1.1. The Legal Status of Children and Laws on Upbringing. The Legal Relations of Brothers and Sisters and Their Respective Rights of Inheritance

The legal position of a person in childhood is determined by their greater or lesser dependence on their parents. This dependence—conditioned both by the very origin of children and by the difference in their physical and mental development compared with their parents, which in all respects compels them to seek the protection and guardianship of the latter—varied among different peoples: sometimes greater, sometimes less, depending on their respective views of the human person. Where the human person was valued only as a unit of the state—as, for example, among the Greeks and Romans—the dependence of children upon their parents was complete, and parents held power of life and death over their children. Where, on the contrary, the human person was valued in itself, for its moral worth, there this dependence was weaker, limited only to the necessary relations of upbringing. This latter kind of dependence obtained in family relations under Mosaic law.

The legislator nowhere precisely defines the legal position of children, leaving ancient customary law in force. And that customary law—formed under the influence of the general biblical view of human life and expressed in the history of the patriarchs—testifies that the legal position of children in the parental home was the position of free persons whose dependence on their parents was limited only by the necessary conditions of guidance and protection. In these relations there is nothing resembling the ancient pagan right of parents over the life and death of children. The case in (Gen. 38:24), where the head of a family apparently exercises arbitrary and unlimited power in ordering the execution of his daughter-in-law, is explained by the peculiarities of patriarchal life, in which the separate parts of public life had not yet differentiated themselves, and there was as yet no separate judicial authority—it was concentrated in the person of the head of the family. Subsequently, Mosaic legislation removed such authority from the head of the family and transferred it to a specialized judicial authority, so that parents, by law (Deut. 21:18), could not themselves punish a disobedient son with death but were required to bring him before the elders of the city. The arbitrariness of parental authority was limited even in less important cases of family life—as, for example, in cases involving the determination of inheritance; so that a father, “when he divides his property among his sons, may not by his own will give priority to the son of the wife he loves over the firstborn son of the wife he dislikes,” but must, contrary to his desire, recognize the son of the unloved wife as the firstborn (Deut. 21:15–17). With respect to daughters, parental authority is wider, such that a father could even sell them into slavery, as is evident from the law (Exod. 21:7–11): “If anyone sells his daughter as a slave…” and so forth—although the law ameliorated the fate of a girl sold in this way by placing her in the household of her master not in the position of a slave but in the position of a bride or wife of the master or his son. This law, which stands out among the other laws, requires more detailed examination, since it represents the furthest limit to which parental authority extends. Its substance is as follows. A father could sell his daughter as a slave (Exod. 21:7), but solely in view of the fact that the master or his son would marry her (Exod. 21:8), since non-fulfillment of this condition entitled the girl by law to release or freedom (for neglect after marriage). The legislator, obviously conceding to established customary law, does not remove from the father the right to sell his daughter, but at the same time takes every possible measure to mitigate the harmful consequences of this law and to limit the right itself. Thus, from the position that this purchase-sale has marriage of the bought girl in view, and that the sold girl receives her freedom in case of neglect or deception, two natural conclusions follow: first, that the daughter could not be sold twice; second, that she could not be sold to persons with whom marriage is prohibited by law. Beyond this, the interpreters of the law—the Talmudists—relying on the idea of the law, impose upon this sale every possible restriction that human compassion could devise. The Mishnah, both Gemaras, Maimonides, Mikotzi, and other scholars unanimously affirm that only extreme poverty excused such a forgetting of the natural feeling of parental love. A father compelled to such a course by inescapable poverty was obligated by his love, justice, and family honor to apply toward the ransom of the sold daughter the first property he would manage to acquire with the help of the sum received for the sale of his daughter. But the sale itself—the right to which was not removed from the father—was in a proper sense limited to the daughter’s childhood, when she was under twelve years of age—that is, at an age when, owing to an incompletely developed self-consciousness, she could not feel the act of sale particularly keenly and could easily grow accustomed to and become at home in the new household. After the age of twelve, a daughter was considered legally of age, was released from parental authority, and came under the general purview of the law. For boys, legal majority was likewise fixed at twelve to thirteen years. This age of majority is not defined in Mosaic law—it is assigned by the Talmudists—however, there are some indirect indications that can serve to confirm this definition: thus Samuel, according to the testimony of Josephus, was called to prophecy at twelve years of age; Jesus Christ at twelve years of age displayed intellectual maturity in the Temple. In the East, majority is to this day fixed at these years.

From this point on, children entered the position of full members of the theocratic state, and as such—according to ancient rabbinic tradition—took upon themselves the obligations of independent fulfillment of the law, although they appear to have been admitted to participation in all the institutions of the law even before. The fulfillment of the obligations imposed by the law at this age was something the Hebrew children could undertake with full understanding not only of particular provisions but of the very spirit of the law. The law in its few provisions on upbringing strives toward such a penetration of human consciousness from earliest childhood; and for the sake of completeness in our exposition of the legal position of children as conscious persons, we consider it necessary to note first those provisions of the law on education that express this striving.

The law does not prescribe precise and detailed rules for upbringing—their detailed elaboration it leaves to legal custom and the discretion of educators; but it persistently impresses upon parents both the necessity of upbringing itself and the spirit by which it must be animated. “Let these words” (the commandments of the law) “which I command you today be in your heart and in your soul. And teach them to your children” (Deut. 6:6–7). Similar provisions about the upbringing of children through the instilling of “the words of the law” are repeated in many places in the legislation (Exod. 12:26; 13:8, 14; Deut. 4:5; 9–10; 6:2, 20; 9:19–21), and all of them are directed not toward instilling in children the particulars of the laws, but toward instilling the very spirit of those laws and the theocratic principle that animates them. The understanding for children of the inner essence of the laws was facilitated by that historical method of upbringing which the law prescribes. The legislator in this case makes use of the natural curiosity of children which, at the sight of new or incomprehensible institutions, involuntarily evokes in them the question: what does this mean? what is this institution? In answering such questions, parents are obligated to instill in children the essence both of the institutions themselves and of the theocratic principle that animates them. Thus, at the celebration of the Passover, “when your children say to you, ‘What do you mean by this service?’ you shall say”—the law commands—“‘It is the sacrifice of the Lord’s Passover, for he passed over the houses of the people of Israel in Egypt, when he struck the Egyptians but spared our houses’” (Exod. 12:26–27). The same is prescribed with respect to other theocratic institutions commemorating glorious historical events. Thus children are to be instructed in the meaning of the feast of unleavened bread: “You shall tell your son on that day, ‘It is because of what the Lord did for me when I came out of Egypt’” (Exod. 13:8). The same with the dedication of the firstborn: “When in time to come your son asks you, ‘What does this mean?’ you shall say to him, ‘By a strong hand the Lord brought us out of Egypt, from the house of slavery’” (Exod. 13:14); and so forth. In all these provisions one notices the legislator’s care to imprint upon the soul of a person, even in childhood, the memory of those great deeds performed by Jehovah for the chosen people, and thereby to strengthen in the consciousness of the people the principle of theocracy and the holy duty of fulfilling the prescribed laws connected with it. “Take care and keep your soul diligently, lest you forget the things that your eyes have seen, and lest they depart from your heart all the days of your life. Make them known to your children and your children’s children—how on the day you stood before the Lord your God at Horeb, the Lord said to me: ‘Gather the people to me, that I may let them hear my words, so that they may learn to fear me all the days that they live on the earth, and that they may teach their children so’” (Deut. 4:9–10). Upbringing founded on such principles and conducted in this manner could quickly familiarize children with the entire order of the theocratic state, and give them the moral strength to fulfill the provisions of a law that had been explained to them historically and was therefore intelligible to them. Hence we see children participating in all the religious celebrations of the people. Thus, in addition to the cited passages of the law (on the celebration of Passover and the feast of unleavened bread) that presuppose children’s participation in the celebration, their participation is also enjoined by the law concerning the celebration of weeks and tabernacles (Deut. 16:11–14), which directly states: “You shall rejoice before the Lord your God—you, and your son, and your daughter.” Finally, children were admitted to participation in the most solemn festival of the people of Israel—a festival that presented a majestic spectacle, the public instruction of the people in the law. “At the end of every seven years, at the set time in the year of release, at the Feast of Booths, when all Israel comes to appear before the Lord your God at the place that he will choose, you shall read this law before all Israel in their hearing. Assemble the people—men, women, and children… — that they may hear and learn to fear the Lord your God, and be careful to do all the words of this law” (Deut. 31:11–12).

Thus, before the law, with respect to the fulfillment of religious obligations and participation in public celebrations, children reared in the manner described above in the spirit of the theocratic law were equal to all the other members of the theocratic state. And remarkably, no distinction in rights is made here on the basis of sex: both sons and daughters are equally entitled before the law. The equality of the sexes extends to other domains where the influence of the theocratic principle is strongest—as, for example, in the observance of the Sabbath. Rest is equally prescribed for all—without distinction of sex, among other things: “Six days you shall labor and do all your work; but the seventh day is the Sabbath of the Lord your God. On it you shall not do any work—neither you, nor your son, nor your daughter” (Exod. 20:9–10). But the equality of the sexes is not realized with such completeness in other respects; and the further those relations are from the direct influence of the theocratic principle—the deeper they enter into the domain of private, everyday life—the more equality suffers limitation with respect to the female sex. This phenomenon appears in the legal relations both of brothers with one another and of brothers with sisters.

The inequality in the family relations of brothers and sisters manifests itself primarily in the rights of inheritance, and we shall therefore examine it principally in that regard.

The ordinary order of inheritance under Mosaic law was that the inheritance passed into the hands of the male children—the sons. If there were no sons, daughters received it. The law expresses the order of inheritance as follows: “If a man dies and has no son, then you shall transfer his inheritance to his daughter. And if he has no daughter, you shall give his inheritance to his brothers. And if he has no brothers, you shall give his inheritance to his father’s brothers” (Num. 27:8–11), and so forth. What is important for us in this case is how the legislator determines with respect to inheritance the rights of the different sexes. And this determination, as is evident, decidedly favors the male sex—the sons—since the existence of the latter deprives daughters of the right to inheritance. But the law first determines, even among the sons themselves, different degrees of the right to inheritance, assigning to the “firstborn” son a double portion of the inheritance (Deut. 21:17). The right of the firstborn is very ancient, and was adopted by Mosaic legislation from ancient customary law, with the addition of more precise legal definitions. Beyond the double portion of the inheritance, the firstborn son had greater advantages over his brothers, and even something like dominion over them—which became especially significant upon the death of the father: the firstborn then became the full head of the family and assumed all its obligations and rights. Hence the birthright was so dear in the eyes of the Hebrew people and was regarded as almost sacred, so that Reuben, who had dishonored himself by disrespecting his father’s bed, was deprived of his birthright (Gen. 25:23, 31, 34; 49:3; 1 Chron. 5:1–2; cf. Ps. 89:27; Job 18:13). The other sons were equal among themselves and received an equal share of the inheritance. Although the law does not directly indicate such equality among brothers, in view of the fact that the law draws no distinction in the advantages of one brother over another, such a presumption is uncontested. The situation of daughters is different: in the presence of brothers, they had no share in the inheritance. In this regard, Mosaic legislation appears as though it does not rise above other legal codes of the ancient world, which generally regarded woman as an inferior being and therefore did not grant her rights equal to those of a man—as was the case, for example, among the Indians, Chinese, Athenians, and others, where daughters were even entirely deprived of inheritance rights. But such a conclusion would be unjust—especially if one takes into account the general legal position of woman under Mosaic legislation, rather than the particular provisions which sometimes, under the force of certain historical conditions, do not fully express the spirit of the law. And the particular provision in the present case is exactly such. Before Moses, the order of inheritance was determined by customary law, and it had taken such firm root in practice and had so penetrated the consciousness of the people that the legislator apparently did not venture to touch it at all in his legislation (at least, this is how one can interpret the otherwise inexplicable silence regarding the right of inheritance—so important in family relations); and only the unexpectedly arising case of the daughters of Zelophehad, who submitted a petition for the grant of an independent allotment to preserve the name of their father Zelophehad, who had left no son behind him (Num. 27:1–11), gave the legislator occasion to define with greater legal precision the order of inheritance—without, however, introducing anything new into it, but only confirming the existing order. We shall have occasion more than once to see the legislation yielding to ancient customary law; but we shall also see that the legislator at the same time took every measure to allow new principles to penetrate into this order of things and quietly to transform it in the spirit of the new legislation. In the present case, a similarly renewing relationship to ancient customary law is presented in the circumstance that the legislator linked the ancient law of daughters’ inheritance after sons with the preservation of the father’s name from extinction (Num. 27:4). Outwardly, this circumstance did not alter the ancient legal custom: the order of inheritance remained the same—sisters did not inherit in the presence of brothers and inherited only in the absence of brothers; but it made possible the penetration of new principles, and thereby could gradually transform the ancient customary right entirely into a new right of reason and the idea of equality of the sexes. If, according to Mosaic law, the right of inheritance (of immovable land holding) has as its principal aim the preservation of the father’s name from extinction, then this itself makes it possible in certain circumstances for sisters to enjoy the inheritance alongside brothers—for in cases where a son is physically or morally incapable of preserving the father’s name, the right of inheritance to the ancestral plot, by this law, could naturally and indeed should have passed to daughters who possessed both the moral and physical capacities. And once the possibility is given for sisters to enjoy the inheritance alongside brothers, subsequent practice—under the influence of parental and brotherly love—will not be slow in elevating exceptional cases to the status of a general rule. It is difficult to assert with any definiteness that the gradual development of the idea of the equality of sisters with brothers (in inheritance) proceeded precisely in this way—but in any case, the subsequent history of the Hebrew people presents us with several examples in which the inheritance of sisters alongside brothers, previously unthinkable, appears as though it were an ordinary phenomenon, almost a rule. Here are a few facts. The wealthy Barzillai, who had the means to support David’s army for a considerable time, had a son, as is evident from (2 Sam. 19:35–41); despite this, we see that he also made his daughter an heiress, who moreover married a man from another tribe. In (Neh. 7:63), the genealogy of a priestly family is traced back to Barzillai the Gileadite—which ordinarily happens only when an inheritance was received from an ancestor—and the text expressly clarifies this: “of the priests: the sons of Barzillai, who had taken a wife of the daughters of Barzillai the Gileadite, and was called by their name.” The matter evidently could only have been as follows: a man entered the family of old Barzillai the Gileadite, took his name, and enrolled himself as his son—which clearly presupposes that he also inherited from him (through the daughter-heiress whom he married). Another case. Machir of the tribe of Manasseh had a son by the name of Gilead, but he also had a daughter, as is evident from (1 Chron. 2:21), who married Hezron of the tribe of Judah. From this marriage was born Segub, who had a son Jair (1 Chron. 2:22). But this Jair is reckoned not to the tribe of Judah, as would be required by his father’s lineage, but through his mother’s side to the tribe of Manasseh, and in Moses he is called “Jair, son of Manasseh” (Num. 32:41). He was therefore, through his mother who was an heiress, reckoned to the tribe of Manasseh. Caleb gave his daughter Achsah, upon her marriage, not only a large field (the land of the Negeb) but also gave her the so-called upper and lower springs (Josh. 15:16–20; Judg. 1:12–15)—and yet from (1 Chron. 2:18) it is evident that Caleb had sons. Job gave an inheritance to his daughters together with his sons (Job 42:15). A similar conclusion is suggested by the circumstance that in genealogical lists, daughters appear alongside sons-as-heirs (Num. 26:46; Gen. 46:15–17). This phenomenon can be explained only by the fact that daughters too inherited alongside sons. Summing up the general meaning of the cited facts, Michaelis says: “Those who married an heiress had to pass into the family of their father-in-law and be enrolled as his sons. Only in this way could the inheritance be enjoyed, since it was given to the daughter with the aim that the father’s name should not be erased from the genealogical registers; consequently, the sons born from this marriage had to be reckoned under the name of the maternal grandfather.”

From these facts it is sufficiently clear that woman under Mosaic legislation was not a lower human being—as she was regarded by other legal codes of the ancient world—but an almost equal being, fully consistent with the biblical view of woman as a “helper” for man, “corresponding to him” (Gen. 2:18), and unequal only to the extent that, in the ordinary natural order of things, a “helper” is unequal to the principal agent. The only exception is a certain legal provision (Num. 30:4–6), according to which a woman in her youth, “in her father’s house” and even in marriage, does not have the right to make vows to God independently, so that her father or husband can forbid their fulfillment. In this provision, scholars usually see the extreme of the limitation of woman’s rights to independent self-determination. True, one cannot fail to see in this provision a concession on the legislator’s part to the general Eastern view of woman; but on the other hand, such a provision is justified to a considerable degree by the very nature of the subject of the law. A vow is so serious a matter that it must by every means be safeguarded from the frivolity and thoughtlessness that might profane its elevated sanctity; and therefore the consent or non-consent of another, more mature mind appears not as an unnecessary constraint on woman—especially a young woman—but as a matter of reasonable necessity.

The other relations between the sexes already belong to the marital state, and we shall therefore turn to an examination of marriage—as it appears in general according to the biblical view, and as it is subject to definition by Mosaic legislation.