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Naomi Graetz

Is Kinyan (Purchase) of Woman in the Marriage Document
only a Metaphor?

Zusammenfassung

Biblische Metaphern, die sich mit männlicher Dominanz, der Unantastbarkeit der Familie und Frauen beschäftigen, die sich zum Wohle der Gemeinschaft in ihr Schicksal ergeben müssen, finden ihre konkrete Entsprechung im jüdischen Gesetz. Das Grundgesetz, das sich auf die Ehe anwenden lässt, wird kinyan (Akquisition) genannt. Ein Akt, bei dem eine Person das Recht auf Besitz oder Gebrauch im Tausch gegen eine (meist finanzielle) Entschädigung erlangt. Dieses Konzept ist zentral für die ketubah, den Heiratsvertrag.
Die problematischen Aspekte dieser Heiratszeremonie haben ihre Wurzeln sowohl in biblischen Quellen wie auch in den Midraschim. Die Verwendung einer Metaphorik die vom Männlichen dominiert wird ist nicht harmlos; dies zum Beispiel dann, wenn Gott als Ehemann wahrgenommen wird, der "sein Volk" kontrolliert. Als Konsequenz liegt es daher in der Natur der Dinge, dass die Welt an sich als von Männern dominiert verstanden wird.

The Marriage Document (The Ketuva Text)

On the ______day of the week, the _________day of the month ______ in the year five thousand seven hundred and ______ since the creation of the world, the era according to which we reckon here in the city of _________________ that ________ son of _________ said to this virgin (betulta virgin is usual, or substitute woman, bride, divorcee, widow, convert, or other, as appropriate) _________daughter of _____. “Be my wife according to the practice of Moses and Israel, and I will cherish, honor, support and maintain you in accordance with the custom of Jewish husbands who cherish, honor, support and maintain their wives faithfully. And I here present you with the marriage gift (mohar) of virgins (betulechi), (two hundred) silver zuzim, which belongs to you, according the law of Moses and Israel; and I will also give you your food, clothing and necessities, and live with you as husband and wife according to universal custom.” [His level of obligation varies to some degree with his income and her background; a rich man has to give his wife more than a poor man has to give his wife. Likewise, her rights to sexual encounters vary with his profession; an idle man has more responsibility than a man who works away from home for lengthy periods.] And Miss_____, this virgin (betulta) consented and became his wife. The trousseau that she brought to him from her (father's) house in silver, gold, valuables, clothing, furniture and bedclothes, all this ________, the said bridegroom accepted in the sum of (one hundred) silver pieces, and ______ the bridegroom, consented to increase this amount from his own property with the sum of (one hundred) silver pieces, making in all (two hundred) silver pieces. And thus said __________, the bridegroom: “The responsibility of this marriage contract (ketuvta), of this trousseau (nedunya), and of this additional sum, I take upon myself and my heirs after me, so that they shall be paid from the best part of my property and possession that I have beneath the whole heaven, that which I now possess or may hereafter acquire. All my property, real and personal, even the shirt from my back, shall be mortgaged to secure the payment of this marriage contract (shtar ketuvta), of the trousseau, and of the addition made to it, during my lifetime and after my death, from the present day and forever.” _______, the bridegroom, has taken upon himself the responsibility of this marriage contract, of the trousseau and the addition made to it, according to the restrictive usages of all marriage contracts and the additions to them made for the daughters of Israel, according to the institution of our sages of blessed memory. It is not to be regarded as a mere forfeiture without consideration or as a mere formula of a document. We have followed the legal formality of symbolic delivery/ritual acquisition (kinyan) between ______the son of _______, the bridegroom and _______ the daughter of _______ this (virgin), and we have used a garment legally fit for the purpose, to strengthen all that is stated above, and everything is valid and confirmed. [1] [The usual method is kinyan sudar, in which the groom gives an object of some kind to the witnesses, and in so doing, accepts upon himself the obligations he has specified.] [2]

Male God-language is not innocuous: metaphors matter! In 1995 Rosalind Gill wrote: “We have known for a long time that language is not a neutral, descriptive medium but is deeply implicated in the maintenance of power relations.” [3] Religious symbols are chosen carefully to communicate its values to the society and help the community to understand itself and its conception of the world. As Mary Daly pointed out long ago, when God is perceived as a father or a husband ruling and controlling “his” people, then the “nature of things” and the “divine plan”, and even the “order of the universe”, will be understood to be male dominated as well. [4] Metaphors are not benign. Should we be eliminating those, which are malignant? An example of a malignant metaphor is that of kinyan, purchase or acquisition of the bride in the Jewish marriage contract, the ketuva.

In the Bible there is no marriage ceremony as we understand it today. A man simply “takes” (lakach) a woman. For instance in Genesis 24:67 Isaac “took Rebecca and she became his wife”. Since the man’s family gives a gift, referred to as mohar (Genesis 22:17 and 34:12) to the woman, it appears that this is part of the process of getting a wife. The groom’s family made another marital payment to that of the bride. The husband is also referred to as ba’al (master or owner) which implies ownership and property. The word kanah, “to purchase” or “to acquire”, was used in Ruth 4:10 when Boaz married Ruth. Once a woman is married her husband has exclusive rights to her sexuality. It is presumed that he “buys” her virginity and if the husband claims that she is not a virgin anymore, there is a procedure to determine if the accusation is true in Deuteronomy 22:13–21.

