Critique of Writings on Divorce by David Instone-Brewer
1. Divorce and Remarriage in the Church (DRC)
2. Divorce and Remarriage in the Bible: The Social and Literary Context (DRB)
This appraisal of David Instone-Brewer’s two works on divorce is by no means intended to be comprehensive. I have read only parts of both volumes, but I have read enough to be seriously suspect that Brewer’s scholarship is unreliable and his exegetical and theological approach (hermeneutics) for determining the will of God regarding divorce in the NT age is not consonant with the teaching of the Westminster Confession of Faith (WCF). The weaknesses appear to go a long way to explaining his counter-confessional conclusion that there are “four biblical grounds for divorce” (DRC, p 93) (the WCF recognizes only two: 24.6).
I. Evidence of poor scholarship, be it intentional or unintentional:
(a) DRB p 1:
“Marriage is called a ‘covenant’ (berith) throughout the Pentateuch and the rest of the Old Testament.”
Problem: neither in the paragraph this sentence introduces nor in the footnote attached to this sentence is there so much as a single citation of the Pentateuch, even though the paragraph discusses several later OT prophetic verses and the footnote refers readers to eight verses from elsewhere in the OT, ranging from Proverbs to Malachi. At best, this is misleading. (This is only DRB’s first page.)
(b) DRB p 10:
“There are, therefore, clear parallels between the stipulations for marriage contracts in the Pentateuch and ancient Near Eastern sources, though in both the amount of extant material is limited.”
Problem: Brewer identified not a single marriage contract (or even a marriage covenant) anywhere in the Pentateuch. The only purported “clear parallel” is not between a Pentateuchal contract and an ancient Near Eastern (ANE) one, but between the statute about female slave liberation and ANE contracts. If he considers that to constitute a Pentateuchal “marriage contract,” his rational remains opaque. (See also II.b, below.)
(c) DRB p 14:
“These documents show various parallels with the Old Testament, both in the Pentateuch and beyond.”
Problem: The only example he offers of a parallel between the Pentateuch and the three pages of treatment of ANE documents is as follows: “The phrase ‘Cut yourself off from any other man’ may find a parallel in Genesis 2:24: ‘separate from his father and mother, and cleave to his wife.’” However, it is hard to see (and Brewer makes no attempt to explain) how this could be called a parallel. The ANE wording is from a marriage contract promising that the woman marrying will stay away from other men, while the Pentateuchal language decrees that a man marrying will leave his parents home. No other Pentateuchal examples are offered. As to the significance of the Gen 2:24 wording, see II.c, below.
(d) DRB p 9:
“All of the ancient Near Eastern law codes that have rulings about adultery prescribe capital punishment. … The capital punishment was applied to the man or woman or both, depending on who was considered to be guilty. It is not certain whether this punishment was compulsory. For example, the Code of Hammurabi #129 suggests that the king could pardon a wife at the husband’s request:
If the wife of a seignior has been caught while lying with another man, they shall bind them and throw them into the water. If the husband of the woman wishes to spare his wife, then the king in turn may spare his subject. [citation from Pritchard, ANE Texts]
This does not diminish the seriousness with which adultery was regarded. The fact that the king had to pardon her suggests that adultery was considered a crime against the state, not just against the marriage partner.”
Problem: Brewer seems to have misread the Code #129. He must have ignored the phrase, “in turn.” The term, “his subject,” is best taken as the male adulterer, one of the king’s subjects. Thus, both the wife and he are to be executed unless, the husband, the (only) one considered the victim, determines that he wants to forgive her. He, as the victim, is free to do so, however, should he decide to spare her, the king may then spare his subject, also, i.e. the man who violated the husband’s wife. So long as the husband punishes his wife for the offense against himself, the king has the legal duty to punish his subject for the offense against the husband. Thus, Brewer’s interpretation is wrong, and the conclusion he draws (“adultery was considered a crime against the state, not just against the marriage partner.”) is groundless.
(e) DRB p 18:
“The Sinai treaty of God with Israel contained a long section of blessings and curses (Deuteronomy 27-28), and it was understood that God did indeed bring these curses on Israel when they disobeyed.”
