THE LEVIRATE AND GOEL
INSTITUTIONS IN THE
OLD TESTAMENT
With Special Attention
to
the Book of
Ruth
DONALD
A. LEGGETT
1974
MACK
PUBLISHING COMPANY
Digitized with permission by Ted
Hildebrandt,
TO LINDA
hvhy
rxry twx
Proverbs
31:30b
Acknowledgments
IT
is with deep gratitude that I take this opportunity to
publicly
acknowledge many who have played a key role
in
the completion of my work.
It was through training received at
Reformed Episcopal
Seminary,
delphia,
that I was first introduced to the Free University. A
scholarship
received from the University was an impetus to-
ward
taking the step of coming to
unfamiliar
language. I am grateful for the happy years which
I
was able to spend in
1960-1964,
while pursuing my studies. I would like to single
out
Rev. and Mrs. Jacob Vos, fellow-students at the Free
University
in those early years, who were tremendously help-
ful
to my wife and me and who remain to this day our closest
friends.
In
Leng
family who extended many kindnesses to us. Drs. Van-
noy
and his family graciously allowed me to share their home
in
the closing phases of my work.
Research for my thesis was carried
on in numerous librar-
ies.
Special mention should be made of the libraries of the
Free
University and
Theological
Seminary, and
and
I am grateful to Queen's University,
erous
use of their facilities. It was my pleasure to make two
extended
visits to the Tyndale House,
and
to be able to take advantage of their research facilities.
Lastly,
I would not wish to omit mention of the extensive
help
which I have received from the library personnel at the
v
vi Acknowledgments
This thesis would never have been
completed without the
generous
grant of a sabbatical year by
I
am also grateful for the stimulation received in my part-
time
involvement at the
year.
How can I ever thank those students of mine and their
wives
who gave me substantial support during that year and
who
have been a constant encouragement to me! To the
Postma,
Males, Pointner, Barber, Smith, Stoute, McPhee,
Henkelman,
and
larly,
to Dr. and Mrs. C. Wellum and Dr. and Mrs. E. Higbee,
and
the congregation of
To Professor Dr. N. H. Ridderbos, I
wish to express my
thanks
for his wise counsel and competent criticism of my
work.
For the considerable time which he has given in its
supervision
and for the high standard of biblical scholarship
which
he has exemplified, I remain in his debt.
Finally, I wish to thank my wife and
children for their
part
in my thesis. Through the loving encouragement of my
wife,
I was enabled to persevere in my work. She willingly
assumed
the added responsibilities of typing and proofread-
ing
to her already busy life. The children too have known
what
it is to sacrifice vacation time and other things in the
interest
of "the thesis." As a family we are thankful to God,
who
has enabled us to finish this work. To Him be glory
forever.
TABLE OF
CONTENTS
ACKNOWLEDGMENTS v
INTRODUCTION 1
Part One
THE
LEVIRATE AND GOEL INSTITUTIONS IN THE OLD
TESTAMENT (EXCLUSIVE OF THE BOOK OF
RUTH)
1.
THE LEVIRATE IN THE ANCIENT NEAR EAST 9
Hittites 21
Nuzi 24
2.
THE LEVIRATE IN
The Levirate Incident, Gen. 38 29
The Levirate Law, Deut. 25:5-10 49
The Persons Involved, Deut. 25:5 42
The Purpose of the Levirate, Deut.
25:6 48
The Ceremony of Refusal, Deut.
25:7-10 55
3.
THE GOEL IN THE ANCIENT NEAR EAST 63
Parallels to the Goel-Redemption of
Property 63
Parallels to the Goel-Redemption of
Person 68
Parallels to the God-Redemption of
Blood 71
4.
THE GOEL IN
Goel-Redemption of Property, Lev.
25:23-28 83
Goel-Redemption of Person, Lev.
25:47-55 98
God-Redemption of Blood, Num. 35;
Deut. 19:
1-13; Josh. 20:1-9 107
Restitution to the Goel, Num. 5:8 138
vii
viii Contents
Part
Two
THE LEVIRATE AND GOEL INSTITUTIONS
IN
THE BOOK OF RUTH
5.
THE DATE AND PURPOSE OF THE BOOK OF
RUTH 143
The Date of the Book of Ruth 143
Arguments for a Pre-Exilic Date 143
Arguments for a Post-Exilic Date 146
Argument from Purpose 147
Argument from the Place of the Book
in
the Canon 152
Argument from Language 154
Argument from the Social and Legal
Customs 157
The Purpose of the Book of Ruth 163
The Interesting-Story Purpose 164
The Exemplary Purpose 165
The Theological Purpose 166
The Davidic-Ancestry Purpose 168
The Legal Purpose 170
6.
NAOMI AND THE LEVIRATE 173
7.
NAOMI AND THE GOEL 181
The Discovery of a Goel, Ruth 2:20 181
The Approach to Boaz, Ruth 3:1-9 188
Preparations for the Visit, Ruth
3:1-4 188
The Appeal of Ruth, Ruth 3:7-9 192
The Response of Boaz, Ruth 3:10-15 201
EXCURSUS: THE INITIATIVE OF NAOMI
8.
BOAZ AND THE GOEL
The Administration of Law at the
Gate, Ruth
4:1, 2 209
The
The Double Responsibility, Ruth 4:5,
10 222
The Refusal of the Goel and the
Ceremony of
the Shoe, Ruth 4:6-8 249
Contents
ix
9.
OBED 255
Naomi's Goel, Ruth 4:14 255
Naomi's Son, Ruth 4:16, 17 260
Boaz' Son, Ruth 4:21 265
Part Three
GENERAL CONCLUSIONS
10.
SUMMARIZING CONSIDERATIONS ON THE
LEVIRATE INSTITUTION IN
Representative Views 271
Recapitulation and
Conclusion 287
11.
SUMMARIZING CONSIDERATIONS ON THE
GOEL INSTITUTION IN
SIGNIFICANCE OF THE BOOK OF RUTH 292
BIBLIOGRAPHICAL
ABBREVIATIONS 299
BIBLIOGRAPHY 303
Introduction
IN
recent years attention from different quarters has been
devoted
to the subject of the goel.1 in
important
publications can be named. In 1940 Stamm
published
his work Erlösen und Vergeben im Alten
Testa-
ment, which established that
the verb lxg
was a term taken
from
the sphere of family law, as over against hdp which
belonged
to the domain of commercial law.2 In 1947 the
stimulating
work of Daube, Studies in Biblical Law,
was pub-
lished,
in which considerable attention was devoted to the
study
of the goel concept and to the verb lxg. Daube made
additional
contributions to these topics in his later writings;
in
particular in his 1956 work, The New
Testament and Rab-
binic Judaism, and in the work
published in 1963, The Exo-
dus Pattern in the Bible. He presented very
penetrating
studies
of the goel and opened serious discussion on the sub-
ject
of Yahweh as the Divine Goel. He suggested that the
specific
functions of the human goel in
some
instances to Yahweh, although he acknowledged that
there
were many general references to Yahweh as Goel where
specific
nuances could not be inferred. By studying the spe-
cific
functions of the goel, Daubecame to the conclusion
that
"lxg
primarily suggests the return of men or things into
their
own legitimate place. . . The word simply denotes the
1. Throughout the course of this
study the active participle of the verb lxg,
"redeem,"
will be transliterated simply with the word goel and the noun hlxg,
"redemption"
with the word geullah.
2. J. J. Stamm (p. 45) concludes:
"hdp
ist ein Terminus des Handelsrechtes,
welcher
einfach den Loskauf durch Stellung eines Gegenwertes ausdrückt. lxg ist
ein
familienrechtlicher Begriff, der stets eine vor dem einzelnen Rechtsgeschäft
zwischen
dem Loskaufenden und dem Losgekauften bestehende, durch die Zuge-
hörigkeit
zu einer Sippe gegebene, Beziehung voraussetzt." Stamm dealt with
Jahweh
as Goel in pp. 31-44 and made one passing remark on the goel in Ruth
(cf.
p. 28).
1
2 Introduction
rightful
getting back of a person or object that had once
belonged
to one or one's family but had been lost."3 Daube
proposed
therefore that lxg means "to recover."
Jepsen concurred in the main with
Daube in his article
written
in 1957. He wrote: "Go'el war
der, der Besitz,
Freiheit
und Leben der Sippe und ihrer Glieder wiederherste
len
sollte. . . . Ga'al bedeutet danach:
das, was eine Sippe an
Leben,
Freiheit und Besitz verloren hat, wiederherstellen.. . .
Die
Mittel der Wiederherstellung, der ge'ullah,
sind verschie-
den:
Blutrache, Heirat, Rückkauf . . . immer aber ist das eine
Ziel,
die verlorene Lebenskraft der Sippe wiederzugewinnen."4
An opinion in general agreement with
that of both Daube
and
Jepsen was Snaith's, who in 1961 argued that "primarily
the
root [lxg]
is used with reference to the enforcement, the
restoration
of a right or claim that has lapsed. . . . Generally,
whenever person or property is freed by
purchase, the verb is
G'L if it is reverting to
the original owner. . . . The idea of
reversion
is essential to the root.”5 The goel is the agent
involved
in securing this reversion to the original owner.
An article evoking wide interest on
this subject was that
of
Johnson, who in 1953 advanced the idea that the basic
idea
underlying the varying activities of the goel was that of
protection.
"When a kinsman is slain or dies childless, or
when
he is forced to sell himself into servitude or to part
with
his property, there is a breach of continuity, and the
normal
life of both individual and society is upset. Disorder
has
been introduced into the life of each, and in the case of
the
corporate unit as in that of the ordinary individual, any
weakness
or disorder, whether brought about by actual physi-
cal
death or not, involves a certain loss of vitality and it is the
function
of the lxeGo
to "protect" the life or vitality of both
the
individual and the kin-group and thus preserve their
3. D. Daube, Studies in Biblical Law, 1947, pp. 3940.
4. A. Jepsen, "Die Begriffe des
Erlösens im Alten Testament," Solange
es
"Heute" heisst, Festgabe fur R.
Hermann, 1957, p. 159.
5 N. H. Snaith, "The Hebrew
Root G'L (1)," ALUOS, 3,
1961-62, pp. 60,
61.
Introduction 3
standing
in society by keeping intact their essential unity or
integrity."6
Johnson pointed out that lxg in several places means
"defile,"
and argued that the verb lxg, "to defile" may not
be
divorced, as is commonly done, from lxg, "to redeem, to
lay
claim to." In both cases the basic idea is that of "covering
up"
an object. He seeks support for his opinion from Job
3:5,
which he translates: "Let darkness, let utter blackness
cover it; Let a cloud settle
upon it; Let the o'er-shadowings
of
day bring terror to it." By a process of semantic polariza-
tion
the original thought of covering was employed both in
the
sense of protection from degradation as well as in the
sense
of causing degradation or defilement.7 Johnson's opin-
ion
on the root meaning of the verb did not receive wide-
spread
support8 although the article as a whole was a worth-
while
contribution to the growing material on the goel in
Within more recent years, Holmgren,9
Baltzer,10 Stamm
(for
the second time),11 Ringgren,12 Stuhlmueller,13
and
6., A. R. Johnson, "The Primary
Meaning of lxg," SVT, 1, 1953, pp. 71, 72.
7. A. R. Johnson, op. cit., pp. 72-74. RSV translates the
verb vhlxgy in Job
3:5
with "claim" as does the NV, "beslag op hem leggen"; KJV
translates with
"stain"
and the
8. Johnson's argument has been
accepted for example, by A. Guillaume,
"Unity
of the Book of Job," ALUOS, 4,
1962-63, pp. 26-46, and R. de Vaux,
Ancient Israel, 1961, p. 21, who
comments that the root "means 'to buy back, or
to
redeem,' ‘to lay claim to,’ but fundamentally its meaning is 'to protect.'
" It is
disputed,
in my opinion correctly, by J. Blau, "Uber Homonyme und angeblich
Homonyme
Wurzeln," VT, 6, 1956, p. 243.
Blau argues that the verb vhlxgy in
Job
3:5 is parallel with the verb vhwrdy in Job 3:4 in an abc
bca parallelism, in
which
case the thought is, God need not claim the day, for the darkness shall
claim
it for its own. wrd is used in a sense similar to lxg in Genesis 42:22 and
Psalm
9:13 (12) which supports Blau's argument. Cf. also K. Koch "Der Spruch,
‘Sein
Blut bleibe auf seinern Haupt,' und die israelitische Auffassung vom vergos-
senen
Blut," VT, 12, 1962, p. 410 n.l.
9. F. Holmgren, The Concept of Yahweh as Go'el in Second Isaiah, unpub-
lished
Ph.D. dissertation, Union Theological Seminary,
10. D. Baltzer, Ezechiel und Deuterojesaja (BZAW, 121), 1971, pp. 84-99.
11. J. J. Stamm, "lxg," THAT, 1, pp.
383-397.
12. H. Ringgren, "lxg," TWAT, 1, pp.
884-895.
13. C. Stuhlmueller, Creative Redemption in Deutero-Isaiah,
1970, pp. 97-
131.
4 Introduction
Sklba14
have published materials relevant to the topic of the
goel
in
root
meaning for the verb has receded somewhat into the
background
and more emphasis has been given to an exami-
nation
of the usage of the terms.
It was my intention initially to
seek to handle the topic
of
the goel in
of
Yahweh as Divine God. It soon became apparent that such
a
task was precluded by the sheer quantity of materials in-
volved.
It also turned out that in the
literature cited above rela-
tively
little was being said about the goel in the book of
Ruth.
Yet of the forty-four usages of the substantive goel,
nine
occur in Ruth; and of the fifty-one occurrences of the
verb
lxg in the
qal form, twelve are found in Ruth.15 In the
face
of these statistics and the paucity of material to be
found
in the general works cited above dealing with the goel
in
Ruth, it seemed that a study which specialized in the role
of
the goel in Ruth was needed. Further research into the
literature
brought to light a considerable number of articles
and
other small works which discuss the specialized questions
arising
from the book of Ruth. These individual questions all
have
a bearing on the basic problem of how the marriage of
Boaz
as goel to Ruth is to be related to the levirate16 law of
Deuteronomy
25:5-10, which requires only the marriage of
"brothers
dwelling together." It is necessary, therefore, as
well
as, we trust, useful to devote considerable space to pre-
senting
this literature and to sketching the views taken by
various
authors.17 In addition, a thorough study of the levirate
14. R. Sklba, "The Redeemer of
15. Cf. G. Lisowsky, Konkordanz zum Hebräischen Alten Testament,
pp.
299,
300 and J. J. Stamm, "lxg," THAT, 1, p. 383.
16. The term "levirate" is
derived from the Latinword levir
meaning "a
husband's
brother."
17. The commentary of W. Rudolph, Das Buch Ruth, Das Hohe Lied, Die
Klagelieder, KAT, 17, 1962,
provides considerable literature as does especially the
article
by H. H. Rowley, "The Marriage of Ruth," in The Servant of the Lord,
Introduction 5
institution
in
Ruth.
Some authors write that the book of Ruth has essential-
ly
nothing to do with levirate marriage,18 some find it neces-
sary
to coin the special term "ge'ullah marriage"19 to define
the
marriage of Boaz and Ruth, and others are convinced that
this
marriage is to be properly reckoned as a levirate mar-
riage.20
The strong majority of scholars seek to
fit the data of
the
book of Ruth concerning the levirate-type marriage into a
particular
phase of the levirate development within
seems,
therefore, that the book of Ruth is crucial to the
understanding
of the levirate and goel institutions in
Tentatively,
two conclusions affecting methodology were
reached.
