Home
Bibles
Biblical topics
Bible Study
 
Articles
Coptics
Orthodoxy
Pope Shenouda
Father Matta
Bishop Mattaous
Bishop Moussa
Bishop Alexander
Habib Gerguis
Agbia
Synaxarium
Saints
Fasts & Feasts
Family & Youth
Christian
Ethics
Patrology
Tutorial
3ds Max 2016
Account Payable
Accounts Receivable
ActionScript
Active Directory
Adaptive Access Manager
Adobe Premiere Pro
Ajax
Android
Apache Hive
ASP
Asset Management
AutoCAD
Banner
Big data
Building OA Framework
Business Intelligence
C Sharp
Calculus
Cash Management
CISCO
Cognos
CRM
Crystal Reports
Data Acquisition
Data Architecture
Data Archiving
Data Guard
Data Mining
Data Modeling
Data Structure
Data Visualization
Database
DataWarehouse
Design Illustration
Dodeca
Dreamweaver
DRM
DW ELT
E-Commerce
Erwin
Essbase
Expression Web
FDM
Fusion Middleware
General Ledger
Google Drive
GoPro Studio
Hacking
Hadoop
HFM
HRMS
HTML5 CSS3
Hyperion Planning
Index
Informatica
iOS
Java
JavaBeans
JavaScript
JQuery
 
Linux
LYNC SERVER 2013
MapReduce
Massive UE4
MetricStream
Microstrategy
MS Access 2016
MS Exchange Server
MS OneNote 2016
MS OneNote 2016 
MS Outlook 2016
MS PowerPoint 2016
MS Publisher 2016
MS SharePoint 2016
MS Word
MS-Dynamics
MYSQL-PHP
Networking
OBIEE
OpenGL
Oracle 12c Administration
Oracle DEMAND PLANNING
Oracle EBS
Oracle E-business tax
Oracle Financial Applications
Oracle Identity Manager
Oracle Mobile
Oracle Payroll Fundamentals
Oracle Performance Tuning
Oracle Product Lifecycle
Oracle project
Oracle Purchasing
Oracle RAC admin
Oracle SOA admin
Peoplesoft
Perl
Photoshop CS6
Pig
PLSQL
PowerShell
Programming
Project
Project Management
Python
R Programming
SAP
SAS
SQL
SQL Server
Subledger Accounting
Supply Chain Planning
Tableau
Template
TeraData
Toad
TSQL
UML
Unix
VBA
Visio
Visual Basic
Visual Studio
Weblogic Server
Windows 10
Windows Server
XML

 

        THE LEVIRATE AND GOEL

            INSTITUTIONS IN THE

                 OLD TESTAMENT

                        With Special Attention to

                                the Book of Ruth

 

 

                                             DONALD A. LEGGETT

 

 


                                       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, Philadelphia, and Westminster Seminary, Phila-

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 Europe and tackling an

unfamiliar language. I am grateful for the happy years which

I was able to spend in Amsterdam and Dordrecht, from

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 Dordrecht, mention should be made of the De

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 Municipal University of Amsterdam,

Westminster Theological Seminary, Philadelphia, Pittsburgh

Theological Seminary, and McMaster University, Hamilton,

Ontario. My sabbatical year was spent in Belfast, N. Ireland,

and I am grateful to Queen's University, Belfast, for the gen-

erous use of their facilities. It was my pleasure to make two

extended visits to the Tyndale House, Cambridge, England,

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

Ontario Bible College.

 

                                          v
vi                       Acknowledgments

 

          This thesis would never have been completed without the

generous grant of a sabbatical year by Ontario Bible College.

I am also grateful for the stimulation received in my part-

time involvement at the Irish Baptist College during that

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 Taylor families, I am deeply grateful. Simi-

larly, to Dr. and Mrs. C. Wellum and Dr. and Mrs. E. Higbee,

and the congregation of Grace Baptist Church, Carlisle, Penn-

sylvania, for their kind expressions of Christian love.

          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

          Babylonia                                                                           10

          Assyria                                                                               12

          Hittites                                                                               21

          Nuzi                                                                                   24

          Ugarit                                                                                 25

 

2. THE LEVIRATE IN ISRAEL                                                   29

          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 ISRAEL                                                            83

          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 Sale of the Property, Ruth 4:3                                       211

          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 ISRAEL                              271

                    Representative Views                                                271

                    Recapitulation and Conclusion                                  287

 

11. SUMMARIZING CONSIDERATIONS ON THE

          GOEL INSTITUTION IN ISRAEL AND ON THE

          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 Israel. Several

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 Israel were applied 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

Israel.

          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 NEB with "sully."

            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, New York, 1963.

            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 Israel. In these newer studies the question of a basic

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 Israel in its broadest sense, including the topic

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 Israel," CBQ, 34, 1972, pp. 10-18.

            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 Israel is indispensable to the topic of the goel 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 Israel. It

seems, therefore, that the book of Ruth is crucial to the

understanding of the levirate and goel institutions in Israel.

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

Israel a study of possible parallels to these institutions in the

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 Israel. Chapter 6 discusses Naomi's reference to

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

 

                                    Babylonia

 

          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 Israel, cf. W.

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; I. Mendelsohn, "The Family in

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 Babylon (CH §185-193) or to the practice of legitimation of issue by slave

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 Israel,"

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 Mesopotamia. On the other

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 Mesopotamia, "the

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 Mesopotamia proper." Cf. W. Albright's remarks on Speiser's

position in Yahweh and the Gods of Canaan, 1968, p. 58 n. 31. For a contrary

view on adoption within Israel, see S. Feigin, "Some Cases of Adoption in Israel,"

JBL, 30, 1931, pp. 186-200. A. Phillips, "Some Aspects of Family Law in Pre-

Exilic Israel," VT, 23, 1973, pp. 359, 360, maintains, in the light of the wide-

spread practice of adoption throughout the ancient Near East, that it was also

undertaken in Israel. It was a part of family law which "took place in the home

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 Babylon. It

would seem to be the case that the misfortune of having no

son was solved through adoption customs.10

 

                                     Assyria

          A far better case can be made for the presence of the

levirate custom in Assyria though even here there is room for

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, Babel und Babel, 1902, pp. 14, 92. P. Koschaker,

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; E. Neufeld, "Errebu Marriage amongst the Semites and amongst the Hit-

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 Assyria. There we read: "(If), while a woman is

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 Assyria the levirate duty existed irrespec-

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 Assyria

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 Assyria may be seen in the conflicting opinions of

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, Israel's Rechtsleben

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 Assyria as

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 Ugarit, cf. C. Gordon, "The Status of Women Reflected in the Nuzi Tablets,"

ZA, 43, 1936, pp. 152, 153 (hereafter cited as "Status") and A. F. Rainey,

"Family Relationships in Ugarit," Or, 34, 1965, p. 17.

            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 Israel, he

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 Western Asia, but the


                    The Levirate In the Ancient Near East                     19

 

by Driver and Miles as inferentially opposed to the levirate in

Assyria is MAL §33. As previously noted, the concluding

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 Assyria is the

consideration of the purpose of the levirate in Assyria and in

Israel. On this point, there is little disagreement,38 for it is

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 Assyria was intimately tied in with the family and

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 Israel with its own individual charac-

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 Israel as having

"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 Israel the law was primarily directed

toward the dead, to continue his name, whereas in Assyria

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 Israel war

die Leviratsehe etwas sehr viel anderes. In Israel handelte es sich nicht um die

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 Israel. It reads, "If a man has a

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 Assyria an economic motive...."

            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 Old Kingdom.... A recent

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. I. Price, op. cit., p. 269, translates, "If the second (husband) or his

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. I. Price, op. cit., p. 270.

            47. J. Pedersen, Israel, its Life and Culture, I-II, 1926, p. 547, translates law

§ 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. I. Price, op. cit., p. 270, remarks, "The levirate-marriage requirement

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. I. Price, op. cit., p. 271.

            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 Western Asia,

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 Israel.

 

                                            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 Baghdad

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

 

                                           Ugarit

          The evidence from Ugarit is very scant, although several

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

Ugarit in 1952:

          “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 Ugarit and Israel," JSS, 3, 1958, pp.

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 Ugarit although again this conclusion is based

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 Ugarit. M. Tsevat, op. cit., p. 240, writes, "The

institution of the levirate is attested in the ancient Near East for Israel, the

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 Israel, since it is not

possible to regard the operation of the levirate in Israel 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 Israel the goal of the levirate is that the "name of

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 Israel, but the emphasis remains

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 Ugarit,

sandwiched as it was between Palestine and Hatti." J. Gray, The Legacy of

Canaan, (SVT, 5), 1965', p. 251, makes the following comment on the political

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 Ugarit was exceptional."

            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 Israel

 

MATERIALS for the study of the levirate custom1

in the Old Testament are somewhat meagre, con-

sisting of three main passages: the story of Judah

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 Judah's marriage to Shua

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. Redford, A Study of the Biblical Story of Joseph, Gen. 37-50 (SVT,

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 Judah

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 Israel

 

count goes on to mention the marriage of Er, the firstborn,

to Tamar and the subsequent death of Er.4 Judah then tells

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 Judah's tribal subdivisions and secondly, to stress

the duty of marriage with a deceased brother's wife. M. Burrows, "Levirate Mar-

riage in Israel," JBL, 59, 1940, p. 23, suggests that the story of Judah and Tamar

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 Israel                                 31

 

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, Judah tells Tamar to return to her

father's house until Shelah, the younger son, grows up.6  

Judah is fearful for the life of Shelah and sends Tamar home

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, Judah's dis-

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 Israel

 

          The second and main part of the story concerns Judah

and Tamar. Judah has become a widower and Tamar has, by

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 Judah has not kept his promise

(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

Judah is told, he, acting with authority as head of the family,

immediately decides that she should be burnt.9 However,

 

not a proper name; a 'divorce' by the father-in-law! Nevertheless, when Judah

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,  Judah took the woman for a harlot (hnvzl).

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 Judah's friend introduced the term hwdqh "in order to place the

affair on a higher social level." E. Good, Irony in the Old Testament, 1965, p.

108, states, "Judah's readiness to go to a roadside prostitute increases the comic

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. Judah

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, "Judah assumes competence as judge;

he thus reckons Tarnar as part of his family, though Tamar's act proceeded from

the assumption that. Judah had released her permanently from the family...."

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 Israel                                 33

 

Tamar has obtained from Judah the pledge, thereby positive-

ly identifying him as the father of her child. Accordingly, she

is vindicated by Judah, who acknowledges10 that she is more

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 "Judah's order that Tamar should be burnt ... may in fact be a priestly gloss

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 Israel

 

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 Judah's

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. S. Belkin, op. cit., p. 279, writes: "The

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 Israel                               35

 

          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 Israel even a later-

born brother would have been obliged, as well, to marry the

widow.13 It is more disputable how we are to understand

Judah's responsibility. Basing their conclusions on compari-

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 Judah's death, Onan, as go'el for Tamar, would control

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 Judah's taking her in marriage."

            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, "Ob beim Ausfall


36                      The Levirate In Israel

 

obligation two points in particular should be noticed: First,

Judah's acknowledgment in verse 26 that Tamar more in

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 Judah's words, "She is more righteous

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 Judah's words

"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 Judah's own, and not as belonging

 

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 Judah's remark as follows: "When Judah cries that Tamar is more righ-

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 Israel                                    37

 

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. I. Mendelsohn, "The Family in the Ancient Near East," BA, 11, 1948,

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 Israel

 

severely punished21 this sin of "Lieblosigkeit gegen den ver-

storbenen Bruder."22 Judah's recognition of his culpableness

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. Pedersen, Israel, its Life and Culture, 1-11, 1926, p. 79,


                            The Levirate In Israel                                    39

 

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.

Judah ordered Onan to raise up offspring (Gen. 38:8), not to

take Tamar as a wife. Furthermore, when Tamar had become

pregnant, and subsequently was exonerated by Judah, we are

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 Israel Tamar remained an admired example

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

Israel was to provide an heir for the dead would hardly function beyond the range


40                      The Levirate In Israel

 

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 Israel                               41

 

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 Judah, because, of the children that the Lord will give

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 Israel

 

             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 Judah in Gen. 38:8 is frz. If the inheritance of the family property

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 Israel becomes, the decisive factor," would be

valid (AHML, p. 45).


                                 The Levirate In Israel                                  43

 

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 Israel."

          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. E. Neufeld, AHML, p. 231. M. Burrows, "Back-

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. Gordon, UT, 1965, p. 408, suggested that

"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 Canaan (SVT, 5), 19652, pp. 40, 271, 272.

            34. Cf. n. 30.


44                       The Levirate In Israel

 

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; I. Mattuck,

"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. S. Belkin,

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 Israel                               45

 

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 Judah). They feel that he must be dead, in which

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 Israel

 

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 Israel                                 47

 

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 Lot and Jacob and Esau (Gen. 13:1 ff., 6;

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 Israel

 

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 Israel                                49

 

"shall succeed to the name of his brother who is dead, that

his name may not be blotted out of Israel." What is the

meaning of the phrase Mw lf Mvqy?  What is meant by the

statement of purpose "that his name may not be blotted out

of Israel"? We find similar phraseology in verse 7 where the

widow's accusation against the levir is that "he refuses to

perpetuate his brother's name in Israel" (Myqhl ymby Nxm

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 Israel. There can be little doubt that, ac-

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" is not the intended meaning

despite-any apparent conflict with Num. 27. However, M. Kline, Treaty of the

Great King, 1963, p. 117, writes, "In view of the provision of Numbers 27:4 ff.,

there would be no need for the levirate marriage if the deceased had daughters.

Hence the AV seems preferable to RSV in rendering in verse 5 no child, rather

than no son." Cf. also R. K. Harrison, IOT, 1970, p. 650, "The levirate law did

not apply if daughters had been born, and regulations for the inheritance of such

individuals constituted an early concern of codified Hebrew law (Num. 27:1 ff.)."

Cf. S. Belkin, op. cit., p. 280, for a similar interpretation. G. A. Smith, Deuter-

onomy, 1918, p. 287, on the contrary, remarks: "P, by allowing daughters to

inherit (Num. xxvii 1-12), abolished part of the need for Levirate marriages; but

obviously, D knows nothing of P's law: for his own is limited to sons: This is

generally the position taken by those more inclined to see development within the

laws of the Pentateuch. L. Epstein, op. cit., p. 81, states: "Leviticus and Numbers

at times ignore the levirate institution and at times legislate it out of exis-

tence.... If a man dies childless, according to the ruling of the Book of Numbers,

his estate goes over to the brothers or uncles, as if a levitate institution did not

exist at Critical scholars see historical development in the institution and

successive biblical legislation in respect to it." A. Geiger, "Die Leviratsehe,"

Jüdische Zeitschnft für Wissenschaft and Leben, 1, 1862, pp. 19-39, believes that

the two biblical statements are explainable on the basis of the divergent geo-

graphical locations of the lawgivers; levirate being, according to Geiger, known

only in the south. The author of the Numbers 27 tradition, which revolves around

the daughters of Zelophehad who was of Manasseh, would have been from the

north and either did not know of or was free to ignore the southern tradition of

the levirate. This argument is rejected by J. Mittelmann, op. cit., p. 37, whose

interpretation of the two passages in Num. and Deut. follows the common critical

source approach. In the Exile, the Israelites came under Babylonian influence.

