A Critical Review of David Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary Context (2002)

By James M. Rochford

Dr. David Instone-Brewer received his PhD from the University of Cambridge, where he specialized in early rabbinic literature. He is a research fellow at Tyndale House in Cambridge, as well as a Baptist minister. His academic book Divorce and Remarriage in the Bible: The Social and Literary Context (2002) will be the subject of this review.[1]

Positive contributions of the book

First, the book contains first-rate historical research. Instone-Brewer’s study of early rabbinic teaching and practice about marriage and divorce is not only impressive, but a major contribution to the subject of divorce and remarriage.

Second, divorce is undesirable and a last case scenario. Instone-Brewer writes,

“Believers should hold marriages together, even at great cost to themselves. Even if there is unfaithfulness, the Christian should attempt to forgive” (p.297).

“The believer is called to commit himself or herself totally to marriage, even to the point of putting up with repeated breaking of marriage vows by a weak partner” (p.298).

“The message of the NT is that divorce is allowed but should be avoided whenever possible” (p.314).

Third, pastors should not advise couples to divorce. Instone-Brewer writes, “In my opinion, a minister should rarely, if ever, advise a divorce, even if there are clear grounds for it. The only exception would be when one of the couple is in danger, but even in that situation the minister should suggest separation and counseling, not divorce” (p.311). We agree with this pastoral advice in principle. An individual needs to live with the costly decision of divorce for the rest of their lives. While pastoral staff can offer counsel and biblical insight, we would be greatly hesitant to state strong opinions in this area.

Fourth, the Bible allows more grounds for divorce than the traditional “adultery and desertion” view. He writes, “There is a wide consensus that some marriages should end in divorce even when adultery or desertion has not occurred” (p.268). This might confuse readers, but we agree there are more circumstances than “adultery and desertion” that could lead to permissible divorce. Our disagreement is with Instone-Brewer’s hermeneutical methodology, as well as his pastoral conclusions.

Fifth, believers should be cautious to divorce on loose biblical grounds. Instone-Brewer warns that this “can result in a free-for-all, in which almost any ground [for divorce] can be justified” (p.268). We agree that believers should be incredibly cautious at taking a libertine view of divorce and remarriage.

The central thesis: Are emotional and material neglect permissible grounds for divorce?

Instone-Brewer believes that the Bible gives at least four concrete grounds for the permissibility of divorce. These not only include the traditional exceptions of adultery and abandonment, but also (1) emotional neglect and (2) material neglect (p.275). In our estimation, this is the most controversial aspect of Instone-Brewer’s work, and it will be the focus of this review. We will do our best to faithfully represent Instone-Brewer’s three central arguments that support his thesis before offering a critical evaluation.

ARGUMENT #1. Exodus 21:10-11 allows for divorce on the basis of emotional or material neglect.

According to Exodus 21:10-11, if a husband married one of his servants, he legally needed to provide for her in three areas: (1) food, (2) clothing, and (3) sex. Exodus states, “If a husband takes to himself another woman, he may not reduce her food, her clothing, or her conjugal rights. 11 If he will not do these three things for her, then she shall go out for nothing, without payment of money” (Ex. 21:10-11).

According to Instone-Brewer, rabbis universally accepted these as permissible grounds for divorce. After all, if a servant-wife had these rights, then how much more did regular wives? For simplicity, Instone-Brewer summarizes these permissive grounds for divorce into two categories: (1) emotional neglect and (2) material neglect (pp.99-110).

Response to Argument #1

We simply do not agree with the rabbinic interpretation of Exodus 21. This passage should not affect our ethic of divorce and remarriage for at least three reasons:

First, Exodus 21 is an example of an OT case law. God gave OT case laws as legislation for the nation of Israel—not all nations everywhere. After the birth of the Church, these laws were abrogated by the new covenant. Moreover, because they were given to fallen people in a fallen world, case laws were not God’s ethical ideal (see “Tips for Interpreting OT Law” for a further explanation). Put simply, God addressed Exodus 21 to a different audience, living under a different covenant, and existing in a different time period. This is why Jesus and Paul cited God’s original design for marriage (which applies to all people), rather than appealing to OT case law (which applied only to OT Israelites).[2]

Second, Exodus 21 was given in the context of polygamy—not monogamy. Are we honestly saying that we should derive our ethics of divorce and remarriage from a law dealing with polygamy? Clearly, this fallen situation does not translate into Christian ethics regarding marriage.

