1.4. The Law of Levirate Marriage, Its Reasons and Purposes. Special Prohibitions

A remarkable exception to the prohibited marriages within close degrees of kinship is marriage with the wife of a deceased brother who died childless. The law governing such a marriage is technically called the law of “levirate” (in Church Slavonic, “zakon uzhichestva”), and the marriage itself a “levirate marriage” (from the Latin levir — a husband’s brother, a brother-in-law). For the Russian scholar there is no need to use the Latin term, since the Latin levir is fully equivalent in Russian to the word dever’ (husband’s brother), which is even etymologically related to it. Therefore we shall call the law under examination the “law of the dever’,” and the marriage the “dever’ marriage.” The essence of this marriage is expressed in the regulation in the Book of Deuteronomy (Deut. 25:5–10): “If brothers dwell together, and one of them dies and has no son, the widow of the deceased shall not be married outside the family to a stranger. Her husband’s brother shall go in to her and take her as his wife and perform the duty of a husband’s brother to her. And the firstborn whom she bears shall succeed to the name of his deceased brother, so that his name may not be blotted out from Israel” (Deut. 25:5–6). In making such a regulation, Moses was not introducing a new law, but only legally defining an ancient custom that had existed among the Hebrew people long before Moses. The first example of such a marriage is found in the family of Judah in the patriarchal period. When Judah’s eldest son Er died without offspring, the father gave his wife Tamar to his second son Onan “to raise up offspring for his brother” (Gen. 38:8–9). But Onan, “knowing that the offspring would not be his,” and not wishing thereby to deprive himself of the inheritance and right of primogeniture that, after the death of his firstborn brother, were to pass to him, preferred that sexual abuse which, depriving him of the physical capacity to produce children, did not however free him from a firstborn rival, but only gave his name a sad notoriety (onanism). The levirate law at that time apparently had fully binding force, since Onan, despite all his unwillingness, did not refuse to fulfill it, and only sought to circumvent the law in secret. Moses somewhat weakens this obligation, so that he allows the possibility of refusal, though he surrounds it with such formalities as are evidently designed with a view to indirect compulsion to comply with the levirate law. “If the man does not wish to take his brother’s wife, then his brother’s wife shall go up to the gate to the elders and say: My husband’s brother refuses to perpetuate his brother’s name in Israel; he will not perform the duty of a husband’s brother to me. Then the elders of his city shall call him and speak to him, and if he persists and says: I do not wish to take her; then his brother’s wife shall go up to him in the presence of the elders and pull his sandal off his foot and spit in his face and shall answer and say: So shall it be done to the man who does not build up his brother’s house in Israel. And the name of his house shall be called in Israel: The house of him who had his sandal pulled off” (Deut. 25:7–10). The whole of this ceremony is evidently of a humiliating character and has the direct aim of compelling the brother-in-law to raise up offspring for the deceased brother. Saalschütz proposes a different understanding of this ceremony and sees in it simply a formal expression of refusal. This understanding he wishes to ground on the words of the Book of Ruth: “Now this was the custom in former times in Israel concerning redeeming and exchanging: to confirm a transaction, the one drew off his sandal and gave it to the other (who was assuming the kinsman’s right), and this was the manner of attesting in Israel” (Ruth 4:7). “By this ceremony,” says the scholar, “the nearest kinsman indicated that he was relinquishing his rights to Ruth’s estate and to the obligatory marriage with her associated with it, in favor of Boaz” (Ruth 4:8–10). The same meaning, the scholar continues, belongs to the ceremony in the passage of the law under examination, that is, (Deut. 25:7–10). The husband’s brother relinquishes, in relation to the widow—who in confirmation of this refusal removes his sandal—all his rights; and those rights are none other than the right to possession of the deceased husband’s property, to which the obligation of marrying the widow is attached. Perhaps the fact that here the kinsman did not himself remove his sandal, but rather a woman did, was meant to carry something offensive. But such an understanding is scarcely well-grounded, even if one grants with the scholar the explanation that the woman spat not in the face of the one refusing but simply on the ground. All the features of this ceremony—the transfer of the matter to a public court, the persuasion by the elders, the public removal of the sandal (which in antiquity was synonymous with possession), the spitting—even on the ground before the eyes of the one refusing, the formula of judgment that contains nothing flattering, and finally the very sobriquet attached to such a man among the people—all of this constitutes sufficient refutation of Saalschütz’s understanding. Moreover, his very appeal to the Book of Ruth does not support his opinion. The event narrated in the Book of Ruth is of an entirely different character, one that only outwardly resembles the levirate law. Boaz’s relationship to Ruth was not that of a brother-in-law (dever’)—he was a second cousin of her husband—but that of a goel, or general close kinsman, obligated by law (Lev. 25:25) to redeem the hereditary estate in the event of its sale, which, after the refusal of a more closely related kinsman, he does with respect to the hereditary estate of Naomi. Apparently the goel, by the force of custom, would ordinarily marry the female heir along with the redemption of the inheritance, but in any case this custom was not the same thing as the levirate law, although scholars customarily confuse them with each other, as happened, for example, even with so great an authority on Jewish antiquities as Josephus Flavius. In the matter of Ruth, the removal of the sandal—and by the holder himself—genuinely served as attestation of the transfer of the right of redemption to another, which was not possible under the levirate law by its very essence, since the law restricted the fulfillment of the duty of “raising up offspring” to the brother-in-law alone. The true meaning of the ceremony will be further clarified by a determination of the purpose and character of the levirate law.

Many different opinions have been expressed concerning the reasons and aims of the levirate law. But the true reason and explanation of it must be sought in the views of the ancient Eastern peoples, according to which the preservation of one’s name in posterity was considered the greatest good fortune, and conversely, the extinction of a lineage the greatest misfortune. This view was especially prevalent among the Jews, each of whom wished to participate in the promise given to the patriarch Abraham, that “in his seed all the nations of the earth shall be blessed” (Gen. 26:4). Therefore, for a Jewish woman, childlessness was a genuine misfortune, even a disgrace, from which she strove in every way to free herself (Gen. 38). The Mosaic law appears as a confirmation of the custom that expressed this view. In keeping with this view, the one who refused to raise up offspring for his brother appeared not only as an opponent of an established custom and law, but by his refusal expressed an unwillingness to wash away the disgrace from his brother’s wife, and at the same time a disrespect for the memory of the deceased. Hence the inadequacy of Saalschütz’s opinion concerning the character and significance of the formalities of refusal becomes clear. An important basis for retaining in the Mosaic state the custom of the levirate was also the fact that this custom corresponded to the aims of preserving order in land tenure within the state. Having distributed the land for possession among the tribes, clans, and families, the legislator, with a view to maintaining economic equilibrium, enacted that each tribe, and likewise each clan and family, be bound to its own allotment. Toward this end, the general regulation was directed that heiresses should not marry into another tribe (Num. 36:6 et seq.). The preservation of landed property within the kin was also achieved by the levirate law under examination, for otherwise a widowed heiress, by marrying a stranger, would have severed the landed estate from her kin. The levirate law is not an exclusive peculiarity of the Jewish people: it existed among other peoples as well, and to the present day exists in Arabia and among certain tribes in the Caucasus.

The levirate law, as was stated above, constitutes an exception among the general regulations prohibiting marital relations within close degrees of kinship. It remains for us now to speak of the special prohibitions.

The special prohibitions include regulations governing the marital relations of persons occupying an exceptional position among the people, or placed in special circumstances. Here belong the regulations concerning the marital relations of the high priest, priests, virgin heiresses, persons with physical deficiencies, and those who have received a divorce from a first marriage. Regarding the high priest, the law stipulates that “he shall take as his wife a virgin from his own people. A widow, or a divorced woman, or a woman who has been defiled, or a prostitute, these he shall not marry” (Lev. 21:13–14). This regulation evidently has as its aim to place the high priest’s marital union on a level fully commensurate with the height and holiness of his office. From it one can also see that the levirate law is not obligatory for the high priest, since he is forbidden to marry a widow. A similar, though less restrictive in the choice, regulation also applies to priests. They may marry not only a virgin but also a widow, but in any case “they shall not marry a woman divorced from her husband, for he is holy to the Lord his God” (Lev. 21:7). Concerning the marriage of heiresses, in the interest of preserving the economic and land-tenure equilibrium of the tribes, it was stipulated that they should not marry into another tribe, but should choose a husband from within their own tribe. In this connection, scholars find a remarkable similarity between the Jewish law and the Athenian, according to which heiresses, the so-called ἐπίκληροι, were required to marry the nearest male kinsman; and the property belonged to the husband only until the son came of age, to whom it then passed. The son received both the estate and the name—not of his own father, but of his maternal grandfather. The purpose of such a regulation was one and the same among both peoples—the preservation of hereditary landed property and the family name. On the basis of the regulation (Deut. 23:1), according to which “he who is emasculated by crushing or whose male organ is cut off shall not enter the assembly of the Lord,” it is plausibly concluded that this regulation forbids the specified persons from marrying Israelite women. Finally, the law subjects the marriage of divorced persons to certain restrictions. The relevant regulations present some difficulty in explanation. According to Mosaic law, a divorced wife could marry whomever she wished; but if her second husband died or divorced her, she could no longer return to the first. “When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce, puts it in her hand and sends her out from his house, and she leaves his house and goes and becomes another man’s wife, and if the latter husband turns against her and writes her a certificate of divorce and puts it in her hand and sends her out of his house, or if the latter husband who took her to be his wife dies, then her former husband who sent her away is not allowed to take her again to be his wife, since she has been defiled; for that is an abomination before the Lord your God, and you shall not bring sin upon the land which the Lord your God gives you as an inheritance” (Deut. 24:1–4). From this regulation one may conclude that marriage with the first husband was not prohibited even after divorce, provided only that the wife had not married another. In the contrary case, such a marriage is regarded by the law as an “abomination,” since the wife is considered already “defiled.” The motives for such a regulation are difficult to determine with precision. Saalschütz wishes to explain it by pointing to the similarity of the relations of the persons under consideration to the relations defined in (Lev. 18:16), where it is forbidden to uncover the nakedness of one’s brother’s wife. But such an explanation smacks of artificiality. More satisfactory is the explanation of Knobel. In a marital union, he says, by the very essence of it, only two enter—husband and wife—a third has no place in this union. If the wife entered into a union with a husband, becoming his flesh, she should remain so. But if through divorce she entered into a marital union with another man, became the flesh of another, then by that very fact the sanctity of the marriage has already been violated. The woman, though she could live with another husband, was already defiled for the first husband, and therefore could no longer enter into marital relations with him again.

The foregoing exhausts the prohibitions in matrimonial matters under Mosaic law. At the same time, by the general character of Mosaic legislation, in which the negative character predominates over the positive, the regulations concerning marriage are almost entirely comprised in the prohibitions examined, since outside the sphere of what is prohibited the law gives almost no definitions whatsoever. Thus, the law provides no legal definitions regarding the age of those contracting marriage, the character of the marriage act, the rights of young people to free choice, and so forth. Answers to these questions must be sought already in customary law and its practical expression in history.