In the first place, the commonly accepted methodol-
ogy
of tracing the historical development of the levirate by
dating
Ruth either before or after Deuteronomy was con-
cluded
to be faulty. In the second place, it was decided that
the
narrative sections of the Old Testament which tell of a
levitate
situation (Gen. 38; Ruth) should be given as serious
consideration
and weight in the study of the levirate
tion
as the levirate law of Deuteronomy 25.
In addition to studying the levirate
institution as the
background
for the goel activity in Ruth it was deemed
imperative
to examine the sections of the Old Testament law
where
the duties of the goel are prescribed, to see if any
correlation
might exist between these duties and the levirate
type-marriage
undertaken by the goel, which was not pre-
scribed
in the Old Testament laws.
In the examination of the goel and
levirate institutions in
ancient
Near East was felt to be of interest and importance.
19652,
but many significant articles appeared in more recent times. See chapter 1
nn.
2, 4.
18. Cf. for instance, K. Dronkert, Het Huwelijk in het Oude Testament,
1957,
pp. 68, 69.
19. L. Epstein, Marriage Laws in the Bible and the Talmud, 1942, pp. 86,
140.
20. Cf. the definition of the
levirate given by J. Mittelmann in chap. 2, n. 1.
6 Introduction
Finally,
because the book of Ruth occupies the central part
of
this study, it is necessary to give special attention to the
question
of the date (in spite of the first of
the above-named
conclusions
affecting methodology) and the purpose
of the
book
of Ruth.
Part One discusses the levirate and
goel institutions in the
Old
Testament (excluding Ruth) with their Near Eastern
counterparts.
Part Two, after dealing with the date and the
purpose
of the book of Ruth, focuses the reader's attention
upon
the light this book sheds on these important institu-
tions
within
the
levirate in Ruth 1:11-13. Chapter 7 is a study of the data
in
Ruth 3 which centers on Ruth's night-time encounter with
Boaz.
An excursus tackles the question, Why did Naomi take
the
initiative and send the widow, Ruth, to Boaz instructing
her
to request marriage from him on the basis of his being a
goel?
Chapter 8 directs attention to Ruth 4: 1-8, the account
of
the completion of Ruth's request by Boaz in his meeting
with
the nearer kinsman and the subsequent shoe transaction
ceremony.
Chapter 9 centers on Obed, who is called Naomi's
goel
in Ruth 4:14, Naomi's son in Ruth 4:16, 17 and Boaz'
son
in Ruth 4:21. Part Three is given over to our conclusions
on
the levirate and god institutions, which have been drawn
through
integrating the results of the general study in Part
One
with those of the specific study of the book of Ruth in
Part
Two.
PART ONE
THE LEVIRATE AND
GOEL INSTITUTIONS
IN THE OLD TESTAMENT
(EXCLUSIVE OF THE BOOK OF RUTH)
1
The Levirate In the
Ancient Near East
IN
1947, H. H. Rowley wrote, "The simple story of Ruth
abounds
in problems for which no final solution can ever
be
found, since the materials for this solution are denied
us."1
Anyone who seeks to penetrate beneath the surface of
the
book recognizes the validity of this remark. We may be
grateful,
however, that Rowley's essay has gone considerable
lengths
toward clarifying the issues, if not in providing a
"final
solution." Since the publication of his article a signifi-
cant
number of attempts have been made to solve the legal
complexities
of the book.2 Burrows has well summarized the
problem
in the book of Ruth by saying, "We have in Ruth a
combination
of three institutions which are not elsewhere
1.
H. H. Rowley, "The Marriage of Ruth," HTR, 40, 1947, p. 77 = The
Servant of the Lord, 1965, p. 171. All
references to Rowley's article will come
from
the latter.
2. Since the appearance in 1947 of
Rowley's comprehensive discussion of
the
marriage of Ruth, the following articles more directly connected with the
legal
problems in the book have appeared: S. Belkin, "Levirate and Agnate Mar-
riage,"
JQR, 6, 1969-70, pp. 284-287; J. R.
Porter, "Legal Aspects of Corporate
Personality,"
VT, 15, 1965, pp. 375-377; D. R.
Ap-Thomas, "Book of Ruth,"
ExpT, 79, 1968, pp. 369-373;
D. R. G. Beattie, "Kethibh and Qere in Ruth 4:5,"
VT, 21, 1971, pp. 490-494;
H. A. Brongers, "Enkele Opmerkingen over het
Verband
tussen Lossing en Leviraat," NedThT,
2, 1947, pp. 1-7; W. McKane,
"Ruth
and Boaz," GUOST, 19, 1961-62,
pp. 29-40; E. Robertson, "The Plot of
the
Book of Ruth," BJRL, 32, 1950,
pp. 207-228; Th. and D. Thompson, "Some
Legal
Problems in the Book of Ruth," VT, 18, 1968, pp. 79-99: Th.C. Vriezen,
"Two
Old Cruces," 0TS, V, 1948, pp.
80-91; D. Weiss, "The use of hnq in
connection
with Marriage," HTR, 57, 1964,
pp. 244-248; B. M. Wambacq, "Le
Mariage
de Ruth," Melanges Eugene Tisserant,
I, 1964, pp. 449-459. See also J.
Schoneveld,
De Betekenis van de Lossing in het Boek
Ruth, 1956.
9
10 The Levirate In the Ancient Near
East
found
together. Levirate marriage, redemption, and inheri-
tance
are all familiar to the reader of the OT, but only here
do
we encounter a transaction which involves all three of"
them."3
The background for our study of the activity of the
goel
in the book of Ruth must be the Old Testament institu-
tion
of levirate marriage.4 Since the law of the levirate was
not
an uncommon feature of ancient Semitic jurisprudence, a
summary
of levirate marriage in the ancient Near East will be
in
order.5
There is general agreement6
that the CH contains nothing
comparable
to levirate marriage, though Neufeld suggests that
3. M. Burrows, "The Marriage of
Boaz and Ruth," JBL, 59, 1940,
p. 445.
For
a detailed list of the legal difficulties encountered in the book, cf. W.
McKane,
op. cit., pp. 31-32.
4. Th. and D. Thompson, op. cit., p. 79, remark, "The
interpretation of
Ruth
depends on the understanding one has of the levirate." For an extremely
comprehensive
list of literature discussing levirate marriage in
Rudolph,
Das Buch Ruth, Das Hohe Lied, Die
Klagelieder, KAT, 17, 1962, pp.
60-61.
In addition to the works cited therein, cf. J. R. Porter, op. cit., pp.
375-377;
S. Belkin, op. cit., pp. 275-329; 1.
Mattuck, "Levirate Marriage in Jewish
Law,"
Studies in Jewish Literature in Honor of
Kaufmann Kohler, 1913, pp.
210-222;
0. Baab, "Marriage," IDB,
1962; D. Jacobson, The Social Background
of the Old Testament, 1942, pp. 290-300;
Morgenstern, "The Book of the
Covenant,
Part II," HUCA, 7, 1930, pp. 159-185;
the
Ancient Near East," BA, 11,
1948, pp. 30-31; G. R. Driver and J. C. Miles,
The Assyrian. Laws, 1935, pp. 240-249; R.
de Vaux, Ancient Israel, 1961, pp.
37-38;
H. Schaeffer, Social Legislation of
Primitive Semites, 1915, pp. 57-65.
5. E. A. Speiser, "The Biblical
Idea of History in its Common Near East
Setting,"
Oriental and Biblical Studies, ed. J. J.
Finkelstein and M. Greenberg,
1967,
p. 188, correctly writes, "The Bible is first and foremost a unique distilla-
tion
of history. Now no process of this kind and magnitude can unfold in a
vacuum.
The people of the Bible, who were to make history in more ways than
one,
were neither politically nor culturally isolated from other soci-
eties....
Hence the ultimate achievement that is the Bible cannot be properly
understood,
still less appreciated, except in terms of the setting in which this
work
originated, and of the initial values which it went on to transfigure and
transcend."
Some indication of the pervasiveness of this custom may be gleaned
by
consulting, E. Westermarck, History of
Human Marriage, 3, 1925, p. 208 and
J.
Scheftclowitz, "Die Leviratsehe," ARW
18, 1915, 250 ff.
6. R. de Vaux, op. cit., p. 38; E. M. MacDonald, The Position of Woman as
reflected in Semitic
Codes,
1931, p. 23; M. Burrows, "Ancient Oriental Back-
ground
of Hebrew Levirate Marriage," BASOR,
77, 1940, p. 7 (hereafter cited as
"Background");
G. R. Driver and J. C. Miles, op. cit.,
p. 246. Generally this
The Levirate In the Ancient
Near East 11
the
institution may have been outgrown in Hammurabi's
days,
or even before his time. He affirms that such a wide-
spread
custom could not have been unknown to the Baby-
lonians
although he acknowledges the conjectural nature of
his
conclusion.7 MacDonald concludes that "the Babylonian
woman
gained by its abandonment, both in personal freedom
and
economic relief, for her support was definitely arranged
for
in giving her the usufruct of her husband's property dur-
ing
her lifetime, and she was not forced to be dependent
upon
the precarious existence of her husband's male relatives,
or,
failing them, upon the charity of her own kin or the
absence
of reference to levirate marriage is attributed to the practice of adoption
in
girls.
Cf. M. Burrows, "Background," p. 5; D. Mace, Hebrew Marriage, 1953, pp.
116,
117; S. Belkin, op. cit., p. 276. E.
Speiser, "People and Nation of
JBL, 79, 1960, p. 161,
writes, "There is not a single attested case of adoption in
the
whole of the Hebrew Bible, in marked contrast to
hand,
the levirate, much though its hold may have been loosed through progres-
sive
urbanization, is never completely eliminated." This difference, he
attributes
to
a differing role of the family in relation to the state. In
family
played a part, inevitably, but its autonomy was severely restricted by
political
and economic considerations. Though blood was thicker than water,
bread
and taxes rated still higher. That is why adoption, which tends to loosen
blood
ties, became such a prominent factor in Mesopotamian society; contrari-
wise,
the institution of the levirate, which stands guard over blood relationship,
never
took hold in
position
in Yahweh and the Gods of Canaan,
1968, p. 58 n. 31. For a contrary
view
on adoption within
JBL, 30, 1931, pp. 186-200.
A. Phillips, "Some Aspects of Family Law in Pre-
Exilic
spread
practice of adoption throughout the ancient Near East, that it was also
undertaken
in
and
was a unilateral act of the adopter. It would also explain why no mention of
adoption
occurs in the legal sections of the Old Testament, for as a part of family
law
it did not concern the community at large, and therefore no resort was made
to
the courts." R. de Vaux, op. cit.,
p. 52, writes, "We may conclude that the
notion
of adoption, in the juridical sense, was known in Old Testament times, but
had
little influence on daily life; it was unknown in later Jewish law."
7. E. Neufeld, Ancient Hebrew Marriage Laws, 1944, p. 49 (hereafter cited
as
AHML). Cf. also H. D. Bracker, Das Gesetz Israels, 1962, p. 36.
12 The Levirate In the Ancient Near East
community
at large."8 Despite occasional9 attempts at identi-
fying
comparable laws, the consensus of scholarly opinion is
that
no such institution as the levirate existed in
would
seem to be the case that the misfortune of having no
son
was solved through adoption customs.10
A far better case can be made for
the presence of the
levirate
custom in
dispute.
The generally accepted date for the MAL, which are
closely
related to the CH, is from 1500 to 1100 B.C.11 MAL
§30,
33, and 43 from Tablet A have the most direct bearing
on
the question of the levirate. Meek cites MAL §30 as a law
which
the Assyrian code held in common with the levirate
law
in Israe1.12 It reads: "If a father has conveyed (or)
brought
the betrothal-gift to the house of his son's (prospec-
tive)
father-in-law, with the woman not yet married to his
son
and another son of his, whose wife is living in her father's
house,
died, he shall give his dead son's wife in marriage to
his
other son to whose father-in-law's house he brought (the
8. E. M. Macdonald, op. cit., p. 12. C. Lattey, The Book of Ruth, 1935, pp.
XXII,
XXIII, writes, "In the ancient Babylonian code of Hammurabi a widow is
allowed
under certain conditions to keep or inherit property from her husband
(nos.
150, 171); this fact and the absence of any mention of the Goel appear to
indicate
a more developed social system than that of the Pentateuch or of the
Book
of Ruth."
9. Friedrich Delitzsch,
Eheformen bei den
Indogermanen,
1937, p. 101, made reference to an unpub-
lished
Sumerian inscription, which he believes may contain a reference to the
levirate.
E. Neufeld, AHML, p. 50, remarks,
"If so thorough an expert on Baby-
lonian
law as Koschaker knows of no further proof for the existence of levirate
marriage
than this doubtful inference no more reliable evidence is available at the
moment."
10. M. Burrows, "Background,"
p. 5; G. R. Driver and J. C. Miles, op.
cit.,
p.
249.
11. T. Meek, "The Middle
Assyrian Laws," ANET, 19693, p.
180, dates the
tablets
at the time of Tiglathpileser I in the 12th century though he states that the
laws
themselves may well go back to the 15th century. G. R. Driver, and J. C.
Miles,
op. cit., p. 12, place the laws
between 1450-1250. Cf. also E. F. Weidner,
"Das
Alter der mittel-assyrischen Gesetzestexte," Archiv für Orientforschung, 12,
1937,
p. 50.
12. T. Meek, Hebrew Origins, 19602, p. 63.
The Levirate In the Ancient
Near East 13
gift).
. ."13 On this law he comments, "The Levirate was to
be
enforced even though other marriage plans had been made
for
the deceased man's brother."14 Driver and Miles however,
do
not regard this as a case comparable to the Hebrew levi-
rate,
since the girl is not a widow in the strict sense. The
marriage
transaction has been legally completed but the bride
has
not yet been given to her husband. She is the "assatu" of
her
dead bridegroom, living with her father. "This, however,
does
not seem to be a case of the levirate, as there is nothing
showing
a legal duty on the second son to marry her apart
from
the duty to fulfill his father's wish.”15
Burrows and Neufeld dispute the
conclusion of Driver
and
Miles and contend that the law does constitute a genuine
case
of levirate marriage. The point under dispute between
them
is the fact that the widow is living in her father's house,
while
under the authority of her father-in-law. Two possibili-
ties
present themselves. One would be to explain the presence
of
the woman in her father's house as an "errebu" marriage,
whereby
the husband enters his wife's father's family, receiv-
ing
only partial powers of a husband over her.16 While this
13. T. Meek, ANET, p. 182.
14. T. Meek, Hebrew Origins, p. 64. E. Neufeld, AHML, p. 51, agrees re-
marking,
"It seems to follow from §30 of M.A.L. that a father-in-law can give his
son's
widowed bride—she is a bride although the text speaks of an Assatu—to
another
of his sons for whom he had already acquired a bride before the death of
his
previous son. In these circumstances the bride of the second son might become
a
second wife to her original bridegroom who has in the meantime married his
widowed
sister-in-law, or perhaps she could be given to another son by her pro-
spective
father-in-law." Cf. also, M. Burrows, "Background," p. 12.