Problem: According to Deuteronomy, it was a covenant made by God with Israel on the plains of Moab almost 40 years after – according to Exodus – He made the initial covenant with her at Sinai.
(f) DRB p 19:
This chapter has shown that marriage in the Pentateuch is a contract between two families and between two individuals.”
Chapter one of DRB did not even come close to supporting this conclusion. It showed marriage contracts as agreements between such parties with respect to some (other) ANE texts, but not once with respect to the Pentateuch. It simply assumed similar marriage culture for the Pentateuch, merely assuming what it hereby claims to have demonstrated.
II. Evidence of non-confessional hermeneutics
(a) DRB p 7:
“Deuteronomy 24:1-4 … is an item of case law about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling has been traced by Raymond Westbrook to the financial payments and penalties involved in marriage and divorce. … Westbrook thus noted that this [remarrying the first man after an intervening marriage] would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. The law therefore forbids the first husband from getting financial benefit in this way.”
Problem: This exegetical conclusion about the purpose of Yahweh in forbidding the man’s return to his former wife is not drawn by rigorous deduction from the text of Scripture (WCF 1.6a) nor from the historic Protestant hermeneutical principle of Scripture interprets Scripture (WCF 1.9); in fact the only reason stated in Scripture itself – and it is stated expressly! – is completely different than the one adduced by Westbrook and adopted (“Deuteronomy 24:1-4 … is an item of case law”) by Brewer, recounting none of Westbrook’s reasoning. On the other hand, we have Scripture’s explanation:
Her former husband who sent her away is not allowed to take her again to be his wife, since she has been defiled; for that is an abomination before the LORD, and you shall not bring sin on the land which the LORD your God gives you as an inheritance.
(Deut 24:4 NASB)
Those with some background in OT higher critical scholarship will probably recognize in Westbrook the methodology known as form criticism, a ‘tool’ of 20th century higher critical Bible scholarship that goes back to Hermann Gunkel and his 1901 commentary on Genesis. “Using comparative material from the folklore of other peoples, [Gunkel] attempted to analyse and classify the individual stories, and to determine the situations and circumstances in which they had arisen (their Sitz im Leben or ‘life-setting) and in which they had been transmitted”(Whybray, Making of the Pentateuch, 1987, p 133). Since Gunkel, form criticism has evolved and grown, being applied to the Gospels (most famously by Bultmann), and to other purported forms; in the current example, the supposed form is ‘case law’. The notion of case law in the Bible is not in and of itself a problem, but this analysis of Deut 24:1ff is not only pure speculation; it stands contrary to the contextual presentation of the origin of the statute as it comes to us in Deuteronomy.
From an orthodox, confessional standpoint, i.e., taking the text at face value, the ‘Sitz im Leben’ this statute, like that of the other laws comprising Deuteronomy, is obvious: the entirety of the legal corpus of Deuteronomy was given by God, through Moses, on the plains of Moab, just before his death.
Now, O Israel, listen to the statutes and the judgments which I am teaching you to perform, so that you may live and go in and take possession of the land which the LORD, the God of your fathers, is giving you.
You shall not add to the word which I am commanding you, nor take away from it, that you may keep the commandments of the LORD your God which I command you.
Or what great nation is there that has statutes and judgments as righteous as this whole law which I am setting before you today?
(Deut 4:1-2,8 NASB)
This day the LORD your God commands you to do these statutes and ordinances. You shall therefore be careful to do them with all your heart and with all your soul.
You have today declared the LORD to be your God, and that you would walk in His ways and keep His statutes, His commandments and His ordinances, and listen to His voice.
The LORD has today declared you to be His people, a treasured possession, as He promised you, and that you should keep all His commandments;
(Deut 26:16-18 NASB; cf. 29:1)
As Geerhardus Vos explains that in Deuteronomy, “Moses speaks here directly as God’s mouthpiece in long discourses to the people. That such is the conception of prophecy, the book states itself (xvii 15, scqq)” (The Mosaic Origin of the Pentateuchal Codes, p 169).
