Married Before Anything Has Happened

The Hook

Yesterday the Rambam closed a book. The last ruling of Sefer Zemanim ranked the ordinary lamp of the home above the Chanukah lamp and above the wine of kiddush, because the lamp of the home makes peace in the house, and the Divine Name is erased to make peace between a husband and a wife, and the whole Torah was given to bring peace into the world. Then he turns the page, writes a verse of dedication, and opens a book on how a husband and a wife come to exist at all.

And the first thing he tells us is that this used to be simple. Before the Torah was given, a man would meet a woman in the marketplace, and if he and she decided to marry he would bring her home, and that was the marriage. No ceremony, no document, no observers. Once the Torah was given, the Jews were commanded that a man who desires a woman must acquire her as a wife in the presence of witnesses, and only after this does she become his wife. The most private decision two people can make was given a requirement that two strangers be standing there when it is made.

The Marketplace and the Witnesses

Notice what the Torah did not change. It did not raise the standard of feeling. There is no requirement here about love, or readiness, or the quality of the intention. Both of them wanted it before Sinai and both of them want it after. What the Torah added was other people in the room.

And notice what happens without them. Two people can decide entirely on their own to be married, mean it completely, live together for forty years, and the Rambam has no category for it except the one he names four halachot later. Before the Torah, a man could give a woman payment, be with her wherever they liked, and go, and such a woman is called a harlot. When the Torah was given, that arrangement became forbidden, and a person who has relations with a woman for the sake of lust, without kiddushin, receives lashes by Torah law, because he has had relations with a harlot. That ruling is famously severe and famously contested, and the severity is the point the Rambam is making about the witnesses. Once a public act was made available, refusing to perform it is itself the choice being ruled on.

Three Ways In, and Only One of Them Is Ours

The acquisition is one of the Torah's positive commandments, and it can be formalized three ways: through money, through a document, and through relations. Then the Rambam adds a line that ought to stop anybody who has ever stood at a Jewish wedding. Relations and the document have their origin in the Torah itself. Money is Rabbinic in origin.

The ring is the Rabbinic one. The two that Scripture supplies are the document, which is a legal instrument nobody uses, and the act itself, which the Sages effectively closed off. The method the entire Jewish world actually runs on is the one the Sages built, and they built it out of the least intimate material available, a coin, something of value passing from one hand to another in front of two people who are not involved.

The process has two names, erusin and kiddushin, and the second is the one that gets used. It is the language of consecration, the word for property withdrawn from common use and set aside for the Temple, and it is applied here to a person who has been withdrawn from the world in general and set aside for one man. She is mekudeshet. And then comes the ruling that makes the whole chapter strange. Once the acquisition has been formalized she is considered married even though the marriage bond has not been consummated and she has not entered her husband's home. A stranger who is with her is liable to be executed by the court. If her husband wants to end it, he must compose a get. Everything that will ever be legally true of this marriage is true of it already, on a morning when nothing has happened.

The List of Everyone Who Cannot Come Through

Having built the gate in four rulings, the Rambam spends the next four telling us who may not walk through it, and the sorting is by severity rather than by subject. First the arayot, the relations forbidden by the Torah and punishable by karet, the list from Parashat Acharei Mot, a mother, a sister, a daughter. Each of those is an ervah, and the plural is the word that governs the rest of the Mishneh Torah's treatment of the subject.

Then twenty more women forbidden by the Oral Tradition, Rabbinic in origin, called shniyot, prohibitions of a secondary nature. The list is almost entirely grandmothers and granddaughters, and the Rambam sorts it by whether the prohibition keeps climbing or stops with the one woman named. Four of them keep going without interruption, and to show what that means he writes two of the most startling sentences in the Mishneh Torah. The wife of our Patriarch Jacob is forbidden to any one of us. Any one of our wives is forbidden to our Patriarch Jacob. He is not making a point about Jacob. He is showing that a prohibition without a stopping point genuinely has no stopping point, in either direction, across three thousand years.