Third, Exodus 21 was written to protect female servants—not both spouses. Again, we must ask, do we really want to draw ethical principles from a law that refers to marrying your household servant? Using Exodus 21 as an ethical proof text is out of bounds on various levels.

ARGUMENT #2. Virtually all sects of Judaism universally affirmed that Exodus 21 gave ground for divorce. Since Jesus and Paul do not disagree with this universally held interpretation, they likely affirmed this widely held view.

Instone-Brewer argues that virtually all rabbis (both Hillelites and Shammaites) affirmed that divorce and remarriage were permitted based on (1) emotional neglect and (2) material neglect. Because this was such a universal interpretation of Exodus 21, he asserts that Jesus and Paul must have also affirmed this teaching. Instone-Brewer writes,

“The most natural conclusion is that [Jesus] agreed with the unanimous opinion of the rest of Judaism on these points [regarding Exodus 21:10-11]” (p.166).

“If Jesus said nothing about a universally accepted belief, then it is assumed by most scholars that this indicated his agreement with it” (p.185).

“We cannot be certain from this debate whether Jesus did or did not approve of the other Old Testament grounds for divorce… However, his silence about them is more likely to indicate that he agreed with the rest of Judaism that these grounds were acceptable” (p.184).

Instone-Brewer argues that Jesus’s silence is a conspicuous silence. This occurs when we would expect to hear something, but we do not. This is sometimes called a “deafening silence” or a “loud silence.” Because rabbis universally held Exodus 21 to apply to divorce, Instone-Brewer argues that we would expect Jesus to speak against it if he disagreed with it.

Response to Argument #2

Instone-Brewer admits that his argument from silence should be taken with “very great caution” (p.184, 187). We couldn’t agree more!—especially when this is his central argument for expanding the permissibility of divorce. We should not only take his argument with “great caution,” but we should consider it logically unsound for several reasons:

First, rabbinic teaching contained innumerable loopholes for divorce, and we cannot expect Jesus to have addressed them all. Rabbinic literature contains volumes and volumes of legalistic loopholes. Can we honestly expect Jesus to refute every single one? After all, Jesus only spoke about divorce in a grand total of 23 verses (Mt. 5:32; 19:3-12; Mk. 10:2-12; Lk. 16:18).

Instead of addressing every distorted view, Jesus brought the discussion back to God’s original design for marriage: a lifelong union between a man and a woman that God himself had created (Mt. 19:4-6). With this theological foundation, countless deviant views would be ruled out.

Second, Jesus denied the Pharisees’ appeal to case law. The Pharisees asked Jesus, “Why then did Moses command to give her a certificate of divorce and send her away?” (Mt. 19:7; cf. Deut. 24:1-4). Note that the Pharisees viewed Deuteronomy 24 as a “command” to divorce. Jesus, however, responded that God did not “command” this civil law, but only “permitted” it (Mt. 19:8). After all, why would God “command” divorce if he “hates” divorce (Mal. 2:16)? Jesus tells us: God “permitted” this because of their “hardness of heart” (Mt. 19:8). This demonstrates that Jesus did not view OT civil law as God’s ideal—at the very least in this specific case and perhaps in many others.[3]

Based on this, take careful note of Jesus’ hermeneutical approach: Jesus superseded their appeal to case law by citing God’s original design. And yet, in a great act of irony, Instone-Brewer takes the exact opposite approach: he supersedes God’s original design by appealing to case law! (Ex. 21:10-11)

Third, we shouldn’t assume that a silence implies agreement, because Jesus so often disagreed with rabbinic teaching on divorce. The fact that Jesus radically disagreed on divorce laws is not debated:

(1) Jesus denied “any matter” divorce. Instone-Brewer states, “[Jesus] was not willing to accept the validity of an ‘any matter’ divorce… There was a huge gulf between the teaching of Jesus and the rest of Jewish society” (p.183).

