To begin with, the proposal, which is hardly novel, is absolutely a non-starter for a number of reasons.
- I’m not convinced that the status of concubine is a legal option. While it is pretty clear that we accept the opinion of Rabad that concubinage is not restricted to kings, it is not totally clear that it does not involve Qiddushin, and the attendant status of eshet ish. True, many Posqim do (apparently) rule that way. However, the severity of the issue (humra de-eshet ish) militates in the opposite direction.
- On the other hand, if there is no Qiddushin involved, the creation of pilagshut involves a Biblical prohibition of illicit sexual relations, according to the Rambam. Even the argument that one may allow a less severe prohibition in order to avoid a more serious one (להציל מידי חמורות) is less than convincing.Creating the pilegesh as an alternative, if it does not allow for Qiddushin, would constitute the wholesale allowance of a Biblical prohibition. That is not a legitimate halakhic option.
- This raises a broader issue of religious policy, which is also an halakhicconsideration. With all due dismay at the proliferation of humrot, the last two centuries have taught that legitimizing highly problematic (not to mention, illegitimate) behavior through some sort of halakhic contortionism (even if legally plausible) will not increase overall observance. On the contrary, it will (as the Rav זצ"ל pointed out) lead to a lessening of respect for Torah and its representatives. [The sad story of Conservative Judaism and its ‘loyalty’ to Jewish Law is proof of this.]
- Who says that our job is to ease the guilty consciences of those who fail to abide by the Torah’s dictates. Human freedom, according to Judaism, does not include total human autonomy (though in some circles, this appears to be the aim). One pays one’s money and takes one’s chances. ( This last point is confirmed by an unexpected party.) The celebratory headlines with which the proposal was greeted (see above), further underline this and the previous point. To invert an image created by Tchernihovsky, at least when it comes to sexual ethics, Judaism is absolutely not interested in placing phylacteries on the statue of Apollo. (Cf. לנוכח פסל אפולו: ויאסרוהו ברצועות של תפילין".). [See the comments by Rav Soloveitchik here and the discussion here and here.]
- From any way you look at it, while concubinage was plausible in pre-industrial society (when slavery and indentured servitude also existed), it is no longer. In a feminist (or even post-feminist) age, can anyone imagine that putting a woman in a relationship in which she has no legal protection might be seen as a positive good? (Remember, a pilegesh has no ketubah.)
- Finally, given the undetermined nature of the status of the pilegesh, I don’t think it can serve as the basis for civil marriage in Israel. The solution there would need to be based, it seems to me, an a priori commitment to not creating a relationship that is halakhically viable.
That's it for now....