Dear Jew in the City,
What is the difference between a pilegesh (concubine) and a wife in the Torah?
For the answer to this, let us turn to tractate Kesubos in the Talmud Yerushalmi (5:2). There, the gemara asks your exact question. Rabbi Meir explains that a wife has a kesubah (marriage contract), while a pilegesh doesn’t. Rabbi Yuda says that even a pilegesh has a kesubah but a wife enjoys additional protections that a pilegesh does not enjoy. According to either opinion, it’s clear that concubinage is a form of marriage, it’s just that a pilegesh doesn’t enjoy as much legal protection as a full wife. (The fact that a pilegesh is a kind of wife is underscored elsewhere in the Yerushalmi, where it says that a man may not marry the close relatives of his pilegesh, the same as with a regular wife – see Yevamos 2:4.)
The Talmud Bavli – our “default” Talmud – also discusses this matter and its position is similar to that of the Yerushalmi but the details are a little more difficult to pinpoint. In the text as we have it, Rav Yehuda cites an opinion that a wife has a kesubah and kiddushin (referring to a part of the marriage ceremony) while a concubine does not have a kesubah and kiddushin (Sanhedrin 21a). The difficulty is that it is apparent that many prominent Rishonim had a version of the text saying that a pilegesh does have kiddushin, just no kesubah, the same as Rabbi Meir says in the Yerushalmi. (This variant reading can most easily be seen in Rashi’s commentary on Genesis 25:6 but it is also cited by the Ran, Raavad, Rivash, et al.)
No matter how you slice it, a pilegesh is a kind of quasi-wife. Some say that the word “pilegesh” is from the Aramaic “palgah isha,” meaning “half-wife.” (Others feel that it comes from the Greek pallakis – παλλακίς – which was a status in between “harlot” and wife.) In modern Hebrew, the word is used to refer to one’s mistress but like many other Biblical terms adapted into the vernacular (mamzer, zonah), the colloquial use does not reflect the word’s actual halachic meaning. A pilegesh is a kind of wife, not a mistress.
The Rambam briefly discusses the pilegesh in Hilchos Melachim 4:4. “Hilchos Melachim” means “laws of kings,” so why does the Rambam discuss the case of pilegesh there? Because he is of the opinion that only kings were allowed to have concubines. As the Rambam bluntly puts it, “a commoner is not permitted to have a concubine,” period. The Rambam may represent a minority opinion in this matter but there are other authorities who concur with his approach, including the Rashba, the Meiri and Rabbeinu Yonah (see Shaarei Teshuvah 3:94). The Shulchan Aruch rules that a couple is not permitted to live together without proper kiddushin and the courts can compel them to separate (Even Ha’ezer 26:1); the Rema there suggests that such a relationship might be a violation of the Biblical prohibition against harlotry (Deuteronomy 23:18).
Were concubines limited to kings? Let’s examine. There are only a handful of concubines in Tanach. Avraham and Yaakov both lived before the Torah was given so the prohibition wouldn’t apply to them. (If you want to assume that they voluntarily kept the Torah before it was given, as progenitors of the nation they were arguably the functional equivalent of kings anyway.) Gideon had a pilegesh in Judges chapter 8 and there’s the famous case of the “pilegesh b’Givah” in Judges 19; it could be that the limitation to kings didn’t kick in until there were kings. Otherwise, it could be that it was permitted to Gideon as Judge (the Judges were rulers of the nation before there were kings) and that the man in the story of the “pilegesh b’Givah” was acting outside the law. (The inappropriate behavior of people before there were kings is the entire point of those last few chapters of Judges.) Then there’s Saul and David, who were clearly both actual kings. And that’s it. Not a lot of concubinage going on. And in the Mishna and Gemara? Nothing. If this was ever really a thing, where are all the concubines?
The idea that a pilegesh is, or could be, a mistress or “side piece” represents wishful thinking on some people’s part. According to almost all authorities, a pilegesh would require kiddushin to initiate the relationship and a get (divorce) to end it. According to most authorities – who may or may not be the same as the latter authorities – concubinage is prohibited, either Biblically or rabbinically. There’s very little to justify trying to revive the practice. The only authority of any real standing to even suggest the possibility was Rav Yaakov Emden in the 18th century, and that never got any farther than a theoretical discussion. He wrote explicitly, “I do not want people to rely just on my opinion in this matter without the approval of the great scholars of the generation… One who wants to rely on my opinion in this matter must first consult with a Torah authority.”
So don’t mistake concubinage for a halachically-permitted means to have extramarital relationships without commitment. While authorities differ on the details, the bottom line is that it’s not permitted and there are strings attached. The only real difference between concubinage and marriage is the level of protection afforded the woman in the relationship. In our day and age, there ‘s a lot of discussion of “the agunah crisis,” get refusal and “the halachic pre-nup.” We’re looking for ways to strengthen the woman’s legal position. For a woman to enter into a marital relationship in which she waives even her baseline rights? That’s just a bad idea.
Rabbi Jack Abramowitz
JITC Educational Correspondent