15. G. R. Driver and J. C. Miles, op. cit., p. 247. They further add (p.
173):
"Here
there is nothing to show whether the marriage of this girl who is described
as
the assatu of the dead son was a completed marriage, but it is almost incon-
ceivable
that it was so. For as she is still in her father's house, she is presumably of
tender
age, and moreover it would be expected that, if the marriage had been
completed,
she would have had issue, as no one would marry or at any rate keep a
barren
wife; but no issue is mentioned in the text."
16. M. Burrows,
"Background," pp. 3, 5, 11-12. Cf. also M. Burrows, "The
Complaint
of Laban's Daughter," JAOS, 57,
1937, pp. 259-2761M. David, Vorm
en Wezen van de
Huwelijkssluiting naar de Oud Oostersche Rechtsopvatting,
1934,
pp. 4 f., 19 (hereafter cited as Vorm en Wezen); T. Meek, Hebrew Origins,
p.
65;
tites,"
ArOr, 18, 1950, pp. 124-130.
14 The Levirate In the Ancient Near East
would
explain her presence in her own family, it does not
seem
likely under such circumstances that her father-in-law
would
have any control over her or responsibility toward
her.17
It is more likely that the law is concerned with widows
who
have returned to their father's homes before or after the
death
of their husbands and the design of such a law is to
establish
the right of the father-in-law even where the widow
is
seeking to get out from under his control.18 There is, in
any
event, no mention of sons or of lack of sons in the law.
Because
of this Neufeld, who sees levirate marriage in this
law,
acknowledges that some sections of the MAL refer to
the
levirate custom in a rather confused manner.19
MAL § 33 has a bearing as well on a
possible levirate
custom
in
still
living in her father's house, her husband died and she has
sons,
(she shall live where she chooses in)20 a house of theirs.
(If)
she has no (son, her father-in-law shall marry her to the
son)21
of his choice ... or if he wishes, he may give her in
marriage
to her father-in-law. If her husband and her father-
in-law
are both dead and she has no son, she becomes a
widow;
she may go where she wishes."22
Four cases seem to be in view.23
The first is that of a
widow
with at least one son. In such a situation she is to live
with
her son(s). The second is where there are no sons, but
17. M. Burrows,
"Background," p. 12.
18. Ibid. Cf. E. Neufeld, AHML, pp. 51, 52.
19. E. Neufeld, AHML, p. 51.
20. G. R. Driver and J. C. Miles, op. cit., p. 228, restore the missing
words in
the
same fashion as Meek, "It seems then that 11.58-9 contained words to the
effect
that the woman may live with her sons and, of course, be supported by
them."
21. G. R. Driver and J. C. Miles, op. cit., p. 228, restore the text again
in the
same
fashion as Meek, reasoning that the case here in view is where the woman
"has
no sons or only infant eons. For the statement in the last paragraph setting
out
what happens if she has neither sons nor father-in-law, coupled with that in
11.65-66
to the effect that under certain circumstances she is given in marriage to
her
father-in-law, makes it practically certain that the mutilated lines dealt
some-
where
with the case in which she had no sons but had only a father-in-law."
22. T. Meek, ANET, p. 182.
23. M. Burrows,
"Background," p. 13.
The Levirate In the Ancient
Near East 15
the
dead husband is survived by brothers as well as his father.
Here
the law states that the father-in-law of the widow may
give
the widow to his son, as we saw in MAL §30. The third
case
is where there are no sons or brothers, but where the
father-in-law
is living. Because of the brokenness of the text
there
is some question of interpretation. Driver and Miles
comment,
"The lines preceding the statement that she may
be
given to her father-in-law are missing, so that it is impossi-
ble
to be certain that they did not deal with the case in which
she
had no sons or with that in which she was inchoately
married."24
How then are we to understand the statement "if
he
wishes, he may give her in marriage to her father-in-law"?
In
other words, Who gives the woman to her father-in-law?
We
have seen that MAL § 33 is one of the laws regulating the
situation
where the woman is living in her father's house.
Driver
and Miles infer from MAL §43, "that if there are no
brothers
of a deceased husband of an age to marry his wife,
she
reverts into the power of her own father.”25 Burrows
agrees
that the subject of the clause "if he wishes, he may
give"
is the woman's father. He is of the opinion, however,
that
"there must be some significance in the fact that the
clause
allowing the woman's father to give her to her father-
in-law
is preceded by the condition, 'or if he pleases.' This
suggests
that the missing portion of the text just preceding it
allowed
the father the option of retaining his daughter in his
own
household if he so desired. In other words, the wife's.
father
even in an errebu-marriage had no
responsibility for
her
support when her husband died, leaving no sons, but
might
either keep her at home or give her to her father-in-
24. G. R. Driver and J. C. Miles, op. cit., p. 247. They use the phrase
"inchoately
married" to describe the situation in which the marriage transaction
has
been completed, but the bride has not actually gone over to the husband.
"In
the
Assyrian laws there appear to be three classes of widows; the first is the
completely
married wife who has sons, the second is the almattu, who has neither
grown-up
sons nor father-in-law, and the third is the inchoately married bride who
has
lost her husband and of course has no sons"; op. cit., p. 246.
25. G. R Driver and J. C. Miles, op. cit., p. 229.
16 The Levirate In the Ancient Near East
law.
In that case, the permission granted to the father-in-law
to
give the widow to one of his other sons in the second set
of
circumstances, may have been similarly conditioned upon
her
father's consent."26
The fourth situation mentioned in,.
MAL §33 regulates
the
case where there are neither sons nor father-in-law. In this
case
"she may go where she wishes." She is free to dispose of
herself
as she sees fit, particularly now in her right to remarry
whom
she will.27
From MAL §33 Neufeld affirms that
"one may deduce
with
caution that in
tive
of the existence of children of the widow, who can be
married
by her own father-in-law where, for example, her
husband
has left no brothers. Whether the father-in-law mar-
ried
his daughter-in-law if there was issue remains an open
question."28
Another law possibly touching on the
levirate in
is
MAL §43. It reads: "If the seignior either poured oil on
(her)
head or brought betrothal-presents (and) the son to
whom
he assigned the wife either died or fled, he may give
(her)
to whichever he wishes of his remaining sons from the
oldest
son to the youngest son who is at least ten years old. If
the
father died and the son to whom he assigned the wife also
died,
but the dead son has a son who is at least ten years old,
he
shall marry (her), but if the grandsons are younger than
ten
years, the girl's father, if he wishes, may give his daughter
(to
one of them), or if he wishes, he may make an equitable
return
(of the gifts)."29 Here we see the case where a daugh-
ter
has been conveyed from her father's house and has come
26. M. Burrows,
"Background," p. 13.
27. G. R. Driver and J. C. Miles, op. cit., pp. 224, 225: "This
phrase obvi-
ously
permits her to remarry but probably connotes something more than
this....
She is free from both paternal and marital control, and this freedom
includes
the right to marry whom she will."
28. E. Neufeld, AHML, p. 52. T. Meek, Hebrew
Origins, p. 64, comments on
MAL
§33, "In the light of this law we can see the justification for Tamar's
trickery
whereby she was enabled to marry her father-in-law, Judah."
29. T. Meek, ANET, p. 184.
The Levirate In the
Ancient Near East 17
under
the authority of a man who is to give her to one of his
sons.
The son to whom she has been given disappears or dies
before
the consummation of the marriage. The father may
then
give her to another of his sons. If the bridegroom's
father
is dead, a son of the bridegroom not younger than ten
years
of age shall take the bride. If there are no such sons the
girl's
father may either give her to any sons of the bride-
groom
younger than ten, for whom she shall have to wait, or
return
the gifts he received.
Does this law, in any sense, reflect
the Hebrew levirate?
Once
again there is a divergence of opinion among scholars.
The
negative position is taken by Driver and Miles, who main-
tain
that there is no right or duty placed upon the brother of
the
deceased comparable to the Hebrew duty of the levirate.
Furthermore,
they note that this law clearly reflects a case of
an
inchoately married bride, which would set it apart from
the
Hebrew levirate, which governs the widow without chil-
dren.30
Neufeld, on the other hand, rather confidently af-
firms
from this law that the Assyrian levirate was extended
under
certain circumstances beyond the brothers and father
of
the deceased, and contends that though it deals with a
bride,
it must also apply to a wife.31
The difficulty of evaluating the
evidence for the levirate
custom
in
scholars.
The positions taken hinge upon how much impor-
tance
is attached to the differences.32 Driver and Miles feel
that
"these laws then contain no certain instance in which
the
girl who is given to her brother-in-law had actually been
the
full wife of the dead man. The evidence then in favour of
the
existence of the Hebrew type of levirate is very slight, for
30. G. R. Driver and J. C. Miles, op. cit., p. 247. See n. 24,
31. E. Neufeild. AHML. p. 52 n. 1. “This law also deals a
bride; how
much
more must it apply to a wife?" M. David. Vorm en Wezen. p. 25 n. 14, also
argues
that this law is a true reflection of the levirate marriage institution.
32. For an enumeration of the
differences, see E. Ring,
zm Lichte der
neuentdeckten assyrischen und hethitischen Gesetzesurkunden,
1926,
pp. 43-49.
18 The Levirate In the Ancient Near
East
the
case where any inchoately married man or woman has
died
and another brother or sister takes their respective
places
is certainly not what is generally understood as the
Hebrew
levirate."33 The laws which would seem to point to
the
existence of the levirate are explainable in terms of the
Assyrian
practice of buying a girl ana kallatuti,
"for bride-
ship."34
Burrows, Neufeld, David, and Meek all speak of vari-
ous
Assyrian laws as exemplifying real cases of levirate mar-
riage.35
To a certain extent—as we have seen, only to a cer-
tain
extent—the differences between scholars are semantic,
since
one may talk about "a real case of levirate marriage" as
Burrows
and Neufeld do, and yet go on to carefully distin-
guish
between the purpose of the levirate law in
compared
with the purpose in Israel.36 One of the laws cited
33. G. R. Driver and J. C. Miles, op. cit., pp. 247, 248. Their argument
is
also
based on several laws (§25, 33, 36, 45, 46), which "inferentially are
opposed
to
the existence of the levirate"; op.
cit., p. 248. H. Bracker, op. cit.,
p. 36, states,
"Also
von einer Leviratsehe der Witwen war in Assyrien keine Rede."
34. G. R. Driver and J. C. Miles, op. cit., pp. 163, 174, 248. Commenting
on
MAL
§ 30 they write, "The transaction then must resemble that in which a
father
acquires
another man's daughter 'for the purpose of a daughter-in-law (Bab. ana
kalluttim or kallatuti) in order to marry her to a specified son or, if that son
dies,
to
another of his sons"; op. cit.,
p. 175. H. Bracker, op. cit., p. 35,
writes, "Die
Braut
war eben nicht nur für ein spezielles Glied der Familie, sondern für die
ganze
Familie zum Heiraten gekauft oder `adoptiert.' " For a similar custom at
Nuzi
and
ZA, 43, 1936, pp. 152, 153
(hereafter cited as "Status") and A. F. Rainey,
"Family
Relationships in
35. M. Burrows,
"Background," p. 12; E. Neufeld, AHML.
p. 52, writes:
"The
Assyrian levirate law can thus be summarized as follows: (a) It applied
whether
the widow had sons or not; (b) it was in force even if there were no
marriage
but only an engagement; (c) all brothers of the deceased husband arc
subject
to the obligation; (d) failing brothers, the deceased's father marries the
widow;
(e) failing brothers and father of the deceased, the levirate duty extended
to
the grandchildren horn by another wife, and most probably also to children
thus
begotten." For reference to Meek and David, see nn. 28 and 31.
36. M. Burrows,
"Background," p. 12, as against G. R. Driver and J. C.
Miles,
refers to MAI, §30 as a real case of the levirate practice. Yet when he
summarizes,
in terms of how this institution functioned in Assyria and
writes,
"Except among the Hebrews and perhaps the Canaanites, levirate marriage
was
not in the ancient Near East a means of securing a son for the dead. It was
rather
a part of the whole system of family relationships, authority, and inheri-
tance";
op. cit., p. 15. This can also be
observed as well in E. Neufeld, op. cit.,
p.
54,
who writes, "1,o:irate marriage was a common feature in
The Levirate In the Ancient
Near East 19
by
Driver and Miles as inferentially opposed to the levirate in
section
of MAL §33 concerns the widow living in her father's
house
who has no son and whose father-in-law is dead. The
widow
is free to go where she wishes; that is, to marry whom
she
will. For Driver and Miles, this law is the opposite of the
Hebrew
levirate, which would not allow the widow a similar
freedom
of choice if any male kinsman of her husband were
living.37
This objection presupposes that the marriage of
Ruth
to the goel was a levirate marriage. At this point this
question
can be set aside. Suffice it to say, that others might
not
see MAL §33 as inferentially opposed to a levirate cus-
tom,
since they would not speak of the marriage of a Hebrew
widow
to a more distant relative as a levirate marriage.
More important than the inquiry into
whether one should
or
should not speak of a levirate custom in
consideration
of the purpose of the levirate in
quite
evident that the laws functioned dissimilarly in the two
places.
In the Hebrew levirate, the emphasis is
on the child-
less
widow and the need for male progeny for the deceased.
A
connection between the much desired male issue and the
succession
to the family estate must be noted. So also the
levirate
in
inheritance.39
Yet as Ring has noted, "Der Unterschied aber
ist,
dass in CA die Rücksicht auf den Toten and die berech-
tigte
Forderung darauf, dass sein Name nicht aussterben
ancient
Hebrew has stamped the custom in
ter.
There are many points of difference between the Hebrew levirate and the
Assyrian-Hittite
levirate which are much more striking than their points of resem-
blance."
37. G. R. Driver and J. C. Miles, op. cit., p. 248, maintain that "a
childless
widow
could not do this by Hebrew law if she had either a brother-in-law or a
male
kinsman of her husband."
38. G. Morgenstern, op. cit., p. 161, talks of the levirate
in
"an
altogether new motif ... entirely without parallel in Semitic practice."
Cf. n.
36.
39. M. Burrows,
"Background," p. 15.
20 The Levirate In the Ancient Near East
möge,
gar keinen Platz findet. Es handelt sich blos um das
Recht
der ihn Überlebenden ihn zu beerben. Das assyriche
Levirat
hat daher sicherlich bezweckt das Eigentum innerhalb
eines
Geschlechtes zusammen zu halten, aber die Bestimmun-
gen
über dasselbe haben nicht, wie es in Israel der Fall war, es
gleichzeitig
und vor allem darauf abgesehen, dass der von
Anfang
an mit dem Eigentume verbundene Name auch fer-
nerhin
an dasselbe gebunden bleiben und auf diese Weise fort-
leben
möge. In CA sind es nur die Interessen der Hinter-
bliebenen
und deren erbrechtliche Forderungen gewesen,
denen
bei der Leviratsehe Beachtung geschenkt worden
ist."40
One can conclude, then, that while there are formal
points
of contact between the two practices, such as the role
of
the father-in-law and the brothers of the deceased, there
are
some rather basic differences. At least many of the cases
adduced
from the Assyrian laws have reference to the incho-
ate
bride and not to the widow. It is unclear in others wheth-
er
children are present or not. Ring is correct in calling atten-
tion
to the fact that in
toward
the dead, to continue his name, whereas in
the
exclusive focal point is the rights obtained by the family,
in
the marriage contract, which brings the bride into her
husband's
family. It is therefore understandable when Brack-
er
concludes, "Kommt man vom ausserisraelitischen Levirat
40. E. Ring, op. cit., p. 49. H. Bracker,
op. cit., p. 36, writes, "In
die
Leviratsehe etwas sehr viel anderes. In
Versorgung
oder Festhaltung der Witwe als eines gekauften Eigentums der Fam-
ilie,
sondern darum, dass dem ohne Sohn verstorbenen Ehemann für dessen Land-
besitz,
der in seinem Geschlecht forterben sollte, ein Erbe verschafft wurde....