(c) DRB p 16:
“He [G.P. Hugenberger] suggests that there are traces of a marriage covenant formula in the Genesis formulae ‘bone of my bone,’ ‘one flesh,’ and ‘leave their family [sic], all of which indicate the formation of a family covenant.”
Problem: This, too, smacks of form criticism; it is arbitrary and speculative, and it fails to take the text – which reads fine as is – at face value. As G. Wenham opines, “This [Gen 2:24] is not a continuation of the man’s remarks in v 23, but a comment of the narrator, applying the principles of the first marriage to every marriage” (Genesis, vol. 1, WBC, 1987, p 70).
(d) DRB p 9:
“There is a clear parallel to these stipulations in Exodus 21:10-11, which records that a second wife should not be preferred over a first wife even when the first wife was a slave wife. It was generally assumed by the rabbinic interpreters that this right extended to free wives as well as slave wives.”
Problem: The text of Exodus 21:10-11 never refers to the female slave involved as a ‘wife’. Brewer simply assumes this, i.e. it is eisegesis, not exegesis. That he may be following the example of others before him in doing so does not absolve him of error in so doing. The Hebrew is very literally rendered by Young’s Literal Translation, with even the word woman (which in the right context could be rendered ‘wife’) never once appearing in Hebrew (hence Young’s italics):
“If another woman he take for him, her food, her covering, and her habitation, he doth not withdraw; and if these three he do not to her, then she hath gone out for nought, without money.” (YLT)
In fact, “another” could be construed as “another female slave”; this is probably more natural, given that the only female mentioned in the preceding context, the only plausible antecedent for ‘another’ is the (first) female slave.
The context, too, is not about wives, but about slaves, male and female, particularly their manumission (their redemption or liberation is mentioned in each of vv 2,3,4,5,7,8,11). Regarding the context, John Durham explains this part of the Book of the Covenant: “The first extended section [vv 2-11] has to do with the ownership of slaves. Vv 2–11 are a kind of miscellany under the general topic “the treatment of one’s slaves,” with guidance concerning the treatment of both male (vv 2–6) and female (vv 7–11) slaves.” (Exodus, WBC, 2002, p 320). Any relevance for the divorce of a (true) wife (Deut 24) must be proved, not assumed. The closest Brewer comes to doing so, at least in this section (and he does not refer us elsewhere in his book) is in his next sentence, which commences: “It was generally assumed by rabbinic interpreters that this right extended to free wives as well as slave wives” – not really confessionally valid exegesis.
For the church to adopt rabbinic assumptions is hardly orthodox Christian hermeneutics.
(e) DRB p 10:
“A stipulation about cleanliness in Deuteronomy 24:1 does not have any parallel in the ancient Near East. The teaching of Deuteronomy 24:1-4 has traditionally been understood to mean that one could divorce a wife for adultery. However, it is very unlikely that this passage originally referred to adultery because the punishment for adultery was death.”
Problem: Although in view of Brewer’s admission of the incompleteness of our materials from the ANE (see I.b, above) it would seem prudent for him to have qualified his blanket denial, “does not have any parallel,” his reading of the original meaning of the much debated (now and in antiquity) term, ‘ervat davar, is in agreement with John Murray and at least some modern commentaries. No problem so far.
However, even while acknowledging that as it stands in the OT canon, the term does not (“very unlikely”) signify ‘adultery’ on the part of the wife, elsewhere Brewer claims that Jesus, in agreement with the Shammaite rabbis, acknowledges sexual immorality (= adultery) as the (one and only) ground for divorce recognized in 24:1.
“The Gospels imply that he [Jesus] meant adultery was the only valid ground that is found in Deuteronomy 24:1. …
Jesus gives [the Pharisees] their answer, and it is one that they recognize immediately because it was the same as that of the Shammaite Pharisees, who said that here is no valid divorce in Deuteronomy 24:1 ‘except for sexual immorality.’”
(DRC pp 96-97)
In short, Brewer does not believe that in Deut 24:1, by the term, ‘ervat davar, God (and Moses) meant adultery but does believe that 1500 years later the Son of God declared that that is what it means.
