Published online by Cambridge University Press: 10 June 2011
This article discusses one aspect of matrimonial practice in second-century CE Judea: whether a man and a woman could or would cohabit before they were officially married. I shall examine a marriage contract from the Babatha archive discovered in the Judean desert; this contract contains a clause that specifies that a couple had lived together for some time before the marriage contract was drawn up. This statement may be perceived as contradicting the picture of matrimonial practices derived from Jewish legal sources. In dealing with such contradictions it is possible to adopt either an apologetic or a provocative approach. This article professes to apply a provocative approach to the problem by accepting the content of this clause at face value and suggesting a fresh interpretation to a passage from the Mishnah. This mishnah attests different matrimonial practices in Galilee and Judea and suggests that premarital cohabitation was sometimes practiced in Judea, but certainly not in Galilee. The Palestinian Talmud interprets the mishnah, obviously apologetically, by assigning the Judean practice of premarital cohabitation to the aftermath of the Bar Kokhbah revolt, as a result of the imposition of the jus primae noctis (“the right of the first night”). The contract from the Babatha archive predates the Bar Kokhbah revolt, however, and thus attests a Judean practice of premarital cohabitation that is not connected to the Roman decree. In the article I shall suggest two possible interpretations for 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.
1 Lewis, Naphtali, The Documents from the Bar Kokhba Period in the Cave of the Letters, vol. 2: Greek Papyri (Jerusalem: Israel Exploration Society, 1989) 130—33Google Scholar.
2 Yadin, Yigael, Bar-Kohkba: The Rediscovery of the Legendary Hero of the Last Jewish Revolt Against Imperial Rome (London: Weidenfeld & Nicolson, 1971)Google Scholar.
3 The 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 Benseler, Gustav E. and Pape, Wilhelm, Wörterbuch der griechischen Eigennamen [2 vols.; Braunschweig: Vieweg, 1863] 1. 690Google Scholar; and Fraser, Peter M. and Matthews, Elaine, A Lexicon of Greek Personal Names, vol. 1: The Aegean Islands, Cyprus, Cyrenaica [Oxford: Oxford University Press, 1987] 269)Google Scholar. The marriage contract that I am discussing states that Salome is also called Komais (καλoυμένην), which may indicate that this is not a real name. The Greek word κoμάω means “let the hair grow long,” or, idiomatically, “plume oneself, give oneself airs” (LSJ, s.v. κoμάω, 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 divorces his wife should state in the divorce bill all names and nicknames his wife had: “Rabban Gamaliel the elder decreed () that [he] should write… woman so-and-so () 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.
5 See, for example, Taubenschalg, Rafal, The Law of Greco-Roman Egypt in Light of the Papyri (New York: Herald Square, 1944) 123–26Google Scholar.
6 For further examples of contemporaneous monetary settlements, see Benoit, Pierre, Milik, Josef T., and Vaux, Roland de, Discoveries in the Judaean Desert, vol. 2: Les grottes des Muraba'at (Oxford: Clarendon, 1961) 248, 255Google Scholar.
7 For a very conservative description, see, for example, Swidler, Leonard, Women in Judaism: The Status of Women in Formative Judaism (Metuchen, NJ: Scarecrow, 1976) 141Google Scholar.
8 Neusner, Jacob, A History of the Mishnaic Law of Women (5 vols.; Leiden: Brill, 1980) 5. 266Google Scholar.
9 On the Mishnah and the regulation of women's lives, see Wegner, Judith R., Chattel or Person? The Status of Women in the Mishnah (Oxford: Oxford University Press, 1988)Google Scholar.
10 Benoit, Les grottes des Murabc'at, 243–54.
11 For 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.
12 Benoit, Les grottes des Muraba'at, 248.
13 Lewis, Greek Papyri, 78.
14 LSJ, s.v. γαμέω, 337; συμβιóω, 1657; Friedrich Preisigke, Wörterbuch der griechischen Papyrusurkunden (2 vols.; Berlin: Weidmann, 1925) 1. 282; 2. 508.
15 For an interesting example of this sort of apologetic attitude one may review the literature on a text from Qumran that suggests that wives could bear witness in the sect's tribunal against their husbands (lQSa 1.10–11). This text, which seemed in its present form inconceivable to scholars, was emended by Baumgarten, Joseph M. (Studies in Qumran Law [Leiden: Brill, 1977] 183–86)Google Scholar, and his emendation was accepted by Schiffman, Lawrence H. (Sectarian Law in the Dead Sea Scrolls — Courts, Testimony and the Penal Code [BJS 33; Chico, CA: Scholars Press, 1983] 62–63)Google Scholar.
