Magistrate Marriage

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MARRIAGE MARRIAGE

8318 860f.). On widows' garments see MOURNINGCUSTOMS.

As a relic of the ancient right to inherit the widow-aright which belonged to the son or rather t o the agnates8. Levirate-the custom oflevirate marriage (which ismarriage. not exclusively Israeli'tish) survived down

even to post-exilic times. D, which elevatesthe custom into a law, enacts th at when a man dieswithout sons (not without children, as the Jews afterwardsread it, Mt.2224) his brother must marry the widow.Th e first son of this marriage shall be reckoned theson of th e deceased .brother, so that his name be notblotted out of Israel (Dt. 2 5 5 8 ) : ) . In this form thelaw essentially changes the old custom. Th e story ofJudah and Tamar (Gen. 38, esp. D. 26) shows that incertain circumstances-namely, when there was nobrother-it became the duty of the father of the deadman to come forward and marry his daughter-in-law.What seems plain from this narrative-that it relates toa duty involved in the right of agnates to inherit-isconfirmed by the book of Ruth. Th e whole course ofthe story here rests upon the postulate that the agnatewho claims the inheritance must take oYer the widowtogether with the land of the deceased ; and in point offact the story deals with somewhat remote kinsmen.This certainly is in accordance with the older use. T he

story, however, goes on to represent the whole as a

nght of inheritance which the man can relinquish if hechoose. Over against this would he the correspondingright of the woman to refuse the marriage and to goback to her own reladons instead (as Orpah does).Ancient custom, however, so far as exhibited in Gen.38, would seem not to sanction withdrawal on anypretext whatever. Which of the two representations is

the correct one we have no means of determining : theywill harmonise in the e nd, if we are allowed to supposethat only the remoter agnates had the right of refusal.The origin of this compulsory character, which certainlydid not attach to the original right of inheritance,will appear later.

According to D, the purpose of the whole custom isthat the man's name be not blotted out of Israel. This

is certainly, in the sense which the law attaches to it,at the best but a secondary and subordinate considera-tion. For what 1)has in view is the preservation of thefamily property. Whe n the first son of a leviratemarriage is reckoned son of the deceased brother he

becomes thereby his heir, he inherits the land, not ofhis actual father but, of the deceased. Th e effect ofthis is not only that the f amily property is preventedfrom passing into the hands of outsiders, but also, inparticular, that it is preserved as such, and the familybelonging to it does not die out. An interest of thiskind-to secnre the continuance of the property notonly within the clan but also as an independent familyproperty-can, of course, have come into being onlyin connection with questions of landed property, inother words, after the settlement. Th e same effort ledon another side to this, that anyone who found himselfcompelled to sell his land always retained a right ofredemption and preemption-which right also passedover to the agnates entitled to inherit (Jer. 3 2 8 8 ) . Inthe story of Ruth this is also what we find ; the nearkinsman, the g5 Z (see GOEL),must first buy back thealienated land in virtue of his right of inheritance an dredemption (Ruth 4 3 8 ).

With P also this preservation of landed property

within the family is the one consideration present in itsrevision of the older law (se e below, 5 2). It isnoticeable that in Ruth a somewhat different matteris placed in the foreground as the object primarilyaimed at. Naomi's purpose is not to secure posterityfor her son, hut to gain a husband forher step-daughter ;not the continuance of the name of hlahlon, but thewell-being of Ruth is her real desire ( 1 1 1 831). Thefirst son of the marriage actually is in the end rega rded,

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not as the son of Ruth's first husband, hut as the son ofhis real father Boaz. Here too we doubtless have a cor-rect reminiscence. In the old law about the right ofheirs to widows of deceased men it was by no meanscontemplated that the heir should in all cases himselfmarry the widow ; it was open to him t o marry her toanother man. To the right ofinheritance, however, wasalways attached the corresponding duty of caring for thewomen so inherited. At the same time, the practicein old Israel will doubtless have been similar to thatofArabia : when the widow was not desirable, or waslooked upon only asa burden, she was simply neglected.So with Taniar, and so with Ruth (We.. Z.C. 456, andcompare what has been said already a s to the lot ofwidows). Juda h nevertheless-notwithstanding allhis neglect-holds fast by his rights ; ifTamar has goneastray with a man of anoth er clan, she has been guiltyof ' adultery' (Gen. 38218).

Th e reckoning of the son of such a marriage to thedeceased husband is nevertheless an ancient custom,not an innovation ofD. In D, however, it has under-gone a not-unimportant alteration ; in Gen. 389 all thechildren (not only the first son) are to be reckonedto the dead man. Modern scholars explain this forthe most part from ancestor-worship. Th e dead child-less man has his right to have this ordinance observed(Gen.388f .) , and it is for contempt of it that Godslays Onan. What the dead man is defrauded ofby its non-observance is the reverence and worship ofhis posterity (cp 2 S. 1818). Stade (GZ13g4) pointsout that marriages of this kind are customary preciselyamong those peoples who have ancestor-worship also-Indians, Persians, Afghans, and so forth. It was whenthe religious consideration was added that the right ofinheriting (which resulted from the very nature of baal-marri age) became also a duty. It is not necessarytherefore to resort, with Robertson Smith, to an oldform of polyandry for an explanation (see KINSHIP,

D, for whom the old religious meaning of the matterhas become obscured, is able on that account to relaxthe stringency of the demand and give release from itunder certain conditions. Th e refusal to comply withit brings, however, open shame to the unwilling brother-in-law. Th e practice here referred to, w-hich is of verygreat antiquity and not quite rightly understood by D,again clearly exhibits the ancient connection with the

right of inheriting. The contemned sister-in-law is togo up to the place of justice before the competent court(the elders of the city) and, loosing her brother -in-law'sshoe from offhis foot, is to spit in his face, saying 'Soshall it be done unto the man that will not build up hisbrother's house,' and ever after his family is to be calledthe barefoot family. This loosing of the shoe was,according to Ruth 47 , customary at every transactionin landed property. Th e seller gave his shoe to thebuyer in token of renunciation of his right in theDbject sold (see SHOES, 4). So , in the story, whenthe near kinsman divests himself of his title to theinheritance he plucks off his shoe. In D this no-longer-understood custom, which probably had survived onlyin connection with the ma tter of l evirate marriage, isconstrued into an insult, ever to b e remembered , notml y against the renouncing kinsman but also against hiswhole family.

In process of time this class of marriages underwentstill further restrictions, when daughters became capable

3f inheriting in default of sons. Henceforward they:odd he thought of only in cases where there were no:hildreu at all; for to niarry the widow when thenheritance had fallen to the daughters was not in con-sonance with the meaning of the institution. Th ehject of keeping the property within the clan wasiecured by prohibiting heiresses from marrying outsiders.Such becomes the law in P (Nu.274). and marriagewith a brother-in-law is forbidden as incestuous (Lev.

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10).

Magistrate Marriage

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