Brewer has pitted God (and his OT prophet) over against the Son of God (and the Shammaite Pharisees in the NT), with the two sides disagreeing as to the meaning of the Word of God at one point. The former (God) meant one thing by it, while the latter (the Son) contradicts or corrects him. Clearly from an orthodox perspective, this approach to Scripture is not only unacceptable, it is blasphemous. ASIDE: When we get here should we tear our clothes, or just rip some pages out of Brewer’s books?
Jesting aside, the problem here is not a trivial one. A close look at the framework of Brewer’s argument finding broader grounds for divorces (than adultery/porneia and desertion) shows how critical this piece of impiety is to his sophistry. As normally translated, Jesus’ teaching in Matthew, both chapters 5 and 19, comes across not as taking sides in a rabbinic debate over the import of one verse, but as declaring the will of God, as progressive revelation of the ethics of his new kingdom, not only over against the rabbis of his day, but over against even Moses himself (“Moses permitted, … but”). In 19:6, based on a creation ordinance, the one greater than Moses lays down a firm and clear (3rd person sing.) imperative, “what God has joined together, man must not separate,” against which prohibition He allows but one exception, “except for the cause of sexual immorality.” By reframing the passage so as to have Jesus taking sides in an argument about the right reading for Deut 24:1, Brewer reduces the blast of Jesus’ prohibition from a shotgun pattern that takes out everything save extramarital sexual acts to a rifle shot that eliminates almost nothing from the grounds for divorce that were (according to Brewer) fairly widely practiced by Jews, and sometimes Jewess as well.
The reality is, however, that, as Brewer and others recognize, Deut 24:1 cannot be translated adultery or even sexual immorality, for the Pentateuchal remedy for such sin was indeed death, but in order to construct his argument that Jesus is only rejecting a particular interpretation of 24:1, “for any matter,” Brewer has the audacity to portray Jesus as misinterpreting 24:1 and siding with the mistaken Shammaite reading thereof.
Amazingly, but probably not coincidentally, without explanation Brewer (eventually) translates Jesus’ supposed citation of 24:1 (“sexual immorality” [ adultery]) quite differently in another passage (DRB p 134), subtly helping to bolster his case to limit Jesus’ teaching to one side in an argument about the term in Deut 24:1.
“The main differences between the accounts in Mark and Matthew, as marked in bold throughout this chapter, are the inclusion of the phrases ‘for any matter’ and ‘except for (a matter of ) indecency’ in Matthew.”
(NOTE: I do not have time to prove this, but one key hermeneutical problem here is due in large part to the late 20th century interpretive method known as ‘Reader Response’ (RR) theory of meaning. I.e., the meaning of a text lies in how its readers or hearers understand it rather than ‘Authorial Intent’, how the writer or speaker intended it. [E.g., see the last paragraph of DRC p 60.] There can be some validity to RR theory with regard to purely human words, but when God [the Father, the Son, or the Spirit] speaks, directly or through prophets or apostles, clearly His intent alone must be determinate of true meaning.)
(f) DRB p 133 (and the rest of the chapter 6):
“The Gospel accounts of Jesus’ teaching on divorce are portrayed in Matthew 19 and Mark 10 as a debate with the Pharisees. The concluding statement on the matter is found in Matthew 5:32 and Luke 16:18. The highly abbreviated form of these accounts requires considerable unpacking, which is only possible by knowing what could be omitted because it was ‘obvious’ to a first-century Jew. Fortunately the same subjects are debated in rabbinic literature and the Dead Sea Scrolls, which use very similar methods of abbreviation.”
Problem: The term “considerable unpacking,” here, is close to a euphemism. For as is suggested by his next line’s “what could be omitted because it was ‘obvious’,” Brewer is going to do a lot more ‘in-packing’ than unpacking. Having reduced the import of the Lord’s imperative from its natural grammatical import – a nearly comprehensive ban on divorce – to an endorsement of certain Pharisee’s interpretation of one verse, he is now going to assume that what he claims are the other allowable grounds for “normal rabbinic divorces,” such as neglect and infertility, were “omitted because it was ‘obvious’ to a first-century Jew.” This is, obviously, only possible to argue because of the reductionistic interpretation of Jesus’ imperative that he has made, since otherwise only one exception is allowed. There are a number of other serious problems that arise, here.
