- Book Review Index
Levirate Marriage and the Family in Ancient Judaism, by Dvora E. Weisberg. HBI Series on Jewish Women. Waltham: Brandeis University Press, 2009. 246 pp. $50.00.
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 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 the bound-widow as a subversive character. This is partly because the ritual of halitza is a case of an active woman performing a ritual on a passive man, and partly because of the legal loopholes (like making a vow against intercourse with the levir) that a woman can use to force halitza. Although this latter case is certainly “subversive,” since the loophole was created (or at least pointed out) by the rabbis, it is hard to argue that they were afraid of it. Finally, she claims that the rabbis wrest control of the levirate process from the woman. This is an odd claim since, before the rabbis gave her any control, she had none, as in the Bible it is all dependent on the levir’s whim. On the other hand, Weisberg does note that the opposite trend is true as well, and the rabbis show a greater sympathy towards the widow and her desires than the Bible seems to allow on numerous occasions.
Chapter Six clarifies and reiterates Weisberg’s main thesis about rabbinic levirate, bringing the various pieces together. She also adds one more reason for the shift in perspective, this one in the area of procreation: “For the rabbis, procreation was not so much a man’s attempt to preserve his name or lineage, as it was a response to a divine commandment. . . . This designation makes procreation an individual concern rather than a family concern. Since the dead have no obligations and cannot fulfill commandments, there is no pressure on or reason for the surviving brother to procreate on his brother’s behalf” (p. 190).
Weisberg concludes by returning to the subject of family models. She argues that the rabbis’ strong belief in the power of the individual made it impossible for them to accept the extended-family model wherein the individual’s position is subsumed under that of the family. As a part of this, they also rejected the idea that an individual could replace another, as the conceptual basis of biblical levirate requires. All they could do was to keep the institution of levirate “in name,” effectively gutting it of all theoretical and moral content. Although Weisberg’s interpretation is plausible, we suspect that there is no single dominant Talmudic view in this area, and that the Talmudic rabbis are deeply split over whether yibum or halitza is preferable, a dispute that continues for centuries and which is recorded as still active in the Shulhan Arukh (Even ha-Ezer 165:1).
Although Weisberg’s main observation regarding the halakhic shift is plausible, and many of her observations seem reasonable, her thesis as a whole remains unconvincing. This is partly due to the oversimplification of family law systems which she uses. Even on its own terms, the main problem seems to be her virtual silence regarding the immense sociological and economic changes which occurred between the period of Ancient Israel and the rabbis. The biblical laws are meant to perpetuate the deceased’s name, but the rabbis are living in a period where the tribal system was long dead. Furthermore, the rabbis lived in a mostly urban culture, not a rural family-farm based culture. Hence the perpetuated line ideal was no longer central. Weisberg herself notes this on page 202, but dismisses it as, at best, a secondary concern. Nevertheless, it seems to us that a further and deeper exploration of this possibility would have given the book more explanatory power.
As a whole, Weisberg’s book is a useful contribution to the study of levirate and rabbinic conceptions of family. The book is well researched and contains many valuable insights. If the thesis is not fully convincing, it is compelling enough to warrant further research and thought.
Graduate Division of Religion
Michael J. Broyde
Professor of Law