"Die Folge des exilischen Rechtsangleichungsprozesses war eine Vereinheitlichung


50                    The Lervirate in Israel

 

ing was extremely important. The son. born of the union

between the levir and the widow is reckoned- as belonging to

the deceased.52 The phrase Mw lf Mvqy, obviously does not

 

and Reformierung des judaisch—israclitischen Rechtes, die manche Spuren in der

Queue P. des Hexatcuches hinterlassen . . . Die Tatsache, dass gerade P., also

eine Quelle aus dem ausgehenden 6. Jh., mit grosser Emphase das Tochtererbrecht

predigt, lasst darauf schliessen, dass es sich hierbei fair die judäischen Exulanten

um etwas Neues handeln muss, das mit grossem Nachdruck befohlen und gut

begrUndet werden muss, um Wurzel schlagen zu konnen." Several things should be

said about this matter. First of all, it is evident that some of the Pentateuchal laws

show traces of a process of development. A clear example is the further amplifica-

tion of the law of Num. 27 in Num. 36. J. Weingreen, "The Case of the Daughters

of Zelophchad," VT, 16, 1966, pp. 519, 520, maintains that in this incident we

have a significant pointer toward legislative procedure in Israel, "by which a new

law may emerge out of the ruling of a judicial authority in a case of unprece-

dented circumstances, for which the law had made no provision." He argues that

"such phenomena, surely, would not be unusual in any ancient organized society

and may be seen as manifestations, through evolving law, of social growth and

widening experience." We acknowledge that the laws of the Bible are divinely

revealed, yet given in concrete historical circumstances, and therefore accept the

principle of development where the Bible points in that direction. Cf. W. H.

Gispen's interesting discussion of development within the Pentateuchal laws, "De

Soepelheid der Mozaische Wet," GTT, 57, 1957, pp. 106-111. In the case under

discussion, however, the Old Testament legal traditions are being interpreted in

the light of the Wellhausen source analysis with a post-exile date for the P docu-

ment. This dating has recently come under some suspicion, cf. e.g. Y. Kaufman,

Religion of Israel, 1961, pp. 175-200, and E. Speiser, "Leviticus and the Critics,"

in Oriental and Biblical Studies, ed. J. Finkelstein and M. Greenberg, 1967, pp.

123-142 = Yehezkel Kaufmann Jubilee Volume, ed. M. Haran, 1960, pp. 29-45.

Apart from these considerations, we note that not all are agreed that the incident

in Num. 27 demonstrates that the so-called P document did not know or dis-

approved of the levirate. N. Snaith, "The Daughters of Zelophehad," VT, 16,

1966, p. 126, holds that "the story of the daughters of Zelophehad has actually

nothing to do with the general rules and laws as to the inheritance of property,

but that primarily it is a story told to account for the fact that the tribe of

Manasseh held land to the west of the Jordan, Jos. xvii 1-6." Since we do not

know all of the specifics for which this law was enacted it could be covering a

situation where a wife without a son had predeceased her husband, where the wife

remained without a son after levirate marriage or a case where the deceased's

brother had refused to marry the widow. See J. S. Wright, "Marriage," NBD,

1962, p. 789.

            52. Since the biblical statement is that "the firstborn is to succeed to the

name of the deceased" in any levirate union, such a unique arrangement would

apply only to the firstborn son. It is difficult to understand the ground on which

I. Benzinger, "Marriage," EB, 1903, p. 2950, sees a "not unimportant altera-

tion" between Gen. 38 and Deut. 25. He remarks, "In Gen. 38:9 all the children

(not only the first son) are to he reckoned to the dead man." Surely, frzh in

Gen. 38:9 does not refer to a plurality of offspring. On the relation of frz in

Gen. 38 to 7: in Deut. 25:5, L. Epstein. op. cit., p. 97 n. 55, remarks that seed


                                The Levirate In Israel                                51

 

mean that the child shall assume, in the literal sense, the name

of the deceased since this was not so in either of the two

incidents of the levirate narrated in the Old Testament (Gen.

38,  Ruth 4). Pedersen explains the phrase when he writes, "If

a man, after having contracted a marriage, dies without sons,

then he dies entirely. It is this blotting out of life which is to

be avoided. His nearest of kin, the brother, must perform this

office of love in order to protect him from extermination.

The wife, whose object in life it is to bear him a son in whom

his life is resurrected, must be enabled to do her duty to-

wards him."53

          The desire for children and in particular for male children

was very strong in Old Testament times. Barrenness was a

dire misfortune (I Sam. I ) and it was considered to be the

highest blessing from God to have sons (Ps. 127:3-5). "Give

me children or I die," was the distressed plea of the wife

Gen. 30:1). In many places the Old Testament makes a con-

nection between having descendants, particularly sons, and

 

"is only a general expression for offspring and may be used even when one has in

mind only sons," pointing to the employment of the term seed in connection

with circumcision in Gen. 17. Since the phrase hwxl vl hHqlv, Deut. 25:5, points

in the direction of a more permanent marital, union, it would be likely that either

children would be produced. The most natural explanation of the term firstborn

would also suggest other children and permanent marriage, though Rowley argues

that "when the law of Deuteronomy speaks of the firstborn child it is not implied

that the union would normally continue and that there would be other children

who would take the name of the dead man, but rather that levirate marriage was

only, concerned with a first birth"; op. cit., p. 187.

            53. J. Pedersen, op. cit.,  p. 78. See also A. R. Johnson, The One and the

Many in the Israelite Conception of God, 19612, p. 3: "Thus, to the Israelite,

when the time comes for that dissolution of the personality which is known as

death, it is in this particular 'extension' that he may continue to live most power-

fully. Hence the extermination of the name is regarded as the greatest disaster

which can befall a man, and various measures are adopted to preserve his memory.

The need of male offspring for this particular purpose finds typical expression in

the legislation providing for the so-called levirate marriage...." W. Rudolph, op.

cit., p. 62, commenting on the meaning of the phrases under discussion, writes,

"Dieses Wertlegen auf die Erhaltung des Namens ist bei dem Fehlen einer Aufer-

stehungshoffnung durchaus begreiflich, so dass wir es nicht notig haben, nach

einem anderen als dem im AT angegebenen Motiv fur den Levirat zu suchen...."

J. R. Porter, op. cit., p. 377, states, "The principal aim of the Levirate marriage,

as the Biblical texts plainly show, was that a son might be born who would take

the dead husband's name and so keep him alive."


52                       The Levirate In Israel

 

the continuation of the name (I Sam. 24:22; II Sam. 14:7;

18:18; Isa. 56:5; 66:22; Jer. 11:19; Ps. 45:17 f.; 109:13). It is

not proper to conclude from this that in Israel the levitate

was connected with ancestor worship,54 but it seems evident

that the descendants, and especially sons in Israel, were

viewed as the ones who keep in remembrance the name55 of

the father.56

          In addition to the idea of the continuance of the name of

the father through his son, more must be said about the

concept of "succeeding to the name." From additional pas-

sages now to be mentioned it seems likely that "succeeding

to the name" must be linked as well with inheriting the prop-

erty.57 Genesis 48:5, 6 makes mention of Jacob's adoption of

Ephraim and Manasseh, the two sons of Joseph born in Egypt

before Jacob's arrival. This privilege is restricted to the two

 

            54. M. Burrows, "Levirate Marriage in Israel," JBL, 59, 1940, p. 32, believes

that it is "entirely likely that the levirate had some connection with ancestor-

worship among the Hebrews." I. Benzinger, "Family," EB, 1903, p. 1502, calls it

"the essential consideration in levirate marriages." For a critique of this idea, see

W. Eichrodt, TOT, 2, 1967, pp. 219, 220.

            55. On the distinctive Israelite understanding of the name, see G. von Rad,

Studies in Deuteronomy, 1953, pp. 37-44; J. A. Motyer, "Name," NBD, 1962,

pp. 861-864; J. Pedersen, op. cit., pp. 245-259; Th. and D. Thompson, op. cit.,

pp. 84-88.

            56. H. W. Robinson, "The Hebrew Conception of Corporate Personality,"

BZAW, 66, 1936, pp. 49, 52, has sought to explain the levirate in terms of his

well-known concept of corporate personality. The levitate is the result of Israel's

unique "unitary group conception." This is defined as follows: "The whole group,

including its past, present and future members might function as a single individ-

ual through any one of the members conceived as representative of it." The

extension into the future of the living group is "best illustrated by the dominant

aspiration of the Hebrew to have male children to perpetuate his name, the name

that was so much a part of himself that something of him died when his name

ceased." The application of the corporate personality concept to the levirate law

is questioned by Porter, op. cit., p. 377, who writes, "Here indeed, as also with

the obligation of blood-revenge, there is a very strong awareness of the solidarity

of the family, but this is based on ties of kinship and the bond of property and

does not require the postulate of 'corporate personality'...."

            57. W. Rudolph, op. cit., pp. 62, "Nur spielt neben der Erhaltung des

Namens auch noch der Gedanke an die Erhaltung des Grundbesitzes mit." J. R..

Porter, op. cit., p. 377, affirms that the principal aim of the levirate was to

continue the deceased's name and life in a son but goes on to say, "Closely linked

with this, as is implied in Deut. xxv 5, and the story of Ruth, was the object of

preserving the family property intact." For a contrary view, cf. H. H. Rowley, op.


                        The Levirate In Israel                                  53

 

sons: "and the offspring born to you after them shall be

yours; they shall be called by the name of their brothers in

their inheritance" (v. 6). In other words, later born sons will

not form tribes of their own, with a special inheritance, but

will be incorporated into Ephraim and Manasseh. Here it

appears that "being called by the name" includes being made

a partaker of the inheritance.

          Numbers 27 points to a direct connection between Mw  

and the family property. The daughters of Zelophehad asked

Moses, "Why should the name of our father be taken away

from his family, because he had no son? Give to us a posses-

sion among our father's brethren" (v. 4). When a decision is

rendered to meet this situation58 we see that the daughters

are to be given possession of an inheritance among their

father's brethren (v. 7).

          This same idea is also found in Ruth 4:10. Boaz remarks,

"Also Ruth the Moabitess, the widow of Mahlon, I have

acquired to be my wife, to perpetuate the name of the dead

in his inheritance (vtlHn lf tmh Mw Myqhl), that the name

of the dead may not be cut off among his brethren."

          It thus appears that through the levirate, the name and

the estate of the deceased were continued in the son of this

union, who was considered to be the son of the deceased. As

such, he was the one who ultimately came into possession of

his father's property. Undoubtedly this would be a duty of

love on the part of the deceased's brother, who would stand

 

cit., p. 185, "There is no reference ta property in the law of levirate marriage in

Deuteronomy."

            58. R. de Vaux, op. cit., p. 166, writes, "If a man dies without male heirs,

the land is bequeathed to his daughters (Nb 27:7-8), but they must marry within

their tribe, so that their portion may not be transferred to another tribe (Nb

36:6-9). If the owner dies childless, the inheritance reverts to his brothers, his

uncles or his nearest kinsman (Nb 27:9-11)." According to S. Belkin, op. cit., pp.

321-324, this episode in Numbers 27 and 36 "is the reflection of agnate marriage,

meaning marriage within the family, tribe or clan." This is to be sharply distin-

guished from the levirate and was not obligatory. These laws provided that

daughters inherited the property, where there were no sons, when they married

within the family tribe. They are reflected with some significant variations in the

marriage of Tobias to Sarah, mentioned in the book of Tobit.


54                  The Levirate In Israel

 

to gain personally in case his dead brother remained without

children.59 It is important to recognize that the levirate duty

entailed a sacrifice of love. From the examples of Onan and

the god in Ruth, as well as from the ceremony whereby the

refusing brother is shamed, we have confirmation that some

in Israel were not adequate to this sacrifice of love. Such

responsibilities were rejected where love had grown cold.

However, because of the close bond of kinship which united

the Israelite clan, the levirate law was one of the concrete

ways in which the law of love within the Israelite family

often came to expression. The levirate had in view, then, the

raising up of descendants for the deceased, but, in addition,

was designed to prevent the alienation of the family

property.60

 

            59. According to J. Pedersen, op. cit., p. 91, to maintain the name implies

the continuation of the deceased's life, but includes as well the taking over of his

property. "It always expresses an office of love on the part of the brother. If he is

actually the natural heir, it is clear that it is a great sacrifice on his part; for then

he might let the deceased be blotted out and take over the inheritance for himself

and his progeny.... The presupposition is that it is really a great sacrifice he is

making." Cf. D. Mace, op. cit., pp. 106, 108. We must assume that the property

of the deceased was under the control of the levir until such time as a male child

was born and able to assume control. If the levir was married and had children by

a first wife and had additional children from the second, difficulties in his estate

may well have resulted. See J. Morgenstern, op. cit., pp. 174-175.

            60. D. Mace, op. cit., p. 105, remarks, "We may therefore suppose that even

where its primary purpose was limited to the propagation of a son to the de-

ceased, as among the Hebrews, it may at the same time have subserved the ends of

inheritance." This dual purpose is also affirmed by G. R. Driver and J. C. Miles,

op. cit., p. 243; 0. Baab, "Marriage," IDB, 1962, p. 283; C. Steuernagel,

Deuteronomium and Joshua, HK, 1900, p. 92. Sometimes an effort is made to

distinguish between primary and secondary purposes. Cf. R. de Vaux, op. cit., p.

38: "The essential purpose is to perpetuate male descent, the 'name,' the 'house,'

and therefore the child (probably only the first child) of a levirate marriage was

considered the child of the deceased man.... A secondary, but similar, purpose

was to prevent the alienation of family-property." A few scholars believe that the

levirate serves an additional purpoSe;i:e., to provide for the care and protection of

of the widow in society. If such were the case, then the levirate duty must be

understood as involving full marriage, not merely cohabitation for the purpose of

impregnation. D. Mace, op. cit., p. 108, calls this nothing more than an "inciden-

tal element." L. Epstein, op. cit., pp. 79, 80, describes it as a later development.

E. Neufeld and I. Mattuck see it as the primary and fundamental object of the

levirate. Cf. E. Neufeld, op. cit., pp. 29-33, 46, 47. I. Mattuck emphatically

repudiates the idea that the maintenance of the dead man's estate could have been

the central purpose in the legislator's mind. The central purpose can be discerned,


                       The Levirate In Israel                             55

 

The Ceremony of Refusal, Deuteronomy 25: 7-10.

 

          We must now examine the ceremony in Deuteronomy

which followed the refusal of the levir to fulfill his duty to

the widow. We have seen from Genesis 38 that there were

occasions when the duty of the levirate was evaded by the

brother-in-law. The Deuteronomic law recognized that there

would be those who refuse to perform the duty, although the

reasons for such refusal are not directly mentioned.61 The

prescribed ceremony may be an indication that it was felt to

be in the interests of both parties to exert some pressure so

that evasions of this pious duty would be kept at a minimum.

It is true that in this, as in all the laws of God, obedience is

the response of love, and love cannot be coerced. Neverthe-

less, some pressure can be beneficial. This law recognizes the

very real possibility of that to which Genesis 38 points as

well: the levir's rejection of his responsibility. It would be

wrong to see in the halisah ceremony merely a legalization of

this rejection. We should not imagine that the law is designed

to provide the brother-in-law with the occasion for escaping

his duty.62 Rather, the intention of the ceremony is primarily

 

he asserts, by asking the question "Whom did the law benefit?" The widow alone

benefited by it, as can be seen also from the story of Tamar and Ruth. Taken in

combination with the humanitarian concern in Deuteronomy for widows and

orphans, the combination of these arguments can lead to no other conclusion

than that the purpose of the law is to benefit the widow. This purpose is also the

explanation for the lawgivers' preoccupation with an heir. Where there was a son

surviving the husband, the widow's maintenance was secure. Thus Mattuck, op.

cit., p. 214, concludes that "by the law of levirate marriage, Deuteronomy sought

to ensure the welfare of the childless widow by obtaining for her through a son a

claim on her deceased husband's property." Mattuck's opinion has been echoed in

recent times by W. Williams, Archeology in Biblical Research, 1966, p. 159. Cf.

also the position of H. Brongers in chap. 5, n. 95.

            61. The phrases used in v. 7 to describe the brother-in-law's response to the

widow do not touch on the specifics in back of the refusal as is the case in Gen.

38:9.

            62. Cf. J. Morgenstern, op. cit., p. 166: "The performance or non-

performance of this duty was naturally a matter of strictest secrecy, known only

to the two of them. And of course, if the brother-in-law had no desire to perform

this duty, there was obviously no need nor occasion for him to make the matter

public."


