An example of Levirate law where a brother marries his deceased brother’s widow appears in this week’s text. As the rights and independence of women advanced through the ages, this practice has almost disappeared.
The parsha begins with a single line stating that Jacob settled in Canaan, the land where his father’s had dwelled. Then, the story quickly shifts to Joseph, Jacob’s favorite son. (Gen. 37:1-3) The life of Joseph is detailed throughout most of this week’s text and over the next three weeks.
I will have much to say about Joseph in the weeks to come. But within the week’s reading there is a story about Judah; his three sons – Er, Onan, and Shelah; and Tamar, the women Judah choose to wed his eldest son, Er. But, according to Torah, Er was wicked in the sight of God and God brought about Er’s death. “Judah then said to Onan, ‘Couple with your brother’s widow, unite with her, and raise up offspring for your brother!” (Gen. 38:8)
This practice of the oldest surviving son marrying the childless widow of an older brother is called “levirate marriage” or “levirate law.” The law is defined in Deuteronomy 25:5-6.
“When brothers dwell together and one of them dies and leaves no offspring, the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother shall unite with her: he shall take her as a wife and perform the levit’s duty. The first child that she bears shall be accounted to the dead brother, that his name may not blotted out in Israel.”
“But if the man does not want to marry the man does not his brother’s widow, his brother’s widow shall appear before the elders in the gate and declare, ‘My husband’s brother refuses to establish a name in Israel for his ‘brother; he will not perform the duty of a levit.”
“The elders of his town shall then summon him and talk to him. If he insists, saying, ‘I do not want to marry her,’ his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: Thus shall be done to the man who will not build up his brother’s house! And he shall go in Israel by the name of ‘the family of the unsandaled one.’” (Deut. 25:5-6)
Although this law is rarely practiced in liberal Jewish life today, its background and history are very interesting and illustrates the concept of the living, dynamic Jewish law. By looking at the history of this law we see how the law changes to reflect the morals and customs of a given time.
There is evidence that the practice of Levirate marriage may have pre-dated the Torah in the Hittite, Assyrian, and Uzi law codes. However, in each of these communities after a husband’s death, the ownership of the husband’s wife was assumed the husband’s family. The widow was inherited like other property. (Rabbi Bradley Shavit Artson, The Bedside Torah, p.63-The Evolution of a Mitzvah)
Like the neighboring nations, in the early Jewish communities (including those of biblical times) women had little or no rights, and very few had any property. A widow would have a difficult time finding another partner or any source of support. Then, if she did have any property from her husband, the husband’s family would not want to lose it. In keeping with the moral objectives of Torah, the Levirate law presented many solutions to both the widow and the husband’s family…. By marrying a brother-in-law, the widow was given a means of support; because the first child of this new marriage was to be in the deceased husband’s name, the family name would not be lost; and the family retained kept any property that the deceased husband may have acquired. However, if the brother did want to marry the deceased husband’s widow, the Torah did present a seemingly shameful way for the brother to decline this role. In effect, a person was highly pressured to comply with this law.
The law applied only to widows without sons. As time went on the widow was given more options to decline this Levirate arrangement. One such way was a modification that excluded widows with daughters.
“By Talmudic times the practice of levirate marriage was deemed objectionable (Bek. 13a), and was followed as a matter of duty only. To marry a brother’s widow for her beauty was regarded by Abba Saul as equivalent to incest. (Yeb. 109a) A difference of opinion appears among the later authorities, Alfasi, Maimonides, and the Spanish school generally upholding the custom, while R. Tam and the Northern school prefer ḥaliẓah –the Hebrew word for the ceremony detailed in the above Torah passage to decline the Levirate duty. (Shulḥan ‘Aruk, Eben ha-‘Ezer, 165). (Jewish Encyclopedia, Levirate Marriage, http://www.jewishencyclopedia.com/articles/9859-levirate-marriage)
With the passage of time and the declining of the Levirate duty, the halizah ceremony became more widely practiced than the Levirate practice itself. In 1950 the Chief Rabbinate of Israel made the practice of Levirate law illegal. “What originated as a way of ensuring family continuity became objectionable because the ancient notion of women as chattel was replaced by a growing recognition in rabbinic Judaism of women as responsible adults. As the implications of Torah’s morality constantly unfold, as Jews are better able to integrate the Torah’s values into their social lives, halakhah also evolves to codify that evolution.”
“Dynamic law is the way Judaism has always maintained consensus among our people, established standards to which we can all aspire, and instilled a sacred passion fallible among all-too-fallible folk. Dynamic law – halakhah – is what will sustain our people and our covenant, now and in the ages to come.” (Rabbi Bradley Shavit Artson, The Bedside Torah, p.65-6-The Evolution of a Mitzvah)