Tuesday, August 23, 2011

Case Law Commentary: The Levirate Marriage (Deuteronomy 25:5, 6)

"[T]he reason of the law may seem to ...
keep up the distinction, as of tribes and
families, that so the Messias might be
discovered by the family from which he
was appointed to proceed, so also of
inheritances, which were divided among
all the brethren, the first born having only
a double portion." --Matthew Poole
In this case law commentary, theologians weigh in on the Levirate Marriage, as discussed in Deut. 25:5, 6.

"If brothers dwell together, and one of them dies and has no son, the wife of the dead man 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 first son whom she bears shall succeed to the name of his dead brother, that his name may not be blotted out of Israel."

John Gill:
Ver. 5. If brethren dwell together,.... Not only in the same country, province, town, or city, but in the same house; such who had been from their youth brought up together in their father's house, and now one of them being married, as the case put supposes, they that were unmarried might live with him, and especially if the father was dead; and so may except such as were abroad, and in foreign countries, or at such a distance that this law coals not well be observed by them; though the Targum of Jonathan, and so Jarchi, interpret it of their being united in an inheritance, all by virtue of relation having a claim to their father's inheritance; so that it mattered not where they dwelt, it is the relation that is regarded, and their right of inheritance; and the above Targum describes them as brethren on the father's side, and so Jarchi says excepts his brother on the mother's side; for brethren by the mother's side, in case of inheritance, and the marrying of a brother's wife, were not reckoned brethren, as Maimonides {h} observes; who adds, that there is no brotherhood but on the father's side. Some think that when there were no brethren in a strict and proper sense, the near kinsmen, sometimes called brethren, were to do the office here enjoined, and which they conclude from the case of Boaz and Ruth; but Aben Ezra contradicts this, and says that instance is no proof of it, it respecting another affair, not marriage, but redemption; and says that brethren, absolutely and strictly speaking are here meant; which is agreeably to their tradition {i}: ...
her husband's brother shall go in unto her, and take her to him to wife; that is, supposing him to be unmarried, and this is indeed supposed in the first clause of the text, by dwelling with his brother; for had he been married, he would have dwelt with his wife and family apart; besides, if this law obliged a married man to marry his brother's wife, polygamy would be required and established by a law of God, which was never otherwise than permitted. This is to be understood of the eldest brother, as Jarchi, who is in an unmarried state; so it is said in the Misnah {k},
"the command is upon the eldest to marry his brother's wife; if he will not, they go to all the brethren; if they will not, they return to the eldest; and say to him, upon thee is the commandment, either allow the shoe to be plucked off, or marry;'' 
and such a course we find was taken among the Jews in our Lord's time, Mt 22:25;
John Gill's Exposition of the Entire Bible

The Geneva Bible:
25:5 If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husbands brother shall go in unto her, and take her to him to wife, and perform the duty of an husbands brother unto her. 
(d) Because the Hebrew word does not signify the natural brother, and the word that signifies a brother, is taken also for a kinsman: it seems that it does not mean that the natural brother should marry his brothers wife, but some other kindred that was in the degree that might marry. 
Geneva Study Bible

Matthew Poole
If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her.  
Brethren; strictly so called, as is evident from ver. 7 ; Gen. xxxviii. 8; Ruth i. 13 ; Matt. xxii. 24, 25. Dwell together; either, 1. Strictly, in the same house or family; which is not probable, because the married brother may be presumed to have left his father's house, and set up a family of his own. Or, 2. More largely, in the same town or city, or, at least, country. This is added for a relief of their consciences, that if the next brother had removed his habitation into remote parts, or were carried thither into captivity, which God foresaw would be their case, then the wife of the dead had her liberty to marry to the next kinsman that lived in the same place with her. 
One of them ; either, 
1. The first and eldest of them, as it was practised, Gen. xxxviii. 6, &c., and expounded, Matt. xxii. 25; one being oft put for the first, as Gen. i. 5 ; i. 11 [?]; Hag. i. 1; Mark xvi. 2. And the chief care was about the first-born, who were invested with singular privileges, and were types of Christ. Or, 2. Any of them, for the words are general, and so the practice may seem to have been, Ruth iii.; and the reason of the law may seem to be in a great measure the same, which was to keep up the distinction, as of tribes and families, that so the Messias might be discovered by the family from which he was appointed to proceed, so also of inheritances, which were divided among all the brethren, the first-born having only a double portion.
Have no child, Heb. no son. But son is oft put for any child, male or female, both in Scripture and other authors; and therefore the Hebrew no son is rendered no child here, as it is in effect, Matt. xxii. 24; Mark xii. 19 ; Luke xx. 28. And indeed this caution was not necessary when there was a daughter, whose child might be adopted into the name and family of its grandfather. Unto a stranger, i. e. to one of another family, as that word is oft used. Her husband's brother shall go in unto her, except he was married himself, as may appear by other scriptures, and by the reason of the thing, and, as some add, from the phrase of dwelling together, to wit, in their father's family.
6 And it shall be, that the firstborn which she beareth shall [Gen. 38:9] succeed  in the name of his brother which is dead, that his [Ruth 4:10] name be not put out of Israel. 
In the name of his brother; shall be called and reputed his son. See Ruth iv. 17. That his name be not put out of Israel; that a family be not lost. So this was a provision that the number of Iheir families might not be diminished.