56                      The Levirate In Israel

 

to protect the widow, not the unwilling brother.63 It will be

well, at this point, to investigate the procedure which the law

stipulates in the circumstance of refusal of duty. The first

step taken by the widow is to go up to the gate to inform the

elers64 of the levir's uncooperative stand, and thereby make

formal declaration of the brother-in-law's refusal. When due

attention is paid to the woman's initiative, it does not appear

likely that the law was intended to furnish the deceased's

brother with an escape mechanism, for "if the purpose of this

mispat was the protection of the brother-in-law from the

necessity of performing a formal duty disagreeable to him,

the first condition thereof would hardly have been to compel

the sister-in-law to comply with a provision which must have

been extremely distasteful and humiliating to her; namely to

voluntarily take the initiative and go before the legal authori-

ties of the town and make formal charge of neglect of duty

against her brother-in-law in regard to a matter of extreme

privacy and delicacy."65

 

            63. Ibid.

            64. There are references to judicial procedures taking place at the gate

throughout the Old Testament. In Deut. the phrase "elders of his occurs in

19:12; 21:3; 4, 6, 19, 20; 22:15, 18; 25:8. We shall encounter one of the most

important examples of the every day operation of justice at the gate in Ruth 4.

Other important incidents furnishing examples of judicial process in Israel are the

incidents mentioned in Judg. Jer. 26 I Kings 21; cf. F. I. Anderson "The

Socio-Juridical Background of the Naboth Incident,” JBL, 85, 1966, pp. 46-57.

One of the pioneering works on judicial procedure appeared in L. Köhler's work,

Der Hebräische Mensch, 1953, pp. 143-171. For additional literature on the sub-

ject of elders in the Old Testament, cf. J. L. McKenzie, "The Elders in the Old

Testament," Biblica, 40, 1959, pp. 522-540; J. van der Ploeg, "Les Anciens dans

l'Ancien Testament," Lex Tua Veritas, Festschrift für Hubert Junker, ed. H.

Gross and F. Mussner, 1961, pp. 175-191; C. Umhau Wolf, "Traces of Primitive

Democracy in Ancient Israel," JNES, 6, 1947, pp. 98-108; E. A. Speiser, "Coming

and Going at the City Gate," BASOR, 144, 1956, pp. 20-23; G. Evans, "Coming

and Going at the City Gate, a discussion of Professor Speiser's Paper," BASOR,

150,1958, pp. 28-33; D. A. McKenzie, "judicial Procedure at the Town. Gate," VT,

14, 1964, pp. 100-104. For a recent full scale treatment, cf. J. Salmon, Judicial

Authority in Early Israel, unpublished Ph.D. dissertation, Princeton University,

1968.

            65. J. Morgenstern, op. cit., p. 166, E. Neufeld, op. cit., p. 42, makes the

statement, "To enable the levir to escape from his levirate obligations, the law

recognized the ceremony of Halizah," but this does not adequately take into

account the woman's initiative within the proceedings.

 


                          The Levirate In Israel                                  57

 

          The woman's initiatives make it likely that her interests

were being protected by this procedure. The plight of the

widow is a prominent theme in the Old Testament66 and we

have already seen that some scholars suggest that it was the

principal motive behind the levirate.67 If the widow waited a

reasonable period without any sign that the brother-in-law

was disposed to perform his duty toward her, she might, as a

final measure, seek to be free from .his authority and to either

return to her own father or make her own way.68 This cere-

mony would then constitute a kind of release similar to the

bill of divorcement.69

 

            66. F. C. Fensham, "Widow, Orphan and the Poor in Ancient Near Eastern

Legal and Wisdom Literature," JNES, 21, 1962, pp. 129-139:

            67. See

            68. Based upon analogies with some Near Eastern and Bedouin circles,

where a widow and her children have the right to return to the house of her

father., F. C. Fensham, op. cit., p. 136, asks, "What about the levirate marriages?

Was this marriage only contracted when the widow had no remaining family

ties?" He does not believe that the levirate was in effect only where the woman

had no family ties and gives two reasons: "The married wife was bought by her

husband from the house of her father.... After her husband's death his family

had the right to keep her in the family or else they would suffer damage. This is

the basis of levirate marriage...." A second reason is found in the Tamar-Judah

incident which demonstrates that there is "one case in the Old Testament where

the levirate took place in spite of family ties." In my opinion there is some truth

in Fensham's first reason, but his formulation is not quite right, cf. the discussion

of the verb hnq, used in connection with marriage in chap. 8, "The Double

Responsibility," as well as chap. 8, n. 104. The levirate incident in Gen. 38 is

sufficient evidence, however, to support the position that the levirate was opera-

tive regardless of whether members of the woman's house were alive.

            69. We have seen from the Tamar incident (cf. n. 9) that the widow was

considered to be married to Shelah even though she was not given to him. I.

Mattuck, op. cit., p. 216, remarks, "The widow becomes the wife of the brother-

in-law at the death of her husband. There are no preliminaries neces-

sary.... When, however, he refused to retain her as his wife a ceremony of release

was prescribed. This could be nothing else than a form of divorce." Cf. also, E.

Neufeld, AHML, p. 48, who believes it, to be highly likely that "the widow

became the legal wife of the brother-in-law immediately on, and by virtue of, the

husband's death, and her new husband received, together with this automatic

acquisition of a wife, the right to disclaim her and dissolve the union which had

been thrust upon him." R. Yaron, "Ad Secundas Nuptias Convolare," in Sym-

bolae Ivredicae et Historicoe Martino David Dedicatae, 1968, p. 265 n. 2, com-

ments in a somewhat different vein, "Biblical law (Deut. 25:5-10) provides that

she is to become the wife of a brother of the deceased, unless a ceremony of

‘unshoeing’ has taken place, which dissolves the tie between the widow and the

brothers of the deceased."


58                      The Levirate in Israel

 

          The elders, upon being presented with the widow's state-

ment, attempt to persuade the brother-in-law to fulfill his

responsibility. They speak to him, but beyond that they can-

not go. If, in the face of their entreaties, he remains adamant

and refuses to enter into the levirate union with her, no more

can be done, for it appears that the elders had no power of

compulsion, only that of persuasion.

          The culmination of the widow's initiative took place in

the events of the ceremony itself, in which she went up to

the levir in the presence of the elders, pulled off his sandal

(vlgr lfm vlfn hclHv) and spit in his face (v. 9). During this

time the woman recited the formula, "So shall it be done to

the man who does not build up his brother's house" (v. 9).70

His house is subsequently referred to as the house of the one

who had been unsandalled (v. 10).

          From the appellation "the house of him that had his

sandal pulled off" (v. 10) can be seen the seriousness with

which this lack of affection for the dead brother was con-

ceived. The label attached to the house of the recalcitrant

brother perpetuated the remembrance of this unkindly act

toward the brother, and must have been deeply felt by the

offender and his house. Nor should one lose sight of the fact

that this is the only law in the Pentateuch with a punishment

consisting of public degradation.71

 

            70. D. Daube, "Consortium," pp. 77, 78, writes, "The guilty party is public-

ly disgraced, with the words 'So shall it be done unto that man that will not build

up his brother's house.' It is interesting that much later, in the case of Mordecai,

who is to be publicly honored, the formula employed is ‘So shall it be done unto

that Man that the king delighteth to honor.' Clearly, ‘So shall it be done unto that

man' was the customary opening of public exaltation or degradation...." R.

Yaron, "Forms in the Laws of Eshnunna," RIDA, 9, 1962, p. 152, refers to Deut.

25:9 and Esther 6:9-11 as examples of proclamation forms in the Old Testament

"in which the proclamation is not in anticipation of an occurrence, but in conse-

quence. . . . In both cases an element of public policy is discernible: in the former

a person is held up for contempt, so as to discourage others from behaving in such

a reprehensible manner; in the latter the person rewarded is made an example to

be emulated."

            71. D. Daube, "Repudium in Deuteronomy," in Neotestamentica et

Semitica, Studies in honor of M. Black, 1969, p. 236. D. Daube, "Consortium,"

pp. 78, 80, 81 affirms, "No doubt a man branded as 'he that bath his shoe loosed'


                            The Levirate In Israel                                  59

 

          Some have seen the ceremony of the shoe as a form of

divorce, noting the Bedouin divorce formula, in which the

husband says, "She was my slipper and I have cast her off."72

Mattuck suggests that there is a reversal of normal procedure,

whereby the woman "takes off his shoe instead of allowing

him to throw it at her. This would no doubt be an act of

contempt toward the man because it signified that she freed

herself from him rather than that he as the superior discarded

her. "73

          Hoffner cites a Hittite parallel to the case of "the man

whose sandal has been removed" which "demonstrates that

the connotation attributed to this action by Deuteronomy is

by no means either isolated or late but completely at home in

 

was avoided by the better citizens, excluded from higher offices and not much

trusted in any business transactions.... A breach of trust by one brother vis a vis

the other, even if it does not amount to a proper crime, is a grave moral offence.

It deserves public censure ... ; hence the public degradation of the faithless

consors in Deuteronomy." This law is cited by Daube, as part of the evidence for

his contention that "Deuteronomy contains a notable shame—cultural ingredi-

ent," "The Culture of Deuteronomy," Orita, 3, 1969, pp. 27-28, 35-36. J. Peder-

sen, op. cit., p. 91, speaks of the levir's refusal as "a serious ignominy."

            72. W. Robertson Smith, Marriage and Kinship in Early Arabia, 19032, p.

105. S. Nystrom, Beduinentum and Jahwismus, 1946, p. 57, remarks on this

custom, "Vermutlich dürfte irgendein Zusammenhang zwischen diesen Sitten bei

Beduinen und Israeliten bestehen." He reconstructs the ceremonies, with the first

stage based on the Bedouin custom leading to a final stage presented in Deuter-

onomy. "Ursprunglich zog der Betreffende den Schuh ziemlich verachtungsvoll

vom Fusse und warf ihn von sich mit den Worten: Sic ist mein Schuh, ich habe sie

fortgeworfen.... 'Schliesslich vcrgass man den Sinn der Sitte fast ganzlich, und

nun war es auf einmal die Frau, die dem Manne den Schuh vom Fusse zog, und die

ganze Zeremonie wurde zu einem Hohn ihrerseits," ibid. p. 58. Cf. J. Nacht,

"The Symbolism of the Shoe with Special Reference to Jewish Sources," JQR, 6,

1915-1916, p. 6: "In disputes the term shoe designates an insult in the highest

degree. Thus the Arab women in their mutual quarrels and altercations call to one

another: "My shoe upon thy head." T. Gaster, Myth, Legend and Custom in the

Old Testament, 1969, p. 450, cites what he calls "a curious interpretation ad-

vanced by some Jewish authorities to the effect that the drawing off of the shoe

was a mourning custom. When the potential heir refused to 'raise up seed' for his

deceased brother the latter was indeed dead, and the widow signified this by

drawing off the levir's shoe." He rejects this explanation maintaining that the true

explanation lies in the fact that "the shoe was a symbol of authority; the cere-

monial removal of it therefore indicated that such authority had been surren-

dered."

            73. I. Mattuck, op. cit., p. 217.


60                       The Levirate In Israel

 

the legal literature of the late second millennium B.C."74 It

comes from the Hittite protocol for the royal guard. "If a

guard deserts (his post) and carries off a lance from the

postern, and the gateman catches him in the sin, he (the

gateman) shall remove his (the guard's) shoe" (I BoT I 36:

53-54).75

          He concludes: "From the text before us we can see that

all four of the above factors in Deuteronomy 25 arepresent

in the Hittite passage. (1) The guard has been remiss in the

performance of his duty; (2) one of his shoes is removed by

the man who apprehended him in the flight from duty;

(3) the gateman thus acts as a witness against him; (4) the

action constitutes a public stigmatization."'

          We conclude then that the ceremony of the shoe symbol-

izes that the woman is free, no longer bound by her dead

husband's family.77 Having been rejected, she is now in full

control of her affairs. In addition, it may be that in taking off

the shoe in the presence of the elders,78 she was barring the

 

            74. H. Hoffner, "Some Contributions of Hittitology to Old Testament

Study," TB, 20, 1969, p. 43.

            75. Ibid. p. 44.

            76. Ibid.

            77. R. de Vaux, op. cit., p. 169, "He is dispossessed of the right he had over

his brother's widow." E. Neufeld, op. cit., p. 42.

            78. The judicial proceedings in Ruth 4 and Deut. 25 are commented on by

H. J. BOecker, op. cit.,–"Die Funktion des im Tor versammelten he-

braischen Gerichtsforums besteht nicht nur in der Schlichtung und Beendigung

von Streitfallen der verschiedensten Art. Bei erb-, familien- und sachenrechtlichen

Vorgängen ist oft eine offizielle Bestätigung für die sachgemässe Ahwicklung eines

Rechtsgeschäftes erforderlich. Als die offizielle Vertretung der Bewohnerschaft

des Ortes hat das Gerichtsforum auch eine notarielle Funktion wahrzunehme:n."

He draws a comparison between the phrase "I am not able to redeem it" (Ruth

4:6) and the levir's words "I do not wish to take her" (Deut. 25:8). He remarks

(pp. 160, 161), "Zu dieser Verzichterklärung [Ruth 4:61 ist Dt. 25:8 zu ver-

gleichen, wo in der deuteronomischen Bestimmung uber die Leviratsehe eine

ahnliche Formulierung mitgeteilt ist, mit der rich der zur Leviratsehe Ver-

pflichtete vor der Ortsgerichtsbarkeit von seiner Verpflichtung losen konnte." The

widow's words are understood as an "Anklagerede." "Denn die Witwe versteht das

Verhalten des Schwagers als eine gegen ihren verstorbenen Mann gerichtete

unkorrekte Handlungsweise, die vor dem Gericht geklart werden soll," ibid., p.

163. No defense against the charges is supplied in the context of the Deutero-

nomic law though in the living legal process itself, such would have been normal

procedure as Ruth 4:6 makes evident. After their seeking to reason with the


                          The Levirate In Israel                                   61

 

brother from any further right to her dead husband's estate.79

If this is so, it is apparent that the juridicial procedures

outlined were not ineffectual symbolic acts intended simply

to insult the brother. The element of insult is not lacking,80

as the related act of spitting81 also makes clear. Too often,

 

unwilling brother-in-law without result, "haben die Ältesten die ihnen bei fami-

lien-bzw. sachenrechtlichen Verfahren zukommende Funktion zu erfüllen, Zeugen

und Bürgen eines zwischen zwei Partnern rechtskräftig abgeschlossenen Vertrages

zu sein," ibid., p. 164. D. Daube, "Consortium," p. 81, remarks: "In the proce-

dure laid down in Deuteronomy, though the State, the elders, plays an important

role, yet the actual disgracing measures—the halisa and the pronouncement 'So

shall it be done,' and so on—are taken by the aggrieved widow.... The State

regulates, makes possible and takes note of the infliction of infamy on the faith-

less partner, but the decisive action is still left to the victim."

            79. H. J. Boecker, op. cit., p. 164, writes, "Indem diese Zeremonie ‘vor den

Altesten’ vollzogen wird, verliert der Schwager rechtskraftig alle Erbrechte am

Grund und Boden seines Bruders." J. Scheftelowitz, "Die Leviratsehe," ARW, 18,

1915, p. 255: "Der Schuh wird ihm ausgezogen zum Zeichen, dass dem Bich

Weigernden das Recht auf das Eigentum des Bruders genommen ist.... Der

Schuh gilt nämlich als Symbol des Rechts, des Besitzes." Similarly, G. R. Driver

and J. C. Miles, op. cit., p. 244, L. Epstein, op. cit., p. 114. D. Mace, op. cit., p.