16 Lewis, Greek Papyri, 130.
17 See, for example, Lewis, Naphtali, Life in Egypt under Roman Rule (Oxford: Clarendon, 1983)Google Scholar.
18 Ranon Katzoff, In the Faculty Seminary of the Classics Department in the Hebrew University, Jerusalem, 1990.
19 This is the case put forward by Wasserstein, “Marriage Contract,” 121.
20 Benoit, Les grottes des Muraba'at, 109–17, 243–56; Lewis, Greek Papyri, 76–82, 130–33.
21 Yadin, Bar-Kokhba, 237–38.
22 Benoit, Les grottes des Muraba'at, 110–11(117 CE); Yadin, Bar-Kokhba, 239–46 (124–127 CE).
23 Benoit, 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.
24 See, for example, Epstein, Louis M., Marriage Laws in the Bible and the Talmud (Cambridge, MA: Harvard University Press, 1942) 62–76Google Scholar.
25 Brooten, Bernadette J., Women Leaders in the Ancient Synagogue (BJS 36; Chico, CA: Scholars Press, 1982) 32Google Scholar.
26 An interesting interpretation of this mishnah is found in Falk, Zeev, Introduction to Jewish Law of the Second Commonwealth (2 vols.; Leiden: Brill, 1978) 2. 284Google Scholar. In his opinion, this mishnah refers to a poor groom, who works for his prospective father-in-law in order to earn the bride price.
27 On the regional differentiation between this concept and that of the hometaking of the wife (), see Adolf Büchler, “The Induction of the Bride and Bridegroom into the in the First and Second Centuries in Palestine,” Livre d' hommage a la memoire de Dr. Samuel Poznanski (Warsaw: n.p., 1927) 82–132.
28 For a discussion of this source and its parallels in the Talmuds, see A. S. Hershberg, “The Betrothal and Nuptial Practices in the Talmudic Period,” Ha-'Atid 5 (1923) 95–97 [Hebrew].
29 One scholar who has tried to use the sources discussed here for a very different purpose is Tabori, J., “Two Wedding Ceremonies: Alcestis and some Jewish Parallels,” Scripta Classica Israelica 6 (1981–82) 16–22Google Scholar.
30 This is the view of most commentators, but some suggest a tripartite process: (“matchmaking”), (“betrothal”), and (“marriage”); see Hershberg, “Betrothal and Nuptial Practices,” 75–102.
32 Compare y. Ketub. 4.8, 28d; y. Yebamot 15.3, 14d; b. B. Me. 104a.
33 See also Büchler, Adolf, Studies in Jewish History (Jews College Publications 1; London: Oxford University Press, 1956) 126–59Google Scholar; Gulak, Asher, “Betrothal Contract and Possessions Acquired Orally According to Talmudic Law,” Tarbis 3 (1942) 361–76Google Scholar [Hebrew]. Although Epstein, Louis M. (The Jewish Marriage Contract [New York: Jewish Theological Seminary, 1927] 9–15)Google Scholar agreed that, at the beginning, this was indeed the practice, he maintained that later the custom was changed, and the handing over of the ketubbah was performed together with the nuptials. My interpretation may actually suggest the opposite.
34 The date of the alleged event is subject to some controversy. For example, Krauss, Samuel (“La Kte de Hanoucca,” REJ 30  37–43)Google Scholar dated it to the aftermath of the Jewish revolt in the days of the emperor Trajan (115–117 CE). On the other hand, Samuel Belkin (Philo and the Oral Law [Cambridge, MA: Harvard University Press, 1940] 246) saw in it one of the Antiochean decrees (168 BCE). The Bar Kokhban date, championed, among others, by Patai, Raphel (“Jus Primae Noctis,” Studies of the Center for Folklore Research 4  177–80)Google Scholar, seems to me, on account of the word usually associated with the Bar Kokhbah revolt, to be the correct interpretation.
35 Compare also b. Ketub. 3b. The context and contents of the Babylonian discourse on the subject are so blurred that they need hardly concern us here.
36 See Wolff, Hans J., Written and Unwritten Marriage (Haverford, PA: American Philological Association, 1939)Google Scholar.
37 Patai, “Jus Primae Noctis.”
38 The myth was first rejected by Schmidt, Carl, Jus primae noctis: eine geschichtliche Untersuchung (Freiburg: n.p., 1881)Google Scholar. For more recent works upholding this view, see Howarth, William D., “‘Droit du Seigneur’: Fact or Fantasy,” Journal of European Studies 1 (1971) 291–312Google Scholar; and Schmidt-Bleibtreu, Hermann F. W., Jus Primae Noctis—Herrenrecht der ersten Nacht (Bonn: Rohrscheid, 1988)Google Scholar.
39 The jus primae noctis is now an accepted literary motif in folklore dictionaries. See, for example, Dov Noy [Neuman], Motif Index of Talmudic-Midrashic Literature (Ph.D. diss.; Ann Arbor Dissertation Series Microfilms, 1954) 725.
40 In this view I join several previous scholars, who reached the same conclusion based on different evidence. See Levi, Israel, “Hanoucca et les jus primae noctis,” REJ 30 (1898) 220–31Google Scholar, esp. 231; and more recently Moshe D. Herr, “Persecution and Martyrdom in Hadrian's Days,” in David Asheri and Israel Schatzman, eds., Studies in History (Scripta Hierosolymitana 23; Jerusalem: Magnes, 1972) 101 n. 56.