Die
Witwe ging in diesem Falle nicht wie eine Ware aus einer Hand in die andere,
sondern
sie handelte selbstandig zu Ehren ihres verstorbenen Mannes und seines
Geschlechtes."
I. Price "The so-called Levirate marriage in Hittite and Assyrian
Laws,"
Oriental Studies Dedicated to Paul Haupt,
ed. C. Adler and A. Embler,
1926,
p. 271: states, "The Assyrian laws uphold the sanctity of a betrothal on
the
part
of the parents of both parties with all the detail that a complicated society
would
seem to require. If these features may be classed as a kind of levirate-
marriage,
they omit those phases of the question, viz:
posterity, property and
inheritance,
that stand out so prominently in Hebrew legislation."
The Levirate In the Ancient
Near East 21
zum
israelitischen, ist es, als ob man in eine ganz andere Welt
tritt."41
Hittites
The Hittite law code42
contains one law, HC § 193, which
resembles
the levirate law in
wife,
and the man dies, his brother shall take his wife, then
his
father shall take her. If also his father dies, his brother
shall
take his wife (and also) the son of his brother shall (take
her).
(There shall be) no punishment."43
There are variations in translation
arising from an imper-
fect
text,44 which affect the order of responsibility in the
levirate
marriage situation. There is agreement among schol-
ars
that the first and second responsibility falls upon the
brother
of the deceased and the father of the deceased. Opin-
ion
is divided over the question of who assumes the responsi-
bility
for marrying the widow if the father of the deceased
dies
as well. Stated in another way, How are we to under-
41. H. Bracker, op. cit., p. 37. This conclusion is also arrived at by P.
Cruveilhier,
"Le lévirat chez les Hébreux et chez les Assyriens," RB, 34, 1925, p.
542,
"Si nous comparons entre eux le droit de Lévirat des Hébreux et celui des
Assyriens,
nous constatons que leur ressemblance est plus apparente que
réelle....
En spécifiant que c'est uniquement, quand it n'y a pas de fils, que le
droit
de lévirat doit s'exercer, le Deutéronome marque clairement que le but de
cette
institution est d'assurer la perpétuité du nom et de l'héritage du défunt. En
négligeant
au contraire la question de l'existence d' enfants, le Recueil de lois
assyriennes
nous manifeste qu'un tel but n'a nullement préoccupé l'auteur de son
droit
de lévirate." E. M. MacDonald, op.
cit., p. 72, writes, "In Israel there was a
religious
motive behind Levirate marriage, in
42.
In connection with the dating of these laws A. Goetze, "State and
Society
of the Hittites," in Neuere
Hethiterforschung, ed. G. Walser, 1964, p. 27,
comments,
"It is quite clear that they go back to the
refinement
of palaeography allows the statement that some of the law tablets that
have
come down to us in Fact were inscribed during this early period (1800
B.C.)."
43. E. Neufeld, The Hittite Laws, 1951, p. 55.
44.
father
die, then his first brother, although married, may take her; there is no
penalty."
J. Friedrich, Die Hethitischen Gesetze,
1959, p. 85, translates, "Wenn
ein
Mann eine Frau hat und der Man stirbt, nimmt seine Gattin sein Bruder; dann
nimmt
sie sein Vater. Wenn zweitens auch sein Vater stirbt und die Frau die er
hatte
sein Bruder nimmt, ist kein Anstoss."
22 The Levirate In the Ancient Near
East
stand
the reference to "his brother" who takes the woman
after
the decease of the father? Does the phrase, "his broth-
er,"
refer to the brother of the originally deceased man or to
the
father who has died?45 Price46 Ledersen,47 and
Ring48
assert
that a married brother of the deceased is the third in
order
of responsibility. The distinction between married and
unmarried
is inferred from the conclusion where it is express-
ly
stated that in the instance of the latter assuming the obli-
gation
of the levirate "There shall be no punishment."49
On the other hand, Koschaker50
Nöetscher,51 Burrows,52
and
Neufeld53 understand the sequence as involving the
brother
of the deceased, the father of the deceased, and the
45. The translation of A. Walther in
J. M. P. Smith, The Origin and History
of Hebrew Law, 1931, p. 272,
circumvents this problem by translating the dis-
puted
lines, "If again also his father die and one brother of his take the
woman."
This
translation presupposes that the "his brother" has reference to the
father's
brother.
46.
47. J. Pedersen,
§
193, "If a man marries a woman and then dies, then his brother may (or
must)
marry
her; secondarily, his father. When the father dies, a brother may (or must)
marry
her, whatever his marital relations." He remarks (p. 548) on the
concluding
section
of the law, "The latter remark might point in the direction that the
first-mentioned
brother is at any rate not under obligation to take over the
widow,
if already married."
48. E. Ring, op. cit., pp. 137, 138, writes, "Eine besondere Eigentümlich-
keit
ist die ausdrtickliche Vorschrift, dass ein verheirateter Bruder, wenn so
erfor-
derlich,
die Leviratspflicht erfüllen kann. Er kommt dadurch in die Lage in Biga-
mie
zu leben, and vermutlich hat man bigamische Verbindungen innerhalb des
hethitschen
Rechtsgebietes als nicht erlaubt angesehen, da besonders angegeben
wird,
dass er nicht hestraft werden soil. Seine neue Verbindung wird nämlich als
eine
durch besondere Verhaltnisse veranlasste ausserordentliche Massnahme
betrachtet,
eine reine Ausnahme, welche das Gesetz, deshalb dulden kann."
49.
should
be carried out even if it involved polygamy of a brother of the deceased.
This
proceeding was an emergency case and was not punishable under a law which
impliedly
was in vogue at that time."
50. P. Koschaker, "Zum Levirat
nach hethitischen Recht," RHA,
10, 1933,
p.
77.
51. F. Nötscher, Biblische Altertumskunde, 1940, p. 88 n.
2, comments,
"Der
hethitische Levirat ist fakultativ, greift aber viel weiter als der
israelitische.
Levir
ist der Reihe nach der Bruder, der Schwiegervater and sogar der Bruder des
Schwiegervaters
des Verstorbenen."
52. M. Burrows,
"Background," p. 14.
53. E. Neufeld, The Hittite Laws, 1951, pp. 191, 192.
The Levirate In the Ancient
Near East 23
paternal
uncle of the deceased. Meeks54 and Gurney55 believe
the
third party to he the nephew of the deceased.
It is not expressly stated whether
this law is in operation
only
if the widow is childless. Koschaker believes it is highly
probable
that such was the case.56 On the other hand, Price is
of
the opinion that the law "aims to provide a home for the
bereaved
widow among the kinsman of her late husband or
husbands,
and thus promotes humanitarianism in a wide
sense."57
Neufeld,58 Pedersen,59 Ring,60 Brongers,61
and
54. T. Meek, Hebrew Origins, 1960, p. 63 n. 32. Cf. A. Goetze, ANET, p.
196,
"If in turn also his father dies, one of his brother's sons shall take the
wife
whom
he had. There shall be no punishment."
55. 0. R. Gurney, The Hittites, 1954', p. 101.
56. P. Koschaker, "Zum Levirat
nach hethitischen Recht," p. 80, remarks,
"Sie
ist noch-einleuchtender, wenn der Levir auch die Aufgabe hat, für die Fort-
setzung
der Familie und des Namens seines verstorbenen Bruders zu sorgen. § 193
gedenkt
indessen dieser Voraussetzung nicht. Dass aber auch in diesem Punkte das
hethitische
Recht der allgemeinen Regel folgte, lässt sich meines Erachtens in
hohem
Grade wahrscheinlich machen." J. Morgenstern, op. cit., p. 163, draws the
parallel
between Genesis 38 and this law and implies a similar purpose. 0. R.
Gurney,
op. cit., pp. 101, 102, maintains
that the law is "remarkably similar to
the
Hebrew law of levirate rnarriage"; he argues that § 193 is not a full
statement
of
the levirate. 57.
58. E. Neufeld, The Hittite Laws, p. 192, writes, "The Law makes no refer-
ence
to the question of issue of the original marriage of the deceased. It seems
certain,
however, that this question does not affect the obligation of the persons
involved
in the levirate duty. As long as the widow's age permitted her to give
birth
to children, all the above persons were under an obligation to marry her."
59. J. Pedersen, op. cit., p. 548, comments, "From
the Hittite and Assyrian
Laws
it appears that the Levirate marriage was a common feature in
but
the Israelites stamped this custom with quite a different character."
60. E. Ring, op. cit., pp. 138, 139, discusses the similarities and distinctions
between
Hittite levirate law and the levirate in Deut. 25. Mention is made of three
similarities
which take in the following points: both involve a moralistic responsi-
ilit
make reference to the performance of the levirate by a brother of the
deceased;
both, in contrast with the Assyrian legal system, know nothing of the
counterpart
of the levirate in cases where the woman has died. The differences are
noticeable,
including the absence of any mention of the dead person dying with-
out
male issue and the prescribed sequence. The purpose of the institution is
dissimilar:
"Darum ist es vermutlich nicht, so wie im israelitischen Recht, in erster
Linie
die Sorge für das Fortleben des Namens des Toten gewesen.... Wahrschein-
lich
ist die in Frage kommende Einrichtung bei den Hethitern mit dem ganz
allgemeinen
Zwecke begründet gewesen, dass durch sie, ebenso wie im assyrischen
Rechte,
gewisse Garantieen dafur gegeben werden sollten, dass das Eigentum
fortdauernd
in der Familie als deren Besitz erhalten bliebe and nicht nötig hätte
in
fremde Hände überzugehen."
61. H. Brongers, Oud-Oosters en Bijbels Recht, 1960, p.
129, remarks on
24 The Levirate In the Ancient Near
East
Meek62
draw a clear distinction between the practice of the
levirate
among the Hittites and in
Nuzi
One brief mention is made in the
Nuzi texts of something
similar
to the levirate. A brother giving his sister in marriage
for
a purchase price agrees that if Hanaya, the husband, dies,
Ithipsharru,
the husband's father, who purchased her, shall
give
her to his other son.63 Gordon refers to this as "levirate
marriage
in the crudest form."64 The purchase of a bride with
the
attendant right of transfer to another son in case of de-
cease
is similar to what we saw in MAI. §43. There is also the
case
where, in a husband's will, provision was made to pre-
vent
the wife from remarrying. The children were to strip her
and
she was to go out naked. This has, ill any case, nothing in
common
with the Israelite levirate, since the marriage in view
had
already resulted in children.65
HL
§ 193, "We ontmoeten hier het instituut van het leviraat, dat ons ook uit
het
bijbels
recht bekend is (Deut. 25:5 vv.). Er is echter enige nuancering. Zo wordt
bier
de kwestie of het huwelijk kinderloos was gebleven, niet aan de orde gesteld,
terwijl
dit voor de bijbelse wet op het leviraat een conditie sine qua non is.
Bovendien
schijnt de nadrukkelijke constatering dat een leviraatshuwelijk niet
strafbaar
is, crop to wijzen dat het niet wcttelijk verplicht was."
62. T. Meek, Hebrew Origins, p. 63 n. 32, denies, as Brongers, cf. our
preceding
note, that the levirate was required among the Hittites. He bases this
conclusion
on the final word in the law, "There shall be no punishment," and
remarks,
"It is clear from this that the Levirate with the Hittites had become
quite
obsolete; so obsolete and out of favor that a law had to be formulated to
make
it legal if someone did follow it." For a different interpretation of the
statement
"There shall be no punishment," cf. nn. 48, 49.
63. Text 441 in E. Chiera, Mixed Texts, Publications of the
School,
V, 1934. Cf. C. Gordon, "Status," p. 163.
64. C. Gordon, "Fratriarchy in
the Old Testament," JBL, 54,
1935, p.
230.
He feels that "in the Old Testament, a secondary, sentimental and purely
fictitious
phase of levirate marriage, to wit, that of supplying the deceased with an
heir,
has evolved into its 'raison d'etre.'
The whole institution, which was original-
ly
the right of the levir, has developed into the widow's privilege."
65. E. Neufeld, AHML, p. 54; C. Gordon, "Status," p. 163.
The Levirate In the
Ancient Near East 25
The evidence from
scholars
are of the opinion that the levirate was known.66
One
text possibly bearing on the levirate is an Akkadian doc-
ument
uncovered at the excavation of the royal palace of
“To be effective immediately! Thus
says Arihalbu, King of Ugarit:
“Whoever, after my death, takes (in
marriage) my wife, Kubaba,
daughter of Takan (?) from my
brother—
May Baal crush him,
May he not make great (his) throne,
May he not dwell in a (royal) house,
May Baal of Mt. Casius crush him!'”67
Due to its conciseness, there has
been some difference of
interpretation,68
but a number of scholars arc convinced that
we
have in this political testament of the Ugaritic King Ari-
halbu
a reference to the levirate. According to M. Tsevat,
Arihalbu
"drew up the document when he felt his end near
and
he was not blessed with a son, for no man would provide
for
the levirate of his widow as long as he might hope for a
male
heir."69
This text then is a political
testament with the unusual
added
weight of the curse. Apparently, Arihalbu is anticipat-
ing
a possible violation of the intended marriage of his broth-
er
to his wife by some would-be aspirant to the throne. The
imprecations
in the text are designed to thwart any attempt
66. R. de Vaux, op. cit., p. 38; L. M. Muntingh, "The Social and Legal
Status
of a Free Ugaritic Female," JNES,
26, 1967, pp. 108, 111; M. Tsevat,
"Marriage
and Monarchical Legitimacy in
237-243;
A. van Selms, Marriage and Family Life in
Ugaritic Literature, 1954, p.
36.
67. M. Tsevat, op. cit., p. 237. His translation is from R. S. 16.144. J.
Nougayrol, Le palais royal d' Ugarit, III, 1955,
p. 76, offers a similar translation
except
in line eleven. Nougayrol renders: "(Sa) maison ne florira pas!"
Tsevat:
"May
he not dwell in a (royal) house."
68. Cf. M. Tsevat, op. cit., p. 239, for the particular
views.
69. M. Tsevat, op. cit., p. 240. Also, L. M. Muntingh, op. cit., p. 108 and G.
Boyer,
"La place des textes d'Ugarit dans l'histoire de l'ancien droit
oriental," in
Le palais royal d'Ugarit, III, 1955, p. 300.
26 The Levirate In the Ancient
Near East
to
overthrow his purpose to secure the continuance of his
line
in the kingship of Ugarit.70
Van Selms calls attention to two
instances in the Ugaritic
texts
where the daughter-in-law is mentioned as present in
the
household of the master of the house (329:2, 3; 11, 12).