Matthew Poole, Annotations upon the Holy Bible, p. 385


von said...

What is amazing to me is what I found out when discussing this law with an Orthodox Jewish friend: namely that they believe that this law must, today, be honored in the breach: ie that the man must 'release' the woman from a levirate marriage or he is literally punished. So only by disobeying the law can a Jew nowadays be considered righteous.

Scolaris Legisperitus said...

That is a very uneasy matter.

Perhaps indeed it is more sensed to say that this passage must be considered as one of the « ceremonial laws » that no longer apply under the New Covenant (expect for their general equity --- here the general equity would be that widows mush be helped by their family).

Such an understanding would mean that the levirate marriage is a divine derogation to the broader « Christian law of marriage », according to which family members have a right and a duty to counsel other members of their family about marriage issues, but that ultimately the consent of the two spouses is required (marriage is a contract, and contracts are formed by the exchange of consent, without which the contract is null and void).

Consider this exegesis from Jean Calvin :

« Calvin saw in the biblical story of Abraham’s pursuit of a wife for his son Isaac (Gen. 24:1–67) a particularly good lesson of how and why the natural law [sic!] of parental consent should operate. Abraham sought to ensure that his son Isaac, who had come of age, would marry a woman who was both spiritually and physically compatible with him. He sent his servant out to find just the right woman, armed with a clear recitation of the terms of the proposed marriage contract. The servant found a suitable woman in Rebekah. He sought the consent of Rebekah’s father, uncle, and mother. He then put down a handsome bride price signified by rings and bracelets. All of this was done, Calvin noted, with full consideration of the consent of the two children, Isaac and Rebekah. The servant made sure that Isaac and Rebekah met together to ensure their compatibility before the contract was sealed. Particularly notable for Calvin was that Rebekah’s father, Bethuel, “did not exercise tyranny over his daughter, so as to thrust her out reluctantly, or to compel her to marry against her will, but left her to her own free choice.”

This stood in marked contrast with many other biblical examples of fathers who contracted or coerced their children into marriage without consideration of their wishes. A good such counterexample was Caleb’s crass indifference to his daughter Achsah Caleb was one of the spies whom Joshua had sent into the newly promised
land of Israel. He was one of the few who had stood up against the majority of the people who had despaired about their ability to conquer Jericho and who wanted to return to Egypt (Num. 13:6, 30, 14:6). While God condemned the people of Israel for their unbelief, God spared Caleb: “Because he has a different spirit and has followed me fully, I will bring him into the land in which he went, and his descendents shall possess it” (Num. 14:24). After the conquest of Jericho, Joshua rewarded Caleb with an ample plot of land. But the land was still occupied (Josh. 14:6, 21:12). Caleb wanted his soldiers to claim the land and to kill its pagan leader. Whoever killed the leader, Caleb promised, could marry his daughter Achsah. Othniel killed the leader and was given Achsah to marry (Josh. 15:16–17). Despite Caleb’s noble place in Israelite history, Calvin condemned him roundly: “How could Caleb presume to bargain concerning his daughter until he knew her wishes,” Calvin wrote incredulously. It was no excuse that Othniel was a valiant warrior. That did not necessarily make him the right husband for Achsah. It also did not matter that Achsah ultimately accepted him as her husband or indeed that Caleb later obliged her by giving the couple a choice plot of land (Josh. 15:18–19). Caleb must have just forgotten to ask Achsah her wishes while “in the heat of battle,” Calvin concluded. But we have to assume that “according to the common law [or rather : Isaac and Rebekah's example] the agreement implied the daughter’s consent and was only to take effect if it was obtained.” »

Reference : John Witte Jr., « Honor Thy Father and Thy Mother - Child Marriage and Parental Consent in Calvin’s Geneva », The Journal of Religion, Vol. 86, No. 4, October 2006, p. 592-593 on 580-605.

Vaughn Ohlman said...

1) I don't see why any law of God should be an 'uneasy matter'.
2) I don't see why this passage, concerning family jurisdiction, should be considered a ceremonial law.
3) I don't see why the 'general equity' of a law should devolve to something the law doesn't mention, ignoring what the law says.
4) Where do you find this 'divine law'? Certainly not in the law of God.
5) The quote you post is not from Calvin and certainly does not adequately represent his views... and still less does it represent the text.

Scolaris Legisperitus said...

Vaughn Ohlman, tu es un vrai chercheur de bébites.