(2) Jesus denied that marriage existed for the purpose of procreation. Both the Hillelites and Shammaites believed that marriage existed for the purpose of procreation (p.91), as did Josephus (Against Apion, 2.199). Married couples who did not produce children after ten years were “expected to divorce” (p.92).[4]

(3) Jesus denied that rabbinic divorce courts were ethically binding. As much as the Hillelites and Shammaites disagreed with one another, they both agreed with each other’s legal rulings in court. Yet, Instone-Brewer writes, “[Jesus] not only refused to allow ‘any matter’ divorces but declared that they were invalid, so that anyone remarrying after an ‘any matter’ divorce was committing adultery. In this opinion Jesus stood out from all other groups within Judaism. He sided with the Shammaites in their interpretation of ‘matter of indecency,’ and he sided with Qumran in their teaching on monogamy, but only Jesus declared that ‘any matter’ divorces were invalid” (p.167).

Instone-Brewer agrees that Jesus disagreed with his contemporaries about divorce and remarriage across the board. Yet, because Jesus never mentioned anything about Exodus 21, Instone-Brewer understands this silence to be an affirmation from Jesus. Can we honestly believe that we should take Jesus’ silence as affirmation that he agreed with his contemporaries?

Imagine a Presidential candidate who is running as an independent. In a national debate, the candidate repeatedly disagrees with both Democratic and Republican candidates on various issues. However, when it comes to the subject of declaring war in the imminent future, this politician really disagrees, holding a stricter anti-war view than any of the other candidates. The independent candidate is only given a couple of minutes to argue his case, but it’s clear that he disagrees with both Democrats and Republicans on the issue of going to war.

After the debate, a friend points out that the independent candidate didn’t mention anything about nuclear warfare. “He was definitely anti-war,” your friend admits. “But he never mentioned nuclear war, while every other candidate supported using nukes.”

“What’s your point?” you ask candidly.

“Well,” your friend responds, “the independent candidate didn’t accept traditional warfare, but I wonder where he stood on nuclear warfare. Since the other candidates all approved of nuclear warfare, I assume he also held the same perspective.”

Would you agree with your friend? Knowing the candidate’s anti-war position and fundamental disagreement with the other politicians, would his silence make you more or less likely to think he supported nuclear war?

Instone-Brewer’s reasoning is strikingly similar to your friend in the illustration. Even though there was a “huge gulf” between Jesus and the rest of rabbinic Judaism on the subject of divorce and remarriage (p.183), he expects us to believe that Jesus’ silence on Exodus 21 is evidence of Jesus’ agreement. We simply find his view too difficult to believe.

ARGUMENT #3. Paul alludes to emotional neglect and material neglect as permissible grounds for divorce in 1 Corinthians 7.

Instone-Brewer argues that Paul included emotional neglect (1 Cor. 7:4-5) and material neglect (1 Cor. 7:32-35) in his writing on divorce.

EMOTIONAL NEGLECT: “The wife does not have authority over her own body, but the husband does; and likewise also the husband does not have authority over his own body, but the wife does. 5 Stop depriving one another, except by agreement for a time, so that you may devote yourselves to prayer, and come together again so that Satan will not tempt you because of your lack of self-control” (1 Cor. 7:4-5).

Instone-Brewer maintains that Paul was alluding to the emotional/sexual neglect of Exodus 21 in this passage. After all, Paul speaks of “having authority” (exousiazō) and “depriving” (apostereō) each other, which he argues is the language of a “master” and a “slave” (p.193). This fits the theme of having a servant-wife in Exodus 21. Of course, he rightly notes that Paul expressed “this as an obligation to give love, not as an obligation to demand love” (p.193). Nevertheless, he sees a connection with the language.

MATERIAL NEGLECT: “I want you to be free from concern. One who is unmarried is concerned about the things of the Lord, how he may please the Lord; 33 but one who is married is concerned about the things of the world, how he may please his wife, 34 and his interests are divided. The woman who is unmarried, and the virgin, is concerned about the things of the Lord, that she may be holy both in body and spirit; but one who is married is concerned about the things of the world, how she may please her husband. 35 This I say for your own benefit; not to put a restraint upon you, but to promote what is appropriate and to secure undistracted devotion to the Lord” (1 Cor. 7:32-35).

According to Instone-Brewer, Paul knew that these statements above “could give grounds for divorce” (p.196), and Paul “assumed that his readers would know about the normal Jewish application of these obligations” (p.196). He concludes, “By reminding believers about their obligations of material and emotional support, it is clear that Paul regarded these obligations as part of their marriage vows, in the way that all other Jews also did, and therefore he regarded their neglect as grounds for divorce” (p.212).