13 A man marries a woman and cohabits with her. Then he takes an aversion to her 14 and makes up charges against her and defames her, saying, “I married this woman; but when I approached her, I found that she was not a virgin.” 15 In such a case, the girl’s father and mother shall produce the evidence of the girl’s virginity before the elders of the town at the gate. 16 And the girl’s father shall say to the elders, “I gave this man my daughter to wife, but he has taken an aversion to her; 17 so he has made up charges, saying, ‘I did not find your daughter a virgin.’ But here is the evidence of my daughter’s virginity!” And they shall spread out the cloth before the elders of the town. 18 The elders of that town shall then take the man and flog him, 19 and they shall fine him a hundred [shekels of] silver and give it to the girl’s father; for the man has defamed a virgin in Israel. Moreover, she shall remain his wife; he shall never have the right to divorce her. 20 But if the charge proves true, the girl was found not to have been a virgin, 21 then the girl shall be brought out to the entrance of her father’s house, and the men of her town shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. Thus you will sweep away evil from your midst.

Rabbinic texts built on these biblical texts in creating the model for today’s marriage ceremony.

In this paper I hope to show that the problematic aspects of today’s Jewish marriage ceremony, in which a husband acquires a bride, has its roots in both biblical and midrashic sources and that the mindset that results is toxic to Jewish women. The ketuva is the marriage contract and it states that the woman is acquired (in Aramaic, nikneyt), with the root of the word being kanah, bought or purchased. In the Mishnah it is written that, “the woman is acquired [nikneyt] ... by money, or by document or by sexual intercourse” (M Kiddushin 1:1).

Many have argued that although the ketuva is evidence that the woman is “acquired” in marriage, she still retains important rights. However, according to Gail Labovitz, it is kinyan rather than the ketuva, which is legally constitutive of marriage, for the woman does not receive her ketuva until after she has been “acquired” in marriage. So although the woman is protected by the ketuva, it does not change the ownership model of marriage. [5] She points out that because women are associated with the property of the male householder, rabbis can use slaves to think and reason about wives, women, marriage and divorce. Thus divorce in rabbinic Judaism, and some strands of modern Judaism, is the process of undoing the husband’s ownership. Rabbis can use the analogy of freeing a slave since divorce is a unilateral act of the husband. [6] Labovitz “persuasively disputes earlier apologetic characterizations of rabbinic thought and legislation [which claim to expand] the freedom and autonomy of women”. [7] She asserts in her book that the terminology of kiddushin does not change the unilateral nature of the act in any way, and to prove this matter, she points to the many rabbinic sources that explore the terminology of kiddushin through an analogy to hekdesh, which is the dedication of property to God. Thus the man has the right to sexual exclusivity, which she does not have – since all these societies practiced polygamy, at least until around 1000 C.E.

He has control over the use of the property that she brings to the marriage (even though she has the formal title and can expect to get the property or its value back if they get divorced); he has control over her earnings during the marriage; and finally he has the right to end the relationship by divorcing her. [8]

Tirza Meacham agrees with Labovitz and goes one step further: “Rhetoric has been used to misrepresent the acquisition of women, by referring to kiddushin as a holy act and connecting to it concepts of kedusha (holiness) and the stability of the Jewish family, community and halakhic Judaism.” She writes that “the acquisition of human beings should never be dignified by such concepts as ‘sanctification’ or ‘marriage’. Just as we would not dignify the institution of slavery by making claims of benevolent mastery and protection of the weak and disadvantaged, so too, we should avoid creating euphemisms around an institution which holds thousands of women worldwide as prisoners.” [9]

In contrast, Judith Hauptman writes that: “The move away from marriage as a purchase is borne out by the Mishnah’s terminology. The term kinyan (purchase) … is superseded in most instances by the term kiddushin … the root of which is K-D-SH [קדש] meaning holy or set aside. Marriage is an arrangement in which a man sets aside a woman to be his wife … [Thus] marriage has now been infused with a sense of sanctification.” [10] And this state too, can only be dissolved by divorce. Hauptman argues that the ketuva document gives women more personhood than in biblical literature. She evaluates “the rabbinic system from a dynamic rather than a static perspective” and while acknowledging that the rabbis upheld patriarchy in Judaism, she argues that over the course of time they enacted legislation that was “helpful to women”. [11]

All that Hauptman has written may be true in the legal sense, but Judith Wegner answers the question posed in her title: Are women in the mishnaic system “chattel or person”? She writes that the Mishnah treats women as chattel under some circumstances and under other circumstances as full persons. For Wegner, the key is patriarchal control over female reproductive functions.” In her discussion of mishnaic law expansion on “Scripture’s Taxonomy of Women”, she argues that the Mishnah rules that the “wife’s sexuality [is] the husband's property.” [12] When the man does not have a right to this function, the woman is an autonomous human being; when he does have this right she is “sexual chattel” with a market value of 200 zuz if she is a virgin. The father owns the daughter’s sexuality and if she is damaged goods, the shame is his, not hers [see Mishnah Ketubot 3:7]. Wegner also points to the woman’s lack of agency in the wedding ceremony, for in the traditional format, the “man recites a formal declaration to which the woman makes no reply”[Mishnah Kiddushin 2:3]. Of course the law does require her consent! [13]

I tend to agree that what actually takes place in the marriage ceremony is the act of acquisition, or kinyan, which is legally similar to the act of acquiring slaves or property with its implications for the inequality of the woman. The bride agrees to the marriage by accepting the kiddushin money, which is symbolized by the ring. She stands there quietly, unlike the groom, who promises before witnesses to take care of the bride, gives her a ring and breaks the glass. The husband is active, she is passive. This theme is also picked up in the non-legal narrative material, namely the midrash.

