Deuteronomy 25:5 - On the heir’s gender

(The above rendering and footnote come from the RJPS translation, an adaptation of the NJPS translation.)

The term in question is בֵּן. Like nearly all “male” personal nouns that have a feminine counterpart term (in this case, בַּת), בֵּן can serve as a cover term for both males and females. That is, when employed in nonspecific reference and in the absence of contrast with a female term, it does not specify its referent’s gender; thus females are in view by default (Stein 2008; Stein 2013). Instances of the gender-inclusive usage of בֵּן include Exod 10:2; 13:8, 14; Deut 6:2, 20 (NJPS “children”); Ezek 18:4, 20 (NJPS “child”).

The present passage’s key phrase וּבֵן אֵין־לוֹ echoes that of Num 27:8 (see also vv. 3–4 there). In Numbers, a particular deceased man has five daughters: in that contrastive context, בֵּן clearly is restricted in scope to “son.” Paradoxically, though, if one understands בֵּן in the present verse in the same way, the result is a legal contradiction: whereas surviving daughters inherit in the Numbers case, they would not do so according to Deuteronomy (for the specified levirate marriage procedure would prevail). Thus we must interpret בֵּן differently here, in order for the two laws to agree.

Indeed, in her 2003 book Yerushat banot be-yisra’el u-va-mizraḥ ha-tiḥon [Inheritance by Daughters in Israel and the Ancient Near East: A Social, Legal, and Ideological Turning Point] (Old Jaffa: Archaeological Centre, 2003), Zafrira Ben-Barak contends on the basis of the wording in Numbers 27 that בֵּן must mean “son” here, as well. (She sees the resulting disagreement between the laws as being a function of historical development.) However, her argument runs counter to the unassailably gender-inclusive default construal of “male” terms such as this one when used to refer to a class of persons, in the absence of gender contrast.

Samuel Driver (ad loc.), citing August Dillman, advanced a different argument about the gender of the key terms, based on the wording. He contended that if the law had intended to be gender inclusive, it would “certainly” have used a more clearly gender-inclusive term such as זֶרַע “seed” or ben ’o bat “son or daughter” (cf. Deut 18:10). (In his JPS Torah commentary, Jeffrey Tigay likewise adopts this argument, ad loc.) However, the converse argument better accords with the overall gender-inclusive default of so-called male terms: if the law had intended to exclude daughters, it would “certainly” have used a more clearly masculine term, such as בֵּן זָכָר (male offspring; Jer 20:15).

Meanwhile, the topic of providing an heir does not reliably exclude daughters from view. On the contrary, as shown by Ben-Barak’s own work (described below), daughters were often treated as heirs in the ancient Near East when no sons were in the picture.

That is, proceeding step by step, in more detail:

1. The term בֵּן in this case refers to any offspring who are legally able to “uphold the name” of the deceased (v. 6) and “build his house” (v. 9)—that is, to assure the continued viability of the household, as exemplified by the integrity of its patrimony and the reckoning of lineage. See Thomas and Dorothy Thompson, “Some Legal Problems in the Book of Ruth,” Vetus Testamentum 18 (1968): 79–99, here 87; Eryl W. Davies, “Inheritance Rights and the Hebrew Levirate Marriage,” Vetus Testamentum XXXI/2 (1981): 138–44, here 141–42; Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (New York: Walter de Gruyter, 1993), here 66–73.

2. The present case deals with an exceptional situation: a father who died without having otherwise made inheritance arrangements. Yet the social drive for preserving the corporate household as a viable entity was extremely strong, partly because it was the society’s basic economic unit: “one of the most strictly observed social principles in the ancient Near East was the preservation of the family patrimony” (Ben-Barak, “Inheritance by Daughters in the Ancient Near East,” Journal of Semitic Studies 25 [1980]: 22–33, here 22; see also her “Mutual Influences in the Ancient Near East: Inheritance as a Case in Point,” Michmanim 9 [1996]: 1–15, here 8).

3. The text’s audience would have been familiar with various stratagems that enabled a female to be an heir and even to transmit her father’s lineage to her son, so as to preserve the household as an entity (Num 27:1–11; Josh 17:3–6; Judg 11:34–35 [a thwarted plan]; 1 Chr 2:34–35). Such arrangements had been known across the ancient Near East for centuries, not only in urban Mesopotamian societies but also in more rural Western Semitic nations: the fact that the daughter inherited in the absence of sons was “the preferred solution universally” (Ben-Barak, “Mutual Influences,” 8). Apparently this custom was an informal one, in that despite the evidence of its widespread and longstanding practice, the only extant supporting law or statement of principles in the entire ancient Near East appears in Num 27:8–11 (Ben-Barak, “Inheritance by Daughters,” 22; see also her Y’rushat banot, esp. 271–72; for the early post-exilic community, see Tamara C. Eskenazi, “Out from the Shadows: Biblical Women in the Post-Exilic Era,” Journal for the Study of the Old Testament 54 [1992]: 25–43, here 35).

In short, it seems to have gone without saying that the existence of a daughter would obviate the need for levirate marriage. More to the point, for the purposes of translation into English, we do not have grounds to conclude that daughters were definitely excluded from view. Hence there is no warrant for rendering in gendered terms.

As for the translation, the NJPS rendering “son” is due to the NJPS translators’ conviction that this passage was gender-restricted in its scope; they held that the text simply did not consider daughters in its purview (Mayer Gruber, pers. comm., 5/19/04, citing a presentation by Harry Orlinsky that he attended). However, given the gender commonplaces of the ancient Near East, we have not found evidence to sustain that view. Therefore the revised rendering is gender inclusive.