Traditional Sources on Sex Outside Marriage
While the Torah does not forbid premarital sex, the rabbis of the talmudic era prohibited it--but one modern authority proposed a sanctioned form of exclusive sexual relationship outside of marriage.
At least one eighteenth‑century scholar, Rabbi Jacob Emden, sought to reintroduce the institution of the concubine into his community. In a long, technical responsum, Rabbi Emden writes that concubinage may be a solution to the sexual immorality of his own day:
“[Some say] the Ramban [Nachmanides], who permits a concubine, in our day when men are morally lax, sleeping with maid servants and forbidden sexual partners, would forbid it…It seems to me the opposite. For this reason the master [Ramban] would permit it, so that people would not commit greater offenses involving karet (excision) from the Torah. For a man with bread in his basket will not have the same burning desire to go after forbidden relations. There are similar rulings where the rabbis have permitted even something forbidden by rabbinic law to prevent a Torah transgression.”
Emden’s ruling was hardly liberal by modern standards of sexual practice. He insists that the couple observe the laws of family purity, remain absolutely faithful to one another, and enter such a relationship only in consultation with a rabbi. Even with these restrictions, Emden realized that he was proposing something radical. He ends his responsum with a referral to the rabbinic principle [based on a creative reading of a biblical verse] that “when it is time to work for the Lord, they may change Thy Torah,” which was sometimes used by the rabbis to overturn a law in the Torah.
Emden was deeply concerned about the sexual immorality in his day and was therefore willing to propose such a radical solution. He was acting upon the principle that it is better for people to engage in sexual activity that has some degree of religious sanction than in totally forbidden activity. Emden’s proposal is analogous to the ladder of holiness concept proposed by some contemporary authorities. Although living together outside marriage does not possess the same level of legitimacy as marriage, it is far better than the promiscuity prevalent in Emden’s day.
Still, most rabbis and the Jewish community as a whole rejected Emden’s proposal. The day of the concubine had passed from Jewish life. From then on sex would be permissible only within the context of marriage. Any other form of sexual activity fell short of the rabbinic vision of holiness.
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