It is time to take a look at the sources themselves. I have put them in chronological order, starting with the Torah, then the Ketuvim, and finally the Midrash.

The Biblical Origin of kinyan

The basic halakhic concept applying to marriage is kinyan [acquisition], an act in which a person obtains rights of ownership, or use, in exchange for monetary (or other) payment. This concept is central in the ketubah, the marriage contract.

The idea of kinyan, goes all the way back to Eve, who, when she gave birth to Cain, said, I created (made, gained) a man with the help of God (קָנִיתִי אִישׁ אֶת ה; Genesis 4:1). Before this, when Adam “gave birth” to Eve, it was said of her, from man, this thing was taken "כִּי מֵאִישׁ לֻקֳחָה זֹּאת (Genesis 2:23). Thus the concept of purchase, ownership and the taking and consideration of a woman as object (zot) (even though in this case it was the man’s rib) are available for future use.

In Exodus 20:13 we are told: “You shall not covet your neighbor’s house: you shall not covet your neighbor’s wife, or his male or female slave, or his ox or his ass, or anything that is your neighbor’s.” In Exodus 21:22 it is written: “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one shall be fined according as the woman’s husband [ba’al ha-ishah] may exact from him, the payment to be based on reckoning.” Thus the husband is not only owner of his wife; he is also the owner of her pregnancy. In Exodus 21:28 the word for husband, ba'al, implies ownership as well as lordship, in the case of the owner of the ox who gores a person to death. A price of virginity is paid to the father of the “bride” in both Genesis and in Exodus:

“Then”, Shechem said to her father and brothers, “do me this favor, and I will pay whatever you tell me. Ask of me a bride-price ever so high, as well as gifts, and I will pay what you tell me; only give me the maiden for a wife” (Genesis 34:11-12).
“If a man seduces a virgin for whom the bride-price has not been paid, and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weigh out silver in accordance with the bride-price for virgins” (Exodus 22:15-16).

The husband’s right to perform sexual intercourse, is called liv’ol [to take what is one's property] and the wife's status of "married woman" is referred to as be’ulat ba’al [i.e., she belongs to the owner by virtue of his having her]. This is a continuation of the verbs lakach [to acquire] and ba’al [to possess] used in Deuteronomy 24:1 to describe this act:

“A man takes a wife [yikach] and possesses her [be-alah]. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.”

Thus when she marries, the father's property rights are transferred to the husband. When she is divorced, the husband renounces his right to his (sexual) use of the property and announces that she is “now permitted to any man”. The use of ba'al to denote husband of course raises linguistic concerns because of its primary meanings of owner and master.

Hosea

Hosea is the first prophet to describe God's relationship to Israel in metaphorical terms as a marriage. [14a ] Such a marriage metaphor is not found in the literature of any other ancient religion beside Israel's. Only the Hebrew God alone was described as husband and lover and only the people of Israel was described as a bride or wife. Hosea’s protagonist is himself, the husband who casts out his wife for being unfaithful to him and then takes her back – with the understanding that “she” will behave. God, not Ba’al, is Israel’s husband and lover and He demands complete loyalty of his people. The covenant between God and Israel made at Mount Sinai is a marriage; idolatry, which breaks the covenant, is adultery. This metaphor is developed in Hosea 2 when the prophet/God rebukes his wife/people for acting unfaithfully.

4 Rebuke your mother, rebuke her – for she is not my wife and I am not her husband – and let her put away her harlotry from her face and her adultery from between her breasts.

He threatens to punish her if she continues to misbehave.

5 Else will I strip her naked and leave her as on the day she was born: And I will make her like a wilderness, render her like desert land, and let her die of thirst.

He reproves her for thinking that other men/gods can supply her needs better than Him:

“I will go after my lovers, who supply my bread and my water, my wool and my linen, my oil and my drink.”

But for this she will be punished severely:

8 Assuredly, I will hedge up her roads with thorns and raise walls against her, and she shall not find her paths. 9 Pursue her lovers, as she will, she shall not overtake them; and seek them as she may, she shall never find them.

And then she will come to the full realization that she is better off with her first husband/God.

“I will go and return to my first husband, for then I fared better than now.” 10 And she did not consider this: It was I who bestowed on her the new grain and wine and oil; I who lavished silver on her and gold – which they used for Baal.

Yet nothing she does can save her from the anger of God for the first betrayal:

And none shall save her from Me, 13 and I will end all her rejoicing: Her festivals, new moons, and Sabbaths – all her festive seasons. 14 I will lay waste her vines and her fig trees, which she thinks are a fee she received from her lovers; I will turn them into brushwood, and beasts of the field shall devour them.

