The field of Jewish philosophy may seem an unlikely place to look for matters related to marriage, its ideological and cultural formation, and its consequences. When one reads their texts closely and critically, however, one finds that not only do Jewish philosophers employ the trope of marriage but also sometimes directly engage questions of marriage law, Jewish and otherwise. Further, one finds in Jewish philosophical texts contemporary assumptions about marriage, gender, love, and sexuality registered in its very basic terms and philosophical imaginary.
The work of Moses Mendelssohn offers a view of marriage that is consistent over matters of philosophy and law in a manner that affirms respect for the importance of a woman’s consent and partnership in marriage. Mendelssohn treats marriage in his major work, Jerusalem, as a sort of social contract that is mutually binding and based on consent, not on the violation of the conscience of one or the other party. Mendelssohn understands conscience to be comprised of one’s basic principles or convictions, neither of which may ever be coerced by either religion or state. “Principles are free. Convictions, by their very nature, permit no coercion or bribery. They belong in the realm of man’s cognitive faculty and must be decided by the criterion of truth or untruth. . . . Only the judgment reached by his powers of intellect can be accepted as valid” (70). Marriage is his primary exemplar of the social contract, which (according to social contract theory) makes possible civil society. His work stands out among social contract theorists, with the exception, perhaps, of Thomas Hobbes, by including women and marriage in the social contract. Marriage, for Mendelssohn (following Christian Wolffe), is not defined in romantic terms but through the mutual responsibility of a child’s parents to raise him or her in an agreed upon way. “The parents, through the very act of cohabitation, have entered into a state of matrimony. They have made a tacit contract to render capable of felicity, that is, to educate, the being, destined for felicity, for whose coming into the world they are jointly responsible for” (50). The crucial point here is that this agreement is mutual and noncoercive of either party’s conscience and that no third party—including the state—can interfere.
In this section of Jerusalem we find a very long footnote about a particular divorce case then pending in Vienna. Mendelssohn argues against the position requiring the Jewish wife to remain married to her formerly Jewish, now Christian, husband. For Mendelssohn, this constitutes an instance of religious coercion and not toleration. He interprets Emperor Joseph II and his Edict of Toleration as protecting the interests of the Christian majority rather than preserving and “tolerating” Jewish difference. Mendelssohn’s plea that “An emperor as just and wise as Joseph will surely not permit such violent abuse of the power of the church in his states,” is actually an indictment of the emperor’s position in which the religion of the Christian husband would be determinative, regardless of the wife’s desires, conscience, or religion. In opposition to this coercion, Mendelssohn writes:
If marriage is merely a civil contract (and it cannot be anything else between a Jew and a Jewess, even according to Catholic principles), the wording and the conditions of the contract must be interpreted and explained in accordance with the intentions of the contracting parties, and not those of the legislator or judge. If, according to the principles of the contracting parties, it can be maintained with certainty that they must have understood certain words in this and no other way, and that, had they been asked, they would have explained them in this and in no other way, then this morally certain explanation, which is taken to be a tacit and implied condition of a contract, must be as valid in law as if it had been explicitly agreed upon. (51)
It is notable that Mendelssohn considers marriage between Jews to be “merely a civil contract” and that in this dispute he sides with the wife against both the husband and the state. Mendelssohn’s argument here is consistent with his earlier definitions of marriage and with his very understanding of the social contract. Further, this understanding underpins his overall argument in Jerusalem for the separation of religion and state. Religious conviction cannot be coerced by the state or by any religious authority. One can at most persuade, not coerce. The violation of the wife’s conscience, the original terms of the marriage contract, and her religious beliefs are all of a piece for Mendelssohn. Defending one entails defending the others.
The footnote continues:
Now, since both partners still professed the Jewish religion, at least outwardly, when they entered into the contract, it is obvious that they had no other intention but to conduct their household according to Jewish rules of life and to educate their children according to Jewish principles. It is at least certain that the partner who took her religion seriously could have assumed nothing else; and had she been, at that time, apprehensive of a change of this kind, and had such a condition come up for discussion, she certainly would not have expressed herself in any other way. She knew and expected nothing other than to take her place in a household governed by ancestral rules of life and to bear children whom she would be able to educate according to the principles of her fathers. If the difference is important to this person, if it is a matter of record that the difference of religion must have been important to her, at the time the contract was entered into, the contract must be interpreted according to her notions and convictions. Even if the entire state were to have different views on this matter, it would have no influence on the meaning of the contract. (51)
That Jewish marriage should be centered on the raising and educating of children, as well as what Mendelssohn terms, “Jewish rules of life,” is a familiar portrait of Jewish family life. More remarkable is Mendelssohn’s unequivocal defense of the Jewish woman. He even stands up to the “entire state” (and the Emperor) in interpreting the original marriage contract as an agreement with the claims of the woman in this case.
The husband has changed his principles and adopted another religion. If the wife is now forced to enter into a household which is contrary to her conscience and to educate her children according to principles which are not her own; in a word, if she is compelled to accept and have forced upon her conditions of a marriage contract to which she never agreed, she would obviously suffer an injustice and, by a pretense of liberty of conscience, one would obviously allow oneself to be misled into the most absurd coercion of conscience. The conditions of contract can now no longer be fulfilled. The husband, who has changed his principles is, if not in dolo, at least in culpa, [responsible for the fact] that this is the case. Must the wife submit to coercion of conscience because the husband wants to have liberty of conscience? When did she agree to that? Should not her conscience also be free, and should not the party that caused the change answer also for its consequences, indemnify the other party, and reinstate her, as far as possible, in her former status? Nothing, it seems to me, could be simpler, and the matter speaks for itself. No one ought to be compelled to accept conditions of a contract to which he could not have agreed without violating his own principles. (51–52)
While it might seem that in defending the wife, Mendelssohn merely defends Jews and Judaism, he does so in a way that is fully consistent with his overall argument in Jerusalem. His experience of being a Jew may have informed his argument, but only because he was able to understand the stakes for minorities and for others rendered vulnerable in the emerging nation states. Recognition of the stakes of consent in contract and noncoercion of conscience may well have shaped his views that a contract should be based on the consent and noncoercion of the historically weaker party. Mendelssohn’s position in this case is not an instance of special pleading, but rather exemplifies his overall philosophical position and argument. Stopping here might provide a happier ending to the genealogy of the Jewish philosophical imaginary as regards marriage. Mendelssohn’s writings, however, still hold a core understanding about the importance of marriage in stabilizing the sexual impulses, especially—although perhaps not only—of the male. Mendelssohn notes:
It is by agreements of this kind that man leaves the state of nature and enters into the state of social relations. His own nature impels him to enter into associations of various kinds in order to transform his fluctuating rights and duties into something definite. . . . Civilized man lives for the future as well, and wants to be able to count on something certain also in the next moment. Even the urge to procreate, if it is not to be merely a brute instinct, compels man, as we have seen above, to enter into a social contract, to which we find something analogous even among many animals. (57)
While Mendelssohn’s argument here may seem straightforward and innocuous, its significance shifts when considered within the context of the Jewish philosophical imaginary and its androcentric focus on the stabilizing function of marriage for male sexuality. There are serious gender problems introduced and sustained by the focus on male sexuality, some of which include the relegation of women to mere figures of the “feminine” and to other projections within philosophical discourse with real world legal, ethical, and other consequences. This “gender trouble” remains an unresolved challenge for the field of Jewish philosophy, one which must be addressed if we are not, however unwittingly, to reproduce its systemic faults but, instead, live up to the potential of its ethical claims and ideals.