What is virtually an enactment of the levirate law, and that the oldest, is given in narrative form in the story of Tamar and Judah (Gn 38). Here the object of the marriage is ‘to raise up seed’ to the deceased (v.8); the person upon whom the obligation rests is the younger brother, failing whom the next in age (v.*); the issue of the marriage becomes the head of the family (v.™; cf. Mt 1’) ; and the sanction of the law, the binding character of which is generally admitted, is in the last resort a special retributive judgment (v.?°).
In the formal enactment of the Deut. code (25°-!) the ancient custom is similarly motived and as ear- nestly supported, if with some relaxation in detail. The obligation rested on a brother only if he had estate,’
‘dwelt together’ (i.e. ‘on the same famil Driver) with the deceased (y.°), and only the eldest son of the new marriage was to be reckoned as the
son of the deceased (v.*). On the other hand, the obligation was not superseded if the deceased left daughters (ν. ‘no son,’ as against the Sadducean interpretation in Mt 22%, Mk 1919. Lk 20%). The duty was not legally enforced, but was supported by the resources of public opinion. A eae evading it publicly forfeited his right—symbolized by drawing off his sandal—and was to be openly insulted by the widow, and condemned to perpetual obloquy (v.*).
The Book of Ruth, while certainly referring to the custom, is by no means faithful to the Deut. model. As judged by Dt, Boaz was under no obligation to wed Ruth unless it should be argued that as Elimelech’s brother (43) he was bound to marry Naomi, and that as the latter was past child-bearing he married instead her widowed daughter-in-law. As a fact, the view taken is that the next of kin, who may be quite remote, is in duty bound to redeem a dead man’s estate and marry his childless widow. Further, as Ruth’s son by Boaz ranks as the son of the latter (ν.3}), not of Ruth’s former husband, it would seem that the earlier intention of the law is abandoned (Nowack, Arch. i. p. 347, who even argues that in the writer’s view the sole object is the welfare of the widow). It is also noticeable that the repudia- tion, with the ceremony of the drawing off of the shoe, no longer has the ancient stigma attached to it (v.7). On the whole, it must be said that the book reveals a state of things when the strict law had been found impracticable, but when its principle
* The parallel in the Laws of Manu (ch. ix. 59-64) has been often cited. Instances of the custom among other races have been collected by Post, Hinleitung in das Stud. d. ethnolog. Jurisprud, 1866, and Westermarck, Hist. of Hum. Marriage.
MARRIAGE
continued to be in a wider way operative, and was favoured as fostering humane dealing and averting the pathetic event of the extinction of a line.
The attitude of the later legislation towards the custom is matter of dispute. Certainly Ly (1815 20") forbids marriage with a deceased brother’s wife without any qualification ; and it is therefore held by many modern critics that P designed to abolish this type of marriage as incestuous in the minor degree (Nowack, Arch. i. 346; Benzinger, art. ‘Ehe,’ Real-Encycl.*). In confirmation of this it is pointed out that in this code the estate, failing a son, descends to the daughters (Nu 27). By others the traditional view is still maintained that P lays down the general rule against marriage with a deceased brother’s wife, while Dt specifies the exceptional case (Driver, Deut. in loc.). It has also been held that the collision of the codes is only apparent, as Lev prohibits illicit intercourse with a brother’s wife, and is not legislating in the passage in question about marriage (Bertholet, Com. on Dae: but erroneously). Whether P in- tended to repeal the special law is a question likely to be determined by subjective considerations. The famous disputation with the Sadducees clearly im-
lies that the levirate law was regarded as binding in the time of our Lord, while it was perhaps even acted on (ἦσαν δὲ παρ᾽ ἡμῖν ἑπτὰ ἀδελφοί, Mt 22°").
In the later period, however, its observance was exceptional: in the language of the Mishna, the dispensation (7*9n) was preferred to the observance (Bechoroth 13a). Theoretical opposition accom-
anied, and the opinions of the Rabbis of the first ge Christian centuries were divided as to its lawfulness—Rabbi Jose declaring it unpermissible even when desired by both parties concerned. The same division of opinion ran through the Middle Ages, though the preponderance of opinion favoured the dispensation (Mishna, treatise Yeba- moth; Surenhusius, ii. ; Hamburger, Real-Encyk. art. ‘Schwagerehe’).
Of the origin and primitive purpose of the levirate marriage various explanations have been propounded. (1) The first group of theories accepts the biblical statement that the object was the procreation of a son or sons who were regarded as the children of the deceased. But on this assump- tion the further question arises, What was the object of the fiction by which the line was con- tinued? To this the principal answers which have been given are (a) that it was regarded as ἃ calamity (where personal immortality was not realized, a calamity tantamount to annihilation) that one’s line snack become extinct (Dt 25°); (4) that the custom was connected with a system of ancestor-worship, under which failure of offspring entailed deprivation of cherished rites and service.* Popular, however, as the latter theory is, it assames the influence of a form of religion, for the existence of which in Israel the evidence is of the scantiest. (2) A second theory, propounded by M‘Lennan and supported by W. R. Smith, pushes the question further back and discovers in it a survival from polyandry. ‘It could more easily be feigned,’ says the former, ‘that the children belonged to the deceased brother if already, at a prior stage, the children of the brotherhood had been accounted the children of the eldest brother’ (Prim. Mar. p. 164). And in regard to this view it must θὲ admitted that polyandry may well have left behind such a custom as its legacy. As Starcke observes (Prim. Fam. p. 150), ‘the Levir-child was