Like a suspicious husband, God cannot tolerate unfaithfulness, even when the people come back to Him:

15 Thus will I punish her for the days of the Baalim, on which she brought them offerings; when, decked with earrings and jewels, she would go after her lovers, forgetting Me – declares the Lord.

Yet, as in the cycle of violence, that is well known, God takes her back and promises to be a good husband and provider:

16 Assuredly, I will speak coaxingly to her and lead her through the wilderness and speak to her tenderly. 17 I will give her her vineyards from there, and the Valley of Achor as a plow land of hope. There she shall respond as in the days of her youth, when she came up from the land of Egypt.

And once they have made up (or rather once he has decided to let her come back) and he has given her gifts, he promises her a marriage on his terms. One can argue that by using the marriage metaphor we are allowed a glimpse at the compassionate side of God. Because of the intimate relationship, God is more accessible to His people. Not only do we have descriptions of an intimate relationship with God, but also, we have allusions to the idyllic, pre‑expulsion relationship of equality between God and humanity.

18 And in that day – declares the Lord – you will call [Me] Ishi, and no more will you call Me Baali. 19 For I will remove the names of the Baalim from her mouth, and they shall nevermore be mentioned by name. 20 In that day, I will make a covenant for them with the beasts of the field, the birds of the air, and the creeping things of the ground; I will also banish bow, sword, and war from the land. Thus I will let them lie down in safety. 21 And I will espouse you forever: I will espouse you with righteousness and justice, And with goodness and mercy, 22 and I will espouse you with faithfulness; then you shall be devoted to the Lord.

However, unlike the relationship between Adam and Eve, the relationship between God and Israel is one-sided. God would like the uncomplicated pre‑expulsion relationship, before the people “knew” [yada] about choice. God promises the returning nation an intimate covenantal relationship with Him despite the fact that knowledge [da’at] was the reason Adam and Eve were punished (see Genesis 3). When God decides to espouse Israel forever with faithfulness, the people will “know” [yada] only God. If Israel wants to know more than just God, if “she” wants to take fruit from the tree again, the implication is that she will again be expelled from the Garden of Eden, stripped naked and left as on the day she was created – with nothing (Hosea 2:5). God is telling Israel/Gomer that she can either be intimate with Him (her husband) or with other gods/lovers but not with both of them at the same time. She can have knowledge of good and evil from Him or from others. If she chooses others, He will destroy her. So despite the potential glimpse of a compassionate God, His covenant is accessible to His people only on His own terms. God's ownership is clear. The people/women who respond, who are exhausted by the previous abuse and whose identity is negative (lo ruhama and lo ammi) passively respond to God when he takes them back.

25 I will sow her in the land as My own; and take Lo-ruhamah back in favor; and I will say to Lo-ammi, “You are My people”, and he will respond, “[You are] my God”.

Song of Songs

Many feminists consider the mutuality expressed in the Song of Songs between the male and female lovers to be redemptive. Ilana Pardes contrasts the patriarchal marital model in Hosea with the anti-patriarchal model of love in the Song of Songs. She writes that the Song could have been made to function as a counter-voice to the misogynist prophetic degradation of the nation. It could offer an inspiring consolation in its emphasis on reciprocity. For a change, the relationship of God and His bride relies on mutual courting, mutual attraction, and mutual admiration, and thus there is more room for hope that redemption is within reach. [14]

Rachel Adler, in particular, has used the Song of Songs to demonstrate that an egalitarian “mutuality” between two sexual partners is possible, in contrast to many Biblical and Talmudic sources that portray normative sexuality as one of male dominance over women. [15]

In my previous work I pointed to the Song of Songs as an antidote to the battering metaphors of Hosea 2 and wrote in a footnote, that it “is probably the only completely non-sexist account of a relationship between a man and a woman”. [16]

Fokkelien Van Dijk Hemmes argued about the intertextuality between the texts of Hosea 2 and the Song of Songs, and suggested that we replace “the quotations back into the love songs from which they were borrowed, [so that] the vision of the woman in this text is restored”. [17]

The Orthodox feminist perspective is to co-opt the Song of Songs and to look at “the aggadic sources that expound upon it [to] provide a different perspective on the role of the bride at the chuppah”. [18] The aggadah does this by understanding the book as “an allegory for the loving relationship between the nation of Israel and God, in which Israel is portrayed as the bride and God the groom”. Karen Miller Jackson points to Chapter 4 and quotes the bride singing out to her husband: “Awake O north wind, and come south; blow upon my garden, so that the smell of the spices may flow out. Let my beloved come to his garden and eat from his choicest fruit” [original italics]. Miller Jackson recognizes the problematic of the verse, and quotes Rabbi Hanina who radically reinterprets this verse by saying that “the Torah teaches you appropriate behavior, that the chatan should not enter the chuppah until the kallah gives him permission to enter …”. [19] She uses this reading to show that since the “consent of the kallah must be granted before the wedding ceremony in the chuppah begins”, the symbolism has been changed and the tradition is “no longer about the transfer of the woman from one man’s space to another’s, but is rather representative of the voice of the kallah.” She thus concludes (as have many before her) that “the midrash and Shir Hashirim … offer a view of marriage as a joint endeavor in which both individuals participate and share responsibilities”. [20]