104, writes, "There is reason to believe that he lost the property by refusing to

marry the widow on the one hand, and he also lost it by begetting a child by her

on the other." M. Burrows, "Levirate Marriage in Israel," JBL, 59, 1940, p. 29, is

opposed to this, maintaining that "in Deuteronomy 25, as a matter of fact, there

is no indication that the brother-in-law was the heir, or that he would be the heir

if there were no levirate marriage. If this is to be assumed, in view of the fact that

there was no son to inherit the estate, it is at least noteworthy that the penalty

imposed for refusal to take the widow does not include forfeiture of the inheri-

tance." As we have been saying, many see the forfeiture of the inheritance im-

plied in the ceremony of the shoe. Th. and D. Thompson, op. cit., p. 93, consider

it possible, not only that the brother was debarred, but that the widow assumed,

through these proceedings, her dead husband's estate. "The primary right taken

by the widow, in taking the shoe, is the right to her dead husband's estate." This,

they believe, is more probable in the light of Gen. 38. "If Onan had openly

refused the levirate obligation, then Tamar would have been able to take her own

independence, as well as, we must suspect, her dead husband's share of the inheri-

tance."

            80. D. Jacobson, The Social Background of the Old Testament, 1942, p.

298, goes too far when he says that the symbolic act of untying the shoes "was

not in the nature of a disgrace to the man, but simply a sign of the conclusion of a

commercial transaction by which property passed from one to another." Cf. n.

71.

            81. References in the Old Testament to the act of spitting in one's face are

few. The only other use of the verb employed in our passage is Num. 12:14 where

in response to Moses' prayer to the Lord for Miriam's healing the reply comes "If

her father had but spit in her face should she not be shamed seven days?" Other

Old Testament references confirm the highly shameful effect of the act of expec-


62                          The Levirate In Israel

 

however, the meaning of the ceremony of the removal of the

shoe has been seen merely as an act by which the brother-in-

law is disgraced for being derelict in his duty.

 

toration. Cf. Isa. 50:6 and Job 30:10. According to later Jewish interpretation,

the woman spits before the elders. The halisah document given to the woman,

certifying the legality of her release, included the phrase "the spittle on the floor

as seen by the Court." By this later period the ceremony of halisah was no longer

considered to be a disgrace but contrariwise in some instances superior to the

performance of the levirate. The highly disgraceful act of spitting in the face was

removed; cf. S. Belkin,i., pp. 327, 328, who points to Yebamoth 39b. J.

Pedersen, Der Eid bei den Semiten, 1914, p. 96 f., believes that spitting in the

face was intended as a curse upon the uncooperative brother.


 

 

 

 

 

 

 

                        3

 

             The Goel In the

           Ancient Near East

 

BEFORE beginning an examination of the Old Testa-

ment laws in which the duties of the goel are pre-

scribed it will be helpful to bring the light of extra-

biblical materials to bear upon our subject. In doing so,

however, it must be noted that the Hebrew root lxg has.not

been found thus far outside the Old Testament.1 Thus as we

look for parallels to this concept in the ancient Near East we

still be seeking evidence which suggests parallel functions to

those of the goel in Israel.

 

           Parallels to the Goel-Redemption of Property

 

          For something resembling the Old Testament property

redemption , law in Leviticus 25:23-28 attention  should be

 directed to §39 of the Laws of Eshnunna which reads: "If a

 man became impoverlshed2 and sold his house--the day the

buyer will sell, the owner of the house may redeem."3 This

law has been discussed by several scholars. David remarks,

"Weliswaar kent de Bijbelse wet, en wel Leviticus XXV vs. 25

v.v. een recht van ‘lossing’ voor onroerend goed, derhalve

ook voor huizen. Maar dit recht bestaat volstrekt en onvoor-

 

            1. J. J. Stamm, “lxg," THAT, I, p. 383. Outside of the Old Testament the

root appears only in an Amorite personal name, Ga'ilàlum, cf. H. Huffmon,

Amorite Personal Names in the Mari Texts, 1965, p. 179.

            2. A. Goetze, "The Laws of Eshnunna," AASOR, 31, 1956, p. 108, notes

the correspondence between the verb eneium with the verb jvm in Lev. 25 which

he calls "the exact equivalent in Hebrew law." Cf. chap. 4, n. 4.

            3. R. Yaron, The Laws of Eshnunna, 1969, p. 41. The translation of A.

Goetze, ANET, p. 163, is similar to that of Yaron.

 

                                                  63


64                The Goel In the Ancient Near East

 

waardelijk, is dus niet, zoals in §39 van de nieuw-gevonden

wet, afhankelijk van het feit, dat de koper van plan is het

gekochte veld of huis van de hand te doen.”4 There is, how-

ever, still more Old Babylonian material. Greenberg writes:

"Old Babylonian legal writings contain a law (Eshnunna 39;

Pritchard Texts 163) and a number of contracts showing the

right of an owner of real property to redeem it after he had

been forced by financial need to sell it. One of the contracts

suggests that the right may have existed even when the prop-

erty was not up for sale (as in Lev. 25:25-32)."5

          Concerning the price paid for redeeming the property

nothing can be stated with certainty. Whether it was the

original price paid by the buyer or whether the law allowed

for the improvement of the property or possible changes in

land value, and thus for more than the original sale price, is

left unmentioned.6

          Yaron asks whether redemption as envisaged in the Laws

of Eshnunna was a continuous liability, in other words,

whether the first owner lost right to subsequent recovery

of the property when it passed into the hands of a third party

of redemption. He answers in the negative since if so "the

through his failure, due to lack of funds, to exercise his right

provisions concerning redemption would have been all too

 

            4. M. David, Een nieuw—ontdekte Babylonische wet uit de tijd vóór Ham-

murabi, 1940, p. 15. H. Brongers, Oud-Oosters en Bijbels Recht, 1960, p. 31,

comments on § 39, "Hier hebben we een geval dat in de verte aan het bijbelse

begrip lossing herinnert en toch niet hetzelfde is. In de eerste plaats behoeven hier

nog geen familie-belangen in het spel te zijn. De bepaling ligt geheel en al in het

sociale vlak.... Een belangrijk verschil met Lev. 25:25 vv. is echter dat bier het

recht volstrekt en onvoorwaardelijk bestaat en dus niet, zoals in dit artikel,

afhankelijk is van het feit dat de koper van plan is het gekochte huis van de hand

te doen."

            5. A. Greenberg, "Sabbatical Year and jubilee," EJ, 14, 1971, pp. 577, 578.

Cf. R. Yaron, op. cit., p. 153, who comments on §39: "No time limit for redemp-

tion is mentioned, but the occasion to exercise the power depends on the buyer's

intention to alienate the property. As long as the buyer holds on to it, he is secure

in his possession. It is probable, however, that the parties were free to make

different arrangements."

            6. R. Yaron, op. cit., pp. 153, 154.


                   The Goel In the Ancient Near East                           65

 

easy to circumvent, by the simple device of a fictitious trans-

fer, following immediately upon the true original sale."7

          The right of redemption regardless of the original buyer's

intention to sell is implied in Khafajah text, 82, which men-

tions a field belonging to Kalarum: "Whenever he (Kalarum)

will acquire money of his own, he may redeem, the field. He

cannot redeem the field with money belonging to another

person."8 There is an important restriction herein mentioned,

in other words, Kalarum may redeem his field but he must

not borrow the money for that purpose, but rather it must be

his own.9 The examples, thus far cited, seem to be generally

similar to that section of Old Testament property redemption

law which allows the impoverished Israelite, if able, to re-

deem his property (Lev. 25:26b).

          A possible example of the family right of redemption in

ancient Babylon is found in Meissner text 42 which reads:

"Wegen 28 GAN Feldes vom Gefilde der Stadt Amurri, des

Besitztums des Ibni-Ramman, des Kaufmanns, klagte Arad-

Siri, der Sohn des Etiru, vor den Richteren also: Das Feld,

welches ich von meinem väterlichen Hause erworden babe,

haben Ibku-Sala und sein Bruder, die Söhne des Samar-nasir,

dem Kaufmann Ibni-Ramman für Geld verkauft Addatu

und Basisu, die SOhne des Kaufmanns Ibni-Ramman, brachte

man vor die Richter.... Am Eingang (?) von Sippar werden

sie      und gemass der Besitztafel des Samar-nasir und des Ibku-

Annunitu wird Arad-Sin sein Haus empfangen und zu seinem

 

            7. Ibid., p. 154.

            8. R. Harris, "The Archive of the Sin Temple in Khafajah," JCS, 9, 1955,

pp. 96, 97. According to Harris (p. 36), "the archive of Tutub (modern Khafajah)

is the first known example of an Old Babylonian official archive."

            9. According to Harris (pp. 96, 97), the purpose of the final clause was to

exclude outsiders from acquiring the fields cheaply. "The field has obviously been

undersold and the buyer wishes to protect himself against the possibility of a

third party robbing him of his profit." R. Yaron, op. cit., p. 153, explains the

restriction in the final clause as resting on a legal notion "widespread in ancient

systems of law: the ownership in property acquired with a third person's money

rests in that third person, not in the actual buyer. Consequently, repurchase of

the field with money belonging to an outsider would not result in true redemp-

tion, merely in the substitution of a new alienee for the earlier one."


66               The Goel In the Ancient Near East

 

Felde hinzu nehmen."10  This text deals with a case brought by

Arad-Sin against Ibni-Ramman. A field which had belonged

to Arad-Sin's father, through unknown circumstances had

come into the possession of Samas-nasir, who had sold the

field to Ibni-Ramman. This text suggests that the court recog-

nized, in this instance at least,11 the right of a descendant to

regain the possession of the family property which happened

to have fallen into a stranger's hands.

          Babylonian sale documents often12 contain a statement

which excludes the, seller from making a,claim upon theprop-

erty. Schaeffer cites a text wherein a piece of property was

sold by Nannar-idinna and Sin-bani his brother, to Ilushu-bani.

After a description of the property the text reads, "He has

paid the money. . . . They are content. They shall not say,

‘We have not received the money'—they have received it be-

fore the elders. At no future time shall Nannar-idinna and

Sin-bani make claim upon the field. If their brothers or sisters

should make claim, then Nannar-idinna and Sin-bani shall pay

an indemnity. By Shamash, Marduk and Zabium (the king)

they swore!”13 The right of redemption is not directly men-

tioned in this text, but rather the text basically contains

solemn assurances that the sale price has been paid. However,

from the clause excluding the sellers and their brothers and

sisters from making claim upon the field it is perhaps possible

to conclude, as Schaeffer has done, that "the right of buying

 

            10. B. Meissner, Beitrage zum altbabylonischen Privatrecht, 1893, p. 42.

            11. B. Meissner, op. cit., p. 126, remarks, "Nun behauptet Arad-Sin dass

dieses Feld in Wirklichkeit ihm gehöre, and in der Gerichtsverhandlung wird es

ihm auch wirklich zugesprochen; jedoch ist, wie gewöhnlich bei solchen Prozess-

verhandlungen, gar kein Grund für die Handlungsweise der Richter angegeben."

            12. R. Yaron, op. cit., p. 153 n. 33, writes, "Such a clause [by the owner

waiving his right of redemption] is very frequent in documents from Susa: ul

iptiru ul manzazanu S'imu gamru—'not (subject to) redemption, not (given as a)

pledge, complete sale.' " Cf. also E. Ginzberg, "Studies in Biblical Economics,"

JQR, 22, 1931-32, p. 376.

            13. The text was originally published by Daiches, "Alt babylonische

Rechtsurkunden aus der Zeit der Hammurabi Dynastie," in Leipziger Semi-

tistische Studien, I, 1907, p. 38 n. 5, and cited in H. Schaeffer, The Social

Legislation of the Primitive Semites, 1915, pp. 72, 80.


                        The Goel In the Ancient Near East                    67

 

back such property must have existed on the seller’s side.

otherwise neither he nor his closest relations would have been

called upon to obligate themselves not to interfere with the

transaction.”14 On the basis of the evidence from Old Baby-

lonian sale documents as well as from §39 of the Laws of

Eshnunna, Stamm makes the statement: "Die ge’ulla als

Recht oder Pflicht, verlorenen Familienbesitz and versklavtc

Personen zurückzukattlen, war nicht Israel beschrankt.

Das babylonischc Recht kennt sic sowohl hinsichtlich ver-

kauften Landes als Ruch hinsichtlich verkaufter Personen,

wobci im Bab. das Verbum pataru 'lösen, auslösen' die Stelle

des hebr. g’l einnimmt.”15

          Schaeffer even goes as far as suggesting that it is possible

to infer the goel’s right of preemption16 but this of course is

only an inference. The available evidence suggests a general

correspondence between Israelite and Babylonian law. This is

what we may expect in the light of the historical nature of

Old Testament revelation, but as in so many other points of

comparison between Israel and the "Umwelt" there are sig-

nificant differences in the laws as well. Again, this is to be

expected if we do not ignore the fact that the Old Testament

is a historical revelation.

          First, the laws of property redemption in Leviticus open-

ate where proporty is lost to the family on account of pover-

ty. In Leviticus 25 it is not simply a case of a regular sale of

property, but one necessitated by dire economic condi-

tions.17 Sometimes this was also the case in Babylon (see

Eshnunna § 39, also the quotation of Greenberg, n. 5), but

we have the impression that it was not so in every case.

 

            14. H. Schaeffer, op. cit., p. 80. E. Ginzberg, op. cit. p. 376, explains the

final clause which excludes the seller or his descendants from attempting to

repurchase the land as follows: "Likely attempts at redemption of family estates

were common occurrences previous to this date and more or less sanctioned by

custom; and the law is now trying to get away from this procedure."

            15. J. J. Stamm, "lxg," THAT, I, p. 385.

            16. H. Schaeffer, op. cit., p. 79.

            17. Cf. chap. 4, "Goel-Redemption of Property."


68             The Goel In the Ancient Near East

 

          Secondly, the property redemption laws in Leviticus 25

are based on Yahweh's ownership of the land," and it is this

fact which provides the motivation for the specific outwork-

ings of the laws.

 

             Parallels to the Goel-Redemption of Person

 

          In the ancient Near East persons may be said to be in

need of redemption either as a result of a legal transaction or

through captivity in war.19  Legal transactions may be of two

basic kinds; either of sale or of seizure due to defaulting on a

debt. When we think of redemption necessitated by a legal

sale transaction several possibilities must be considered,

that is, either self-sale or the sale of children by parents,

or of a slave by his master.20 In Leviticus 25:47 ff. we have a

situation involving voluntary self-sale and subsequent re-

demption either by the seller himself or his goel. We shall

therefore confine ourselves to Near Eastern evidence bearing

on this rather than on texts relating to the other redemption

situations.21

          In Sippar, during the reign of Rim-Sin a female slave

regained her freedom by paying ten shekels to her owner. We

would call attention to Schorr number 28, which reads:

"Dusubtum, die ‘Gottesschwester’ des Gottes Suzianna, die

Tochter des Dugga, hat der Istar-rabiat, ihrer Sklavin, Freilas-

sung gewährt. Ihre Stirn hat sie gereinigt. Die Auflösung (?)

ihrer Sklavenschaft hat sie erklärt. Eine Urkunde über ihre

 

            18. Cf. chap. 4, "Goel-Redemption of Property," and nn. 12-17. J. J.

Stamm, "lxg," THAT, I, p. 386, writes, "Die Eigenart der isr. ge'ulla gegenüber

der babylonischen liegt ihrer Beziehung zu Jahwe."

            19. R. Yaron, Redemption of Persons in the Ancient Near East," RIDA, 6,

1959, P. 155 (hereafter cited as "Redemption of Persons"). For documentary

evidence on redemption from captivity, cf. R. Yaron, "Redemption of Persons,"

pp. 159, 171.

            20. Ibid.

            21. CH § 119 and §281 are cited by R. Yaron, "Redemption of Persons,"

pp. 157-159, and J. J. Stamm, "lxg," THAT, I, p. 385, as examples of extra-

biblical material bearing on the redemption of slaves by their masters.


                   The Goel In the Ancient Near East                        69

 

Reinigung hat sic ihr ausgefertigt. Istar-rabiat hat der Dusub-

tum, ihrer Herrin, 10 Sekel Silber eingebracht."22

          Several Babylonian documents mention loans transacted

for the purpose of redemption. One is Schorr number 52

which reads: "1/3 Minc 4 Sekel [Silber], Zehnt (abgabe), hat

vom (Gotte) [Samar] Kisusu entlichen. Dem Anum—abi hat

er es zu seiner Auslosung gegehen. Zur Zeit der Ernte wind er

Getreide dem (Gotte) Samas geben."23

          Schorr interprets this to mean that Kisusu has borrowed

money in order to redeem Anum-abi. The money is given to

the person in bondage that, he may be able to redeem him-

self.24 Since there is another old Babylonian document which

we shall be examining which clearly mentions a case of bor-

rowing for the purpose of redemption, this interpretation

may be correct. However, Yaron believes that "this is unnec-

essarily complicated: payment to the person having another

in his power would be expected." "Zu seiner Auslösung (ana

ipterisu)" refers, according to Yaron, to the redemption of

Kisusu From Anum-abi.25

          A clear case of redemption by a relative can be seen in

Khafajah text 88 which reads: "17 shekels of silver for the

 redemption of Hagaliga his father, Zagagan has received (as a

(loan). (But.) he had no silver (with which to repay the loan),

(so) he sold himself to the enum priest....,”26

          Here can be clearly seen the case of a son acting in fulfill-

ment of his responsibility toward his father. The son borrows

 

            22. M. Schorr, Urkunden des altbabylonischen Zivil and Prozessrechts,

1913, pp. 52, 53.

            23. M. Schorr, op. cit., p. 84.

            24. Ibid. A similar interpretation is given by R. Harris, op. cit., p. 99, "In a

Sippar loan contract (CT VI 40c) one Kisusu borrows 24 shekel of silver from

the Samas temple ... he gave (the money) to Anum-abi for his (the latter's)

redemption."

            25. R. Yaron, "Redemption of Persons," p. 170.

            26. R. Harris, op. cit., p. 99. Harris believes (p. 43) that "self-sale was not a

socially accepted institution, for the contract states the circumstances which led

to the sale."


70             The Goel In the Ancient Near East

 

the needed funds, but being unable to repay the loan, he sells

himself into bondage.27

          Mention should be made of legal documents from Mari,

published by G. Boyer, particularly text 77: "Hatni-iluma,

citoyen de . . . , relevant de Sin-mustal, que Napsi-Dagan, son

frère, a li [bé] ré; Gahsu, citoyen de Sasran, que Talli, son

père, a libéré. L'argent de leur li[bé] ration Bunuma-Addu a

recu. . . .9/28

          This text is complicated by the combination of what

appears to be the unrelated redemption of two people. Yaron

ventures the opinion "that the document is merely a receipt

evidencing the payment of the redemption money to Bunu-

ma-Addu. The two men ransomed were strangers to Mari, and

on their release may perhaps have been furnished with proper

documents stating that fact. Since the present document was

found in Mari that suggests that it may have been executed

for some third person, a resident of that city, who had as-

sumed responsibility for the payment of the ransom money.

Since the relatives have indeed paid up, as expected, the pres-

ent document will establish the fact that the creditor has no

claim against the surety who is not named."29

          Finally, we would call attention to MAL, A, §48, which

reads: "If a seignior, whose debtor's daughter is living in his

house as (pledge for) a debt, asks her father, he may give her

to a husband, (but) if her father is not willing, he may not

give (her). If her father is dead, he shall ask one of her broth-

ers and the latter shall speak to her (other) brothers; if a

brother says, 'I will redeem my sister within one full month,'

if he does not redeem her within one full month, the credi-

tor, if he wishes, may declare her quit (of all claim and) give

her to a husband. . . ."30

 

            27. R. Yaron, "Redemption of Persons," p. 170. R. Harris, op. cit., p. 42,

writes, "We find that the enum—priest purchased people only under special cir-

cumstances, namely, when a debt to the enum—priest could not be paid."

            28. G. Boyer, ARM, VIII, 1958, p. 113.

            29. R. Yaron, "Redemption of Persons," p. 172.

            30. T. Meek, ANET, p. 184.


                  The Goel In the Ancient Near East                        71

 

          This law concerns the proper giving in marriage of a

debtor's daughter held in pledge by the creditor of the girl's

father. The creditor must obtain the permission of the girl's

father before she can be given in marriage. Driver and Miles

comment, "Nor presumably can her father give her in mar-

riage unless he redeems her or makes some arrangement with

his creditor whereby her husband takes over his debt."31

With the death of the father, the brothers do not retain their

father's right to prohibit the marriage. They do have, how-

ever, a limited right of redemption for one month, and if

they do not redeem their sister within that period the credi-

tor may free her and marry her to whom he will.32

 

           Parallels to the Goel-Redemption of Blood

 

          Though there is considerable evidence in the ancient Near

East for the exercise of blood-vengeance,33 there are only a

limited number of specific references to the performance of

the duty of blood-vengeance by a relative.

          There is a difference of opinion as to whether blood-

vengeance was practiced in Babylon during the time of

Hammurabi.34 Whatever the answer to this question, it is true

 

            31. G. R. Driver and J. C. Miles, The Assyrian Laws, 1935, p. 278.

            32. Ibid.

            33  Cf. J. Jolluck, Blood Vengeance among the Israelites in the light of its

Near Eastern Background, unpublished Ph.D. dissertation, Vanderbilt University,

1966, p. 140-188; vanOeveren, De Vrijsteden in het Oude Testament, 1968,

pp. 21-57.

            34. These differences are to be seen in the varying opinions of M. David and

G. R. Driver and J. C. Miles. M. David, "The Codex Hammurabi and its Relation

to the Provisions of the Law in Exodus," OTS, 7, 1950, p. 169, writes, "With the

Babylonians the whole penal law is regulated by the state; law courts of the state

acted autonomously and saw to it that the laws were observed. No traces whatso-

ever are to be found of blood-vengeance." See esp. David, n. 71. G. R. Driver and J.

C. Miles, The Assyrian Laws, 1935, p. 33, on the contrary write, "As neither the

Babylonian code nor the Assyrian laws deal generally with the offence of murder,

it must be supposed that it still came under the rules of the ancient blood-feud as

among other Semites; and it is remarkable that this custom is not regulated by

legislation as is the case with the Hebrews. The desire indeed and right of the

family to seek vengeance dies hard and the state, even though it may disapprove,

dares not interfere, at any rate until the central authority is very strong." It is

their opinion that "if the blood-feud was recognized in the time of Hammu-rabi it


72           The Goel In the Ancient Near East

 

to say that there are no specific references to any relative35

who performs a duty comparable to that of the avenger of

blood in Israel.

          In Assyria we do find direct mention of the next-of-kin

who is involved in the duty of blood-vengeance. We would

call attention first of all to MAL, A, §10, which reads: "[If]

either a seignior or a lady entered a(nother) seignior's

[house] and killed [either a man or a woman, they shall

give] the murderers [to the next-of kin] , and if he chooses

 he may put them to death, or [if he chooses] he may spare

(them but) take [their property] . [However, if] the murder-

ers have nothing at home [to give] , either a son or [a daugh-

ter] . . . in the house . . . belonging to . . ."36

          In the place where Meek translates: "the next-of-kin,"

 the text is corrupt. Meek restores: “the master of life," and

translates: the "next-of-kin."37 Driver and Miles write: "The

person who has this choice can hardly be anyone else than

the 'owner of the life' (Ass. bel napsate), of whom mention

has just been made, or 'the owner of the dead persons' (Ass.

bel mitute) as the avenger of blood is called in one Assyrian

document."38 The Assyrian document where the term bel

 

was probably limited to cases of intentional killing...." The Babylonian Laws, 1,

1952, p. 314. Cf. further B. van Oeveren, op. cit., pp. 24-31.

            35. G. R. Driver and J. C. Miles, The Assyrian Laws, p. 33, refer to § 153 of

Hammurabi as the "sole case" of murder mentioned in the Babylonian code. It

reads: "If a seignior's wife has brought about the death of her husband because of

another man, they shall impale that woman on stakes." T. Meek, ANET, p. 173.

Driver and Miles, op. cit., p. 33 n. 3, explain the law as follows: "The wife does

not herself commit the murder at all but 'causes him to be murdered' (Bab.

usdik), namely procures another, presumably the lover on whose account the

crime is committed, to kill her husband; the law deals with her offence alone, i.e.,

procuring his death, while it leaves the punishment of the actual murderer to the

blood-feud."

            36. T. Meek, ANET, p. 181.

            37. Ibid. Cf. also H. Brongers, Oud-Oosters en Bijbels Recht, 1960, p. 138,

who restores with "naaste bloedverwant." He feels that it is clear "dat hies de

bestraffing van een moord nog niet tot de competentie van de rechter behoort,

maar aan de naaste bloedverwant wordt overgelaten...."

            38. G. R. Driver and J. C. Miles, The Assyrian Laws, p. 34. They add,

"Another possibility is to supply 'the owner of the house' (Ass. bel bitu), who of

course would usually be identical with the bel napisate or bel mitute, and this is


                     The Goel In the Ancient Near East                          73

 

mitute is found is text 660 in Kohler and Ungnad. It reads:

"Siri ist der Eigentiimer der Toten, (bel mitute) die Silim—ili

getötet hat. Vor ihnen (d.h. ‘vor den obengenannten Leuten')

wird entweder sein Weib oder sein Bruder oder scin Sohn-

wer es auch sei, der sich erhebt, —die Toten ersetzen."39

Driver and Miles comment on text 660: "The murderer has

to deliver up his wife, brother, or son to the 'owner of the

dead persons' (Ass. bel mitute), and whoever of them is sur-

rendered 'makes good, i.e. compensates for, the dead persons'

(Ass. mittite us'allum), and presumably the murderer is put to

death if he fails to deliver a substitute."40

          MAL, B, §2 refers very clearly to the next-of-kin's re-

sponsibility in the area of blood-vengeance. It reads: "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 be willing to settle [and] take his

share.”41

          From both these texts it is apparent that in Assyria there

was one who could be called the avenger of blood, who was

authorized to take the life of the murderer. However, the

Assyrian law knows of the alternative of compensation in

exchange for the life of the murderer. An arrangement could

be made for taking some form of goods belonging to the

guilty party or, failing that, it is likely that the murderer had

to surrender a son or daughter.42 This, it will be seen, is

strikingly different from the Old Testament law (Num. 35:

31), which allows only the life of the murderer to be taken

rather than any kind of substitute.43

          There is no mention of the avenger of blood in the Hittite

 

given in the transcription since it is a shorter phrase and seems therefore to suit

the gap shown in the autographed text...."

            39. J. Kohler and A. Ungnad, Assyrische Rechtsurkunden, 1913, pp. 388,

389.

            40. G. R. Driver and J. C. Miles, The Assyrian Laws, pp. 35, 36.

            41. T. Meek, ANET, p. 185.

            42. G. R. Driver and J. C. Miles, The Assyrian Laws, p. 35, cite MAL, A,

§ § 2, 50, 55 as evidence of vicarious punishment in Assyria.

            43. See chap. 4, n. 159.


74          The Goel In the Ancient Near East

 

laws, but this does not mean that blood-vengeance was non-

existent among the Hittites.44 Of importance is the Edict of

Telipinus, which mentions "the lord of blood." It reads:

"The rule of blood is as follows. Whoever commits a deed of

blood, whatever the 'lord of blood' says—if he says 'Let him

die,' he shall die; but if he says 'Let him make restitution,' he

shall make restitution: the king shall have no say in it."45 It is

likely that the "lord of the blood" is comparable to the goel

of blood. He is the head of the family of the murdered victim

or one of the heirs of the murdered victim."

          Of importance, as well, is a letter written by Hattusilis III

to the Babylonian king Kadasman-Enlil II, in which the Hit-

tite king complained of the murder of his merchants in Ugarit

and in North Syria and assured the Babylonian king that

when a case of murder occurred among the Hittites the mur-

derer was given over to the relatives of the victim. The text

reads: "Betreffend das, was mir mein Bruder geschrieben hat:

 

          44. Cf. B. van Oeveren, op. cit., pp. 31-38. The homicide laws in the Hittite

code ( § § 1, 2, 3, 4) make a clear distinction between killing in anger and killing

accidentally. Cf. R. Haase, "Zum Tatbestand der vorsätzlichen Tötung eines

Menschen in der hethitischen Rechtssammlung," BiOr, 18, 1961, pp. 14-16.

There is also a possible correspondence between the statement found in the

homicide laws, "but if his hand (alone) is at fault," and Ex. 21:13, cf. E. Neufeld,

The Hittite Laws, 1951, p. 1 n. 4, and B. van Oeveren, op. cit., p. 34 n. 14. There

is also a formal correspondence between HL §6 and Deut. 21:1-9 which specifies

procedures to be followed to discharge the guilt of innocent blood when a mur-

dered man is found in the fields and his murderer is not known. Cf. B. van

Oeveren, op. cit., pp. 35, 36 and 0. R. Gurney, The Hittites, 19542, pp. 97, 98.

          45. 0. R. Gurney, op. cit., p. 98. Gurney (p. 216) dates Telipinus from

1525-1500.

          46. Ibid; B. van Oeveren, op. cit., pp. 37, 242; E. Neufeld, The Hittite Laws,

p. 130 n. 6. Cf. also, M. San Nicolò, Reallexikon der Assyriologie, 2, 1938, s. v.

"Blutrache" who remarks, "Die Vergeltung der Bluttat liegt in den Hamden des

‘Blutsherrn' (des Oberhauptes der Familie oder des Erben des Getotenen). Dieser

bestimmt, ob der Mörder sterben soil oder ob er mit der Zahlung des Wergeldes

die Tat sühnen darf. Die staatliche Intervention wird dabei ausdrücklich abge-

lehnt." This is disputed by E. P. Matter, Die Bedeutung der Hethiter für das Alte

Testament, 1936, pp. 26, 27, who writes: "Nach dem Edikt des Telepinui gab es

einen obersten Gerichtshof, an dessen Spitze als Präsident der ‘Blutsherr’ stand.

Der Entscheidung dieses Gerichtshofes musste sich der Konig beugen, and nie-

mand durfte urn Intervention bei ihm einkommen." V. Korosec, "Die Kollektiv-

haftung im hethitischen Recht," ArOr, 18, 1950, p. 190, interprets the "Bluts-

herrn" as a judge.


                  The Goel In the Ancient Near East                            75

 

‘Meine Kauficute pflegt man im Lande Amurru, im Lande

Ugarit (und in) zu töten.' Im Hethiterlande tötet man keine

Seele. Wenn der König hurt, class irgend jemand eine Seele

getötet hat, so nimmt man den Mörder dieser Seele gefangcn

und liefert ihn den Brtidern des Getöteten aus..."47

          It would appear then that among the Hittites the blood-

feud existed, and the relative of the murdered party played a

role in avenging the death of the victim. However, as was the

case in Assyria, it was possible to settle the blood-feud by

means of a money payment or possibly by the substitution48

Of the life of someone other than that of the murderer.

Again, it must be emphasized that such a possibility is ex-

pessly  forbidden in the biblical regulations (Num. 35:31).

