8. Law of the Levirate (Remastered)

Law of the Levirate

R.J. Rushdoony

Our Scripture is Deuteronomy 25:5-10, and our subject, ‘The Law of the Levirate.’ Deuteronomy 25:5-10

“If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband’s brother shall go in unto her, and take her to him to wife, and perform the duty of an husband’s brother unto her. And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Israel. And if the man like not to take his brother’s wife, then let his brother’s wife go up to the gate unto the elders, and say, My husband’s brother refuseth to raise up unto his brother a name in Israel, he will not perform the duty of my husband’s brother. Then the elders of his city shall call him, and speak unto him: and if he stand to it, and say, I like not to take her; Then shall his brother’s wife come unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face, and shall answer and say, So shall it be done unto that man that will not build up his brother’s house. And his name shall be called in Israel, The house of him that hath his shoe loosed.”

This law of the Levirate certainly will not win any popularity contests in our day and age as a law that people are interested in. Nonetheless, it is an important aspect of Biblical Law, however much neglected today, and it has a long and continuing history in Western law. Earlier, when we dealt with the Biblical Law of marriage, we saw that monogamy, one man and one woman, is the Biblical standard, that more than one wife represented a tolerable, but lower way of life, that the Biblical standard is the family. The bigamous or polygamous family represents a lower standard, but it is not a sin.

The Biblical Law is totally intolerant of adultery or anything that detracts from the family, and in the Old Testament the penalty for adultery was death. The family, even in the lower form, however, has status.

It is interesting to note that one scholar, David R. Mace whose perspective is not in terms of a Christian standard but sociology, has written that the true cause of Hebrew polygamy, was, and there can be no doubt that it was the desire for an heir,ⁱ which points almost directly to something other than what we associate with polygamy. The desire was for more than a child, in that the family and its perpetuation was basic. In terms of Biblical Law the Biblical concept was that the family, the godly family, had to be perpetuated, and the ungodly family cut off. The bastard was cut off from church and state insofar as any legal status was concerned, according to Deuteronomy 23:2, to the tenth generation. He might be a godly man, he might be highly respected, but he had no status as a citizen until the tenth generation of his family. 

This was carried over into Western law and into Canon law, and the church barred bastards from church orders a special papal dispensation. Mace says as he surveys the fact of Hebrew marriage in the Scriptures:

“…we are bound to envisage the community in general almost entirely monogamous.” ⁱⁱ

The family was the basic social and religious unit, it was the key institution of society in terms of Biblical Law. 

We saw last week what the Biblical Laws of incest were, and we saw also that it applied not only to actual genetic relationship, but consanguinity plus affinity; that is, relationship by marriage. So that, any marriage with someone who was an in-law by marriage was also forbidden. Such unions were classified as incest although the modern geneticist will not classify them as incest. However, there is some evidence accumulating that sexual union does alter persons physically, and that they do have some kind of genetic relationship as a result of their union.

St. Paul speaks emphatically of this in 1 Corinthians 6:16. So that even casual union with prostitutes makes them, he declares, one flesh. This point is an interesting one, in that there is some recognition of this fact that sexual union makes people one flesh and does communicate something in almost any culture. And of course this has been noted repeatedly that, very often, husband and wife as the years progress, begin to look more and more alike, almost like brother and sister. And there are many curious and superstitious adaptations of this recognition that there is some kind of physical communication of property.

For example, in Tantra Yoga and in the beliefs of the Troubadours and the Cathars and other Medieval and modern groups, a great deal was premised medically on this belief, and it became very common as a medical cure right up to the modern time as applied in Europe as a part of this superstition that there could be rejuvenation by contact with the young. Mahatma Gandhi, incidentally, believed this, and used to sleep between two virgins every night. Pablo Picasso is very much of this opinion, and he even steals the clothing of his boy and wears it in the hope of robbing his child of youth. These are superstitious applications of this belief, but nonetheless, there is something to it as yet unexplored by science, and Scripture does assert that there is some communication of properties as a result of sexual union.

Therefore, there can be no marriage between in-laws because they are now, technically, according to Scripture, one flesh. There is only one exception to this law, and that is the law of the Levirate; Deuteronomy 25:5-10, which we read earlier. This law specified that if a brother died, then his brother had the obligation to, if the brother died without an heir, to take the widow and raise up a child, to beget a child on the widow, and that child would become the heir of the dead brother. If there were no brother, the next of kin, and the next of kin might be several generations removed.

