Recommendation...

[Paul Finkelman]

Mr. Prescott clearly does not understand what polygamy is. It is not
about "she turns 40 trade her in..."  That is in fact the modern
American world of what we might call "serial polygamy" (and "serial
polyandry") where people marry, divorce, remarry, divorce, etc.  There
was an article some years ago about the cycles of marriage -- Starter
marriage where you get lots of household goods, discover how to live
with someone and divorce 4 or 5 years later; the "real" marriage where
you have kids, and then the "trophy" marriage for men (at that time
there was no equivalent for women).  This is what Mr. Prescott is
talking about.  Biblical polygamy (as well as the American version of
19th century Mormon polygamy) and polygamy in non-western cultures
was/is not about dumping an older wife but rather men with the means to
do so marrying women who might or might not be marriageable.  It is
often a result of a shortage of men in a society due to war, migration
patterns (in the case of 19th century Mormons, higher conversion rates
among women), as well as high longevity of women who survive
childbearning years.  Biblical Polygamy, which was common especially
among the patriarchs involved compex families with wive, concubines,
multiple children and a patriarch head of the household.  

Again, the answer to where is the Biblical law there are multiple
answers.  First, is the maxim that what is not prohibited is allowed or
approved.  Thus, since polygamy is not prohibited it is approved. 
Second there are many examples of polygamy by important Biblican figures
(Jacob, Solomon) as well as of compex families with concubines and wives
(Abraham, Jacob).  Surely if these leaders of the community and founders
of the faith could do this, it was allowed by Biblical law.  Finally,
for those who are searching for what G-d allowed (as opposed to Biblical
law), there is the argument that if you believe the Bible is G-d's law
dictated to Moses then Biblical Law is G-d's law.

I am amused at the notion that this analysis makes me a "Bible thumper,"
but I have been called worse.

Paul Finkelman
Albany Law School

On Sep 1, 2006, at 8:47 PM, Stephen R. Prescott, Esq. wrote:
> Biblical law of course allows polygamy.
>
> I have two objections. Professor Finkleman's statement quoted (cut  
> and pasted, my typing is not good enough for me to type quotes) is  
> at best, an overstatement. There simply is no Biblical law that  
> says polygamy is fine, go for it guys, when she turns 40 trade her  
> in for two 20-year olds.  A really bad joke a now deceased uncle of  
> mine liked to tell.  Again, at most one might infer from the Bible  
> that God or some of the diverse Biblical authors with contradictory  
> views seemed to have no objection.
>
> My second object is that when Mr. Lofton asked where this Biblical  
> law was, or in his words where in the Bible God approved of  
> polygamy, he was hit with a barrage of "proof texting" that would  
> embarrass the most shallow Bible thumper.  So and so did it, that  
> proves there is a Biblical law endorsing polygamy. Further  
> objections were met with disparaging comments.
>
> I am sure that it was an off-hand statement of something that was  
> believed to be true.  When one has graded as many essay exams as I,  
> and doubtless many others on this forum, have, you realize that  
> people know many things that are not true.  It seems to be that Mr.  
> Lofton made a valid point, even if not phrased in the most gracious  
> wording possible.  The statement that "Biblical law of course  
> allows polygamy" is at most an inference.  Again, I may just not  
> get it, but that seems indisputable to me.
>
> Further pursuing this line of interaction is probably fruitless and  
> it is getting pretty far from Religion and Law and closer to  
> Biblical Interpretation.  I think we will have to just agree to  
> disagree.  However, I do appreciate you engaging my views and thank  
> you for your critique Mr. Brayton.
>
> Steve Prescott

At the risk of stretching an old, old memory to the breaking point, I  
do remember reading in the "Old Testement" (sic) certain laws  
regarding the legality of taking second or third wives from among the  
surviving women of your enemies, and how they must be allowed a  
certain amount of time to grieve for their dead before (apparently  
forcably) consummating the "marriage".  Compare it to our own  
Constitution which "legalized" slavery by including slaves in the  
count for representation in Congress, a point Prof. Finkleman makes  
very clear in his book on the subject.

I won't go into arguing whether or not G*d approves of polygamy.  My  
own personal opinion is that what laws there are in the Torah are  
there to deal with a culture already in existance, and to minimize  
what "sin" was there.  Most of the laws (as I remember reading them)  
seem to be about protecting the rights of the female(s).  It was  
something so ingrained in the culture that it wasn't going to go away  
with a few laws.  Much like abortion laws, which were put in place to  
protect women from back-ally butchers, more than about giving a moral  
blessing to what some consider "murder".  It was about minimizing  
damage, not giving blessing or approval.

Today, polygamy is viewed in our culture as something so inherently  
wrong that we don't question *why* it is wrong.  Some spout abuse as  
a reason.  Some say it is morally wrong because G*d said it was wrong.

Me, I'm not sure those are valid arguments.  I'd say any consenting  
adult can enter into a relationship of their choosing, regardless of  
number or gender.  But then, I'm a bleeding-heart hippie liberal Pagan.

Jean

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu