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Sara Milstein

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2021

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The Levirate Law: A Marriage Contract Clause That Became Legislation

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Sara Milstein

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The Levirate Law: A Marriage Contract Clause That Became Legislation

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The Levirate Law: A Marriage Contract Clause That Became Legislation

Upon a childless husband's death, Deuteronomy states "his wife shall not marry a strange man outside." This phrase originated as a contract clause, and the case was a practice exercise for scribes who were learning contract clauses.

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The Levirate Law: A Marriage Contract Clause That Became Legislation

In Mourning, by Anders Zorn, 1880. National Museum, Wikimedia

The “Levirate” Custom in the Ancient Near East

The notion that a widowed woman should marry her late husband’s relatives is not unique to ancient Israel. Two other ancient Near Eastern law collections stipulate that a deceased man’s relatives marry his widowed wife. The collection known as the Middle Assyrian Laws, for example, features a law that deals with a woman who is widowed or abandoned just after she gets married:

§43 If … the son to whom he assigned the wife either dies or flees, he shall give her in marriage to whichever of his remaining sons he wishes, from the oldest to the youngest of at least ten years of age….[1]

The law continues with the additional provision that if the father is dead, and the son(s) are also dead, then the woman may be given to one of her nephews by marriage.

The collection known as the Hittite Laws also addresses the disposition of a widow, even after the death of her third husband:

§193 If a man has a wife, and the man dies, his brother shall take his widow as wife. (If the brother dies,) his father shall take her. When afterwards his father dies, his (i.e., the father’s) brother shall take the woman whom he had.[2]

Once again, the widowed woman is assigned to a series of her husband’s male relatives—first his brother, then his father (her father-in-law), and finally his uncle. Deuteronomy also has a law mandating the marriage of a widow to her late husband’s kin—namely, to her levir (Latin for “husband’s brother”)—but it addresses the situation in a unique way.

Deuteronomy’s Levirate Law: The Case of the Obstinate Brother

Deuteronomy’s levirate law begins by stipulating that if a married male dies without having produced an heir, one of his brothers should marry his wife:

דברים כה:ה כִּי יֵשְׁבוּ אַחִים יַחְדָּו וּמֵת אַחַד מֵהֶם וּבֵן אֵין לוֹ לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר יְבָמָהּ יָבֹא עָלֶיהָ וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ. כה:ו וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד יָקוּם עַל שֵׁם אָחִיו הַמֵּת וְלֹא יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל.
Deut 25:5 When brothers live together, and one of them dies without a son, his wife shall not marry a strange man outside; rather, her levir shall come to her, take her for himself as a wife, and support her. 25:6 The firstborn son that she bears is to rise upon the name of his dead brother so that his name is not obliterated in Israel.

Already the law in Deuteronomy is unique in that it restricts the woman from marrying an outsider and dictates that the firstborn child will be assigned to her late husband. Moreover, instead of considering alternative marital partners if the man has no brothers, like the ancient Near East laws noted above,[3] Deuteronomy instead considers the consequences if the brother refuses to marry his widowed sister-in-law:

דברים כה:ז וְאִם לֹא יַחְפֹּץ הָאִישׁ לָקַחַת אֶת יְבִמְתּוֹ וְעָלְתָה יְבִמְתּוֹ הַשַּׁעְרָה אֶל הַזְּקֵנִים וְאָמְרָה מֵאֵין יְבָמִי לְהָקִים לְאָחִיו שֵׁם בְּיִשְׂרָאֵל לֹא אָבָה יַבְּמִי.
Deut 25:7 But if the man does not want to marry his sister-in-law, his sister-in-law shall appear before the elders in the gate and declare, “My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.”

This detail is rather unusual, in that ancient Near Eastern laws do not generally address what happens if the person does not wish to keep them. They also do not tend to include direct speech. In addition, when the man repeats his refusal before the elders, they neither force him to comply[4] nor prescribe a standard punishment (whipping or a fine). Instead, the offended woman herself carries out an elaborate shame-inducing ritual:

דברים כה:ח וְקָרְאוּ לוֹ זִקְנֵי עִירוֹ וְדִבְּרוּ אֵלָיו וְעָמַד וְאָמַר לֹא חָפַצְתִּי לְקַחְתָּהּ. כה:ט וְנִגְּשָׁה יְבִמְתּוֹ אֵלָיו לְעֵינֵי הַזְּקֵנִים וְחָלְצָה נַעֲלוֹ מֵעַל רַגְלוֹ וְיָרְקָה בְּפָנָיו וְעָנְתָה וְאָמְרָה כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא־יִבְנֶה אֶת־בֵּית אָחִיו כה:י וְנִקְרָא שְׁמוֹ בְּיִשְׂרָאֵל בֵּית חֲלוּץ הַנָּעַל׃
Deut 25:8 The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to marry her,” 25:9 his sister-in-law shall go up to him in the presence of the elders, and she shall remove his sandal from his foot, spit in his face, and curse him, saying, “Thus shall be done to the man who does not build up his brother’s house.” 25:10 And the man’s name shall be known in Israel as “The House of the Removed Sandal.”

How are we to explain the peculiar formulation and concerns of this law? The answer begins with understanding the difference between the Bible’s short clusters of law and its long-form, narrative case laws, including the levirate law.

Clusters in Biblical and Ancient Near Eastern Law

Scholars often remark that the people of the ancient Near East were more inclined toward specific, tangible formulations as opposed to abstractions. This pattern is especially evident in the law collections that they produced. Ancient Near Eastern (ANE) law collections typically consist of clusters of short, related casuistic laws (i.e., case laws beginning with “if”).[5] Consider the following paradigmatic excerpt from the Laws of Hammurabi:

§22 If a man commits a robbery and is seized, that man shall be killed.

§23 If the robber is not seized, the man who was robbed shall establish the extent of his loss before the god, and the city and the governor . . . shall replace his lost property.

§24 If the victim is killed during the robbery, the city and the governor shall pay sixty shekels of silver to his family.[6]

As is customary in the law collections, Hammurabi’s lawmakers modify the initial precept so as to cover more legal ground. The initial case of a robber caught in the act is thus modified twice, first, with a scenario in which the robber is not caught; and second, by a worst-case scenario in which the victim is killed.

We find this same style of law-writing in biblical law collections. A good example of this is the famous “goring ox” sequence in the Covenant Collection,[7] which considers five related scenarios.[8] In the opening case, an ox gores a man or woman to death unexpectedly:

שׁמות כא:כח וְכִי יִגַּח שׁוֹר אֶת אִישׁ אוֹ אֶת אִשָּׁה וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר וְלֹא יֵאָכֵל אֶת בְּשָׂרוֹ וּבַעַל הַשּׁוֹר נָקִי.
Exod 21:28 If an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished.

As the text continues, the lawmakers consider alternative scenarios. What happens if the ox has gored previously and the owner is negligent? The owner is either killed or must pay a ransom. What happens if the ox gored a minor? The same penalty applies as for an adult. What if the ox gored a slave? A fine is applied. Other laws in the Covenant Collection are formulated in a similar fashion.[9] Like their Near Eastern predecessors, the lawmakers of ancient Israel modified scenarios so as to cover more legal ground.

Stand-Alone Laws in Deuteronomy

In contrast to the preference for casuistic clusters in the Covenant Collection, it is striking that a certain subset of laws in Deuteronomy are lengthy stand-alone units that are replete with rhetorical flourishes and lack additional provisions.[10] The law that prohibits a man from remarrying his ex-wife is a good example. Rather than starting off with a standard law about divorce—something absent in the Bible—and then modifying it with a new scenario, it offers a detailed narration of a highly unusual case:

דברים כד:א כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ: כד:ב וְיָצְאָה מִבֵּיתוֹ וְהָלְכָה וְהָיְתָה לְאִישׁ אַחֵר׃ כד:ג וּשְׂנֵאָהּ הָאִישׁ הָאַחֲרוֹן וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ אוֹ כִי יָמוּת הָאִישׁ הָאַחֲרוֹן אֲשֶׁר־לְקָחָהּ לוֹ לְאִשָּׁה׃
Deut 24:1 When a man takes a wife and possesses her, if she fails to please him because he finds something objectionable about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house, 24:2 and she leaves his household and becomes the wife of another man, 24:3 then this latter man rejects her, writes her a bill of divorcement, hands it to her, and sends her away from his house; or the man who married her last dies...

The text then continues with the law:

כד:ד לֹא יוּכַל בַּעְלָהּ הָרִאשׁוֹן אֲשֶׁר שִׁלְּחָהּ לָשׁוּב לְקַחְתָּהּ לִהְיוֹת לוֹ לְאִשָּׁה אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה כִּי תוֹעֵבָה הִוא לִפְנֵי יְ־הוָה….
24:4 Then the first husband who divorced her shall not take her to wife again, since she has been defiled—for that would be abhorrent to YHWH….

The law’s single provision thus addresses only this specific situation of desired remarriage to a wife who had married someone else. Everything else, including the need to write a bill of divorcement, and the grounds for divorce, are simply included as part of this long, narrative presentation. The levirate law, the law concerning the man with two wives, one loved and the other hated (Deut 21:15–17), and the law of the slandered bride (Deut 22:13–19) follow a similar pattern, with unusual scenarios; the inclusion of multiple parties, including the judicial body of the elders; and direct speech.

This style of writing long-form, unusual legal cases with literary flourish does have an analogue, but not in the Near Eastern collections. Rather, it is evocative of the category of pedagogical Near Eastern texts known as “model cases.”

Long-form Cases in the Near East

In the early second millennium B.C.E., Mesopotamian scribes copied a range of legal-pedagogical texts in the context of their education. These texts included sample contracts, phrasebooks with lists of common legal phrases; and long-form cases dealing with “juicy” topics such as homicide, adultery, inheritance disputes, and adoption disputes. These long cases are generally marked by colorful flourishes and interesting points of law, and regularly feature a judicial body called “the Assembly.”

For example,

Nippur Homicide Trial—A woman who keeps quiet about her husband’s death is accused of having colluded with his killers. The Assembly decides to have her executed along with the three men who did the deed.[11]

Tying Up an Adulterous Wife—A man finds his wife in bed with another man, ties the two of them to the bed, and carries it to the assembly for judgment. The Assembly grants the divorce and punishes the woman.[12]

A Disputed Adoption A woman claims to be the biological mother of an adopted child and is obliged to bring a twenty-liter jug of breastmilk as compensation to the adoptive mother.[13]

Scholars have generally surmised that these laws were based on actual cases, but the question remains: why were they copied and studied as part of the scribal curriculum?[14] While some suggest that they may have helped scribes learn how to write trial records, the heterogeneity of trial records complicates this notion. Another possibility—at least in certain cases—is that some of these model cases served as pedagogical tools to train scribes in the composition of contracts, as these colorful case summaries often include well-known contract clauses.

Thus, for example, the adultery case opens with a clause that is similar to what appears in marriage contracts: “Eštar-ummī, daughter of Ilī-asû, did Irra-malik take in marriage.” The adoption case also opens with a string of standard adoption clauses.[15] Other cases, including an inheritance case and a case regarding a barley loan, likewise include standard contract clauses. It thus appears that at least in certain instances, the inclusion of such cases in the curriculum was a creative way for teachers or advanced scribes to either teach or practice contract clauses.[16]

The teaching of contract clauses may explain the origin of certain stand-alone, long-form cases in Deuteronomy as well.

Long-form Cases in Deuteronomy

Like the Mesopotamian model cases, Deuteronomy’s long-form cases are marked by an independent (or once-independent) nature, literary flourishes, and unusual points of law. And also like the model cases, some of these long-form cases in Deuteronomy also appear to include contractual clauses.[17]

Ancient Israelite scribes would have written their contracts on perishable materials such as parchment or papyrus, and thus any contracts that they produced are no longer accessible. We do, however, have thousands of contracts from the broader ancient Near East that were written on hardened clay tablets, and these contracts display a great deal of continuity across time and space. These contracts can help us isolate possible contract clauses that are embedded in Deuteronomic law.

The Man with Two Wives: Firstborn Rights Contract

For example, in dealing with inheritance rights, rather than stating the requirement to provide the firstborn with his birthright simply and succinctly, Deuteronomy considers a detailed case of a man with two wives, one loved and the other hated. Moreover, it adds persuasive rhetoric like כִּי הוּא רֵאשִׁית אֹנוֹ , “his is the first-fruit of his vigor,” and quotes what seems to be a contractual clause:

דברים כא:טו כִּי תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה וְיָלְדוּ לוֹ בָנִים הָאֲהוּבָה וְהַשְּׂנוּאָה וְהָיָה הַבֵּן הַבְּכוֹר לַשְּׂנִיאָה. כא:טז וְהָיָה בְּיוֹם הַנְחִילוֹ אֶת בָּנָיו אֵת אֲשֶׁר־יִהְיֶה לוֹ לֹא יוּכַל לְבַכֵּר אֶת בֶּן הָאֲהוּבָה עַל־פְּנֵי בֶן הַשְּׂנוּאָה הַבְּכֹר. כא:יז כִּי אֶת הַבְּכֹר בֶּן הַשְּׂנוּאָה יַכִּיר לָתֶת לוֹ פִּי שְׁנַיִם בְּכֹל אֲשֶׁר יִמָּצֵא לוֹ כִּי הוּא רֵאשִׁית אֹנוֹ לוֹ מִשְׁפַּט הַבְּכֹרָה.
Deut 21:15 If a man has two wives, one loved and the other hated, and both the loved and the hated have borne him sons, but the first-born is the son of the hated one—21:16 when he wills his property to his sons, he may not treat as first-born the son of the loved one in disregard of the son of the hated one who is older. 21:17 Instead, he must accept the first-born, the son of the hated one, and allot to him a double portion of all he possesses; since he is the first fruit of his vigor, the birthright is his due.[18]

The practice of assigning an extra share or double portion to the eldest son is widely attested throughout the ancient Near East. Evidence from Near Eastern wills shows that fathers could deviate from the custom of favoring the eldest by naming the younger sibling the “firstborn” or “primary heir.”[19] We also see similar types of concerns in adoption contracts in the ANE, which stipulate that if the adoptive father has additional sons, his adoptee must retain the status of his firstborn son. Several Near Eastern contracts similarly prohibit a man from demoting his wife from first rank to second rank.[20]

Given the shared wording and concerns, it appears that Deuteronomy 21:15­–17 includes a clause that would have appeared in Israelite marriage or adoption contracts. The piquant case of the unloved wife would have developed as a creative way of teaching budding scribes the contract terminology. In turn, its inclusion in the Deuteronomic Law Collection would have changed it from a colorful pedagogical case for scribes into a required norm of Israelites. This process, I would argue, also explains the development of the levirate law.

The Levirate Law as Rooted in Contract Language

As noted above, the specific stipulation in Deuteronomy, לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר “the wife of the deceased should not marry a strange man,” does not appear in the Near Eastern laws that mandate forms of levirate marriage. It does appear, however, in another set of legal documents.

In a number of wills across the ancient Near East, testators stipulate that after their deaths, their wives are not to marry “a stranger” or “strange man.” Thus, for example, wills from Emar, a Late Bronze Age Syrian city, commonly feature the following clause:

If my wife, PN, goes after a strange man (i.e., a man outside of the family), she shall place her garment on the stool and go where she pleases.[21]

The implication is that the woman would no longer have rights to her husband’s property. Much like the Deuteronomic levirate law, a number of the Emarite wills further stipulate that the woman is to give her possessions to “whoever supports her among [her late husband’s] brothers.”

A similar prescription occurs in a Middle Assyrian will. Upon his death, a husband assigns his property to his wife, a certain Nasiqtu. He specifies, though, that she shall not give this property to “an outsider” and that she shall not marry a new husband.[22]

It seems likely that Deuteronomy 25:5–10 has its origins in a similar type of “strange man” contract clause (v. 5) that appeared in wills from ancient Israel. The inclusion of such a clause in wills would make good sense in this society. Women often married men much older than themselves, and these men may have worried about what would happen to their property and name if they didn’t produce an heir.[23]

In this case, however, it appears that this standard contract clause was situated in the context of a creative “case,” one that spun out a penalty for a deadbeat brother who failed to fulfill his duty. The biblical stories of Tamar (Genesis 38) and Ruth may have been inspired by this creative “worst-case” scenario, given that both include a negligent or reluctant levir/redeemer.[24] From the story in Ruth, at least, marrying a brother’s (or agnate’s) widow doesn’t seem to be a law at all.

From “Law School” to Law

It thus appears that a certain subset of texts in Deuteronomy originated not as “laws” but rather as fictional legal cases that played a role in scribal education. This proposal helps account not only for the independent nature of these units but also for their length, their literary style, and their use of standard contract clauses and other legal terminology. The inclusion of these cases in what would become the Deuteronomic Law Collection, and eventually the Torah, changed their nature from cases intended to teach legal clauses to official legislation.

Published

August 17, 2021

|

Last Updated

October 17, 2021

Footnotes

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Prof. Sara Milstein is Associate Professor of Hebrew Bible and Near Eastern Studies in the Classical, Near Eastern, and Religious Studies at the University of British Columbia. She holds a Ph.D. from the Hebrew and Judaic Studies Department at New York University. Milstein is the author of Making a Case: The Practical Roots of Biblical Law; Tracking the Master Scribe: Revision through Introduction in Biblical and Mesopotamian Literature; and co-author (with Daniel Fleming) of The Buried Foundation of the Gilgamesh Epic: The Akkadian Huwawa Narrative.