This law was older than Moses. For example, we meet it in Genesis in Judah’s household in Genesis 38. We meet it also in the book of Ruth. In the book of Ruth, it is significant that there is a double-consanguinity plus affinity which establishes the heirship, because the two sons of Naomi both died. It was Ruth, the wife of one of the sons, who was married by Boaz a distant relative, and the child became the heir of Naomi and her husband, now dead, and inherited his estate.

Moreover, this law of the Levirate was common to many, many peoples of antiquity. In the Talmud, we have an entire book, the Yebamoth, which is devoted to the legal aspects of the Levirate. Josephus in writing on this in his Antiquity of the Jews remarked: 

“… for this procedure will be for the benefit of the public, because thereby families will not fail, and the estate will continue among the kindred; and this will be for the solace of wives under their affliction, that they are to be married to the next relation of their former husbands.” ⁱⁱⁱ

Thus Josephus said, the protection and propagation of the family is its basic purpose, and of course this is what the Scripture says, “that his name might not be put out of Israel.”

Now let us examine this law briefly in history. Luther and Calvin both spoke about it, and it is interesting that both Lutherans and Calvinists have very little to say about it, although both Luther and Calvin had much to say concerning it. In fact, in every church you find, if you go back a few centuries, similar statements, whether the Lutherans, the Reformed, the Catholic or the Episcopal tradition. Luther said: 

“The law that a man should take the wife left behind by his brother and raise up a seed for the deceased brother was established for a very good reason. First, as the text sets forth, households should not die out but should be multiplied; this concerns the fostering and enlarging of the commonwealth. Secondly, in this way God provides for widows and the pitiable sex, to sustain and support them; for the woman, by herself a weak and pitiable vessel, is even more so when she is a widow, since she is at the same time forsaken and despised. He enforces this charity, however, by means of an outstanding disgrace. Such a man is to be called shoeless, and people are to spit out before him: “Fie upon you!” He deserves the contempt of all. They are to spit on the ground and say, “You have a ‘Fie on you!’ coming!” because he does not cultivate or increase the commonwealth in which he sojourns and whose laws he enjoys. His bared foot is to be a sign of shame and a cause of unending denunciation. He deserves to be naked of foot, that is, without household and dependents, which are denoted by foot covering; for through this one deed he makes himself naked of foot in his obligation to sustain the household of his brother. Thus the sign is similar to the deed in which he sins.” ^iv

Now, Calvin’s comments are of interest in that they are equally emphatic:

“This law has some similarity with that which permits a betrothed person to return to the wife, whom he has not yet taken; since the object of both is to preserve to every man what he possesses, so that he may not be obliged to leave it to strangers, but that he may have heirs begotten of his own body: for, when a son succeeds to the father, whom he represents, there seems to be hardly any change made. Hence, too, it is manifest how greatly pleasing to God it is that no one should be deprived of his property, since He makes a provision even for the dying, that what they could not resign to others without regret and annoyance, should be preserved to their offspring. Unless, therefore, his kinsman should obviate the dead man’s childlessness, this unhumanity is accounted a kind of theft. For, since to be childless was a curse of God, it was a consolation in this condition to hope for a borrowed offspring, that the name might not be altogether extinct.” ^v

It is significant therefore that Calvin not only agreed with Luther, but he regarded failure in this area to be theft. Again our Lord refers to this law in Matthew 22:23-33. This law, which is never talked about today, has a far more extensive history than most people realize and has been practiced in many countries either openly, or in recent generations, not altogether openly. It is still openly the law of the country in Ethiopia where the Levirate is invoked not only when a member of a family dies childless, but if in time of war or by accident he becomes emasculated. The practice of the Levirate has been present in New York City right up until the present among the very wealthy Jewish families there, and there is more than a little evidence that it is quietly practiced in Europe.

Now how shall we understand this law which sounds so very strange and even forbidding and repulsive to most modern minds? To understand this law we have to see the Biblical doctrine of marriage briefly and afresh to set the Levirate in perspective. 

To understand, first of all, marriage in terms of Biblical Law, we must see that it is basic to the kingdom of God, to God’s creative purpose for man and the earth. God created man and declared that all things on earth were to be brought under dominion by him, that it was his calling to subdue the earth and exercise dominion over it. This, then, is man’s calling, and basic to the function of the family is that it is the central institution; not the state or the church, or the school, but the family is the basic institution towards this purpose. 