Confessionally speaking, the whole counsel of God is to be discerned first from that which is expressly set down, then from that which may be rigorously deduced from what is set down in Scripture. What is expressly set down is “absolutely no divorce, except for sexual immorality.” Brewer attempts to justify ‘in-packing’ other exceptions by claiming that first century Jews would have naturally assumed other exceptions traditionally improvised, such as from the slave-woman passage in Exodus 21. This, of course, is another reader response hermeneutical argument – a very significant portion of the meaning of the passage is made to come not from what Jesus said, but from what his original audience already thought on the topic, and that even though what Brewer claims must be ‘in-packed’ is on its face contrary to what Jesus actually did express, ‘no divorce, except for the cause of sexual immorality’. This hermeneutic is simply not consonant with the WCF 1.6: it is “[n]either expressly set down in Scripture” nor can it “by good and necessary consequence … be deduced from Scripture.”
However, even laying aside our confessional hermeneutic, the argument, absolutely key to Brewer’s over all position, is untenable. Even from a standpoint friendly to this RR theory of interpretation, by all accounts Mark and Luke were prepared primarily with a Gentile audience in mind. Thus, what “was ‘obvious’ to a first-century Jew” is hardly relevant to rightly reading their accounts. Machen reminds us that “unlike Matthew, Mark was evidently intended primarily, not for Jewish, but for Gentile readers.” As for Luke, similarly Carson and Moo write, “While addressed to a single individual, it is almost certain that Luke had a wider reading public in view. … the wider public Luke addresses probably shared with him a Gentile background. Luke implies such an audience in many ways…” Yet, since the Markan and Lukan accounts of Jesus’ divorce instruction are less detailed than Matthew’s (excluding the porneia exception, which they could assume to be known since Matthew was already long in circulation), in order to interpret Jesus in the accounts of Mark and Luke similarly, Brewer must assume that their authors, too, would have expected their (Gentile) readers and hearers to likewise ‘in-pack’ the divorce ethics of first century Jewish society. This seems utterly unrealistic. The average Gentile reading Jesus’ instructions on divorce in any of the three Gospels would never be able to do “the considerable unpacking” Brewer himself says is necessary since it “is only possible by knowing what could be omitted because it was ‘obvious’ to a first-century Jew.” Even if it were possible for the average Jewish Christian reading Matthew–and I am not prepared to concede that – there is no way Mark could expect his primarily intended readers to even know something had been omitted, much less figure out what that was.
In my opinion exegetical theories that expect even Jewish readers to presuppose the knowledge of deferential respect for Judaistic traditions are highly suspect. Theories that require the similar expectations for Gentile readers are utterly unrealistic, bordering on fantasy. Mark, Luke and 1 Corinthians were primarily written for just such Gentile readers. What the Apostles expected the Gentiles to honor from Judaism was settled in the Acts 15 council. Jewish divorce law was not included. In any event, Brewer fails to show by the standards of WCF 1.6 that his interpretation of Jesus’ words comes by rigorous deduction from the text, even when other passages are considered as well.
In closing, the kind of exegetical approach to the Gospels that Brewer contends their authors (and Paul in 1 Cor, though I didn’t deal with that, above) presuppose their intended readers – all together including all sorts of Jews and Gentiles who have converted – will intuitively perform violates the rule of 1 Corinthians 4:6b. While it was coined (probably not by Paul but by the Jerusalem Apostles) regarding Matthew, it would have, over time, applied also to newly published apostolic Gospels as well. Paul had delivered it to the Corinthians (c. AD 50) and presumably other churches at that time, along with a copy of Matthew. “Nothing beyond what stands written,” meaning: “Teach nothing of the gospel beyond what is written in the scroll provided by the Apostles.” ‘In packing’ various Jewish divorce traditions into ones reading of that scroll, even if they supposedly were derived from Exodus 21, clearly takes one ‘beyond that which is written’. It still does, today.