          We shall conclude our study of parallels, to the goel-

redemption of blood with a survey of the customs of the

pre-Islamic nomadic Arabs.49

          In Arabia there is no blood-revenge, strictly speaking,

when a kinsman kills another kinsman. In such an event, the

slayer is either formally excluded from the kin-group or is the

 

            47. Text K Bo, I, 10, 14-25 as found in R. Haase, Der privatrechtliche

Schutz der Person und der einzelnen Vermögensrechte in der hethitischen Rechts-

sanzmlung, 1961, p. 28. Haase dates the Hittite king Hattu.S"ig III from 1298-

1266. Cf. also E. Neufeld, op. cit., p. 130 n. 66.

            48. Vicarious punishment was practiced in Assyria, cf. n. 42. Commenting

on the phrase "Let him make restitution" 0. R. Gurney, op. cit., p. 98, writes,

"The practice of giving 'persons' as part of the composition for manslaughter is

remarkable. The expression is that generally used for slaves. Perhaps such slaves

were slain at the tomb of the deceased, as in some other ancient societies."

            49. B. van Oeveren, op. cit., p. 50, correctly observes that it is sometimes

difficult to precisely date some of the Arabic customs on blood-vengeance. Cf.

also M. J. L. Hardy, Blood Feuds and the Payment of Blood in the Middle East, 1963,

pp. 13, 14. For additional literature on blood vengeance in Arabia, cf. D. S.

Attema, Arabia en de Bijbel, Exegetica, 3:4, 1961, pp. 54-56; S. Nystrom,

Beduinentum und Jahwismus, 1945, pp. 31-40; J. A. Montgomery, Arabia and the

Bible, 1934; II. Schaeffer, op. cit., pp. 80-84; W. Patton, "Blood-Revenge in

Arabia and Israel," AJT, 5, 1901, pp. 703-731; W. Robertson Smith, Kinship and

Marriage in Early Arabia, 19032; 0. Procksch, Über die Blutrache bei den

vorislamischen Arabern, 1899. S. Nystrom, op. cit., p. 34, stresses the importance

of the Bedouin custom of blood-vengeance for understanding the practice in

Israel. "Eine voile Erklarung für die Stärke der Pflicht fur Blutrache, Licht über

dunkle Punkte in der Ausübung dieser Pflicht schenkt tins der Vergleich mit den

Gesetzen der Blutrache bei den Beduinen."


76               The Goel In the Ancient Near East

 

subject of a judicial execution by the community.50 The obli-

gation of blood-revenge arises in cases of homicide in which

the common blood of a kin has been shed by one of a differ-

ent kin. In this instance, the slaying of a man of another tribe

is not viewed as a moral issue,51 for sacred blood is that of a

kinsman alone. The principle that the shedding of the blood

of an individual within the group is the shedding of the blood

of the community is stated by Smith: "All the members of

the group regarded themselves as of one blood. . . . A kindred

group is a group within, there is no blood-feud. If a

man kills one of his own kin, he finds no one to take his part.

Either he is put to death by his own people or he becomes an

outlaw and must take refuge in an alien group. On the other

hand, if the slayer and slain are of different kindred groups, a

blood-feud at once arises, and the slain man may be avenged

by a member of his own group on any member of the group

of the slayer."52

          In addition to motives of kinship, blood-vengeance in

Arabia was also based on religious motives. "The rights of the

tribal god have been violated, and he joins the dead man's kin

in seeking vengeance. His displeasure will cause him to break

off communion with them, should they not avenge the shed

blood. Moreover, the spirit of the dead must be propitiated."53

          It is true that in many cases the religious motive was lost

 

            50. W. Patton, op. cit., pp. 703, 704, 730.

            51. Ibid., p. 704; M. J. L. Hardy, op. cit., pp. 20, 21.

            52. W. Robertson Smith, op. cit., p. 25. According to Smith blood-revenge

is the primary test of kinship. He writes (p. 26), "The ultimate kindred group is

that which always acts together in every case of blood-revenge."

            53. W. Patton, op. cit., p. 704. On pp. 712, 713 he writes, "The spirit of an

unrevenged man ... finds no peace in the grave until the hama or sada, 'the death

bird,' which hovers at the head crying, 'Give me to drink,' has been satisfied...."

M. J. L. Hardy, op. cit., p. 18, speaks of the tribal structure as well as the religion

of the period as sources of equal potency in the encouragement of the blood-feud.

He remarks, "The soul of the murdered man was imagined to flutter around the

tomb in the form of an owl, crying with thirst and unable to find rest until

vengeance, was taken. If that vengeance was not pursued, some form of blood guilt

was thought to fall upon the remaining kin."


                    The Goel In the Ancient Near East                   77

 

sight of and was replaced by the more natural motives of

private passion and tribal hostility.54

          As to the question of responsibility for blood-revenge, it

appears that the obligation to avenge a death rested basically

with the raht which included descendants to the fifth genera-

tion.55 Among the males within the raht the heaviest respon-

sibility rested upon the brother and son of the deceased.56

There are instances of the father of the victim assuming the

responsibility,57 though this was perhaps not common.58 If,

for any reason, a brother or the eldest son did not assume his

role as avenger, the duty passed to the younger sons, and

eventually to the sons of a brother.59

          Procksch concludes, "So dürfen wir sagen, class die Blu-

trache der Regel nach Angelegenheit des raht, also Familien-

rache war and zwar so, dass der n'ächste Verwandte auch der

nachste Blutracher ist.... Die Bluträcher waren also schon

damals die Familienglieder. Erst wenn diese die Rache nicht

Ubernchmen wollen, wird diese zur Pflicht des Stammes. Des

Stammes (hajj) eigcntliche Sache ist der Krieg, der Familie

(rapt) Sachc die Blutrache."60

 

            54. W. Patton, op. cit., p. 704, quotes a saying of the Bedouins, “I will

have my revenge if I should be cast into hell for it.' "

            55. W. Patton, op. cit., p. 705; M. L. Hardy, op. cit., p. 16.

            56. W. Patton, op. cit., p. 705, believes that though the brother and eldest

son of the deceased were nearly equal in their responsibility, "the greater respon-

sibility rested upon the brother rather than the son. These two were the first heirs

of a man, as well. In fact there seems to be some kind of relationship between

these two things, inheritance and blood-revenge. This is suggested by the sharing

of brother and son, not only in the inheritance, ... but in the bloodwit, where

that was accepted instead of revenge." 0. Procksch, op. cit., p. 26, comments,

"Daraus entsprang denn auch fur den Bruder in erster Linie die Pflicht der Blut-

rache." According to M. J. L. Hardy, op. cit., p. 17, however, "the apparent

order was sons, brothers, cousins and uncles...."

            57. 0. Procksch, op. cit., pp. 27, 28.

            58. W. Patton, op. cit., p. 705.

            59. Ibid., p. 706.

            60. 0. Procksch, op. cit., pp. 28, 29. So also, W. Patton, op. cit., p. 707; J.

M. L. Hardy, op. cit., p. 17; S. Nystrom, op. cit., p. 35. H. Schaeffer, op. cit., p.

81, writes, "The duty of retaliation was an immediate concern of the 'family' and

not of the community at large. It was only when the 'family' was in no position

to carry out the obligation that the duty fell to the lot of the tribal group to

which 'the family' belonged." The opinion of W. Robertson Smith, op. cit., pp.


78           The Goel In the Ancient Near East

 

          The avenger of blood is referred to as the wali or as the

waliy-ad-damm. Wali is the term applied as well to marriage

and inheritance.61 Schaeffer asserts that "the functions of the

Hebrew goel . . . are assumed to a very large extent by the

wali of Arabic literature."62

          So pressing63 was this duty that it was considered legiti-

mate to use any ruse or strategy to deceive the one who was

to be put to death, though apparently it was not permitted to

strike a man in his sleep.64 According to Hardy, "at the

moment of striking the mortal blow the avenger had to cry

aloud that he was taking vengeance for his murdered kins-

man, so as to inform any witnesses that this was a judicial

killing and not itself an unjustified attack."65

          Vengeance threatens not only the killer himself but any

member of his tribe as well.66 Certain restrictions were ob-

served in an attempt to curtail the disastrous results of the

exercise of unbridled revenge. Slayers were safe from the

 

26, 27 varies somewhat from the above position. He writes, "In Arabia this group

[kindred group] was not the family or household, not the relatives of the slayer

and the slain within certain degrees of kinship as we reckon kinship, but a definite

unity marked off from all other groups by the possession of a common group-

name. Such a group the Arabs commonly call a hayy.. . . The call to vengeance is

no doubt felt more strongly by the father, the son or the brother of the

slain.... But this has nothing to do with the principle of the blood-feud. No man

who is within the group can escape responsibility merely because he is not a close

relation of the slayer or the slain.... Kinship then among the Arabs means a

share in the common blood which is taken to flow in the veins of every member

of a tribe...." Cf. also B. van Oeveren, op. cit., pp. 51, 52, 242, and R. de Vaux,

Ancient Israel, 1961, p. 11. Note should be taken of the remarks of W. Patton,

op. cit., p. 709, who acknowledges that it is impossible from the available evi-

dence to trace the stages of the institution of blood-vengeance in Arabia.

            61. W. Patton, op. cit., p. 706; H. Schaeffer, op. cit., pp. 82, 83; See n. 56.

            62. H. Schaeffer, op. cit., p. 80.

            63. D. S. Attema, op. cit., p. 55, remarks, "Men ervoer dit als een wet,

waaraan onvoorwaardelijk gehoorzaamd moest worden, en als een plicht die tot

geen prijs mocht worden nagelaten."

            64. M. J. L. Hardy, op. cit., p. 19.

            65. Ibid., S. Nystrom, op. cit., p. 36, remarks, "Doch ist es sowohl bei

Arabern wie bei Israeliten meistens dass der Bluträcher, ehe er seinem

Opfer den Todesstoss versetzt, kundtut, für wen er die Blutrache fordert." He

cites Judg. 8:18-21 as an illustration of his point.

            66. D. S. Attema, op. cit., p. 55, writes, "Zij moesten er zorg voor dragen

dat de moordenaar of een van zijn naaste verwanten met de dood gestraft werd."


                     The Goel In the Ancient Near East                      79

 

avenger during holy months. There were also places of asy-

lum.67 An unusual custom was the protection provided by a

woman who placed her cloak-over a threatened man.68 The

most widely employed practice was that of seeking the pro-

tection of a powerful tribe.69 Such measures, however, did

not effectively prevent the recurring vendetta.70 The blood-

feud could have been arrested by handing the murderer over

but "since there was no moral judgment of the deed, there

was no decisive motive for surrendering the murderer. As a

practical means to solve this problem, resort was had to the

payment of compensation."71

          We have seen that the practice of compensation in the

ancient Near East, excluding Israe1,72 was common. In Arabia

a weak tribe would likely settle the blood-feud by payment

of blood-money. Yet there are cases of weak tribes waiting

for protracted periods of time in order to execute ven-

geance.73 The choice of exacting vengeance or receiving com-

pensation belonged to the offended kinsman.74 On occasion

men resorted to the oracle for an answer to the vengeance or

compensation choice.75

 

            67. Cf. B. van Oeveren, op. cit., pp. 55-57.

            68. M. J. L. Hardy, op. cit., p. 20. Cf. also W. Patton, op. cit., pp. 713-715.

            69. M. J. L. Hardy, op. cit., p. 20.

            70. W. Patton, op cit., p. 768, writes, "When the tribe took part in blood-

feud, the common result was a war which ever increased-the fend between parties,

because every man killed began–a-new quest for revenge." D. S. Attema, op. cit..

p. 56, writes, "Men bemerkt hier duidelijk waartoe de bloedwraak leidde. Daaruit

ontstonden vaak hele bloedveten tussen de stammen, hele clans werden sums

uitgemoord."

            71. M. J. L. Hardy, op. cit., pp. 21, 22.

            72. See chap. 4, n. 159 and below nn. 79 and 80.

            73. W. Patton, op. cit., p. 710; D. S. Attema, op. cit., p. 55.

            74. M. J. L. Hardy, op. cit., p. 22. Cf. however, W. Patton, op. cit., pp. 715,

716. He affirms that in some instances an arbitrator was used. "He might be of

one of the two tribes involved. He decided whether the bloodwit offered or the

revenge insisted on by the other party should prevail; and in cases of dispute as to

the amount of the bloodwit he occasionally settled the sum."

            75. W. Patton, op. cit., p. 714. He cites the case (p. 714) "of one man who

sought the oracle, and who, not getting the answer he desired when he wished to

know whether he should avenge the blood of his father or accept an alternative,

threw the arrows at the image and cried out: 'You wretch!' If your father had

been killed, you would never have forbidden me to avenge him."


80               The Goel In the Ancient Near East

 

          Patton suggests that compensation as a method of settle-

ment was "theoretically just as complete a satisfaction and as

honorable an adjustment as the execution of vengeance. Prac-

tically, however, the question of tribal honor enters in at this

point. . . . One condition of the acceptance of blood-money

was that a full acknowledgment of the ability of the accept-

ing party to accomplish revenge should be made. The slayer

was delivered up to the avenger. He entered the avenger's tent

saying: "Here I am; kill me or accept ransom." By saying this

he renounced his claim to the protection of the tent and

might have been slain. Actually, however, it was not often

the case that one who did this was slain. The purpose of the

renunciation is merely to satisfy the avenger's pride, and this

purpose of the act is always respected by the latter."76

          Certain differences between blood-vengeance in Arabia

and in Israel have now become evident. We have noted that in

Arabia there seemed to have been an absence of moral judg-

ment on a killing outside of the kin group.77 The same can-

not be said to be true in Israel. We have also seen that the

avenger of blood enacts vengeance not only upon the perpe-

trator of the evil deed (this may or may not be the case) but

upon any of the kin members of the murderer. This is forbid-

den in the Old Testament.78 A final difference is that of

compensation, which was excluded by the Israelite law,79

compare Numbers 35:31.

 

            76. W. Patton, op. cit., p. 715.

            77. Cf. W. Patton, op. cit., p. 730, who calls the absence of any moral

feeling toward the killing of a man of another tribe "the most striking difference

between the blood-revenge of the Old Testament and that of the Arabs."

            78. B. van Oeveren, op. cit., p. 242, writes, "Was de moordenaar onbereik-

baar, dan moest een lid van zijn familie worden gedood. Dit laatste wordt in de

Mozaische wetgeving uitdrukkelijk verboden, Deut. 24:16."

            79. S. Paul, Studies in the Book of the Covenant in the Light of Cuneiform

and Biblical Law, (SVT, 18) 1970, p. 82, correctly states: "Composition is appli-

cable only in a system which is motivated entirely by economic presuppositions:

the family has suffered a loss, thus payment in kind must be made and is accept-

able. In the Bible, however, homicide is an unpardonable offense, since it is

considered to be, in addition to everything else, a flouting of the divine will;

hence, no matter nor manner of composition is acceptable."


                      The God In the Ancient Near East                      81

 

          It is clear from our discussion that blood-vengeance was

practiced by many peoples in the ancient Near East in addi-

tion to the Israelites. As has already been pointed out, such

similarities should occasion no particular surprise in the light

of the historical nature of biblical revelation. In the final

analysis, the basic difference in outlook and in operation

between Israel and the surrounding nations can be explained

only from Israel's unique view of man as made in the image

of God;80 see further our discussion of the Old Testament

data in chapter 4 under "Goel-Redemption of Blood." No

compensation for the life of the murderer was possible, for

he had shed the blood of one made in the image of God.

However, it was only the murderer's life which was to be

taken. A clear distinction between premeditated and acci-

dental slaying was laid down in Old Testament law. More-

over, the goel of blood in Israel, rather than acting out of

motives of personal vengeance, was intended to be the instru-

ment of divine justice with a mandate from Yahweh, the

Ultimate Seeker of the blood of the murdered victim. An

attack upon man made in .the image of God was an attack

upon the Lord, himself.