The old Jewish marriage service, which dates back at least to the first century B.C. has in it seven blessings. And these seven blessings spoke of the purpose of marriage, precisely in terms of this calling to fulfill God's purpose of creation to exercise dominion and to subdue the earth. And the fourth and seventh blessings in the marriage service of Israel, which now has been used unchanged at least twenty-one centuries, reads as follows: 

“Blessed art thou, O Lord our God, King of the Universe, who hast made man in thine image, after thy likeness, and has prepared unto him, out of his very self, a perpetual fabric. Blessed art thou, O Lord, Creator of man.

Blessed art thou, O Lord our God, King of the Universe, who hast created joy and gladness, bridegroom and bride, mirth and exultation, pleasure and delight, love, brotherhood, peace and fellowship. Soon may there be heard in the cities of Judah, and in the streets of Jerusalem, the voice of joy and gladness, the voice of the bridegroom and the voice of the bride, the jubilant voice of the bridegrooms from their canopies, and of youths from their feasts of song. Blessed art thou, O Lord, who makest the bridegroom to rejoice with the bride.” ^vi

Marriage was thus basic to God's Kingdom both before and after the fall. 

Second, because the family is basic to God's Kingdom and is God’s basic institution; property is closely linked to the family, so that the family is the custodian in society of property, the family rather than the individual.

In the Hebrew marriage service, a part of which I just read to you, the vows are of interest. The vows were not only repeated, they were recorded in a marriage contract, in the marriage license with the specifics of the dowry and the settlement. And this is what the groom said: 

“Be thou my wife according to the Law of Moses and of Israel. I will work for thee; I will honour thee; I will support and maintain thee, in accordance with the custom of Jewish husbands who work for their wives, and honour, support and maintain them in truth.”

Then, after specifying the exact amount of the dowry, and declaring that in case of any trouble, she had prior claim on his estate, the bridegroom then vowed: 

“All my property, even to the mantle on my shoulders, shall be mortgaged for the security of this contract and that sum.” ^vii

Now, this was not only the vow in the marriage service of Israel, but it was written, and until this document was written and signed with the amount put up for the dowry, the marriage could not be consummated. Moreover, if at any time during the marriage, either by accident or fire, or loss, or theft, that marriage contract were lost, immediately there could be no sexual relationship between husband and wife until the contract were rewritten and resigned. Only with that contract could there be any kind of marital relationship. 

Now this is fully in accord with Biblical Law. Man is a sinner, he should be ready to be under law. And the sad fact is that it is especially necessary with those who are near and dear to us, because we tend sometimes to take most advantage of those who trust us most, it is a very human failing. Marriage is already protected by a contract which is required by law. In other words, the law says before a marriage is valid you have to go before civil and, or religious authorities and have a written contract. In other words, love is not enough. And any girl who says to a prospective husband: “Love is not enough, I want a marriage contract,” is being thoroughly Biblical, thoroughly moral.

The difference is that in Scripture the dowry and the marriage contract specifying the sums were required. In other words, the young man had to have earned a certain amount to prove that he was a man.

The modern bankruptcy law, incidentally, reflects this old Biblical and Hebraic tradition, in that, in bankruptcy, the home cannot be taken. And this is from the old Jewish and Biblical tradition; a wife’s dowry could not be seized by creditors, she is the husband’s first creditor, and has prior claim on that which is her’s.

Then, third, we saw some months ago that according to the law, Deuteronomy 21:18-21, incorrigible juvenile delinquents and all habitual criminals have to be executed. They must be blotted out of the commonwealth. And of course we still have remnants of this law in some States, although the Supreme Court now is considering such law, and almost certainly will rule unconstitutional the execution of habitual criminals. It is very seldom practiced except in a few southern States.

However, this was basic to Biblical Law. The purpose of Biblical Law was to eliminate the ungodly, the criminal, the hoodlum. The ungodly families are denied by the law a future in the nation, and the godly families are given a stronger position.

Next, as we have already pointed out, the bastards are not recognized as legitimate. Moreover, in any marriage classified as incest, marriage by affinity, the offspring of the banned marriage were not allowed as heirs as we saw last week, so that the children could be born but they had no status as heirs, the family was eliminated.

One law after another, thus, eliminated any sinful, ungodly person either from a standing as a citizen or executed them. It is significant also that in terms of the Biblical principle, that the law at no time can reward sin. Marriage between a couple that had been guilty of adultery was forbidden. If they contracted it and the fact became known, the marriage was still void and was dissolved; the law cannot reward sin.

