Levirate Marriage and the Family in Ancient Judaism
Dvora E. Weisberg
In this study, Weisberg uses levirate marriage (an institution that involves the union of a man and the widow of his childless brother) as described in biblical law and explicated in rabbinic Judaism as a lens to examine the status of women and attitudes toward marriage, sexuality, and reproduction in early Jewish society. While marriage generally marks the beginning of a new family unit, levirate comes into play when a family’s life is cut short. As such, it offers an opportunity to study the family at a moment of breakdown and restructuring. With her discussion rooted in rabbinic sources and commentary, Weisberg explores kinship structure and descent, the relationship between a family unit created through levirate marriage and the extended family, and the roles of individuals within the family. She also considers the position of women, asking whether it is through marriage or the bearing of children that a woman becomes part of her husband’s family, and to what degree a married woman remains part of her natal family. She argues that rabbinic responses to levirate suggest that a family is an evolving entity, one that can preserve itself through realignment and redefinition.
The Sages further taught that the exemption of a yevama from levirate marriage also exempts her rival wife. In other words, if the deceased brother had two wives, each a so-called rival of the other, and only one wife is a relative of the surviving brother, then the rival wife is also exempt from both levirate marriage and ḥalitza. Moreover, if that same rival wife entered into levirate marriage with a different brother of the deceased, one to whom she is not forbidden, then were this third brother also to die childless, so that the obligation of levirate marriage would again be incurred by the second brother, not only is the forbidden rival wife exempt from levirate marriage and ḥalitza, her new rival wives from her second marriage are also exempt.
That is to say, any other wife of the third brother is exempt from the mitzva of levirate marriage, as she is the rival wife of that first rival wife, who was exempted from levirate marriage following her first husband’s death due the exemption of her original rival wife. The same principle applies if that second rival wife subsequently enters into levirate marriage with another permitted brother, and so on. In summary, every widow who is exempt from marrying her brother-in-law due to her status as rival wife of a forbidden relative is treated as a forbidden relative herself and is therefore exempt from both ḥalitza and levirate marriage and causes exemption for future rival wives as well.
MISHNA: The mishna describes various cases that invoke the principles above. Fifteen categories of women constitute familial relations that are forbidden as incestuous, and consequently, these women exempt their rival wives and the rival wives of their rival wives from ḥalitza and from levirate marriage forever, i.e., they also exempt rival wives of rival wives of rival wives, and so on. And these women are: The daughter of the yavam, i.e., the deceased brother had married a daughter of his brother, which means that when he died childless, his brother’s own daughter came before her father for levirate marriage, and therefore she is exempt. And the same applies if the deceased brother’s widow is the daughter of the daughter of the yavam, or if she is the daughter of his son, or the daughter of his wife. And similarly, if the yevama is the daughter of the son of the wife of her yavam or the daughter of his wife’s daughter, or if she is the mother-in-law of her yavam, or his mother-in-law’s mother, or his father-in-law’s mother, then she is exempt from ḥalitza and levirate marriage. The mishna continues its list of close relatives. If the yevama is the maternal half sister of the yavam, or if she is the sister of his mother, or his wife’s sister, then she is exempt from both ḥalitza and levirate marriage Or if she was the wife of his maternal half brother, and after this brother died or divorced his wife, she married another of his father’s brothers, who was not her relative, and this brother died, she is exempt. In this case, the obligation to enter into levirate marriage should be incurred by the surviving brother, but since she was previously the wife of his maternal brother, she is exempt.
Jack Goody
Continuing the comparative survey of pre-industrial family formation undertaken in The Development of Family and Marriage in Europe (1983), Professor Goody looks in depth at kinship practice in Asia. His findings cause him to question many traditional assumptions about the "primitive" East, and he suggests that, in contrast to pre-colonial Africa, kinship practice in Asia has much in common with that prevailing in parts of pre-industrial Europe. Goody examines the transmission of productive and other property in relation both to the prevailing political economy and to family and ideological structures, and explores the distribution of mechanisms and strategies of management across cultures. The book concludes that notions of western "uniqueness" are often misplaced, and that much previous work on Asian kinship has been unwittingly distorted by the application of concepts and approaches derived from other, inappropriate, social formations.
(א) כי ישבו אחים. פרט לאחיו שלא היה בעולמו. מכאן אמרו, ב' אחים ומת אחד מהם ונולד להם אח, ואחר כך ייבם השני את אשת אחיו [ומת. הראשונה יוצאת משום אשת אחיו שלא היה בעולמו, והשניה משום צרתה].
(ב) יחדו. [המיוחדים בנחלה,] פרט לאחים מן האם. לפי שמצינו (שיש באחים מן התורה) [בעריות], ששוה אח מן האם לאח מן האב. יכול אף כאן כן? ת"ל "יחדיו", פרט לאחיו מאמו.
(ג) ומת אחד מהם. אין לי אלא בזמן שהם שנים ומת אחד מהם. מנין אפילו הם מרובין (? ת"ל ומת אחד מהם. מנין אפילו מתו כולם? ת"ל ומת אחד מהם, ולא נאמר "אחד מהם"). ומתו? ת"ל ומת מהם. א"כ מה ת"ל "אחד"? אשת אחד מתיבמת, ולא אשת שנים. מכאן אמרו, שלשה אחים נשואים ג' נכריות [ומת א' מהם, ועשה בה השני מאמר ומת - חולצת ולא מתיבמת. שנ' ומת אחד מהם, שעליה זיקת יבם אחד, ולא שעליה זיקת שני יבמין].
(ד) לא תהיה אשת המת החוצה לאיש זר. למה אני צריך? לפי שאמרנו להלן, "אשת אחד מתיבמת ולא אשת שנים" (יכול אף כאן כן) [יכול תהא פטורה]? ת"ל לא תהי' אשת המת החוצה לאיש זר. כיצד הוא עושה? (או חולצת או מתייבמת) [חולצת ולא מתיבמת]. הנותן גט - פסלה לעצמו ופסלה ע"י אחים. יכול (יהיה גט פוטרה) [תהא פטורה] (בגט זה מזיקת האחים)? ודין הוא - ומה חליצה שאינה פוטרת באשה, פוטרת ביבם; גט שפוטר באשה, אינו דין שפוטר ביבם! ת"ל לא תהיה אשת המת החוצה לאיש זר, [אלא] בחליצה. העושה מאמר ביבמתו - קנאה לעצמו ופסלה על האחים. יכול יהיה מאמר גומר בה? ת"ל יבמה יבא עליה, ביאה גומרת בה ואין מאמר גומר בה.
(ה) יבמה יבוא עליה. בין בשוגג בין במזיד בין באונס בין ברצון. ואפילו היא שוגגת והוא מזיד, או שהוא שוגג והיא מזידה.
(ו) ולקח ולקחה ויבם ויבמה. פרט לצרות (מכל העריות וכן) [ועריות]. מכאן אמרו, ט"ו נשים פוטרות צרותיהן וצרות צרותיהן וכו'.
(1) (Devarim 25:5) "When brothers dwell together and one of them dies, and he has no son, the wife of the dead one shall not be outside to a strange man. Her levir (her husband's brother) shall come upon her and he shall take her for himself as a wife, and he shall have her in levirate marriage (yibum)."
(2) "When brothers dwell together": to exclude a brother who was not in his world (i.e., who was not concurrently alive). From here they ruled: If there were two brothers and one of them died and another one was born, after which the second brother performed yibum with the wife of the first, after which he died, then the first wife (i.e., the wife of the brother who died first) is exempt (from yibum) by reason of her being "the wife of his brother who was not in his world," and the second wife (i.e., the wife of the second brother) by reason of her being her (the first wife's) tzarah (co-wife). "together": in inheritance — to exclude maternal brothers. Because we find in arayoth (illicit relations) that a maternal brother is equated with a paternal brother, I might think that here, too, this is so. It is, therefore, written "together" (in inheritance), to exclude his maternal brother.
