Deuteronomy 25:5-10

Of Levirate Marriage

If, of brothers dwelling together, one die childless, his widow shall not marry beyond the family, her husband's brother shall marry her, and their firstborn be the dead man's heir and continue his name in Israel (Deuteronomy 25:5 f.). But if the husband's brother decline this duty, even if after it is pressed on him by the elders, then, in their presence, shall the widow formally dishonour him as a recusant to the family, and the dishonour shall adhere (Deuteronomy 25:7-10). Peculiar to D's code, but neither in the direct address nor with D's phraseology. It has the same opening, the same care in putting the case, the same style of introducing conditions (but ifand not D's only= rak, see on Deuteronomy 10:15) and of accumulating these, as the other marriage laws, Deuteronomy 21:15-17; Deuteronomy 22:13-21; Deuteronomy 24:1-4; and, like them, it brings in the elders. Probably, therefore, as we have suggested in regard to them, it is a law taken by D from a previous code. Cp. Dillmann who also points out that the terms like not to, refusethand go up to the gateare not current in D. There is nothing to betray whether D has modified the law. Steuern. assigns it, with those other laws, to his Pl. author.

Heb. had not only a special term for a husband's brother, yabam, but a vb. derived from it, yibbem, to express his duty of marrying his brother's widow; the adj. Leviratesimilarly comes from Lat. levir, husband's brother.

The use of these Heb. terms by this law proves that the practice was already established in Israel.

Levirate marriage in different forms is found among many peoples. Hindoo law sanctions it in case of no male issue by the first marriage, and only till the birth of a son. But in India of course, the re-marriage of even virgin widows has always been strongly opposed (Dubois, Hindu Manners, Customs and Ceremonies, trans. by Beauchamp with notes, 2nd ed. 24, 215, 358). Sometimes it is compulsory, sometimes only permissive, sometimes limited to the younger brother, sometimes enforced only where the widow has children, in order to provide for their education. In some Arab tribes -when a married brother dies, at the grave his surviving brother asks her relatives to give him the widow in marriage and says, "Give me compensation through her, etc.," and his request is granted" (Musil, Ethn. Ber.426). No motive nor condition is stated. The custom has been traced to different origins to the practice of polyandry, to the need of performing rites to the spirit of the deceased (for Levirate marriage and ancestor worship are often found together), and to the principle of -Baal-Marriage," that the wife was the property of her husband and so passed with the rest of his estate to the nearest of kin. The different forms of the institution among different peoples prove that it had different origins. In Israel there is no trace of an origin in polyandry; and but little evidence of a connection with ancestor worship. On the whole subject see Maine, Early Law and Custom, chs. iii. f.; W. R. Smith, Kinship, etc., 122 135; Westermarck, Human Marriage; Benzinger and Nowack's works on Hebrew Archaeology; and Driver's summary notes, Deut.280 285.

An early instance is given by J, Genesis 38, which (Deuteronomy 25:8) uses the same term for the duty of a husband's brother, but implies that if brothers fail the duty might be assumed by another agnate and even by the husband's father; further that not the firstborn only, but all the children of the new marriage, belonged to the dead man. In Ruth 1:11-13; Ruth 1:4, where the Heb. term for Levirate marriage is not used (though the cognate sister-in-lawoccurs in Deuteronomy 1:15), the right of Na-omi's widowed daughters-in-law to any further sons she might have had is implied; and in the want of these, regarded as a divine affliction, the right of marrying Ruth passes to the next of kin, with that of the redemption of the dead husband's property; and again the son of the widow's marriage with the kinsman is regarded as his son and not that of her first husband. In D's law the duty of marrying the childless widow is limited to that brother of her dead husband who had been living with him, on the same estate; and the right of succession to the dead man is limited to the firstborn of the new marriage. In H, Leviticus 18:16, marriage with a brother's wife is forbidden, and, Leviticus 20:21, is a defilement, cursed with childlessness. By some this has been regarded as the general rule, to which D's provides in the interest of the family a carefully limited exception (Driver, Deut.285, Levit. 88). It seems more likely that D's law is (as we have seen) a modification of the old practice, entirely independent of H's law. P, by allowing daughters to inherit (Numbers 27:1-12), abolished part of the need for Levirate marriages; but obviously D knows nothing of P's law; for his own is limited to sons. Among the later Jews the law of D was observed but with the difference introduced by P. Not a sonless, but only a childless, marriage was now its occasion. See on Deuteronomy 25:5.