 

            80. On the differences between Israelite and Near Eastern laws of homicide

cf. M. Greenberg, "Some Postulates of Biblical Criminal Law," Yehezkel Kauf-

mann Jubilee Volume, 1960, pp. 5-28. The main differences between biblical and

cuneiform law, according to Greenberg, are that compensation of any kind is

ruled out and vicarious punishment is excluded in the biblical law. There is also a

striking distinction between biblical and cuneiform law in the treatment of of-

fenses against property. Greenberg (p. 18) writes: "This unparalleled leniency of

biblical law in dealing with property offences must be combined with its severity

in the case of homicide, just as the leniency of nonbiblical law in dealing with

homicide must be taken in conjunction with its severity in dealing with property

offences. The significance of the laws then emerges with full clarity: in biblical

law life and property are incommensurable; taking of life cannot be made up for

by any amount of property, nor can any property offense be considered as

amounting to the value of a life. Elsewhere the two are commensurable: a given

amount of property can make up for life, and a grave enough offense against

property can necessitate forfeiting life.... A basic difference in the evaluation of

life and property separates the one from the others. In the biblical law a religious

evaluation; in nonbiblical, an economic and political evaluation, predominates."

Cf. chap. 4, n. 159.


 

 

 

 

 

 

                                         4

 

            The Goel In Israel

 

  Goel-Redemption of Property, Leviticus 25:23-28

 

THE law of property redemption in Leviticus 251

forms an important part of the Old Testament

teaching on the role of the goel in Israel. It is this

law which most directly relates to the interpretive problems

of the book of Ruth.2 Despite the difference between the

property transaction in Ruth and the law of property re-

demption in Leviticus 25, it is generally accepted that in the

book of Ruth we have an application of the property re-

demption law which is formulated in Leviticus 25. The law in

Leviticus 25:25-28 states, "If your brother3 becomes poor,4

 

            1. Lev. 25 forms part of the so-called Holiness Code, which is taken by some

scholars as being very late. On the question of the separate existence of such a

code, cf. W. H. Gispen, Het Boek Leviticus, COT, 1950, pp. 17-27. For more

recent discussions on this subject, cf. H. G. Reventlow, Das Heiligkeitsgesetz.

Formgeschichtlich Untersucht, 1961, and W. Thiel, "Erwägungen zum Alter des

Heiligkeitsgesetzes," ZAW, 81, 1969, pp. 40-73. J. van der Ploeg, "Studies in

Hebrew Law," CBQ, 13, 1951, p. 39, comments, "There can be no doubt indeed,

that most of the contents of the Law of Holiness must be very old, and must have

been practiced in ancient times." Cf. also, H. Brongers, Oud-Oosters en Bijbels

Recht, 1960, p. 191. As far as the content of Lev. 25 itself is concerned there is

good reason to see a reflection of very ancient practices. The antiquity of the laws

regulating indebtedness in Lev. 25:35-54 has been demonstrated by E. Speiser,

"Leviticus and the Critics," Oriental and Biblical Studies, ed. J. Finkelstein and

M. Greenberg, 1967, p. 135, (hereafter sited as “Leviticus and the Critics") who

has cited parallels from Alalah and Nuzi and remarks, "The cuneiform analogues

demonstrate, among other things, that the long passage in Leviticus had its roots

in life rather than in cultic speculation. These roots, moreover, reach far back into

the past."

            2. See chap. 8, "The Sale of the Property."

            3. jyHx should be taken in its wider meaning of fellow clan-member.

            4. A similar verb can be found in the Ugaritic texts which C. Gordon, UT,

1965, p. 433, translates "to be vanquished." The verb jvm is unique to Lev. 25

 

                                                      83


84                       The Goel In Israel

 

and sells part of his property,5 then his next of kin shall

come6 and redeem what his brother has sold. If a man has no

one to redeem it, and then himself becomes prosperous7 and

finds sufficient means8 to redeem it, let him reckon the years

since he sold it and pay back the overpayment9 to the man to

whom he sold it; and he shall return to his property. But if he

has not sufficient means to get it back for himself, then what

he sold shall remain in the hand of him who bought it until

the year of jubilee;10 in the jubilee it shall be released,11 and

he shall return to his property."

          Basic to the laws of land tenure in the Old Testament is

the conviction that Yahweh is the true owner of the land.12

 

apart from its use in Lev. 27:8. In Lev. 25, the laws concerned all begin similarly:

jyHx jvmy yk. H. G. Reventlow, op. cit., p. 141, regards them as part of an indepen-

dent complex of laws, "der nur sachliche Beziehungen zur Einrichtung des

Halljahrs besitzt.... Hier finden wir Bestimmungen sozialer Art, die sich einer-

seits mit der hlxg, von Land (v. 25 ff.) und Mensch (v. 47 ff.), andererseits mit

bundesgemässem sozialem Verhalten gegenuber armen Mitbürgern (v. 35 ff.) und

Schuldsklaven (v. 39 ff.) befassen."

            5. vtzHxm--the most general term for property in the Old Testament as over

against hlHn and hwry which refer to inheritance. Cf. the unusual usage in Lev.

25:45, 46, where the word refers to persons rather than to property.

            6. xbv—here used as a technical term meaning to appear on behalf of, to be

responsible for. Cf. K. Elliger, Leviticus, HAT, 4, 1966, p. 355.

            7. vdy hgywhv—to reach, to be able to afford. Cf. Lev. 25:47, 49.

            8. vtlxg ydk—KB, "sufficient to his redemption." Cf. Lev. 25:28:

vl bywh yd —KB, "enough for repurchase."

            9. Jdfh—that which remains over. The word is used in connection with food

(Ex. 16:23) and people (Num. 3:46) as well as money (Lev. 25:27).

            10. lbvy —the word means ram (Josh. 6:5) or ram's horn (Ex. 19:13). The

year of the lbvy was inaugurated with the blowing of the ram's horn.

            11. xcy—a technical term for release. Cf. Lev. 25:28, 30, 31, 33, 41, 54.

            12. In addition to the fundamental notion of Yahweh's ownership of the

land, Lev. 25:38 stresses Yahweh's redemptive intervention at the Exodus as a

basis for the economic laws in Israel. G. von Rad "Promised Land and Yahweh's

Land," in The Problem of the Hexateuch and Other Essays, 1966, p. 85, believes

that "the fundamental notion expressed in Lev. xxv 23 is very ancient, and had

cultic significance in ancient Israel. It was as a primary consequence of this basic

conception that the great sacral sabbatic year was appointed." Against this cultic

notion, von Rad contrasts the historical outlook involved in the promise of the

land made to the patriarchs. The two are "of a totally different order.... The

theological statements in the Hexateuch concerning the land derive from two

basically quite distinct viewpoints," ibid., pp. 88, 89. Von Rad denies that the

cultic notion was originally derived from Canaanite sources and was a later devel-

opment than the more ancient historical conception of the Yahwist. He remarks,


                         The Goel In Israel                                      85

 

"The land shall not be sold in perpetuity, for the land is

mine, for you are strangers and sojourners with me" (Lev.

25:23).13 Because the land was conceived of as belonging to

Yahweh, religious and moral considerations were involved in

questions of land ownership and transfer.14 One of the out-

workings of this idea of God's ownership of the land was that  

no Israelite could lose his property permanently.15 These

 

"The notion that Yahweh is the true owner of the land can be traced back to the

very oldest commandments of Yahweh, and was evidently current at a time when

syncretism with the features of Canaanite religion had not even begun to appear,"

ibid., p. 88. Cf. also G. von Rad, OTT, 1, 1962, p. 300. On the concept of

Yahweh's ownership of the land, cf. R. North, Sociology of the Biblical Jubilee,

1954, pp. 158-175. Cf. also A. Alt, "The Origins of Israelite Law," in Essays on

Old Testament History and Religion, 1966, p. 128 n. 118. See also below, nn. 13,

14.

            13. For references to the divine ownership of the land in the Old Testament,

cf. Josh. 22:19; Jer. 16:18; Ezek. 36:5; Hos. 9:3; Ps. 85:2(1). This concept was

not unique to Isreal.  For data from the ancient Near East and particularly Ugarit

where there seems to be a strong emphasis on the land belonging to the Deity, cf.

A. M. Brown, The Concept of Inheritance in the Old Testament, unpublished

Ph.d.dissertation, Columbia University, 1965, pp. 183, 184. He comments: “In

all the Biblical passages which refer to Yahweh's inheritance of the land either in

terms of the whole area of Canaan or in terms of the concept of Jerusalem and

the Temple, we have a vitally significant combination of the concept of divine

ownership, a view held by other Near Eastern cultures and particularly evident in

Ugaritic literature, with the more specifically Hebraic concept of Yahweh's in-

volvement in history. This involvement was the existential vehicle for expressing

Yahweh's relationship with Israel, and the land of Canaan was the focal point

around which that history was enacted."

            14. K. H. Hervey, "Land Tenure in the Old Testament," PEQ, 1954, p. 5,

points out that there were actually two competing schools of thought in Israel,

concerning land ownership and related problems. "The one saw the land as be-

longing to Yahweh, and demanded—in His name—the application of religious and

moral considerations to land ownership and transfer. To the other, dealing in land

was partly business, partly governed by certain customs (and no doubt laws)

which were influenced by those prevailing amongst the surrounding peoples. The

two principles were impossible to reconcile...." F. Horst, "Das Eigentum nach

dem Alten Testament," in Gottes Recht, 1961, p. 205, writes, "So gewichtig and

beachtlich dieses religiose Eigentumsverstandnis ist, so ist es doch nicht das im

Alten Testament alleinbestehende and vorherrschende gewesen. Ein anderes, rein

profanrechtliches Eigentumsverstandnis steht daneben."

            15. On. the term ttmcl, in Lev. 25:23 cf. J. E. Hogg, "The Meaning of

ttmcl in Lev. 25:23-50;" AJSL, 42, 1925-26, pp. 208-210. In place of forever"

or "in perpetuity" he suggests "without right of redemption" or "in derogation of

the seller's right of redemption," ibid., p. 210. F. Horst, op. cit., p. 220, under-

stands the word as meaning "mit unwiderruflicher Gultigkeit." J. J. Rabinowitz,

"A Biblical Parallel to a Legal Formula from Ugarit," VT, 8, 1958, p. 95, writes:

"In a large number of conveyances of property it is stated that the transfer is


86                            The Goel In Israel

 

laws were intended to ensure the freedom of the small land-

owner in Israel. According to Eichrodt, "the significance of

these regulations lies in the fact that by blocking, speculation

in landed property they make it easier for that peasant class

which springs from the soil to preserve its independence.”16

In addition, as Brown remarks, "the fact that the Israelites

were legally prohibited from making any permanent sale of

their property would be a constant and sometimes frustrating

reminder to them of their link with the divine provenance of

their possession and the divine sovereignty of the real owner

of the land."17

          Three separate situations are contemplated in Leviticus

25:25-28. All involve the selling of a portion of property due

to extreme poverty. In verse 25 the law envisages the recov-

ery of the land through the intervention of the goel.  In verse

26 the law allows for the possibility of the land being recov-

ered by the seller who finds himself, at a later date, financial-

ly able to repurchase his property.18 Such a situation may

 

made in perpetuity, the formula being samid adi dariti . . . . This formula is strik-

ingly similar to vytrdl. . . ttymclof Lev. xxv 30." Rabinowitz sees this as speak-

ing "volumes against those who would assign a late date to the sections of Leviti-

cus relating to the year of the jubilee."

            16. W. Eichrodt, TOT, 1, 1961, pp. 96, 97, who goes on to remark, "The

basic idea of this law constitutes a consistent and energetic attempt to guarantee

the independence and liberty of each individual Israelite."

            17. A. M. Brown, op. cit., p. 214. According to Brown, this law "involved

more than the integrity of the social structure of an ancient society. In the

biblical material, the, law is linked toYahweh's gift of the land and to the sove-

nant relationship between, Yaliweh and Israel."

            18. D. Daube, The Exodus Pattern in the Bible, 1963, p. 85, (hereafter cited

as Exodus Pattern) regards this section which allows the impoverished person to

free his land as a later development and writes, "That these clauses contemplating

a decisive financial improvement in the affairs of the impoverished man are a

relatively late amendment is evident from the way they are stuck on to the

principal legislation; they are an afterthought." In Studies in Biblical Law, 1947,

p. 44, (hereafter cited as Studies) Daube calls the provision allowing redemption

by the impoverished person himself "a Biblical innovation" which had not existed

in prebiblical legislation. His position is controverted by E. Neufeld, "Socio-

Economic Background of Yobel and Semitta," RSO, 33, 1958, p. 77 (hereafter

cited as "Socio-Economic Background"). He writes: "We have evidence that, e.g.,

in Sippar, during the days of King Rim Sin, a female slave regained her freedom

by paying the amount of ten shekels to her mistress. Such cases were obviously

not frequent, but the practice of allowing the impoverished man himself to buy


                                The Goel In Israel                                87

 

take place where the impoverished person has no goel. The

absence of a goel19 does not imply the absence of  the relative

as such but of one with the necessary means20 and willingness

to act for the impoverished debtor. A third situation can be

seen from verse 28. Here the property is sold and there is no

goel to recover the property, and the impoverished man is

not able to repurchase the land. In this case, it remains with

the buyer until the year of jubilee,21 when it returns to the

one who had been forced to sell his possession.

 

back his freedom or property, and the rules governing such a practice existed long

before the Biblical legislation." Cf. also, J. de Moor, "De vrijkoop van slaven in

het Oude Nabije Oosten," Vox T., 34, 1963-64, pp. 74, 75. See chap. 3, "Parallels

to the Goel-Redemption of Person."

            19. Cf. A. B. Ehrlich, Randglossen zur hebraischen Bibel, 2, 1909, p. 92.

The goel's duty was not absolute, cf. Ruth 3:13. It is this fact which lies behind the

phrase lxg vl hyhy xl yk, v. 26a. K. Elliger, op. cit., p. 355, commenting on

writes, "schwerlich= überhaupt vorhanden ist, eher= in der Lage ist." E. Neufeld,

"Socio-Economic Background," p. 77, remarks: "In reality, therefore, the debtor

could be saved by the ius redemptionis when his go’el was a wealthy person and

was willing to fulfill his social obligation."

            20. W. H. Gispen, Het Boek Leviticus, COT, 1950, p. 360, comments, "Met

lxg is hier bedoeld een verwant, die rijk genoeg is, om to lossen."

            21. For a thorough study of the, year of jubilee in the Old Testament, cf, R.

North, Sociology of the Biblical Jubilee, 1954, and the extensive article by E.

Neufeld cited in n. 18. R. North, op. cit., pp. 176, 189, maintains that "the

ultimate significance of the jubilee was as a bankruptcy law. . . . The Hebrew con-

viction 'Land must remain in the family' involves as its corollary 'The bankrupt

must be rehabilitated.'" North (pp. 207, 210) argues that "the legislator intended

the 50-year respite for once: a single fresh start for the bankrupt Israelite. He does

not exclude the desirability of its repetition at fifty-year intervals forever after.

Indeed, it may be said that he virtually prescribes this insofar as the economic

situation would show continuing need of such measures.... Thus the fifty-year

release prescribed once for all by the lawgiver is now carried along on the books as

a legislated ideal." North (p. 212) suggests a 12th century origin for the jubilee

law and remarks: "The jubilee law presumes an agrarian economy of primitive

simplicity. . . . The jubilee law was not the original composition of an author, but

a rearrangement of existing Semitic economic and calendar usages by an authority

of the Occupation era." R. de Vaux, Ancient Israel, 1961, p. 177, believes that

"the Law of jubilee was a late and ineffective attempt to make the sabbatical law

more stringent by extending it to landed property, and at the same time to make

it easier to observe, by spacing out the years of remission. It was inspired by

ancient ideas, and made use of the framework of an archaic calendar. . . . But it

was a Utopian law and it remained a dead letter." So also E. Ginzberg, "Studies in

Biblical Economics," JQR, 22, 1931-32, p. 368. E. Neufeld, "Socio-Economic

Background," p. 122, reacts strongly against the view that the Jubilee laws are

principally the imaginary work of the exilic period. "Its main elements, such as

the inalienability of land, the ius redemptionis, the release of slaves, the penta-


88                       The Goel In Israel

 

          In summary, we see that either the land reverted to its

original owner through the activity of the goel, or the recov-

ery was effected through the original seller when he acquired

sufficient means, or the land was released at the jubilee year.