Response to Argument #3

In our estimation, this is the weakest of Instone-Brewer’s arguments:

First, this is (another) argument from silence. In 1 Corinthians 7, Paul never states that emotional or material neglect are grounds for divorce. The interpreter needs to add “divorce” to the text to make this connection. One might infer that material neglect is a permissible ground for divorce based on 1 Timothy 5:8—yet Instone-Brewer oddly never cites this passage to support his case.

Second, Paul was writing to the Corinthians: Greek, pagan converts who didn’t have a Jewish background. We find it incredible to believe that the Corinthians would pick up on such a subtle, nuanced reference to Exodus 21.

Third, breaking “marriage vows” is an incredibly flexible concept, which we do not find in the Bible. We have no biblical description of marriage vows or even how to run a marriage ceremony. This is why Instone-Brewer devotes chapter 8 to the history of marriage vows to make his case. However, he is using later church tradition retrospectively onto the first-century texts, which is anachronistic.

Conclusion: Why is this important?

Instone-Brewer worries about a “free-for-all, in which almost any ground [for divorce] can be justified” (p.268). This is a final irony of Instone-Brewer’s thesis: He agrees that Jesus spoke vehemently against “any matter” divorce, but his own view doesn’t curtail “any matter” divorce whatsoever. Honestly, we would be naïve to think otherwise. After all, wouldn’t every married person state that they have been emotionally or materially neglected? Would this imply that every married person has biblical ground for divorce? Our problem isn’t with Instone-Brewer’s definition of emotional or material neglect, but with his complete lack of a definition! This should cause the follower of Jesus to pause: How can we harmonize Instone-Brewer’s thesis with the fact that (in practice) it will lead to “any matter” divorce? If you find Instone-Brewer’s thesis persuasive, realize that you are adopting a view that will (in practice) lead to the very thing Jesus spoke so strongly against—namely, “any matter” divorce.

It shouldn’t surprise us that Instone-Brewer’s pastoral advice fits logically and consistently with his ethical view. He writes, “If the couple finally decide to get divorced, the minister has to support them. This is difficult when there are no clear biblical grounds for the divorce, and this should be pointed out” (pp.311-312, emphasis mine). Sadly, we find this to be consistent pastoral advice on Instone-Brewer’s behalf. After all, if our grounds for divorce are altogether unclear, then how could we take any sort of moral or spiritual stance when counseling an alienated or hurting couple? Divorce is not only damaging, but devastating. It’s no wonder why God said, “I hate divorce” (Mal. 2:17). Most people who have been through a divorce or who grew up in a divorced home would agree. For this reason, we not only find Instone-Brewer’s thesis to be unbiblical, but also unloving. One of the best ways to support a couple is by helping them to save their marriage by speaking the truth in the context of a loving relationship (Eph. 4:15), rather than passively watching them ruin their lives. While we agree that there are biblical grounds for divorce, we deeply disagree that emotional or material neglect are among them.

[1] David Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2002)

[2] Jesus (Mt. 19:4-5) and Paul (1 Cor. 6:16) cite Genesis 1:27; 2:24. When the Pharisees tried to appeal to OT case law (Mt. 19:7; Deut. 24:1-4), Jesus stated that this was an example of their “hardness of heart.”

[3] This view gives great apologetic value for explaining ethically difficult civil laws in the OT such as polygamy (Deut. 21:15), selling our daughter as female slaves (Ex. 21:7), capital punishment for adultery (Lev. 20:10), capital punishment for disobedient kids (Deut. 21:18-21; Lev. 20:9), capital punishment for working on the Sabbath (Num. 15:32-36; Ex. 31:14-15), or rape (Deut. 20:13-14). See this view in Paul Copan, Is God a Moral Monster?: Making Sense of the Old Testament God (Grand Rapids, MI: Baker, 2011), p.60.

[4] Instone-Brewer claims that Jesus rebutted this view in his statements about being a “eunuch” for the sake of the kingdom (p.184). Jesus’ statement, however, addresses the deliberate choice to remain unmarried. It says nothing about procreation inside a marriage (Mt. 19:11-12). Therefore, this would be another case where Jesus didn’t speak to a universally held view which is surely unbiblical.