He
feels that these are best explained by the supposition that
the
daughter-in-law remained with the dead husband's family,
in
which case it is probable that "we have here something we
could
compare with the idea underlying the Levirate mar-
riage:
once married into her husbancf's family, the wife is
regarded
as belonging to that family, and on her husband's
death
she remains in the care of her father-in-law. Perhaps he
detained
her till the moment a younger son could marry
her.”71
It would appear then that the
levirate did operate in some
form
in ancient
more
on inference than on direct statement.72 Summing up
Ugaritic
matrimonial law, Muntingh, who concurs with the
opinion
that R. S. text 16.144 is a political testament of King
Arihalhu
presupposing a levirate custom that there is
tdo
little material to come to definite conclusions.73
70. M. Tsevat, op. cit., p. 241, points out that the concern of the king was
"a
dynastic one: to retain kingship in his family, ideally to secure the uninter-
rupted
hereditary line.... The brothers, far from entertaining suspicion of each
other,
acted in the fullest accord. The document is written to guard the interests
of
either brother as well as those of the dynasty." Ile then draws an
interesting
parallel
with David (II Sam. 12:8), Ahithophel (II Sam. 16:21), and Adonijah
(I
Kings 2:13-25); in these texts the appropriation of the king's wives is
connected
with
taking over his office.
71. A. van Selms, op. cit., pp. 35, 36.
72. A. van Selms, op. cit., p. 36.
73. L. M. Muntingh, op. cit., p. 111. G. Boyer, op. cit., pp. 300, 301,
concludes,
"mail sur la foi de ce seul texte nous ne pouvons affirmer que le lévirat
était
de regle pour l'ensemble de la population. La famille royale a pu etre
soumise
en matiere matrimoniale a des usages differents de ceux appliques au
reste
de la population. Si on peut raisonner par analogic avec les institutions
hébraiques,
le manage de la veuve de l'ancien souverain a pu jouer un role dans la
dévolution
de la couronne." R. de Vaux, op. cit.,
p. 38, tersely states that there is
evidence
for the levirate in
institution
of the levirate is attested in the ancient Near East for
Hittites,
Assur, and Nuzi. In Biblical law, the condition for the levirate is that the
The Levirate In the Ancient Near
East 27
We have now finished our survey of
the levirate in the
ancient
Near East. With the exception of the one text which
contained
the political testament of the Ugaritic King Ari-
halbu,
the evidence suggests that the levirate was basically a
matter
of inheritance, a means whereby a piece of property,
acquired
through an act of purchase, is kept within the fam-
ily
because of the value for the family This fact, in itself,
must
set it apart from the levirate in
possible
to regard the operation of the levirate in
similar
terms.74 Moreover, as has been pointed out, the em-
phasis
in the surrounding nations is on the rights of the living
whereas
in
the
dead may not be blotted out" (Deut. 25:6). Other pur-
poses
may have been incorporated in the course of the his-
tory
of this institution in
throughout
on the need for a male descendant, and it is this
emphasis
which we cannot find in the surrounding cultures.
In
commenting on Hebrew law and its relation to other an-
cient
Semitic law codes, Meek concludes, " . . .What they did
borrow,
they made their own. It was no slavish imitation of an
uncreative
people, but an imitation that improved what it took,
and
in the end what it did take became definitely Hebrew and
did
not remain Babylonian or Hurrian or Canaanite."75
husband
has died without leaving a son; according to Koschaker it is likely that
this
applies to Hittite law as well. We may assume identical conditions for
sandwiched
as it was between
testament
of king Arihalbu: "On this evidence alone it is not possible to argue for
the
regular practice of levirate marriage as in Hebrew society. The fact that
marriage
of a widow with any but her brother-in-law is here expressly forbidden
by
special deed suggests that even if levirate marriage was regular in Ugaritic
society
it was certainly not compulsory. Indeed, since this is a royal disposition
where
the marriage of the king's widow might have possible political conse-
quences,
to say nothing of the infringement of the 'divinity that doth hedge a
king,'
it may well be that levirate marriage in
74. See chap. 8, nn. 59, 104.
75. T. Meek, Hebrew Origins, p. 81. D. Mace, Hebrew
Marriage, 1953, p.
113,
remarks: "Though it has parallels with the customs as it obtains in other
lands,
the Hebrew levirate is essentially an inherent product of the culture to
which
it belongs, and its antiquity marks it as having grown out of that soil."
See
also
nn. 36, 40, 59-61.
2
The Levirate In
MATERIALS
for the study of the levirate custom1
in
the Old Testament are somewhat meagre, con-
sisting
of three main passages: the story of
and
Tamar in Genesis law given in Deuteronomy
25:5-10,
and the book of Ruth. In this chapter consideration
is
given to the first two passages.
The Levirate Incident, Genesis 38
In Genesis 382 we are
told of
and
the birth of three sons, Er, Onan and Shelah.3 The ac-
1. For our purposes we shall operate
with the definition of levirate given by
J.
Mittelmann, Der altisraelitsche Levirat,
1934, p. 1, who says, "Die moderne
Rechtswissenschaft
verwendet jedoch den Ausdruck Levirat für alle Falle, in
denen
die Witwe einem Verwandten des Mannes zufällt, mag dies nun der Bruder
oder
irgendein anderer Verwandter des Verstorbenen sein." We recognize that
some
will strongly object to calling the marriage of Boaz and Ruth a levirate
marriage.
Cf. S. R. Driver, Deuteronomy, ICC,
19023, p. 285. K. Dronkert, Het
Huwelijk in het Oude
Testament,
1957, pp. 67, 68, writes, "Strikt genomen
komen
wij het leviraatshuwelijk in de practijk alleen tegen in Gen. 38 en als
wettelijke
bepaling in Dent. 25:5-10. In het boek Ruth hebben wij niet te doen
met
een leviraatshuwelijk.... Het geval Ruth heeft met het leviraatshuwelijk in
wezen
niet veel te maken." L. Epstein, Marriage
Laws in the Bible and the Tal-
mud, 1942, pp. 86, 140,
prefers to use the term "geullah marriage" when refer-
ring
to the marriage of Boaz and Ruth. While there may be some merit in using
different
terms for the purpose of more precisely defining the distinctions within
the
levirate development, most scholars would nevertheless employ the termi-
nology
"levirate marriage" when referring to the marriage of Boaz and Ruth.
2. D.
20),
1970, p. 18, states, "As for the insertion of 38 at exactly this point in
the
story
... , one can only protest (a) between chapters 37 and 39 there is a natural
pause
in the action, and (b) certain coincidental features of chapter 38 bind it to
chapters
37 and 39. Among the latter one may note the similarity between
in
38 and Jacob in 37: both are patriarchs; both are deceived, both are obliged to
give
legal recognition to a piece of evidence."
3. S.R. Driver, Genesis, 192612, p. 326, finds two purposes in this
narrative.
29
30 The Levirate In
count
goes on to mention the marriage of Er, the firstborn,
to
Tamar and the subsequent death of Er.4
Onan
to go in to Tamar, his brother's wife, and perform the
duty
of a brother-in-law to her and to raise up offspring for
his
brother: jyHxl frz Mqhl htx Mbyv (v. 8). Knowing that
the
offspring of such a union would not be his, when he went
in
to Tamar, he spilled the semen on the ground.5 For the
First,
to explain the origin of
the
duty of marriage with a deceased brother's wife. M. Burrows, "Levirate
Mar-
riage
in
should
not be used in discussions on the levirate since it is not typical. "As an
illustration
of possible variations it may he relevant, but for information as to
normal
procedure it has little value." So also R. K. Harrison, I0T, 1970, p. 650,
and
H. Brongers, "Enkele Opmerkingen over het Verband tussen Lossing en
Leviraat
in Ruth IV," NedThT, 2, 1947-48,
p. 4. S. Belkin, "Levirate and Agnate
Marriage,"
JQR, 60, 1969-70, p. 278, writes,
"This story of Tamar reveals the
ancient
practice of levirate, before the Sinaitic Revelation." W. McKane,
"Ruth
and
Boaz," GUOST, 19, 1961-62, p. 3,
and E. Neufeld, Ancient Hebrew Marriage
Laws, 1944, p. 35 (hereafter
cited as AHML) oppose Burrows.
Neufeld argues
that
the case of Judah and Tamar represents not merely a local law as distinct
from
a general law, since "on comparison with the C. Hitt. and the M.A.L.,
it will
be
seen that the duty of levirate marriage might devolve upon a
father-in-law." D.
Mace,
Hebrew Marriage, 1953, p. 96,
maintains that Gen. 38 "provides us with an
interesting
example of the levirate custom in action." L. Epstein, op. cit., p. 80,
calls
Gen. 38 "the first case of levirate." D. Daube, "Consortium in
Roman and
Hebrew
Law," JurR, 62, 1950, p. 72
(hereafter cited as "Consortium") remarks,
"The
narrative of Judah and Tamar confirms that the original and chief function
of
levirate marriage was among brothers still under the rule of their paterfami-
lias..
. . This state of affairs must unquestionably be considered typical of levirate
marri
age."
4. In contrast to the case of Onan,
no particular crime is mentioned; never-
theless,
Er incurred the displeasure of the Lord and the Lord slew him. C. F.
DeVine,
"The Sin of Onan," CBQ, 4,
1942, p. 334, maintains, "that both Iler and
Onan
committed the same sin and so were killed by God." This conclusion he
bases
on the similarity of expression (hvhy ynyfb fr) in Gen. 38:7 and Gen.
38:10
and the similar fates of the two brothers. Cf. n. 5. We cannot see that
similar
wording used to describe Yahweh's verdict on an action constitutes proof
that
the actions themselves were similar. G. Coates, "Widows Rights: A Crux in
the
structure of Genesis 38," CBQ,
34, 1972, p. 462, is probably correct when he
writes,
"Neither is 'Er's character a part of the narration. The exact nature of
his
violation,
the act that angered Yahweh, is not set out. It is irrelevant for the
developing
plot. The only purpose of this stage is to explain that Tamar became a
widow."
5. S. R. Driver, Genesis, p. 328, believes that Onan was
"hoping perhaps
selfishly
to secure the rights of primogeniture in his father's family for him-
self...."
D. Kidner, Genesis, TOTC, 1967, p.
188, writes, "The enormity of
Onan's
sin is in its studied outrage against the family, against the brother's widow
The Levirate In
second
time the story relates the reason behind his practice
which
was "lest he should give offspring to his brother" (v.
9).
What he did was displeasing to the Lord and the Lord
slew
him. At this point,
father's
house until Shelah, the younger son, grows up.6
to
her, house father's house.7
and
against his own body." The standard English translations fail to make
clear
that
this was his persistent practice. The repetitiveness of Onan’s, sin is a factor
in
understanding
the severe punishment which was meted out to him. Mx (v. 9)
should
be translated "whenever." Cf. Num. 21:9; Judg. 6:3. CF. GKC §112,gg.
The
NV brings out accurately the true meaning when it translates, "zo vaak hij
tot
de
vrouw van zijn broeder kwam." C. F. DeVine, op. cit., pp. 337-339, argues that
the
principle cause of Onan's punishment was his violation of the natural law.
Secondarily,
his evasion of the levirate duty was a factor. This conclusion he seeks
to
support with several arguments. Emphasizing the hWf rwx in 38:10 he writes,
"What
Onan did was to waste his seed on the ground; this constituted an offence
against
the natural law, and for this was Onan killed." He goes on to suggest that
"it
Onan were killed by God simply because he failed in the levirate duty, we
would
be forced to admit that God punished Onan with severity beyond measure,
and
in fact, beyond the measure of the law which He later gave to Moses." He
further
argues that "if the penalty of death were inflicted on Onan simply and
solely
because of his levirate failure then we fail to see why Juda did not suffer
the
same penalty." Finally, he introduces reasons based on his belief that Er
and
Onan
committed the same crime (cf. n. 4). If both committed the same crime and
were
visited by " the same fate and no levirate failure could be attributed to
Er
"this
leads to the conclusion that Onan was not killed, principally because of the
levirate
failure but because he, like Her, did something wicked in the eyes of God.
This
something is recounted in detail of Onan and suggested as regards Her."
Several
things must be said in reply to De Vine. The meaning of hWf
rwx cannot
be
restricted to the spilling of the seed but must include the remaining clause
"lest
he
should give offspring to his brother" (Gen. 38:9b).
It is. speculative to presume that
the brothers, Er and Onan, committed
similar
crimes simply because in both cases it is stated they were evil in the eyes
of
the Lord. Nor can an argument be based on the unusual punishment of Onan in
relation
to his father, Judah, since the latter's levirate responsibility is open to
question.
Cf. nn. 14-19: For these reasons we must reject DeVine's position.
6. Cf. MAL §43. J. Morgenstern,
"The Book of the Covenant, Part II,"
HUCA, 7, 1930, p. 164,
writes, "A certain parallelism with the Assyrian practice
exists
in that the youngest brother had to reach a certain age, no doubt the age of
puberty,
before his union with his brother's widow could be effected."
7. According to G. von Rad, Genesis, OTL, 1961, p. S53,
honesty
"lay in considering this solution as really final for himself but in
present-
ing
it to Tamar as an interim solution." Cf. also A. van Selins, Marriage and
Family Life in Ugaritic
Literature,
1954, p. 36: "In sending her hack to her father
he
made it clear to her—though he did not actually say so—that he no longer
wanted
her as a daughter-in-law. That looks
like a legal figure for which we have
39 The Levirate in
The second and main part of the
story concerns
and
Tamar.
this
time, become aware of his intent to be permanently rid
of
her. When she sees that sufficient time had elapsed for
Shelah's
maturation and yet
(38:
14b), she resorts to a form of trickery, waylaying him in
the
disguise of a harlot.8
When it becomes evident that Tamar
is pregnant and
immediately
decides that she should be burnt.9 However,
not
a proper name; a 'divorce' by the father-in-law! Nevertheless, when
hears
that she is pregnant, he feels that his rights, or rather those of his son,
have
been
infringed (rather illogically we should think), but as he never formally in
words
'divorced' Tamar, he is still able to exert full authority over her."
8. According to Gen. 38a15,
But
when his friend goes to recover his pledge (38:21) he-asks for the cultic
prostitute
(hwdqh).
The mention of the veil in 38:14 seems to point in the
direction
of the latter. Cf. M. Astour, "Tamar the Hierodule," JBL, 85, 1966, pp.
1921-1121
Porter, "Legal Aspects of Corporate Personality," VT, 15, 1965,
pp.
370, 371, comments, "Heb. ZANAH, frequently, and perhaps more often
than
not, in the Old Testament, has the technical sense of becoming a sacred
prostitute
in the service of some female deity, whose worship would he con-
sidered
apostasy to Yahweh. This is clearly the case with the use of the word in
the
story of Judah and Tamar, Gen. XXXVIII 24, since twice the word there used
for prostitute is qedeshah, one devoted to a
religious cult, and it is noteworthy
that
the punishment for Tamar's prostitution is to be burning." See also C.
Vos,
Women in Old Testament
Worship,
1968, p. 97, who views the two words in
Genesis
38 as "virtua1synonyms." E. Speiser, Genesis, AB, 1964, pp. 299, 300,
suggests
that
affair
on a higher social level." E. Good, Irony
in the Old Testament, 1965, p.
108,
states, "
irony,
as does her, insistence on a pledge of payment, which prepares us for the
conclusion;
we must also perceive the irony of the fact two words for 'prostitute'
are
used in the story.... Certainly the alternation of terms is not accidental.
is
not about to inform strangers that he runs around after ordinary prostitutes
while
anyone would assume perfect respectability in the search for a cultic prosti-
tute."
9. G. von Rad, op. cit., p. 355, writes, "
he
thus reckons Tarnar as part of his family, though Tamar's act proceeded from
the
assumption that.