          We must now examine in more detail the situation en-

visaged by the law of Leviticus 25:25. It seems clear from the

Old Testament that no Israelite would have parted with his

inheritance except under the direst circumstances. It was

when he became hopelessly in debt22 and was forced to relin-

quish his property that the need arose for the goel to act.

Several questions present themselves under closer scrutiny of

this law. First, it may be asked whether the property has

already been sold and is therefore to be obtained by the goel

from the buyer. In the light of the two other cases in Leviti-

 

contial system, are part and parcel of the real life factors of ancient Israel's

framework and, therefore, it cannot even remotely be regarded as a utopian idea."

Neufeld (p. 118) argues for the antiquity of the ideas involved in the jubilee and

believes that the "recurrent application of these institutions was an endeavour to

safeguard the preservation of old socio-economic forms by regularly repeating a

new economic programme and thus arresting and suppressing the development of

city life and its economy." A. Jirku, "Das Israelitische Jobeljahr," Reinhold

Seeberg Festschrift, 2, 1929, p. 178, maintains "dass der Gedanke des Jobeljahres

in Israel bald nach der Einwanderung in Palastina aufgekommen sein wird." In

discussing the real and practical character of the laws in the Pentateuch J. van der

Ploeg, "Studies in Hebrew Law," CBQ, 13, 1951, p. 171, comments, "The law of

the Jubilee must be an ancient law meant to be kept in a society of still simple

social and economic structure." S. Stein, "Laws on Interest in the Old Testa-

ment," JTS, N. S. 4, 1953, p. 164, believes that the jubilee regulations along with

the ordinance of the sabbatical year "can best be understood as belonging to a

group of half sedentary people who were on the point of settling permanently but

who, for the time being, were assured of their livelihood by their pastoral mode of

life." J. Lewy, "The Biblical Institution of Deror in the Light of Akkadian Docu-

ments," Eretz Israel, 5, 1958, p. 29, remarks, "The Biblical legislation relating to

the 'proclaiming' of releases reflects and perpetuates the influence which the

Amorite states of the Holy Land and their institutions exerted upon the tribes of

Israel prior to their unification under monarchs." The biblical law differs from the

Akkadian in setting fixed intervals for release. Lewy maintains that this "is like-

wise indicative of the ancientness of the principles transmitted to us in Lev.

25:10 ff. For such a regulation which offered the advantage of making the procla-

mations of releases independent of an absolute ruler's arbitrariness ... was obvi-

ously imperative in states not headed by a monarch." Cf. also M. Noth, Leviticus,

OTL, 1965, p. 185. For a more recent treatment of this subject cf. R. Westbrook,

"Jubilee Laws," ILR, 6, 1971, pp. 209-226.

            22. M. Noth, op. cit., p. 187, writes, "The separation from the 'property'

was caused by a sale of the stake in the soil—made necessary as a rule by debt."


                                  The Goel In Israel                           89

 

cus 25:26-28 this would appear to be the case. It is obvious

in these that the property had passed out of the control of

the original owner. In the one instance, the property was

recovered by the seller, himself, when he came into sufficient

means, and in the other it reverted to the original owner in

the jubilee year. These latter cases have been cited by the

majority of scholars to support the idea that in Leviticus

25:25 the goel, intervenes to recover the property which has

already been lost to the family. On the other hand, we shall

see that in the two applications23 of the property redemption

law (Ruth 4, Jer. 32) we do not find the repurchase of an

already sold, property, but a prior right to purchase a prop-

erty which is being offered for sale.24 For this and other

reasons, some have argued that it is the right of preemption

which is legislated in Leviticus 25:25. Thus Buhl comments

on this verse: "Freilich liegt hier die gewöhnliche Auffassung,

wonach es rich urn den Rückkauf eines schon verkauften

Grundstiickes handeln insofern etwas näher, als man

 

            23. While there are only two passages in which we find a direct and obvious

application of the laws of property redemption, it should be noted that a more

obscure reference to such may be found in Ezek. 11:14-20. In Ezek. 11:15

following the MT (jtlxg), rather than the LXX (jtvlg), as the RSV transla-

tion "your fellow exiles" does, we find the term "the men of your redemption."

This is best explained by the previous double mention of the word "your breth-

ren" (jytx). NV therefore renders Ezek. 11:15: "Mensenkind, het zijn uw

broeders, uw broeders, uw verwanten en het ganse huis Israels in zijn geheel, tot

wie de inwoners van Jeruzalem zeggen: blijft verre van den Here, aan ons is dit land

in bezit gegeven." W. Brownlee, "The Aftermath of the Fall of Judah according to

Ezekiel," JBL, 89, 1970, p. 393, portrays the following situation: "What is re-

ferred to is the obligation of the OW to redeem or to hold in custody the

property of the near kinsman. Some of Ezekiel's kinsmen have been sent into

exile, and Ezekiel, if anyone, should have the right to occupy their vacated

property. However, persons without any natural right are crowding in and with

great glee are taking possession. What they say by their attitude, though not

perhaps in explicit words, to the unfortunate exiles is, 'Get you afar from

Yahweh, this is ours!' Instead of replying in the same selfish vein, 'No, this is

mine, since it belonged to a brother of mine,' Ezekiel directed himself rather to

the underlying spiritual assumption that exile meant expulsion from the presence

of Yahweh (v. 16)."

            24. There can be little doubt that such is the case in Jer. 32. Ruth 4 is

subject to dispute, but,the majority of scholars maintain that Naomi is offering

the property for sale in Ruth 4:3. Cf. chap. 8, "The Sale of the Property."


90                           The Goel In Israel

 

auf die Analogie von v. 47f., wo ein schon verkaufter Sklave

zurückgekauft wird, verweisen könnte. Aber trotzdem ist

diese Auffassung auch hier unrichtig, wie der Wortlaut deut-

lich lehrt. Es heisst nämlich, dass der Goel zu dem verarm ten

Israeliten kommen soil um seine Geulla—Pflicht zu erfüllen,

wahrend es widrigenfalles natOrlich heissen müsste: er soll zu

dem gehen, der das Feld gekauft hat. Erst v. 26 handelt von

dem, was geschehen soil, wenn der arme Israelit thatsächlich

seinen Besitz verkauft hat."25 Buhl translates verse 25, "wenn

dein Bruder verarmt und etwas von seinem Grundbesitze ver-

kaufen muss, so soil sein nächster Verwandter zu ihm kom-

men und das lösen, was er verkaufen will."' His argument

largely revolves around the phrase vylx brqh vlxg xbv. Else-

where he comments, "The consecutive perfect rkmv can just

as easily signify if he must sell, and that this is in fact the

thought in this place is clear from the statement: 'his re-

deemer shall come to him,' while at the redemption he must

go to him who had previously bought the property."27 It is

only the law in Leviticus 25:26 which presupposes that the

property has already been sold.28

 

            25. F. Buhl, Die Socialen Verhaltnisse der Israeliten, 1899, p. 61 (hereafter

cited as Verhältnisse).

            26. F. Buhl, Verhältnisse, p. 62.

            27. F. Buhl, "Some Observations on the Social Institutions of the Israel-

ites," AJT, 1, 1897, p. 738 (hereafter cited as "Social Institutions"). A similar

argument is introduced by R. de Vaux, op. cit., p. 167, who writes, "If an

Israelite falls into distress and has to sell his land, his nearest go'el comes 'to his

house' (generally omitted by translators) and buys what he has to sell." J. Kohler,

"Gemeinderschaft [sic] und Familiengut im israelitischen Recht," Zeitschrift für

Vergleichende Rechtswissenschaft, 17, 1905, p. 218, distinguishes between

"Erbenretrakt" and "Wiederkaufsrechts." He complains that Lev. 25:25 is often

inaccurately translated. The proper meaning is, "wenn dein Bruder verarmt und

etwas von seinem Landgut verkauft (verkaufen will), so soil sein Löser, der Ver-

wandte, zu ihm kommen und den Verkauf (die zu verkaufende Sache) seines

Bruders losen. Das will heissen: er soil rechtzeitig eintreten und durch den Kauf

der Sache, welche in Gefahr steht, aus der Familie zu fallen, der Familie das

Erbgut erhalten." J. Pedersen, Israel, its Life and Culture, 1-11, 1926, p. 93,

comments that the law mentioned in Lev. 25:25 relates to "the redemption of a

field which is on the point of passing out of the family." However, cf. his transla-

tion of the law, ibid., p. 83.

            28. F. Buhl, Verhältnisse, p. 61. Similarly, J. Kohler, op. cit., p. 221.

 

 


                               The Goel In Israel                                 91

 

          This interpretation has the advantage of harmonizing

with the two situations in the Old Testament which apply the

property redemption in law, and it is certainly desirable to give

adequate emphasis29 to the specific applications of biblical

law. "There is some question, however, whether Buhl's inter-

pretation of the crucial phrase is correct. It may be that vylx  

should be taken with brqh rather than with the verb as is the

case in passages such as Leviticus 21:2, 3 and Numbers 27:

11.30  If so, then xbv stands alone and is probably a technical

term31 signifying he entrance of the goel as the one who

defends and guarai tees the well being of his kinsman, wheth-

er in person or in property. As such, the principal support for

Buhl's argument di appears.

          According to Rudolph, "Aus dem Wortlaaf von Lev. 25,

25 geht nicht eind'utig hervor, ob der Besitz schon verkauft

ist oder erst zum Verkauf steht (rkmm ‘zu Verkaufendes’

oder ‘Verkauftes’? , d. h. ob es sich urn Vorkauf oder um

Rückkauf handelt.”  He goes on to add, "Ich glattbe, dass die

Ausdrucksweise a sichtlich unbestimmt ist, urn beide Mö-

glichkeiten einzuschliessen.... Das Normale war wohl der

Vorkauf; aber für den Fall, dass keiner der Löser augenblick-

lich bci Gelde war, sollte der Rückkauf nicht ausgeschlossen

sein."32

          It seems more likely that Leviticus 25;25 is,dealing origi-

nally with the recovery by the goel of a piece of property

inch had already been sold by an impoverished Israelite.

This will allow us to understand the verb lxg in verse 25 in

 the same way as in verse 26.  However, it is clear from Jere-

miah 32 that the goel function included the preemption as

 

            29. Citing the two instances of property redemption in Ruth 4 and Jer. 32,

R. de Vaux, op. cit., p. 1 .7, remarks, "These are the only concrete cases recorded

in the Bible and it is in t eir light that the law of Lv. 25:25 must be interpreted."

            30. Cf. Z. Falk's review of R. de Vaux' Les Institutions de l'Ancien Testa-

ment in HS, 9, 1958, p. 03.

            31. Cf. n. 6.

            32. W. Rudolph, Das Buch Ruth, Das Hohe Lied, Die Klagelieder, KAT, 17,

1962, pp. 63, 64.

 


92                         The Goel In Israel

 

well as the redemption of property. The latter is probably the

original function from which the prior right of purchase (pre-

emption) duty originated.33

          A second question which must be considered in connec-

tion with Leviticus 25:25 is the purpose behind such a law.

Does the goel act in order to return the property to the one

who has lost it or is the property retained by the goel himself?

Pedersen expresses himself very strongly on this problem

when he remarks, "The law contains no sentimental34 regula-

tions that the kinsman should assist the needy by keeping the

property for his person. If he has not the strength to keep it

for himself, he must lose it. The centre of gravity passes from

him to a relative; he loses in importance what the relative

gains, but the family, as family, lose nothing."35 Pedersen

sees a fundamental difference between the workings of the

property redemption law and the jubilee year law. The first

“provides for the property, so that, if it comes to one who is

inefficient and cannot hold it, it is directed into other chan-

nels of the stream of kindred. . . . The object of the law of

the yobhel year is, by might and main, to preserve the prop-

erty for the person into whose hands it has come, whether he

is worthy or not."36

 

            33. Z. Falk in JJS, 9, 1958, p. 203, writes, "The go'el always demands

something back from a foreigner, be it the blood of his clansman, his body, where

he has sold himself into slavery, or his real property. The original meaning

(geullah) is, therefore, redemption rather than pre-emption, though the latter

right may have arisen quite early."

            34. Cf. the strictures made by R. North, op. cit., p. 166, against Pedersen's

use of the term "sentimental."

            35. J. Pedersen, op. cit., p. 84. So also, F. Buhl, "Social Institutions," p.

738. W. McKane, "Ruth and Boaz," GUOST, 19, 1961-62, p. 35, supports the

view of Pedersen that the goel acquires the land for himself in order to keep it in

the family. His agreement is based on the phrase jl hnq in Jer. 32:8.

            36. J. Pedersen, op. cit., p. 88. This same divergence of purpose is seen by

Buhl, "Social Institutions," p. 738, as being present within Lev. 25:25-28. Cf. also

R. de Vaux, op. cit., p. 167. J. Pedersen, op. cit., p. 88, asks, "If the property, in

any case, must return to the original owner, why then should a relative in the

meantime go and buy it?" This establishes to his satisfaction that the law of

redemption "was made entirely unnecessary by the law of the yobhel year." Such

reasoning ignores two things: first, that the land only reverted back to the one

who lost it after fifty years. This is a sufficiently long period to supply a reason


                                 The Goel In Israel                              93

 

          One of the mot stimulating discussions on geullah law in

the Old Testamen comes from Daube.37 He maintains that

the account of the Exodus was patterned after familiar legal

concepts. It was “construed as an application of the social

laws, as a 'recover' by God of an enslaved son, relation or

friend or of property fallen into the hands of strangers. Un-

der the social regime of Old Testament times, an enslaved

son, relative or friend who was redeemed, 'recovered,' by the

person nearest to him came into the power of the redeemer;

and similarly, family land redeemed by a member of the

family became the redeemer's property. . . .  Just so, in the

view of the Old Testament writers, the Hebrews, as a result of

their redemption from thraldom by God, became his sub-

jects—as sons or slaves—or his property. . . . Liberation by

God, in analogy to 'recovery' prescribed by the social laws,

means, not liberation pure and simple, but a change of mas-

ter. It means a passage from a distressing, foreign and arbi-

trary yoke to contentment and security under the rightful

authority."38 Daube affirms that the property redeemed by

 

why a relative should "in the meantime go and buy it"; second, that these laws

were not simply economically motivated but also religiously oriented. It is the

religious and moral factor of the union of person and property which we see in

the story of Naboth and which is at the basis of the prophetic condemnations of

Isaiah (5:8) and Micah (2:1, 2). The moral principle of the union of the person

with his property, and th duty of family solidarity, makes it understandable why

a relative should "in the meantime go and buy the land." M. Noth, op. cit., p.

189, commenting on the relation between geullah redemption and the release at

the jubilee remarks: "This redemption, not in general tied down to any particular

time, was something quite different from the jubilee-year provision for the rever-

sion of land every forty-ninth year, which automatically involved a redemption.

On the other hand the 1aw of redemption, especially when it was a question of

land, had material contacts with the year of jubilee; and so it was natural for Lev.

25 to deal also with the law of redemption."

            37. D. Daube, Studies, pp. 39-61, 122-125, Idem, The New Testament and

Rabbinic Judaism, 1956, 'p. 268-284; Idem, Exodus Pattern, pp. 27-29, 42-46.

            38. D. Daube, The New Testament and Rabbinic Judaism, 1956, pp. 272,

273. Idem, The Exodus Pattern, p. 16, sees three stages of interaction between

the laws and the Exodus. "There is the ancient social practice, there is the exodus

depicting God as acting in conformity with that practice, and there is social

practice advancing under he stimulus of the story." D. Daube, Studies, p. 61, sees

at least two implications from the fact that this key term for redemption should

have originated from the sphere of social legislation: "In the first place, the


94                            The Goel In Israel

 

the goel became the possession of the goel. The other view,

that the property reverted to the former owner, is in conflict