Now this enables us to set the Levirate in its context. The purpose of Biblical Law is to uproot the godless person and the godless family and to perpetuate the godly family. The godly family is the custodian of property, it transmits it to godly persons who alone can be heirs. So that the ungodly child or the irresponsible child, even though he may be to a degree godly, is passed over because property is transmitted from godly family to godly family to strengthen the entire society. As a result, where there is a godly man, the law of the Levirate operated to perpetuate that household, and that property so that it would be passed on to someone worthy.

Now Josephus, as we saw, cited three reasons for the law. First, the continuation of the godly family, second, the preservation of property; and third, the welfare of widows. All three were clearly in view in the law of the Levirate. The Levirate is still a better answer than most modern ones, and as I have indicated, it is still practiced in many parts of the world, including Europe, although not as openly as a few generations ago, and its practice may still exist in this country still in Jewish communities. We do know that within a very short time ago this was practiced among some of the wealthiest and most powerful American Jewish families such as the Seligmans, among the most important financiers in this country. When the family is again restored to its Biblical place and Biblical Law again prevails, then the Levirate again will probably quietly take its place in that framework of law.

Finally, a word concerning adoption, which is related to this. Adoption as a word appears in Scripture in the New Testament in a theological context; that is, St. Paul speaks of our adoption in Christ as ‘sons of God.’ The word reflected a family fact. But adoption in the Bible differed radically from the modern practice of adoption. There was no legal adoption in Biblical times until the child reached maturity and proved his character. So that, the legal adoption came only with the mature, seasoned person who had proven his faith and character. 

We have a reference, for example, in Genesis to such an adoption, when Abraham believing he would have no heir, adopted Eliezer of Damascus, Genesis 15:2-3, to be his heir. In other words, a tried and true servant, a man of mature faith and character. Abraham chose out of his household, out of his slaves and servants, to be his heir prior to the birth of Isaac.

Thus, faith and character are basic to heirship, and maturity was required to provide evidence of these facts beforeadoption became a legal reality.

Thus, the law of the Levirate upholds to us not only an important aspect of Biblical Law, but the importance of the family in Biblical society and of property in its relationship to the family.

Let us pray.

* * *

Almighty God, our Heavenly Father, we give thanks unto thee that thy Word is truth. And we pray, our Father, that by thy grace we may again have a society established on thy Word, where again thy Word prevails, and thy Law-Word governs men, where again the family is the basic institution of society and the pretensions of church and state are confounded, and theft no longer practiced in high places and low. Give us grace, our Father, to live by thy Word, and make us ever valiant in the defense of thy law-order. Grant, our Father, that speedily the day may come when we may again have godly society where every man dwells in thy peace and in thy prosperity. In Jesus' name. Amen.

* * *

Are there any questions now, first of all with respect to our lesson? Yes.

[Audience Member] How do you spell that? ^viii

[Rushdoony] Levirate, LEVIRATE, and ‘Levir’ means brother. So the law of marriage relating to the death of a brother, or a near kinsman.

Yes?

[Audience Member] It appears unjust on the face of it that a bastard child should be punished for a sin not his own. ^ix

[Rushdoony] Well, first of all, sin cannot be rewarded, it has to be punished. Now, the bastard might be a godly man as I indicated, but he still bears the penalty, and the father ,no matter how much he may like him, cannot make him a legitimate citizen. As a result, while he may have a good standing in the community and be well liked, citizenship is preserved only to the legitimate child. Only after a long period of time, ten generations is quite a period of time, if the family has been during that time been demonstrably good can it have any standing.

Now, you might say this is hard on the individual, although he still has the right to earn a living and live as well as he can. But, the basic purpose of law is not in terms of the individual or in terms of society, but in term of God's law-order. And God's law-order says that there must be protection for that which is the kingdom of God, there must be penalties even though this is hard to take.

Yes?

[Audience Member] Was Ishmael a case of illegitimacy? ^x

[Rushdoony] In the case of Ishmael he was not illegitimate. And in that case it was failure on Ishmael’s part, he was clearly ungodly, and he had to be cast out for that reason, disinherited. Now subsequently there is evidence of course that Ishmael became a believer. When he was thrown out and in the desert and in difficult circumstances we are told that he prayed unto the Lord, and God answer his prayer. So being tossed out was what led to the saving of Ishmael.

[Audience Member] Was he not born out of wedlock? ^xi

[Rushdoony] No, he was not. Because Hagar was taken under a law of the day which provided that a secondary wife or concubine could be taken to provide an heir if the wife were childless.

Yes?