We must however remember that, despite all of our well-meaning interpretations, rabbinic interpretation appropriated the Song of Songs for its own theological purposes when the sages co-opted the female beloved and male lover images by identifying her as male Israel and the man as God. In light of that I have recently been looking at the Song of Songs with less rosy colored glasses. In Chapter 5 of the Song of Songs, just under the surface of this mutuality lies the horror of the unprotected woman wandering the town in search of her lover, who, when not in his protection, gets beaten up and stripped by the guards of the town. Some of these sources are very reminiscent of Hosea 2 which we have seen shows that the relationship between God/Hosea/Husband and Israel/ Gomer/ Wife is fraught with danger and potential abuse of women. [21]

Here is a sampling of some problematic verses:

Song of Songs 3:1-4

Upon my couch at night I sought the one I love – I sought, but found him not. “I must rise and roam the town, through the streets and through the squares; I must seek the one I love.” I sought but found him not. I was found by the watchmen who patrol the town. “Have you seen the one I love?” Scarcely had I passed them when I found the one I love. I held him fast, I would not let him go till I brought him to my mother’s house, to the chamber of her who conceived me.

Song of Songs 5:6-7

I opened the door for my beloved, but my beloved had turned and gone. I was faint because of what he said. I sought, but found him not; I called, but he did not answer. I was found by the watchmen who patrol the town; they struck me, they bruised me. The guards of the walls stripped me of my mantle.

Song of Songs 8:5-7

Who is she that comes up from the desert, Leaning upon her beloved? Under the apple tree I roused you; It was there your mother conceived you, There she who bore you conceived you. Let me be a seal upon your heart, Like the seal upon your hand. For love is fierce as death, Passion is mighty as Sheol; Its darts are darts of fire, a blazing flame. Vast floods cannot quench love, Nor rivers drown it. If a man offered all his wealth of his house [הוֹן בֵּיתוֹ] for love, He would be laughed to scorn [בּוֹז יָבוּזוּ]. [22]

So although there might be much that is promising in the Song of Songs, there are also very problematic texts, especially if we take into account that the rabbinic tradition relates to this book as a love story between God and Israel. Some of the verses from the Song are shockingly similar to Hosea 2, verses 5 & 8, where the woman is stripped naked and left to her own devices. Her roads are hedged with thorns and walls are raised against her. Amazingly there are still those modern rabbis who would argue that these acts of prophetic desperation are “about love, not wife-battering. They are about forgiveness, not punishment… [and about the] man who has the right to … strip her, humiliate her, etc., but doesn’t, and, instead, seeks reconciliation”. [23]

kinyan in Midrashic Texts

Legal literature merges with midrashic material in a talmudic text which discusses Hosea’s relationship to his wife and children (similar to the relationship of God to Israel). Hosea complains to God that it is difficult for him to separate himself from his wife and divorce her. God asks: why should it be a problem since she’s a prostitute and his children are the fruit of prostitution? How do you know whether they are yours or not? And, I, God (in contrast to Hosea), know that the people of Israel are My children “...one of four possessions [kinyanim] that I purchased in this world. The Torah is one possession (purchase) ...heaven and earth is another...the temple is another ... and Israel is another...” (B. Pesachim 87b).

It is interesting that the marriage ceremony is likened to kinyan. Also, note the four categories of kinyan in this text. They are all instances of eternal possession and mastery over someone or something else. These four cases (Israel being the fourth) all are based on an inherent, not acquired “ownership”. Despite all protestations that kinyan in marriage does not give the husband possession of his wife, the metaphor suggests otherwise. Israel (the wife) is God’s property to do with as He pleases.

In a midrash in which God is likened to a heroic figure with great strength, we see an acceptance by the sages that Israel is God’s possession. He hits another man and the man immediately dies from the blow. This hero then goes into his house and hits his wife and she withstands the blow. Her neighbors say to her, “all the great athletes have been killed from one of the hero’s blows – but you are able to survive more than one blow.” She answers them that “he hits them with all his might, out of anger, but to me, he gives what I am able to take” (presumably out of love). In a continuation of this same midrash, the rabbis ask why is it that the people of Israel can stand up to God’s anger? The answer is, because God hits us and then returns immediately and re-creates us. This is the comfort that Israel can take in their unique relationship to God (Bereshit [Buber Version], Chapter 8:3). [24]

The ancient rabbis also often try to depict an ideal world. In a midrash on Psalms 73 we find the following: R. Samuel b. Nahmani said, although in this world the man courts the woman, in the ideal or future world the woman will court the man, and he uses as his proof text, a verse from Jeremiah 31:21, “God has created something new on earth: A woman will court (tesovev – future tense) a man”. [25] Maiden Israel is expected to return, and show more faith in God, because now there will be a new order. Clearly the rabbis sensed some injustice in the world and used this passage to redress the iniquity.

