The Concubine as a Halakhic Phantom: A Reconsideration of the Concubine Controversy

• In Event: Consent, Concubinage, and Women's Autonomy

Abstract

Twenty years ago, Professor Zvi Zohar published an article proposing that rabbinic halakha supports intimate relations without marriage through concubinage, suggesting it be considered a normative practice in modern religious society. This sparked significant public interest and controversy, with responses extending beyond academic circles into broader media. This controversy highlighted how ostensibly academic halakhic discussions interact with social realities and religious policies.

In this lecture, I argue that both Zohar and his respondents misinterpret the position of the Sages (Hazal) on concubinage. This stance significantly diverged from the biblical institution of the concubine and was rooted in the Sages’ unique conception of marriage. Unlike ancient and contemporary systems that linked marriage to the legitimacy of children, the Sages separated marriage from children's status, resulting in no equivalent to 'illegitimate children' in Jewish law. Consequently, the legal basis for concubinage, which depends on the distinction between legitimate and illegitimate children, did not exist in Talmudic law.

The only halakhic sources discussing concubinage are brief passages in the Babylonian and Palestinian Talmuds, indicating that the Sages did not consider it a living legal institution. The later development of concubinage in medieval and modern rabbinic literature is intriguing, though it is not the primary focus of this study. Instead, I examine the participants' oversight in recognizing the foreignness of concubinage within Talmudic law.

This oversight may be linked to the mid-twentieth-century constitutional revolution influenced by feminist and civil rights movements, which abolished the flawed legal status of children born out of wedlock in Western countries. This transformed the institution of marriage, aligning it more closely with the Sages' conception and reshaping concubinage in general society. Thus, contemporary participants in the debate share modern views on marriage that have converged with Jewish law, despite concubinage never having a place within Talmudic legal tradition.

Author

• Roni Shweka, Bar Ilan University