[Audience Member] Is the law of primogeniture Biblical, Dr. Rushdoony? ^xii

[Rushdoony] The law of primogeniture is of European origin, not Biblical because in the Bible, the inheritance was not to the oldest necessarily, but to the godly son or the most responsible. And in the cases that I can name at the moment in the Bible, in almost every case the eldest son is passed over because he has proved himself not to be worthy. And of course this is the reason for the jealousy of Joseph. Reuben was the oldest, he was passed over because of his immorality, Simeon and Levi for their cruelty, and Judah was next in line but he was irresponsible, and so Joseph was made the heir.

Now, the difference there, assuming there were three or four sons, and one of them, whether he was first second or third is immaterial, was chosen as the heir, he would get a double portion; the estate would be divided four ways, and the one who was made the central heir would get two portions, and the other sons each one portion.

And it could be on such occasions that it was the girl who was the heir. She could be the heiress, yes. She could take the name, and then her husband would take the father-in-law’s name. Now, you find this very commonly in England and Scotland even to this day. In such cases you have the hyphenated name. Miss Smyth-Patterson, or Jones-Wilson. There will be a hyphenated name, he adds his father-in-law’s name to his own with a hyphen.

Yes?

[Audience Member] What would happen if you followed such a law today openly? ^xiii

[Rushdoony] Today you would get in trouble with the law. That is why, where it does exist, especially in European countries in the European tradition, or such people as they come over to this country; it is clearly illegal in terms of modern law today. You see, what our law has done is first of all to attack the centrality of the family, and to attack property. Property today really belongs to the state, you have it by sufferance and the state tells you how much of what you earn you can keep. The income you have as take-home pay is an exemption. In other words, the state exempts it to you. It claims everything, the sixteenth amendment doesn’t have a single restricting clause. So your income and your property, the inheritance law specifies how much you can leave, and it only takes an emendation of the law for the state to claim all your property, it has already in effect claimed it. It has the jurisdiction to say how much it will leave to you or your heirs of your property and income.

Now, this is why the whole framework of Biblical Law seems so alien to us, because today both family, marriage, property, are all the jurisdiction of the state.

It used to be in this country, the old Biblical Laws were still valid here until not too long ago, and in some states until very recently, but they are a dead letter now where they have not been abolished. But in terms of Biblical Law, a man could not marry his sister in law unless it were a Levirate situation.

Yes?

[Audience Member] Could a woman be made the heir? ^xiv

[Rushdoony] Right, if they had daughters, one of the daughters can be made the heir together with her husband.

Our time is just about over, a couple of announcements briefly: There are some announcements on the lectern in the back for the Hans Sennholz seminar on the dollar crisis, this Saturday at the Knott’s Berry Farm all day long. And I do urge your attendance to this seminar because I believe that Dr Sennholz is a very able economist. Unlike many others he is not merely academic; he not only teaches economics but is also a practical businessman that makes money. I think that proves that he is an economist that knows what is going on. There are some economists who can teach economists very ably, but when it comes to applying it are very sorry characters. I could tell a couple of stories about that, including one I heard just yesterday, but it is in confidence so I can’t, unfortunately. 

The second conference, we are having a Chalcedon conference conducted by Gary North and myself for college age youth. 

That is all, thank you.

i. David R. Mace, Hebrew Marriage, A Sociological Study (New York: Philosophical Library, 1953), p. 123.

ii. David R. Mace, Hebrew Marriage, A Sociological Study (New York: Philosophical Library, 1953), p. 129.

iii. Josephus, Antiquities of the Jews, Bk. IV, Chap. VIII, 23.

iv. Martin Luther, Lectures on Deuteronomy, p. 248 f.

v. John Calvin and Charles William Bingham, Commentaries on the Four Last Books of Moses Arranged in the Form of a Harmony, vol. 3 (Bellingham, WA: Logos Bible Software, 2010), 177–178.

vi. J. H. Hertz, “Foreword,” Yebamoth, The Babylonian Talmud, Seder Nashim (London: Soncino Press, 1936), I, xvi–xvii.

vii. J. H. Hertz, “Foreword,” Yebamoth, The Babylonian Talmud, Seder Nashim (London: Soncino Press, 1936), I, p. xvi

viii.  Question added/modified for clarity and brevity.

ix.  Question added/modified for clarity and brevity.

x.  Question added/modified for clarity and brevity.

xi.  Question added/modified for clarity and brevity.

xii.  Question added/modified for clarity and brevity.

xiii.  Question added/modified for clarity and brevity.

xiv.  Question added/modified for clarity and brevity.