Cf.
H. J. Boecker, Redejormen des
Rechtslebens im Allen Testament, 1964, p.
147,
comments, "In dem Ehebruchprozess gegen Thamar wird von Juda, dem
zustandigen
Richter. caber die angeklagte Frau die Tatfolgebestimmung verhangt:
Jrwtv. S. Belkin, op. cit., pp. 279, 319, 320, feels that the story is significant in
ascertaining
the legal status of the widow before the levirate is performed. From
the,mention
of burning as punishment he concludes that her status was still that
The Levirate In
Tamar
has obtained from
ly
identifying him as the father of her child. Accordingly, she
is
vindicated by
in
the right11 than he, because he has not given his son,
of
a married woman. "Her marriage ties were not considered dissolved by the
death
of her husband." S. R. Driver, Genesis,
p. 330, holds that Tamar is treated
as
the bethrothed of Shelah and consequently as ad adulteress. We should note that
burning
is mentioned as the punishment of the priest's daughter who has com-
mitted
fornication (Lev. 21:8, 9), death by stoning being the usual mode of
execution
for adultery. R. de Vaux, Ancient Israel,
1961, p. 36, believes that in
very
ancient times it may have been that burning was also employed as a more
common
means of execution. M. Astour, op. cit.,
pp. 190-195, in an attempted
reconstruction
of the whole chapter, views Tamar in the role of a sacred prosti-
tute
of the kind allowed to marry but not to have children. The explanation of
Tamar's
burning then is that "she became pregnant while being a hierodule."
His
drastic
reconstruction of the data, however, is not convincing. Nor can we accept
the
view of A. Phillips, Ancient Israel's
Criminal Law, 1970, p. 129, who believes
that
"
reflecting
this Babylonian type of punishment, which had been incorporated into
the
Holiness Code."
10. According to D. Daube, Studies in Biblical Law, 1947, p. 6, the
verb
rkn (cf. vv. 25, 26) sometimes has the technical
meaning of the "formal finding
out
of, and making a statement to the other party about, a fact of legal relevance;
be
it one on which a claim might be based, or one on account of which a claim
must
be abandoned, or one on account of which the other party's claim must be
admitted."
In the story of Judah and Tamar there is "the submission of formal
evidence
with a request to acknowledge it, and the acknowledgment." Cf. H. J.
Boecker,
op. cit., pp. 126-128.
11. A. Jepsen, "qdc und hqdc im Alten
Testament," in Gottes Wort und
Gottes Land, Festschrift H. W.
Hertzberg, 1965, pp. 81, 82, calls attention to the
use
of this term in the historical books (Gen. 30:33; 38:26; I Sam, 24:18; II Sam.
4:11;
15:4; 19:29; I Kings 2:32 and II Kings 10:9): "Bezeichnend ist das Vor-
kommen
der Wurzel in den Geschichtsbuchern, wo es uberwiegend auf das Ver-
halten
der Menschen zueinander angewandt wird. Aber es sind doch nur wenige
Stellen,
die von der Gottesbeziehung absehen, wo nur der Unterschied der
Menschen
in bezug auf ihre hqdc festgestellt wird oder vom ‘ordentlichen’
Gericht
gesprochen wird. Zu allermeist wird deutlich, das qdc etwas mit Gott zu
tun
hat." E. Gerstenberger, Wesen und
Herkunft des apodiktischen Rechts, 1965,
pp.
115, 116, writes: "In der Familie, Grossfamilie oder Sippe ist der Vater
die
Autoritatäperson,
die im Zentrum des sozialen Geftiges steht.... Das Familien-
oberhaupt
ist darum als der Urheber und Garant der das Sippenleben regulierenden
Prohibitive
und Gebote anzusehen. Die Einschränkung seiner Rechte ist jedoch
dadurch
gegeben, dass auch er sich innerhalb der ihm übergeordneen, durch Gott
geschutzten
Rechte bewegt, die sich eben in der Familienordnung ausdrücken. So
Weiss
sich Juda Gen. 38, 26 durch die 'höhere Gerechtigkeit' überführt...." It
is
possible
that the phrase ynmm hqdc expresses a contrast rather than a
comparison
in
which case we should translate, "she is in the right as compared with
me." Cf.
GKC
§ 133 n. 2. H. J. Boecker, op. cit., p.
127 remarks, "So muss er öffentlich
34 The Levirate In
Shelah,
to her. The incident ends with the affirmation that he
did
not have intercourse with her again (38:26b).
In the levirate incident in Genesis
38, primarily three
things
will he investigated: (1) the purpose of the levirate,
(2)
the parties involved in its execution, and (3) the pressures
placed
upon the involved participants to execute their re-
sponsibility
toward the deceased. It is evident from
command
to Onan to go in to his brother's wife that the levitate
duty
consisted of raising up offspring for the brother (Gen.
38:84).
This is reiterated in the statement that Onan knew
the
offspring would not be his own (Gen 38:9a) and in the
comment
that "whenever he went in to his brother's wife he
spilled
the semen on the ground, lest he should give offspring
to
his brother” (Gen. 38:9b). This threefold reiteration
makes
it abundantly clear that the child of such a union was
reckoned
as the legal offspring of the deceased, and that such
was
the purpose of the levirate as recorded in this story.
Property
succession is not expressly mentioned as being in-
volved,
though it may be possible to infer from the continued
adament
refusal of Onan that such interests may also have
been
at stake in this incident.12
feststellen,
class Thamar im Recht hqdc er selbst aber im Unrecht (ynmm) ist." K.
Koch,
Sdq im AT, Diss. Heidelberg 1953, p.
71, cited by H. J. Boccker, op. cit.,
p.
127,
translates "Sic ist sdq-ich bin es nicht."
12. The relation between begetting a
son for the deceased, and the property
succession
is one of the thorny questions of the levirate. This question. becomes
most
acute in the marriage of Boaz to Ruth, where the property transaction is
suddenly
introduced in Ruth 4. J. Scheftelowitz, "Die Leviratsehe," ARW, 18,
1915,
p. 255, maintains that Onan, "der das Erhe des verstorbenen Bruders
dauernd
im Besitze haben wollte, darauf bedacht, dass diese kinderlos bliebe."
Similarly,
J. Mittelmann, op. cit., p. 13.
child
which Onan would have raised, were he to perform the levirate, would not
have
been reckoned as his. The inheritance of his deceased brother, too,—if there
had
been any—would have belonged, it seems, to the new-born child. Surely, these
factors
were deterrants to a willing moral performance of the levirate." Th. and
D.
Thompson,
"Some Legal Problems in the Book of Ruth," VT; 18, 1968 pp.93,
94,
reason: "If Onan had openly refused the levirate obligation, then Tamar
would
have been able to lake her own independence, as well as, we must suspect,
her
dead husband's share of inheritance.... But when Onan ostensibly does ac-
cept
his levirate obligation, Tamar is left without any way of proving her case.
Onan
(and this is of what his sin consisted) was trying to steal his dead brother's
The
Levirate In
The levirate duty first devolved on
Onan, the brother of
Er,
whereupon it then was passed to Shelah. It would appear
that
the widow was to wait until the young brother was able
to
perform the levirate duty. The suggestion has been made,
based
on Ruth 1:11-14, that in ancient
born
brother would have been obliged, as well, to marry the
widow.13
It is more disputable how we are to understand
sons
with HL, § 193, many scholars believe that an obligation
to
marry the widow of his deceased son rested as well with
the
father-in-law.14 Such an inference, however, is debatable
and
there have not been lacking those who would resist draw-
ing
this conclusion.15 In discussing a possible father-in-law
inheritance,
which, upon
and
keep in lieu of a possible future son of Tamar's." Because the right of
inheritance
was intertwined with the duty of the levirate, D. Mace, op. cit., pp.
106,
108, feels there were two kinds of abuses. "First, the heir might try to
take
the
property without marrying the widow.. The second possible abuse of the
law
was that the brother, having taken over both the property and the widow,
might
try to avoid his responsibility as levir by preventing the woman from
becoming
pregnant, so that he might keep the property for himself. It is possible
that
attempts of this kind were quite frequent; and the story of the tragic fate of
Onan
may well have been a cautionary tale to warn others who were tempted to
employ
a similar device."
13. E. Neufeld, AHML, p. 35. M. David, Het
Huwelijk van Ruth, 1941, p. 4,
writes,
"Dit sluit evenwel niet uit, dat ook voor eventueel later geboren zonen
van
Juda
de verplichting zou kunnen hebben bestaan, na den dood van de oudste
broeders
Tamar te trouwen.''
14. J. Wijngaards, Deuteronomium, BOT, 1971, p. 285,
remarks, "Het is
zeer
waarschijnlijk, dat de plicht om een mannelijke afstammeling te verwekken
oorspronkelijk
niet alleen op de broers, maar zelfs op de schoonvader en andere
familieleden
rustte." Similarly, E. Neufeld, op.
cit., p. 36; D. Mace, op. cit.,
p.
103;
C. Lattey, The Book of Ruth, 1935, p.
XXVI; J. Morgerstern, op. cit., p.
163;
J. Mittelmann, op. cit., p. 15; H. H.
Rowley, "The Marriage of Ruth," in The
Servant of the Lord, 19652, p. 80; L.
Epstein, op. cit., p. 100; G. A.
Smith,
Deuteronomy, 1918, p. 287; Th. and
D. Thompson, op. cit., p. 94; S.
Belkin, op.
cit., p. 278. G. von Rad, op. cit., p. 354, believes that Tamar
"can well have
reckoned
with
15. J. Skinner, op. cit., p. 455, warns against concluding that it was the
father-in-law's
duty to marry his son's widow under all circumstances. This would
ignore
the exceptional nature of the circumstances which the writer wished to
portray.
Cf. W. Caspari, "Erbtochter and Ersatzehe in Ruth 4," NKZ, 19, 1908,
p.
128, and D. Jacobson, The Social
Background of the Old Testament, 1942, p.
296.
F. Horst, "Leviratsehe," RGG,
4, 19603, p. 338, writes, "
36 The Levirate In
obligation
two points in particular should be noticed: First,
the
right than he, is explained16 in the words of the final
clause
"inasmuch as I did not give her to my son, Shelah."
This
acknowledged delinquence seemingly has to do with his
failure
to give Shelah to her upon his maturation. It is not an
acknowledgment
of his own failure to act personally on her
behalf,17
but perhaps
than
I, inasmuch as I did not give her to my son, Shelah" go
beyond
an admission of fault for not giving Shelah to Tamar.
He
may as well be saying that since he had not given her
Shelah,
"she had the right to obtain fulfillment of the duty
of
the levirate by him, if his sons failed."18
"she
is more righteous," are an acknowledgment of his delin-
quence
in his responsibility toward Tamar in not giving her
his
grown son, but it could be that in the light of this omis-
sion
the levirate was then his duty, which of course he also
had
not assumed. Through her cunning artifice she had man-
aged
to take what should have been hers but what was with-
held
from her. Secondly, the son born to the union is reck-
oned
(Gen. 46:12)19 to be
von
Brüdern wie im Hethitischen der Schwiegervater leviratsehepflichtig wurde,
ist
aus Gen. 38 nicht sicher zu entnehmen."
16. E. Jacob, TOT, 1958, p. 95, is far removed from the text when he
explains
teous
than himself he is saying that in the particular circumstances which are
being
narrated she has acted according to the rules and customs of prostitution
while
he himself has not respected them."
17. W. Rudolph, Das Ruch Ruth, Das Hohe Lied, Die Klagelieder, KAT, 17,
1962,
p. 63.
18. G. R. Diiver and J. C. Miles, The Assyrian Laws, 1935, p. 242. They
refer
to MAL, A, §33, in their interpretation of the responsibility of the father-
in-law.
Cf. also T. Meek, Hebrew Origins, p.
64.
19. J. Morgenstern, op. cit., pp. 182, 183, cites Gen. 46:12
as well as Ruth
4:1
1 b, 12 and 4:17b, 22 as passages which reflect a late post-exilic attitude
where
the
child is reckoned as belonging to the actual father and the institution is
merely
regarded in terms of the inheritance of property. D. Mace, op. cit., p. 109,
argues
that in both Ruth and Gen. 38, "the fundamental point of the custom
appears
to have been overlooked in the telling of the story, because the children
born
are described as belonging to their actual fathers and not to the deceased
husbands
of their mothers." G. Coates, op.
cit., p. 462, writes, "Implicit in
The Levirate In
to
Er as would be expected if the father-in-law were regarded
in
the story as having validly performed the levirate.
We have reason to conclude from this
incident that there
was
an order followed in the performance of the levirate.
Such
an order went from the oldest to the youngest of the
brothers.
Whether the father of the deceased was also legally
involved,
in the event of the nonfulfillment of the levirate by
the
brothers, is certainly debatable, though there are no in-
surmountable
arguments that can be introduced against it.
From Genesis 38 it appears that the
obligation to per-
form the levirate duty rested strongly upon
the brother of
the
deceased.20 The fact that Onan resorted to a secret act of
defiance
suggests that no other recourse was available by
which
he might have avoided his responsibility. God, himself,
the
custom is protection for the widow's inheritance rights within the father-in-
law's
family. The concern is not simply, for 'Er's future line; in, fact, the
children
finally
conceived within they frame of the story trace their paternity to their real
father,
not to 'Er (cf. Numb. 26:19-20). The concern is for Tamar's future." This
is
clearly contrary to the emphasis of Gen. 38:5, 8, 9 on giving offspring to the
deceased
brother. It is not valid to give precedence to later geneological references
over
the clear statements of the narrative. Because of the extreme difficulty in
interpreting
the genealogies of the Bible, the inclusion of Perez and Zerah as sons
of
Judah in Gen. 46:12 and Num. 26:19-20 should, not, in the absence of addi-
tional
evidence, be regarded as a final evolutionary stage of the levirate. As a
possible
example within a genealogy the use of both the real father as well as
the
father by means of the levirate, note should be taken of Zerubbabel who is
called
the son of Pedaiah (I Chron. 3:19) and the son of Shealtiel (Ezra 3:2, 8;
5:2;
Neh. 12:1; Hag. 1:12, 14). W. Rudolph, Chronikbücker,
HAT, 21, 1955, p.
29,
writes: "Beide Angaben werden so auszugleichen sein, dass Fedaja, als
Scheal-
tiel
ohne Sohn starb, mit dessen Witwe eine Leviratsehe (Dt. 25:5ff) schloss, so
dass
sein Erstgeborener Serubbabel physisch sein Sohn, rechtlich aber der seines
Bruders
war." This is also considered to be distinctly possible by J. Myers,
I Chronicles, AB, 1965, p. 21. For
an explication of some of the obscurities in
biblicalgenealogies,
see A,Malamat, "King Lists of the Old Babylonian Period and
Biblical
Genealogies," in Essays in Memory of
E. A. Speiser, ed. W. Hallo, 1968,
pp.
163-172. See also, M. Johnson, The
Purpose of the Biblical Genealogies, 1969,
pp.
77-82.
20.
p.
30, maintains that this incident suggests a revolt on the part of Canaanite
society
against an institution "economically and socially out of tune with the
times."
In an attempt to justify compliance with the law the new interpretation
of
"raising up seed" for the dead brother was advanced, but Onan refused
such an
innovation,
even though his evasion was punishable by death.
