- Levirate Marriage and the Family in Ancient Judaism
In this study of the literary sources for levirate during the Talmudic period, Dvora Weisberg attempts to accomplish two things. On the one hand, she wants to outline the rabbinic conception of levirate marriage in its many facets. On the other hand, she wants to use the institution of levirate as a prism through which one can get a glimpse at the Sages' conception of the family. Weisberg believes that the study of levirate is a useful medium for this since "it offers an opportunity to study the family at a moment of breakdown and restructuring" (p. xvii).
Chapter One is an anthropological survey of levirate practices throughout the world. Weisberg claims that understanding the various possible uses of levirate and how they function in a given society can shed light on the Israelite/ Jewish practice. Among her many interesting and enlightening observations, she offers this anthropological thesis: "When marriage is first and foremost an arrangement between two individuals, the death of one spouse releases the surviving spouse from obligations to the deceased partner. . . . In societies that [End Page 155] regard marriage as an agreement or alliance between two families, the death of a spouse may leave the surviving spouse with obligations to and/or rights in the family of the deceased" (p. 8).
Weisberg divides societies into two basic types of family structure: extended and nuclear. This distinction serves as the interpretive key when Weisberg introduces her fundamental observation in Chapter Two. In this chapter, she outlines a major shift in perspective on levirate which occurs in rabbinic literature. In the Bible, levirate is an institution which perpetuates the name of the deceased husband. However, in the literature of the rabbis, levirate seems to have fallen into disrepute, with many rabbis preferring the halitza ceremony. Weisberg argues that one of the main factors for this change is a change in the conception of family; the Bible is working with an extended-family model, whereas the rabbis advocate a nuclear-family model.
Weisberg expands on this observation in Chapter Three by offering a very detailed analysis of multiple Talmudic passages regarding family structure and inheritance law, complete with charts. She also expands on two secondary observations about the paradigm shift. Firstly, levirate is more acceptable in a polygynous society, since it would not preclude a second marriage or be precluded by the brother having already been married. This may help explain why the Babylonian rabbis express more sympathy with levirate than the Palestinian rabbis. Secondly, levirate is essentially permitted incest, and Weisberg argues that the rabbis' attitude demonstrates a certain lack of comfort with this reality.
In Chapter Four, Weisberg discusses the key halakhic shift and its consequences. In the Bible, it seems that the child of the levirate union is considered to be the child of the deceased brother. As a consequence of this, one would assume that this son inherits all of his "deceased father's" property and that the levir inherits none of it. However, according to the rabbis, the child of the levirate marriage is considered to be the son of the levir, and the levir inherits all of his brother's property. The rabbis derive this principle midrashically. They understand the term "first born" in Deuteronomy 26:6 to be referring to the deceased's oldest brother, not to the widow and levir's first son (b Yeb. 24a). With this one shift, much of the moral and conceptual force behind the biblical law falls away. As a result, halitza, which in Deuteronomy is a ritual aimed at shaming the levir for refusing to perpetuate his brother's name, becomes in the rabbis' world simply a technical procedure for severing the levirate bond, without moral or social consequence.
Chapter Five is perhaps Weisberg's weakest. In this chapter she attempts a feminist critique of the institution of levirate, specifically the rabbis' take on it. She argues that the rabbis see...