technical’ adultery was a real form of adultery, and carried all the legal and financial consequences of real adultery and we show why this is applicable here.

We finish this legal issues part by addressing the fundamental error Instone-Brewer makes in assessing Christian wedding vows as showing a continuity of the marital obligations, and thereby allegedly a continuity of the remedy of cancellation for breach. We criticise Instone-Brewer’s flagrant disregard for the legal meaning of the wedding vows in church government, policy and pastoral practice, and his support for the church’s abdication of its judicial functions in marriage, divorce and remarriage. We particularly criticise the practice of not expecting or requiring those who vowed ‘for better, for worse … till death do us part’ to be held to those legally binding vows and not recognising this as a legal impediment to subsequent marriages before the original contract is discharged by death.

Then we address the substance of the exegesis of Mat. 19:3-12. We also address Mat. 5:32; Ex. 21:10-11; 1 Cor. 7 and Eph. 5:22-33.

We show that the question is best read in a plain and normal sense: is it lawful for a man to divorce his wife for every cause? We refute Instone-Brewer’s claim that Jesus digressed rather than answered the question. We show that Paul interpreted the answer to mean ‘a man must not divorce his wife.’

We exegete the answer to show how Jesus skilfully and powerfully makes his case that a man’s obligations to his wife are unconditional and irrevocable and show how this answers the question of the legality of divorce on the grounds of breach in the negative. We develop the eschatological and apocalyptic implications of Jesus’ appeal to the restoration of the Garden of Eden and the replacement of the hard hearts with hearts of flesh in regathered Israel under the Messianic Kingdom.

We show that Jesus did not back down at the end of the debate and that he instead upped the stakes as high as they could go by ruling remarriage after divorce to be adultery.

We address the exception clause ‘not for fornication’ with a study on the word adultery before making a study on the word porneia based largely on the usage of zanah in the Old Testament, but also considering New Testament usage of porneia. We identify the root meaning as prostitution, and study how the word was used in specifically extended senses. We identify that, at that particular time and place, the terms adultery and porneia were defined and used in distinction based on the marital status of the woman involved, and we address various exceptions to this general rule.

We discuss how the early Christian writers approached the questions of divorce and remarriage and how they dealt with Mat. 19:9 and other relevant passages.

We make the case that porneia in Mat. 19:9 refers to premarital unchastity of the bride, and we welcome Instone-Brewer’s generally favourable assessment of this interpretation and address the reasons why he nevertheless rejected it.

We address the disciples’ difficulties with Jesus’ teaching on divorce, and we examine the supposed optional marriage and optional procreation position of Jesus, as maintained by Instone-Brewer. We suggest instead Jesus’ ruling about being made eunuchs for the Kingdom of Heaven was a rabbinic joke at the disciples’ expense rather than as a serious commendation of celibacy.

We illustrate how differently Mat. 19:3-12 might have been recorded if Jesus’ test question from the Pharisees happened and meant as Instone-Brewer proposes.

We then move to Mat. 5:32 in the Sermon on the Mount and discuss its structure and meaning, showing that it suggests a very strict position against divorce and remarriage indeed.

We then move back to the Old Testament to Ex. 21:10-11 and show that the woman involved was a female servant, and not a slave-wife, and how the text is about financial remedies rather than the permissibility of divorce or remarriage.

We then move back into the New Testament to Paul’s teaching in 1 Cor. 6-7. We develop the structure and logic of the passage and show how it addresses the question of the validity of marriages between believers and unbelievers and how the divorce prohibition applies to these difficult cases. Paul’s argument is that marriages are valid whether they are or were between believers or unbelievers, and whether before or after conversion, and so none of these scenarios overrides the prohibition of divorce. We show that Paul deals with the issue of a spouse involuntarily divorced, exculpating them from the guilt of the divorce without validating the divorce itself.

We finish off the biblical material by showing how Eph. 5:22-33 teaches that a man’s duties to his wife are to the extent of pouring out his life unto death, that those duties are unconditional and irrevocable, and last until the death of the man or his wife.

We finish the paper with some practical notes then appendices address various other matters.
Appendix 1 provides an alternative argument that if porneia refers to adultery rather than premarital unchastity, that the exception clauses in Mat. 5:32 and 19:9 could be explained as addressing the question of causation and as a rhetorical emphasis respectively, how the exception clauses do not logically require permission for divorce or remarriage in such cases, and showing that the sayings without the exception clauses independently prohibit divorce and remarriage even for adultery.

Appendix 2 highlights another questionable historical speculation of Instone-Brewer that the Christian church abruptly changed its doctrine and practice on divorce and remarriage after 70 A.D. without leaving a trace.

Appendix 3 documents the traditional Christian wedding service and vows from the Book of Common Prayer, showing its exegetical basis and legal meaning. It also introduces material showing how seriously and literally the doctrine of one flesh was treated in English common law.

Appendix 4 sets out a contractual remedies analysis of marriage and divorce. This also looks at various legal issues that could result in relief such as illegal contract and mistake.

Appendix 5 looks at the meaning of the term ‘nakedness of a thing’ in Deut 24:1, showing that it means that the man uncovered something objectionable and that it does not refer to or imply adultery in particular, and shows the difficulties occasioned by attempting to link it with ‘not for porneia’ in Mat. 19:9.

See here for the full paper.


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  2. THanks for interacting with me in this way. A copy of the paper with a few responses is here.