38 The Levirate In
severely
punished21 this sin of "Lieblosigkeit gegen den ver-
storbenen
Bruder."22
in
withholding Shelah similarly points to the seriousness with
which
such duties were regarded. While it might appear to be
possible
to argue that his failure to give his son to Tamar
betrays
the opposite, such reasoning would not sufficiently
take
into account the exceptional nature of the recorded
incident.
Furthermore, we must not overlook Tamar,23 who
21. The lack of opportunity to opt
out of this responsibility as well as the
severe
punishment meted out by Jahweh may be evidence for the most ancient
phase
of the levirate, at which time the levirate was an unavoidable obligation. We
cannot
speak with "complete certainty on this point. It is instructive to note
the
remarks
of W. Rudolph, op. cit., p. 62, who
writes, "Dass in der sehr alten
Erzahlung
Gn 38 die Leviratspflicht ganz streng ist, ergiht sich daraus, dass Onan,
obwohl
er möchte, sich dieser Pflicht nicht entziehen kann und dafür, dass er
geheime
Sabotage treibt, von Jahwe mit dem Tode bestraft wird." Comparing the
obligation
pictured here with that in the book of Ruth, he makes the following
significant
statement: "Nun hängt dieser Unterschied in der Verbindlichkcit
offenbar
mit dem Unterschied des Verwandtschaftsgrades zusammen: Der Bruder
musste,
der entferntere Verwandte konnte; dass zwischen Gn 38 und Ru kein
Widerspruch
besteht, folgt auch aus Ru I, 1 I ff., wo Noomi doch wohl als
selbstverständlich
voraussetzt, dass, wenn sic Söhne hätte diese ihre Schwieger-
töchter
pflichtgemäss ehelichen würden. Andererseits schliesst Gn 38 die
Anschauung
vom freiwilligen ‘Levirat’ entfemterer Verwandter nicht aus, nur dass
dort
kein Anlass war, davon zu reden."
Moreover, it may be that this severe
punishment of Onan should be attri-
buted
to the exceptional nature of the means employed to circumvent the obliga-
tion
and the deception involved in such a procedure. The repetitive nature of
Onan's
sin may also have been a factor. See n. 5.
22. H. Gunkel, Genesis, HK, 1, 19173, p. 413. He writes further,
"Man
beachte
die Gottesanschauung, die hier zu Grunde liegt: Jahves Augen sehen auch
das
Geheimste, was kein Menschenauge schaut; und er beschutzt den, der sich
selhst
nicht helfen kann: den Verstorbenen, desscn Recht man verletzt."
23 C. F. Keil, The Pentateuch, 1, 1864, p. 343, explains Tamar's conduct as
resulting
not from lust but from "the innate desire for children." G. von Rad, op
cit., p. 357, on the
contrary feels that "the question of whether she was moti-
vated
more by the desire for a child than by her widow's duty is not raised in the
story."
While one must agree that there is no express statement on Tamar's
motivation,
there is also no reason to believe it to be anything other than that
with
which the entire narrative is preoccupied, which is the duty of the deceased's
family
to raise up seed to the dead brother. H. H. Rowley, op. cit., p. 181, is of
the
opinion that of all the duties of the next-cif-kin that of performing the
levirate
was
the least pressing. In support of this opinion, he cites Judah's behavior in
disregarding
the levirate as well as Tamar's in resorting to trickery rather than
appealing
to public opinion. It is questionable, however, whether public opinion
would
have been a feasible means of counteracting the kind of subterfuge em-
ployed
against Tamar. J.
The Levirate In
keenly
felt her obligation to her dead husband and whose
persistence
led her surreptitiously to seek for a son for her
deceased
husband.
One remaining point must be
mentioned regarding the
levirate
in Genesis 38. This duty, as we say, consisted of
raising
up offspring to the dead brother. Such a purpose,
however,
did not necessarily require a levirate marriage.
take
Tamar as a wife. Furthermore, when Tamar had become
pregnant,
and subsequently was exonerated by
told
that "he did not lie with her again" (Gen. 38:26b). For
this
reason Belkin remarks, "In retrospect, one realizes that
this
story reveals only the duty of levirate, but not necessar-
ily
levirate marriage."24 If this is the case, one can see a
writes,
"Israelitic women have looked up to her as an example, a woman who
knew
how to show endurance and cunning and set aside all other considerations
in
order to attain the great victory, namely to give the husband progeny." G.
von
Rad, op. cit., p. 357, remarks, "Only
Tamar is unmistakably praised by the
narrator."
For rabbinic comment on Tamar, cf. M. Johnson, op. cit., pp. 159-162.
We
cannot accept the verdict on Tamar expressed by E. Robertson, "The Plot of
the
Book of Ruth," BJRL, 32, 1950,
p. 226: "That Tamar had my legal justifica-
tion
for her conduct I do not for a moment believe, yet Old Testament scholars
have
displayed extraordinary ingenuity in attempting to provide her with one."
We
prefer the verdict of D. Redford, op. cit.,
p. 18, who describes Tamar as "an
honorable
woman faithful to the interests of her husband." This is also the verdict
of
A. van Selms, "The Canaanites in
Genesis," OTS, 12, 1958, p. 205,
who
comments,
"For later generations in
of
complete devotion to first task, the
procuring of offspring."
24. S. Belkin, op. cit., p. 279; also G. R. Driver and J. C Miles, op. cit., p.
243.
G. Coates, op. cit., p. 463, comments, "Not tantamount to marriage, the
duty
of a brother-in-law (yabam) is only for production of a male heir. The
widow
remains the wife of the dead brother (cf. vs. 8a: Go in to your brother's
wife)."
Coates maintains that the goal toward which Tamar's scheme moves is the
conception
of a child, not marriage. His conclusion (p. 465) is that "the widow
can
look for marriage from the brother-in-law or whoever fulfills the levirate
custom.
But she has the right only for conception." His reasoning concerning the
purpose
of Tamar's deception may well be correct but his attempt to link Tamar
and
Ruth together in similar strategies must remain unconvincing. Cf. 7 n. 31.
Cf.
H. H. Rowley, op. cit., p. 186,
"The woman was still considered as the wife of
the
dead man, and the brother was merely a substitute for him for a single
purpose.
Again, levirate marriage had reference only to a single birth. The broth-
er-in-law
had completed his duty when he had provided the dead with a single
heir."
He feels (p. 187 n. 2) that the case of Judah, who was married and with
children,
is significant, confirming that "an institution whose only raison d'etre in
40 The Levirate In
parallel
to the custom of niyoga mentioned in the laws of
Manu
which reads: "But when the purpose of the appoint-
ment
to cohabit with the widow has been attained in accor-
dance
with the law, these two shall behave towards each
other
like a father and daughter-in-law."25 Yet we must also
take
notice of Genesis 38:14, "For she saw that Shelah was
grown
up and she had not been given to him as wife"26 (xl
hwxl vl hntn). Such terminology,
however, may have been
employed
to emphasize that the "obligation of the levir_does
of
its purpose." Later, however, (p. 192) he remarks, "it neither
required nor
excluded
full marriage."
25. E. Bühler, The Laws of Manu, Sacred Books of the East, 25, 1886, p.
339.
Such a parallel is viewed by M. Burrows, "The Ancient Oriental Background
of
Hebrew Marriage," BASOR, 77, p.
6 (hereafter cited as "Background") as
being
too remote to be of any significance in interpreting the Hebrew levirate.
Similarly,
J. Mittelmann, op. cit., pp. 10, 11.
Th. and D. Thompson, op. cit., p.
95,
mention the parallel in the laws of Manu as being far afield but valuable! They
maintain
that "because of its closeness to incest, it was felt necessary to limit
the
levirate
relationship to what was necessary to fulfill its purpose. It was certainly
not
considered equivalent to marriage.” Chamberlayne, Man in Society,
1966,
p. 65, refers the laws of Manu on the basis of which he regards it as
probable
that the levirate duty was finished when a single son was born.
26. The same phraseology is to be
seen in Deut. 25:5. G. R. Driver and J. C.
Miles,
op. cit., p. 243, argue that marriage
is not required in the Deuteronomic
law
of the levirate or in the Tamar incident. J. Mittelmann, op. cit., p. 11, writes,
"Weiter
finden wir im A. T. an keiner den Levirat betreffenden Stelle ein Verbot
der
Fortsetzung des Geschlechtsverkehrs nach der Zeugung des Leviratssohnes."
His
reasons are interesting, in that they provide an example of the circular
reason-
ing
which is at times involved in this issue. Considering the data from Ruth as
implying
levirate marriage, he is able to argue that the levirate duty involved
marriage
for at least two reasons. One would be the clear statement of Ruth 4:13.
"So
Boaz took Ruth and she became his wife." The second is the goel' s
reluctance
to
redeem the property (for fear of impairing his own inheritance). This reluc-
tance
may be reasonably explained, according to Mittelmann, on the grounds that
a
number of sons will come from the union which, when combined with his own
sons,
will lead to the dismemberment of his estate, ibid, p. 13. There can be little
doubt
that in the book of Ruth we have a full marriage taking place between Boaz
and
Ruth. For this reason, our discussion of whether the levirate duty involved
marriage
or merely cohabitation for the purpose of procreation is of some rele-
vance
in the analysis of the goel marriage in Ruth. If the levirate duty were merely
to
produce a son, and were not a levirate marriage, this would be an addition-
al
argument in favor of differentiating between the levirate duty and the goel
marriage
in Ruth. Noting this, H. H. Rowley, op.
cit., p. 192, remarks, "Indeed, if
in
the case of a brother-in-law such marriage [full marriage] would have been
excluded,
it is hard to see how Ruth's marriage could have been brought within
the
framework of the levirate custom at all."
The Levirate In
not
stop short at furnishing a son to perpetuate the name of
the
dead, but extends to the future security and status of the
woman.
We must accept Rowley's plea for a
greater flexibility in
our
approach to the details of the levirate. He writes: "The
scanty
evidence we have thus suggests that we ought to recog-
nize
a much greater degree of looseness than some writers
allow
Levirate marriage was not in early times limited to a
brother-in-law
it neither required nor excluded full marriage;
it
neither required nor excluded the unmarried condition of
the
levirate partner."28
We have been discussing Genesis 38
as background mate-
rial
for the goel marriage in Ruth. A comparison between the
two
is drawn by the elders and people who say to Boaz,
"May
your house be like the house of Perez, whom Tamar
bore
to
you
by this young woman" (Ruth 4:12). We shall now pro-
ceed
to Deuteronomy 25 which is generally regarded as the
key
passage in discussions of the Hebrew levirate.
27. W. McKane, "Ruth and
Boaz," p. 30.
28. H. H. Rowley, op. cit., p. 192.
42 The Levirate In
The Levirate Law, Deuteronomy
25:5-10
The Persons Involved In
the Levirate, Deuteronomy 25:5, 6.
The law reads: "If brothers29
dwell together,30 (vbwy yk
vdHy MyHx) and one of them dies and has no son,31
the wife of
29. Many kinship terms in the Bible
have both a specific and a more general
usage.
See F. I. Anderson, "Israelite Kinship Terminology and
Social-Structure," BT,
20;
1969, pp. 29-39. Hx accordingly, has the meaning of a blood brother
of the
same
parents, as well as the more general meaning of a blood brother of the
same
clan, cf. Gen. 13:8; 19:7; 29:4; Lev. 25:25; Judg. 19:23. The later usage is
at
the basis of the levirate as practiced by the Samaritans and the Jewish Karaite
sect.
These groups held that the duty devolved not upon the blood brother but
the
intimate friend, believing that the performance by the blood brothers of the
levirate
violated the Levitical prohibition in Lev. 18:16 and Lev. 20:21. Cf. L.
Epstein,
op. cit., pp. 89, 92. A. van Praag, Droit matrimonial assyro-babylonien,
1945,
p. 109, remarks, "Si dans Deut. XXV 5-10, ‘la loi fondamentale du
levirat',
le
term frère avait un sens classificatoire, la clause que les frères doivent
habiter
ensemble
serait plus clairement un résidu de l'epoque patriarcale où les différ-
ents
fils mariés d'un patriarche continuaient d'habiter, avec leurs femmes, chez
leur
père; ainsi, les fils de ces fils, en grandissant ensemble, étaient regardés
comme
des frères." He goes on to appeal to Lev. 25:25 and Ruth 4 to support his
opinion
that Hx
should be interpreted as brother in the wider sense.
30. Cf. J. C. De Moor, "Lexical
Remarks concerning Yahad and Yahdaw,"
VT, 7, 1957, pp. 350-355.
Cf. Gen. 13:6; Gen. 36:7; and Ps. 133:1 for vbwy
vdHy. J. Pederson, op. cit., p. 508, interprets the living together as meaning
"in
the
same town" since the matter is an affair of the city. E. Neufeld, AHML, p. 40,
writes,
"The word 'together' no doubt means here living on the same family estate
at
the same time." The rabbinic tradition took vdHy temporally; thus: when
they
lived
contemporaneously. Any later born son would be thereby excluded. A.
Ehrlich,
Randglossen zur Hebraischen Bibel, 2,
1909, p. 323, writes, "bwy kann
an
dieser Stelle nur heissen: da sein, lehen, und der Ausdruck den Fall
ausschlics-
sen,
wo der verstorbene Bruder nicht Zeitgenosse des lebenden war." He gives
the
following
explanation for interpreting vdHy temporally: "Der
Grund dieser
Beschränkung
unserer Vorschrift liegt auf der Hand. Denn im Falle der verstor-
bene
Bruder starb, noch ehe der lebende zur Welt kam, ist die Witwe des erstern
im
gewöhnlichen Verlauf der Dinge zur Zeit, wo letzterer die geschlechtliche
Reife
erlangt hat, zu alt, um Kinder zu gebaren und so den Zweck der Leviratsehe
zu
erfüllen. Dabei kann aber auch der Umstand mitwirken, dass das Verwand-
schaftsgefuhl
gegen einen Bruder, den man nie gesehen und nie sehen konnte, fur
ein
so grosses Opfer zu gering ist. Denn die Leviratsehe war seitens des Mannes ein
sehr
grosses Opfer."
31. Nb; LXX: spe<rma. Josephus, Antiquities, IV, 8, 23, uses the term a
childless
(a@teknoj) wife; so also Luke 20:28; Matt. 22:24; and Mark 12:19. The
word
used by
is
in some way connected with levirate, Neufeld's observation that "in
interpret-
ing
the word Nb
in its relation to the levirate the state of the law of inheritance at
different
stages in the history of
valid
(AHML, p. 45).
The Levirate
In
the
dead shall not be married outside the family (hcvHh)32 to
a
stranger; her husband's brother (hmby)33 shall go
in to her,
and
take her as his wife, and perform the duty of a husband's
brother
to her (hmbyv).
And the first son whom she bears
shall
succeed to the name (Mw lf Mvqy) of his brother
who
is dead, that his name may not be blotted out of
The key phrase in our understanding
of who is affected
by
the law is the phrase "brothers dwelling together."34 It
is
generally
assumed that this law presupposes the existence of
the
patriarchal family with the father as authority over his
wife
and children, even over the married sons living with him
32. See Judg. 12:9 for a comparable
use of this word. J. Mittelmann, op.
cit., p. 30, concludes from
this word "dass hier die Rede ist von einem in örtlicher
Gemeinschaft
lebenden Verwandten - Verbande, dem sämtliche Bruder mit ihren
Familien
angehoren und aus dem die Witwe nicht ausscheiden soil." R. Meren-
dino,
Das Deuteronomische Gesetz, (Bonner Biblische Beiträge, 31), 1969,
p.