But there are less promising midrashim, such as one which connects the passage “For the Lord your God is a consuming fire, an impassioned God ‘el qana'” from Deuteronomy 4:24 with the passage “I will espouse you with faithfulness” (Hosea 2:21). Here we have a different kind of relationship: God as a jealous husband. In contrast to those who merit ‘olam habba’ – the next world – are those who are consumed by a great fire. The rabbis ask: “How do we know that God is jealous?” And the rabbis have no qualms whatsoever in answering: “Just as a husband is jealous of his wife, so is the God of Israel.” [26]

Besides the passage in which Israel is referred to as one of God’s four possessions there is another long passage in a midrash on the Song of Songs which refers to the seventy names by which Israel, Jerusalem and God are known. For each attribute there is an explanation. Thus Jerusalem is known as Beulah (owned or taken by God), since there is no one to support her except God – or Hevtzibah (God’s desired), because God wants her from all the nations; or lo Azuvah not abandoned, because she will never be abandoned. Among God’s attributes is kana (jealous) for he is a jealous, vengeful and angry God (Nahum 1:2).

Linking the Midrashic texts to Legal Literature

There fore it should come as no surprise to us that biblical metaphors having to do with male control, sanctity of family, women having to “take it” for the future of the group, still find concrete expression in halakha [Jewish law]. For instance, the plight of “chained” wives (agunot) and women whose husbands refuse to divorce them (mesuravot get) can be blamed on the issue of kinyan (acquisition) in kiddushin.

We have seen differing views of those who believe that the act of acquisition is symbolic, and just a formality and those who view the wife as having been “acquired”, and “belonging” to her husband. The wording of the Mishnah supports those who argue that the wife is her husband’s property: “The woman is acquired in three ways …,” proves that the woman is perceived as an object. We have seen that the Hebrew language, which uses the term ba’al (master or owner), points to the husband’s ownership.

Possible Solutions

Liberal attempts to redress this inequality included the bride giving her husband a ring with verses such as: “My beloved is mine, and I am his” (Song of Songs 2:16), “Set me as a seal upon your heart” (Song of Songs 8:6), and “I shall call you ishi my husband, no longer ba’ali master”, which is adapted from Hosea 2:18. My problem with these three verses is that the first text from the Song equates love and marriage with possession; the second text also from the Song seals or locks the partners into a marriage; and the third text from Hosea by using Ishi (my man), instead of ba’ali, (my master) is also in the possessive. Thus, in light of what I have been talking about up to now, it means that using any text from the Song or Hosea 2 in a double ring ceremony is very problematic!

Mary Joan Winn Leith would probably disagree for she argues that “the rejected form of address, Ba’al, implies not only a different deity, but also a different, more dominating relationship ... God's new title, 'husband' [ishi], signals a new beginning, a new betrothal, and a (re)new(ed) covenant, whose inauguration sounds strikingly like a (re)creation of the world.” [27]

But there is a terrible assumption here in Leith’s argument. Israel [the woman] has to suffer in order to be entitled to this new betrothal. “She” has to be battered into submission in order to kiss and make up at the end. “She” has to agree to be on the receiving end of her husband's jealousy. The premise is that a woman has no other choice but to remain in such a marriage. True, God is very generous to Israel. He promises to espouse her forever with righteousness, justice, goodness, mercy and faithfulness. But despite the potential for a new model of a relationship between God and Israel, it is not a model of real reciprocity. It is based on suffering and the assumption that Israel will submit to God's will. [28]

Melanie Malka Landau points out that most thinkers do not “question the appropriateness of kiddushin as the model of marriage for contemporary Jews.” [29]. She points to “the non-reciprocal nature of kiddushin… [that has] prompted many thinkers to, Orthodox and not, to conceptualize alternative forms of sanctifying long-term commitments within heterosexual relationships”. [30] The practical reason for doing this, is to avoid the problematics of Jewish divorce. Therefore Eliezer Berkovits has suggested a conditional marriage, which maintains the idea of kinyan, but retroactively annuls a marriage if the husband refuses to give his wife a bill of divorce (a get). [31]

Another marriage alternative which has a Jewish wedding ceremony without any trace of kinyan is the Orthodox rabbi Meir Simhah Ha-Cohen Feldblum’s proposal that the groom uses the sentence “Harei at meyuhedet li” (Behold, you are unique to me), which is not “according to the law of Moses” but a “mode of marriage”, and is thus not kinyan, the purchase or acquisition of the woman. This is called derekh kiddushin and does not require divorce. [32]

Another suggestion is the one of Rachel Adler’s, who uses the model of a business partnership, based on the halakha in which each partner contributes according to his or her means and in which their assets are divided equally should the partnership be dissolved. [33] Instead of the man giving the woman a ring, which is a symbol of kinyan, both the man and the woman put a valuable object into a joint purse. She calls this new commitment b’rit ahuvim, or lover’s covenant. [34]

Ayelet S. Cohen, a rabbi, who is committed to inclusiveness, finds the idea of traditional Jewish weddings troubling, where “a man acquir[es] a silent woman whose price is based on her sexual history”. [35] She points out that “liberal Jews de-emphasize the halakhic ritual and use secular romantic images and translations that gloss over the literal meaning of the text”. She says these solutions may make us feel good, but they don’t address the problem. She would like to “transform the Jewish wedding so that it is not a celebration of male dominance and heterosexual triumphalism.”[36] She used a blessing for her own marriage which celebrates monogamy and healthy sexuality and emphasizes the virtues of righteousness, justice, loving-kindness and compassion. [37]

Jealousy and Possession

In English it is very easy to move from the idea of a possessive husband to a jealous husband. The very word “possessive” is defined as “jealous”. In Hebrew, one would think that it is even easier, since the words share a binary root of “K” “N”. Having an associative mind, I searched the Bar Ilan Data Base looking for several key words (נקמה,קנאה,קנה קנין) and created a chart.