Then nine relations forbidden by negative commandments that carry no karet, which he calls issurei lavin and also issurei kedushah, prohibitions that encourage holiness: the widow and the High Priest, the divorcee and any priest, the mamzer, the Moabite or Ammonite convert, the woman remarried after another marriage, the yevamah who married outside. And a note that matters: the equation between a divorcee and a woman who underwent chalitzah is Rabbinic, and so is the placement of the netinim alongside mamzerim. Then three prohibitions that arise from a positive commandment, where the Torah never says he shall not, only that in the third generation they may enter, or that the High Priest shall marry a virgin. A prohibition derived from a positive commandment has the status of a positive commandment, which is the lightest weight on the page, and it is still binding.

The Unifying Principle

What the chapter keeps insisting on is that the bond is created by an act and not by a state of mind, and then it goes further and says the act creates the whole bond at once.

Chassidus reads the word kesef against nichsof, the root of longing, so that the coin in the wedding is not a price but a piece of yearning made portable enough to hand over. That reading is beautiful and it is not sentimental, because the halachah will not accept the yearning without the coin. It is not that money buys her. It is that longing has to become an object that leaves your hand in front of witnesses before Jewish law will call it anything at all.

The Sages read the verse about the Torah as our inheritance, morasha, as though it said me'orasa, betrothed, and the Alter Rebbe returns to that reading again and again in the Tanya and in his discourses. If the covenant at Sinai was a betrothal, then this chapter is its legal anatomy. Israel at the mountain had done nothing, built nothing, kept nothing. The relationship was complete on the spot and the content of it arrived over the following forty years and the following three thousand. The Lubavitcher Rebbe made that the standing structure: Sinai as erusin, and everything since as the long project of moving in.

And the Baal Shem Tov, on the teaching that forty days before a child is formed a heavenly voice announces the match, taught that the announcement precedes every trace of the people involved. Their character, their merit, their readiness. None of it is what makes the pairing; all of it is what the pairing will be made of. The Rambam has ruled the same order in a courtroom. She is his wife on the morning nothing has happened, and the marriage will happen afterward.

Modern Application

We have inherited the opposite instinct. Commitment should follow the evidence. Move in, find out, and let the public act come at the end as a summary of what has already been established. The chapter says the opposite in the plainest possible way: the act comes first, in front of people, and the content is built inside it.

This is not only about marriage, and the Rambam has made it easy to see by putting the witnesses in the first line. Anything you have decided privately, however sincerely, is a decision about which no one can be wrong. The moment two people are standing there it becomes a fact with a life of its own, and it takes an act to end it, which is exactly why we avoid the witnesses. The get exists because kiddushin was real. Nothing that costs nothing to leave has cost anything to enter.

And then the second half of the chapter, which is a list of doors that do not open. We are not comfortable with lists like that. But look at what he calls them: issurei kedushah, prohibitions that encourage holiness. He is not describing damage. He is describing the shape of the gate, and a gate with no jambs is not a gate. The chapter that opens by making marriage harder than it was before Sinai closes by naming who is outside it, and both halves are doing the same work.

The Closing

The seam between the two books is worth standing on for a moment. Sefer Zemanim ends with a man too poor to eat who is told to sell his coat for oil, and then told that if it comes to one coin, the lamp of his own home outranks the lamp of the miracle, because peace in the house is what the whole Torah was given for. Sefer Nashim opens the very next line, and the first thing it does is take the house apart into the two people standing in it and ask what makes them a house.

The answer, on this page, is not affection and not time and not what anybody feels. It is an act performed in front of two men who have no stake in it. And the reason that is not cold is the ruling in the third halachah: she is fully his from that instant, before the moving in, before the years, before any of it has been earned. Nothing about the marriage is provisional while it is being built. It was finished before it started, and the rest is furniture.

Before the Torah, two people who meant it were married, and the Torah replaced that with a coin, two witnesses, and a moment in public. It looks like a downgrade until you notice what it buys: from that instant she is a married woman in every respect the law has, with nothing yet accomplished and nothing yet proven. Whatever you are waiting to be sure about before you say it in front of anyone, the order in this chapter runs the other way. Say it, and then find out what you said.