(3) "and one of them dies": This tells me (that yibum obtains) only where there are two brothers and one of them dies. Whence do I derive (that yibum obtains) even if they are many and they die (that yibum obtains with the remaining brothers)? From "and if there die … of them." If so, why is it written "one"? Yibum obtains with the wife of one of them and not with the "wife" of two (see what follows). From here they ruled: If three brothers were married to three unrelated women, and one of them died, and the second made a ma'amar (betrothal of his yevamah by writ or money — short of cohabitation), and he, too, died, then she (the yevamah of the first,) receives chalitzah (yibum release), but not yibum, it being written "and one of them dies" — She who is linked to only one yavam (undergoes yibum), but not she who is linked to two, (as in the above instance, where the woman is linked to the remaining brother by the yibum tie and to the ma'amar brother by the ma'amar tie.)
(4) "the wife of the dead one shall not be outside to a strange man": What is the intent of this? Because it was ruled: Yibum obtains with the wife of one but not with the "wife" of two (see above), I might think that she (the woman in the above instance) is (entirely) exempt. It is, therefore, written "the wife of the dead one shall not be outside to a strange man." What is to be done? She undergoes chalitzah (yibum release) but not yibum. If one gives a get (to his yevamah), he forbids her to himself and to his brothers. I might think that she is (entirely) exempt, and that this follows, viz.: If chalitzah, which does not exempt a woman (from the marriage tie) exempts her from the yibum tie, then get, which does exempt a woman (from the marriage tie), how much more so should it exempt her from the yibum tie! It is, therefore, written "the wife of the dead one shall not be outside to a strange man" — except by chalitzah. If one makes a ma'amar in his yevamah, he acquires her for himself and forbids her to the brothers. I might think that the ma'amar consummates the union. It is, therefore, written "her yavam shall come upon her" — Cohabitation consummates, and not ma'amar.
(5) "her yavam shall come upon her": whether unwittingly, (thinking her to be a different woman), wantonly, (intending illicit intercourse), constrainedly, or wittingly — even if she is unwitting and he wanton or he unwitting and she wanton, (he acquires her as a wife).
(6) (Instead bf being written) "and he shall take" (it is written) "and he shall take her"; (instead of) "and he shall perform yibum," (it is written) "and he shall perform yibum (with) her" — to exclude (from yibum) co-wives (tzaroth) and arayoth (illicit relations) — whence it was ruled: Fifteen women exempt (from yibum) their co-wives and the co-wives of their co-wives, etc.
Michael L. Satlow
Marriage today might be a highly contested topic, but certainly no more than it was in antiquity. Ancient Jews, like their non-Jewish neighbors, grappled with what have become perennial issues of marriage, from its idealistic definitions to its many practical forms to questions of who should or should not wed. In this book, Michael Satlow offers the first in-depth synthetic study of Jewish marriage in antiquity, from ca. 500 B.C.E. to 614 C.E. Placing Jewish marriage in its cultural milieu, Satlow investigates whether there was anything essentially “Jewish” about the institution as it was discussed and practiced. Moreover, he considers the social and economic aspects of marriage as both a personal relationship and a religious bond, and explores how the Jews of antiquity negotiated the gap between marital realities and their ideals.
Focusing on the various experiences of Jews throughout the Mediterranean basin and in Babylonia, Satlow argues that different communities, even rabbinic ones, constructed their own “Jewish” marriage: they read their received traditions and rituals through the lens of a basic understanding of marriage that they shared with their non-Jewish neighbors. He also maintains that Jews idealized marriage in a way that responded to the ideals of their respective societies, mediating between such values as honor and the far messier realities of marital life. Employing Jewish and non-Jewish literary texts, papyri, inscriptions, and material artifacts, Satlow paints a vibrant portrait of ancient Judaism while sharpening and clarifying present discussions on modern marriage for Jews and non-Jews alike.