This is not a scientific study – just free association, using biblical and midrashic type texts. The message that I would like to take from this is that kinyan is more than just a metaphor and we should be re-thinking its use in the ketuba. For example, the metaphor connected with kinyan, goes all the way back to Eve, who when she gave birth to Cain, said: “I created (made, gained) a man with the help of God,קָנִיתִי אִישׁ אֶת ה.” Before this, when Adam “gave birth” to Eve, it was said of her, from man, this thing was taken "כִּי מֵאִישׁ לֻקֳחָה זֹּאת. Clearly the playing ground has potential to change for Eve empowers herself by making herself a partner with God and not agreeing to be a “thing” which is “taken”. On the other hand, by naming the first son Cain, the root of which is the same as kinyan and jealousy, we gain insight into how the first murder came about.

I do not have solutions; only observations. I can only state that at this point in my life, I am not sure that that the traditional Jewish ceremony should be encouraged and I am not sure that using texts from the Song of Songs or Hosea as antidotes to the patriarchal texts solves anything.

In a paper given in Helsinki, a week after I gave mine in Tartu, James A. Diamond wrote in the abstract of the paper he presented: “The Song of Song’s concluding meditation on love, with its analogies of death, sheol, reshef fire and jealousy convey the danger posed by love so passionate as to surrender one’s individual personhood in uniting with the beloved.” [39] It would seem that I am not the only one to perceive the dangers of the Song of Songs.

I started this paper with a look at the ketuva, the marriage contract, which refers to the wife as a kinyan. I ended this paper by looking at the dangers of jealousy (kinah), which shares the same root. Although there are those who would guard a possession and treat it with care and love, there are those who would argue that it is “mine” to do with as I please. Allowing the word of kinyan to be in a marriage contract is a bad start to any relationship and has the potential for abuse. Melanie Landau argues in her forthcoming book that because marriage implies male rights to women’s sexuality it can also allow a man to force her to engage in intercourse with him, i.e. to rape his wife. Her argument is that because of the potential connection between kinyan and rape in marriage, kinyan is an inappropriate basis for marriage. She writes: “This inappropriateness is pronounced if marriage is to function as the foundation of the kind of mutual relationship that many heterosexual Jews may want to create in the twenty-first century and beyond.” [40] Following James Diamond, I too would argue that sometimes we have to be protected from the “dire consequences of love”. [41] We can learn from the seal on the lover's heart from the Song of Songs 8:6, which is a binding, form of authority, such as that of the marriage contract, that marriage should not be the obliteration of one's identity, a merger of two persons into one. I have argued that the only way to avoid this is to stop using the terminology of kinyan.

[1] http://www.modernketubah.com/ketubah_translation.php.

[2] All of the commentary in brackets and small print is from http://www.hasoferet.com/weddings/stamtext.shtml.

[3] Rosalind Gill, “Relativism, Reflexivity and Politics: Interrogating Discourse Analysis from a Feminist Perspective,” in Feminism and Discourse: Psychological Perspectives, edited by Sue Wilkinson and Celia Kitzinger (London, Thousand Oaks, New Delhi: SAGE Publications, 1995), p. 166.

[4] Mary Daly, Beyond God the Father (Boston: Beacon Press, 1973), p. 13, as quoted in Judith Plaskow in Standing Again at Sinai (San Francisco: Harper and Row, 1990), p. 126.

[5] Gail Labovitz, “Follow the Money: Bride Price, Dowry, and the Rabbinic Ketubbah,” talk given at AJS December 17th, 2006.

[6] Gail Labovitz, “A Woman is Acquired”: Slavery and Jewish Sexual Ethics,” Shma, October 2008.

[7] Leonard Gordon, “Marriage and Family,” review of Labovitz’s book, Marriage and Metaphor. S’hma (June 2010), p. 16.

[8] Gail Labovitz, Marriage and Metaphor: Constructions of Gender in Rabbinic Literature (Lanham, MD: Lexington Books, 2009).

[9]Tirzah Meacham (leBeit Yoreh) “Legal-Religious Status of the Married Woman,” http://jwa.org/encyclopedia/author/meacham-tirzah.

[10] Judith Hauptman, Rereading the Rabbis: A Woman’s Voice (Boulder, CL: Westview Press, 1998), p. 69.

[11] Hauptman, pp. 4-5.

[12] Judith Romney Wegner, Chattel or Person? The Status of Women in the Mishnah (New York: Oxford University Press, 1988), pp. 14-15.

[13] Wegner, p. 44.

[14] Ilana Pardes, Countertraditions in the Bible (Cambridge, MA: Harvard University Press, 1992), p. 127.