319,
comments on hcvH: "Das Wort setzt eine scharfe Grenze
zwischen der
Familie
und den nicht dazu Gehörigen."
33. Mby, is used in Deut. 25:5,
7 to refer to the dead husband's brother:
hmby, is used in Deut. 25:7, 9 to refer to the
brother's widow and further alone in
Ruth
1:15 where it refers to the widow of the brother of a wife's husband. J.
Vesco,
"La Date du Livre de Ruth," RB,
1967, p. 243, cites this as a possible
linguistic
argument for a late date for Ruth: "Si le livre de Ruth emploie ce nom
sans
lui donner son séns précis mais en lui accordant une signification plus large,
n'est-ce
pas l'indice que le livre de Ruth a
été écrit, à une, époque où la législation
léviratique
n'était plus d'un usage fréquent et où le vocabulaire de la parenté
devenait
plus large?" See also, M. David, "The Date of the Book of Ruth,"
OTS,
1941-42,
p. 62; C. Rodd, "The Family in the Old Testament," BT, 18, 1967, p. 20.
One
need not assume imprecise usage in Ruth 1:15. For a similar usage which
parallels
the twofold use of hmby, one can point to hdvd in Exod. 6:20, meaning
father's
sister and in Lev. 18:14, meaning wife of father's brother. Hebrew has a
special
verb for the performing of the levirate (Mby) which may be evidence
of the
importance
of the levirate duty; cf. S. R. Driver, Deuteronomy,
pp. 282, 283. For
a
discussion of the root cf.
ground,"
pp. 6, 7, following a suggestion of Albright's, calls attention to the
epithet
"ybmt limm" for the goddess Anat in the Ras Shamra texts. W.
Albright,
"Recent
Progress in North Canaanite Research," BA,
70, 1938, p. 19 n. 6, sug-
gested
that "ybmt limm" means "progenitress of the peoples." The
word devel-
oped
the meaning brother-in-law and sister-in-law because of their involvement in
the
yibbum, the levirate marriage. C.
"progenitress
of heroes" may be a correct rendering of "ybmt limm." Th. and D.
Thompson,
op. cit., p. 85, write, "We
ought not to translate yibbum as levirate'
but
as 'progenitor marriage' or the like. It is the progeny rather than any
previous
relationship
between the couple that is significant in this custom." Cf. J. Gray,
The Legacy of
34. Cf. n. 30.
44 The Levirate In
and
their wives.35 Furthermore, it is commonly asserted that
this
law is operative only where brothers
are dwelling to-
gether.36
Mittelmann is representative when he writes, "Da
das
Gesetz die Erfüllung der Leviratspflicht nur von zusam-
menwohnenden
Brüdern fordert, ist der Gegenschluss ge-
rechtfertigt,
dass nach dem Willen des Gcsetzgebers der nach-
geborene
Bruder nicht der Leviratspflicht unterliegen soll, da
er
mit dem Verstorbenen nicht zusammengewohnt haben
kann,
dass ferner Brüder, die in verschiedenen Orten, Län-
dern
oder Erdteilen wohnen, nicht leviratspflichtig rein
sollen."37
Our understanding of this phrase
"dwell together" takes
on
significance when the question is posed, "Is the levirate
connected
with the laws of inheritance?" As we shall present-
ly
see, the phrase "succeed to the name of the dead brother"
has some connection with the rights of inheritance.38
Should
35. R. de Vaux, Ancient Israel, 1961, p. 20. He believes the proper word to
describe
the Israelite family is bx tyb, "the house of one's father."
T. Mitchell,
"Family,"
NBD, 1962, p. 415, regards Josh.
7:16-18 as instructive in understand-
ing
the relation between the tribe, clan and house. "Conceptually the members
of
a
tribe can be pictured as a cone with the founding ancestor at the apex and the
living
generation at the base." See also F. I. Anderson, op. cit., pp. 29, 30.
36. G. von Rad, Deuteronomy, 1966, pp. 154, 155; D. Mace, op. cit., p.
110;
G. R. Driver and J. C. Miles, The
Assyrian Laws, 1935, p. 243;
"Levirate
Marriage in Jewish Law," Studies in
Jewish Literature in Honor of
Kaufman Kohler, 1913, p. 211; H.
Schaeffer, Social Legislation of the
Primitive
Semites, 1915, p. 59; S. R.
Driver, Deuteronomy, p. 282.
According to L.
Epstein,
op. cit., p. 88, "Dwelling
together, which alone permits the levirate
situation,
presupposes a patriarchal family structure, and where there is no patri-
archal
family there is no levirate." This is in accord with the very strong
distinc-
tion
which he draws between levirate marriage and geullah marriage. Both existed
at
the same time. "Brothers dwelling together performed levirate, when not
dwell-
ing
together, they performed the ge'ullah courtesy." Levirate marriage was
rare
and
came to an end with the breakdown of the patriarchal family.
37. J. Mittelmann, op. cit., p. 31.
38. In later Jewish writing the
meaning of "to succeed to the name" is "to
inherit
the property." According to Tannaitic tradition the child of the levirate
union
was the levir’s and the levir was the inheritor of the property, cf.
op.
cit., p. 289. Such an understanding is contrary to the literal intent of the
text
"and
the first son whom she bears shall succeed to the name of his brother who
is
dead." I. Mattuck, op. cit., p.
217, refers to the "forced interpretation" of rvkb
which
"is made to mean that the duty of the marriage devolves first upon the
oldest
of the surviving brothers." He adds: "The reason for transferring the
inheri-
The Levirate In
we
then see in the phrase "brothers dwelling together" an
additional
indication that inheritance is an important factor
in
the levirate? Epstein answers in the negative since he be-
lieves
that "the levirate situation arises while the patriarch is
still
alive and heads his corporate family. It is one of the sons
who
has died childless and left a widow. There is no question
of
disposing of an estate, because the patriarch is still alive. It
is
a matter of conserving property right in the childless
widow
and perpetuating the name of the deceased.”39 This is
the
complete opposite of the opinion held by Driver and
Miles,
who call attention to the absence in this law of any
inclusion
of a duty on the part of the father (similar to the
duty
of
case
the brothers are sharing the inheritance.40 They see the
situation
pictured in the phrase "dwelling together" paral-
leled
in the MAL by the phrase "brothers who have not
divided
the inheritance"41 which would indicate their living
on
a joint estate.
Such a family pattern described in
the phrase "brothers
tance
from the son to the brother-in-law is the recognition of his right to inherit
his
brother's property at the same time that he inherits the widow." S.
Belkin, op.
cit., pp. 290, 291, explains
the change remarking: "Our sages could not and
would
not visualize that the son born from the levies seed should legally be
recognized
as, the seed of the deceased.... If the levir's son exclusively inherited
the
property of the deceased, the levirate union would ofttimes not be consum-
mated,
due to the financial complexities inherent.... On this account the Rabbis
explained
the biblical law, establishing therewith the legality of the natural father
(the
levir) to be also the legal heir of the deceased's estate. Under these condi-
tions,
the usual ground for objecting to the fulfilment of the levirate duty was
removed."
39. L. Epstein, op. cit., p. 86.
40. G. R. Driver and J. C. Miles, op. cit., p. 243. Cf. n. 18.
41. G. R. Driver and J. C. Miles, op. cit., p. 243. See Meek's translation
of
MAL,
B, §2, 3 (ANET, p. 185): "If one
among brothers who have not divided
(the
inheritance) took a life, they shall give him up to the next-of-kin; if he
chooses,
the next-of-kin may put him to death, or if he chooses, he may spare
(him)
(and) take his share. If one among brothers who have not divided (the
inheritance)
uttered treason or ran away, the king (shall deal) with his share as he
thinks
fit." A. F. Puukko, "Die altassyrischen und hethitischen Gesetze und
das
Alte
Testament," StOr, 1, 1925, p.
132, comments, "Die Wendung [the brothers
of
an undivided estate] ist dieselbe wie Dt 25:5 wenn Brüder beisammen (d. h. in
der
ungeteilten Hinterlassenschaft) wohnen."
46 The Levirate In
dwelling
together" is indisputably ancient.42 Neufeld re-
marks,
"Although the Deuteronomic levirate law had in view
a
restriction of the levirate obligation, the way in which the
law
is framed leaves little doubt that it bears the traces of an
ancient
custom of Hebrew family law which was no doubt
out
of date in Deuteronomic times.”43 Driver and Miles re-
flect
on the consortium of brothers and ask why such a word-
ing
is included in the Deuteronomic law. They see the phrase
"dwelling
together" as reflecting the ancient situation where
inheritances
were impartible. They maintain that "when the
law
which now stands in Deuteronomy was originally laid
down,
brothers generally did dwell together, and the Deuter-
onomic
compiler has left the phrase where it is either per
incuriam or because he wished to
restrict the custom as far as
possible."44
The latter explanation seems somewhat artificial,
since
it is doubtful whether the lawgiver would deliberately
legislate
a situation he knew to be virtually nonexistent in
order
to restrict the practice of the levirate.45
Daube argues convincingly that in
Deuteronomy 25, "the
legislation
about levirate marriage, as conceived by its author,
dealt
with consortium, brothers who on their father's death
remained
together on the paternal estate.... In this case, if
one
died without leaving children and the survivor refused to
raise
seed for him in order that his place in the consortium
should
be filled again, the widow could summon the traitor
before
the elders.”46 As over against the situation reflected in
42. Cf. Z. Falk's review of R. de
Vaux's Les Institutions de l'Ancien
Testa-
ment, in JJS, 9, 1958, p. 202, where he comments on the levirate law,
"Our
passage,
however, seems to be based on an earlier law. It was formulated when
‘brethren
dwelt together,’ i.e. during the patriarchal stage."
43. E. Neufeld, AHML, pp. 41, 42.
44. G. R. Driver and J. C. Miles, op. cit., p. 243.
45. Cf. A. Noordtzij, Het Boek Levitikus, KV, 1940, p. 16, who
comments:
"Die
onderstelde wetgevers waren toch zeker geen archeologen! Ze schreven toch
voor
hun eigen tijd, wilden hun wetten toch door hun tijdgenooten gehoorzaamd
zien.
En dan toch voorschriften geven, die in hun tijd ten eenenmale onuitvoer-
baar
waren?!"
46. D. Daube,
"Consortium," pp. 89, 90, J. Mittelmann, op. cit., pp. 30, 31,
is
of a similar opinion when he remarks that "der Gesetzgeber bei der Form-
The Levirate In
Genesis
38, in which the father was alive, Daube maintains
that
the Deuteronomic lawgiver refers to a situation in which
the
estate had not been partitioned after a father's death but
the
inheritance held in common. As evidence to support his
view
that the phrase "brothers dwelling together" refers to
consortium,
Daube cites Psalm 133:1. He finds references to
the
consortium institution in early Hebrew law in the stories
of
Abraham and
36:6,
7) where the phrase "to dwell together" is found.
Daube
gives several reasons for believing that the law operates
in
the situation where the father is dead. "If the lawgiver had
in
mind the ordinary case where the paterfamilias
is still alive,
(1) the expression 'if brethren
dwell together and one of
them
die' would be strange, and one would expect something
like
'If a man take a wife for his son and this son die. . . .’
(2) Similarly, the expression 'her
husband's brother shall
go
in unto her and take her to him to wife' would be strange,
and
one would expect something like 'the paterfamilias
shall
send
her husband's brother in unto her and give her unto
him..
.’
(3) If the paterfamilias were still alive, one would expect
him
to be strong enough to force the remaining brother to
marry
the widow even if he did not wish to do so. . . .
(4) At least, one would expect the paterfamilias to play
some
part in the proceedings laid down in the case of disobe-
dience
on the part of the survivor."47
Daube appears to be arguing for the
original Sitz im Leben
of
the levirate law and his argument is cogently presented.
The
application of the levirate law to additional cases (where
the
father is alive or where the father is dead and the brothers
separate,
taking their own inheritance portion) is a later
ulierung
des Gesetzes in erster Linie an Brüder gedacht haben, die als Bauern in
fortgesetzter
Erbengemeinschaft auf dem vdterlichen Grund and Boden gemein-
sam
Leben." Similarly, H. Brongers, Oud-Oosters
en Bijbels Recht, 1960, p. 199.
47. D. Daube, "Consortium,"
pp. 72, 73. Cf. also Daube's review of L.
Epstein,
Marriage Laws in the Bible and the Talmud
in BiOr, 3-4, 1947, pp. 32-35.
48 The Levirate In
development
"when the primitive consortium had become
obsolete
and forgotten."48
At the beginning of our discussion
of the phrase "broth-
ers
dwelling together," we noted that most scholars assume
that
the levirate law operates only where
brothers are dwell-
ing
together; that the law provides the exclusive conditions
under
which the levirate duty was to be in effect, but it is
questionable
whether the levirate law is to be understood in
such
a fashion; that is, as prescribing exhaustively the situa-
tion
in which the levirate operated. Rather, as Th. and D.
Thompson
state, "When Deuteronomy speaks of brothers
dwelling
together, it is not specifying the limits under which
the
law is binding. It is describing the typical situation under
which
the law would normally be used."49 The law is then
legislating how the responsibility toward the
deceased and
the
deceased's widow customarily operated. Normally, the
brother50
of the deceased, being the nearest of kin and best
suited
to act for the deceased, will be called upon to raise up
seed
for the deceased. However, it should not be understood
as
if the levirate was performed only under the conditions
and
through the specific parties mentioned in the Deutero-
nomic
law.
The Purpose of the
Levirate, Deuteronomy 25:6.
We must now enter into the very
heart of the levirate
marriage
institution and to the crucial question of its purpose
as
construed by the Deuteronomic legislation. In particular,
we
must inquire into the meaning of Deuteronomy 25:6.
There
it is stated that the first-born of the levirate union
48. D. Daube,
"Consortium,". p. 90. H. H. Rowley, op. cit., p. 175 n. 3,
objects
to Daube's position and remarks, "This would seem to distinguish the
marriage
of Ruth too sharply from levirate marriage, and would make the refer-
ences
to Deut. 25:5-10 and Gen. 38 in the book of Ruth hard to explain."
Rowley's
objection does not sufficiently take into consideration, however, that
Daube
is arguing for the primitive life setting contained in the phrase
"brothers
dwelling
together."
49. Th. and D. Thompson, op. cit., p. 90.
50. J. Pedersen, op. cit., p. 78: "When the brother
is mentioned as the one
to
take this obligation upon himself, it is because he is the nearest of kin to
the
The Levirate In
"shall
succeed to the name of his brother who is dead, that
his
name may not be blotted out of
meaning
of the phrase Mw lf Mvqy? What is meant by the
statement
of purpose "that his name may not be blotted out
of
widow's
accusation against the levir is that "he refuses to
perpetuate
his brother's name in
lxrWyb Mw vyHxl). In the halisah
ceremony the brother-in-
law
who rejects his duty is referred to as the one who is not
willing
to build up his brother's house (v. 9). We must en-
quire
into these statements relating to the distinctive purpose
of
the levirate in
cording
to Deuteronomy, the purpose of the levirate was to
provide
the dead man with a son," which in Israelite think-
deceased
and best suited to act in his name, just as he is the man from whom it is
most
fair to exact the fulfillment of this duty."
51. It is difficult to believe that in v. 5 "son