[14a] For further information on the subject of the imagery of marriage to describe the relationship between God and Israel see Gerlinde Baumann, Love and Violence. The Imagery of Marriage for YHWH and Israel in the Prophetic Books (Collegeville, MN: Liturgical Press, 2003).

[15] Rachel Adler, Engendering Judaism: An Inclusive Theology and Ethics (Philadelphia: Jewish Publication Society, 1998), p. 135.

[16] Naomi Graetz, Silence is Deadly: Judaism Confronts Wifebeating (Northvale, NJ: Jason Aronson, 1998), p. 42.

[17] Fokkelien Van Dijk‑Hemmes, “The Imagination of Power and the Power of Imagination: An Intertextual Analysis of Two Biblical Love Songs: The Song of Songs and Hosea 2,” Journal for the Study of the Old Testament 44 (1990), p. 86. See also Gerson Cohen, “The Song of Songs and the Jewish Religious Mentality,” Studies in the Variety of Rabbinic Cultures (Philadelphia: Jewish Publication Society, 1991), p. 6.

[18] Karen Miller Jackson, “Reshut Hakallah: The Symbolism of the Chuppah,” Sh’ma.com (June 2010), p. 4.

[19] Pesikta deRav Kahane, Chapter 1 as translated by Karen Miller Jackson.

[20] Op. cit., p. 5.

[21] See Naomi Graetz, “The Haftarah Tradition and the Metaphoric Battering of Hosea's Wife,” Conservative Judaism (Fall, 1992), p. 29-42; “God is to Israel as Husband is to Wife,” in Athalya Brenner (editor), A Feminist Companion to the Latter Prophets, (Sheffield: Sheffield Academic Press, 1995), p. 126-145; and revised for Naomi Graetz, Unlocking the Garden: A Feminist Jewish Look at the Bible, Midrash and God (Piscataway, NJ: Gorgias Press, 2004).

[22] There are many more texts that make the same point which emphasize the problematics of using the Song of Song as a solution for parity between the sexes. I have highlighted those texts which have negative metaphors.

[23] Benjamin Scolnic, “Bible Battering,” Conservative Judaism, XLV: 2 (1992), p. 48.

[24] My paraphrase of the legend on Bereshit (Buber Version), Chapter 8:3.

[25] מדרש תהלים (בובר) מזמור עג ד"ה [ד] שתו בשמים"

אמר ר' שמואל בר נחמני לפי שבעולם הזה הזכר מסבב את הנקבה, אבל לעתיד הנקבה תסבב את הזכר, שנאמר נקבה תסובב גבר”

[26] Midrash Tanhuma (Warsaw), Parashat saw 14.1 (Hebrew).

[27]Mary Joan Winn Leith, “Verse and Reverse: The Transformation of the Woman, Israel, in Hosea 1‑3,” in Peggy L. Day (ed.), Gender and Difference in Ancient Israel, (Minneapolis: Fortress Press, 1989), p. 101.

[28] Leith, “Verse and Reverse”, p. 103.

[29] Melanie Malka Landau, “Sanctifying Endings,” in S’hma (June 2010), pp. 11-12.

[30] Ibid. pp. 11-12.

[31] Eliezer Berkovits, Tenai be’Nissuin uve’Get (in Hebrew). Jerusalem: Mossad HaRav Kook, 1966.

[32] This is mentioned in Landau's article. For full text, see Meir S. Feldblum, “The problem of agunot and mamzerim — A suggested overall and general solution” (in Hebrew) Dinei Israel 19, pp. 203-216.

[33] BT Ketubbot 93a; Maimonides, Laws of Emissaries and Partnership 4:1–3, 10:5.

[34] Rachel Adler, p. 170 and continues in Chapter 5, “B’rit Ahuvim: A Marriage Between Subjects”.

[35] Ayelet S. Cohen, “Birkat Eirusin: A Blessing for Holy Sexuality,” S’hma (June 2010), p. 14.

[36] Ibid.

[37] Ibid: this is adapted from a blessing by Tamara Ruth Cohen (the author’s sister) and her partner Gwynn Kessler.

[38] The handout appears in “Is Kinyan Only a Metaphor? Metaphor and Halakha: The Metaphor of Kinyan,” in Brad Horowitz (ed.), Proceedings of the Rabbinical Assembly, 98h Annual Convention Volume LX (New York: Rabbinical Assembly, 2000), pp. 175-186.

[39] “Bliss of Biblical Love”, paper presented at the ISOT in Helsinki, August, 2010. This paper now appears as James A. Diamond, “Love’s Human Bondage: A Biblical Warning”, in Azure (Spring, 2011), pp. 41-60.

[40] Third chapter entitled “Rebellious Women and Husband Owned sexuality” of her forthcoming book.

[41] Diamond, p. 50.

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Naomi Graetz recently retired from thirty-five years of teaching at Ben Gurion University. She is the author of S/He Created Them: Feminist Retellings of Biblical Stories; Silence is Deadly: Judaism Confronts Wifebeating; and Unlocking the Garden: A Feminist Jewish Look at the Bible, Midrash and God.
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Naomi Graetz

Is Kinyan (Purchase) of Woman in the Marriage Document only a Metaphor?

Is Kinyan (Purchase) of Woman in the Marriage Document
only a Metaphor?