Deuteronomy 25:1-3. Against Excessive Punishment by Beating. When after a regular trial one of the two parties to a case is formally declared guilty, then, if he deserves beating, the judge shall have this administered in his presence, the strokes shall be numbered according to the gravity of the crime, and shall in no case exceed forty, lest … thy brother be dishonoured in thy sight.—Deuteronomy 25:1 is the protasis, the apodosis begins with Deuteronomy 25:2 (or possibly not till Deuteronomy 25:3; cp. the similar construction in other legal cases, Deuteronomy 22:13 ff., Deuteronomy 24:1 ff.). The text of Deuteronomy 25:2 is not certain; see the various LXX readings. Peculiar to D, and another of its many laws in which the direct address appears only at the close. The want of a subject to judge, justify and condemn in Deuteronomy 25:1 suggests that at least the first part is an extract from some earlier law on the procedure of judges. The protection against excessive beating is fourfold. It shall take place (1) only after trial and sentence, (2) in presence of the judge, (3) the strokes shall be by number, and the number in proportion to the crime and (4) shall not exceed forty. The need for insisting on a full trial is seen from Jer. 20:22; Jeremiah 37:15, cp. Acts 16:22 f., Acts 16:37; as these show, beating or scourging was apt to be given (even by the Romans) on arrest. The instrument usually mentioned in the O.T. was a rod, and the part beaten was the back (Exodus 21:20, Proverbs 10:13; Proverbs 19:20; Proverbs 26:3, Isaiah 50:6). There is no need to infer from the laying down of the criminal in this case that the bastinado is meant.

1. controversy] litigation.

and shall have declared righteous him who is in the right and declared guilty him who is guilty] The vbs. and adjs. are to be taken in a legal sense: see above on Deuteronomy 9:5.

2. then it shall be, if the guilty man be worthy to be beaten] Lit. a son of strokes.

3. Forty stripes] By later law the number was fixed at ‘forty less one’ (Mishna,’ Makkoth,’ Deuteronomy 3:10 ff., cp. 2 Corinthians 11:24, Josephus, IV. Antt. viii. 21, 23) they were now inflicted with a lash. Ḫammurabi decrees in one case ‘sixty blows of an ox-hide scourge’ (§ 202).

thy brother should seem vile unto thee] Rather, be dishonoured (Deuteronomy 27:16), publicly (lit. to thine eyes). To give him the due punishment of his crime (Deuteronomy 25:2) was not to take away his honour as a brother, i.e. Israelite; but to flog him indiscriminately was to treat him like an animal.

4. Against Muzzling the Labouring Ox. Peculiar to D; a clear

The present writer has never seen them muzzled. ‘In all W. Asia it is the universal custom to allow the oxen or other animals thus employed freely to eat of the crop’ (Van Lennep, op. cit. 81). ‘I have seen them muzzled, though this is rare’ (Conder, Tent Work, etc., 329). ‘Not muzzled as a rule’ (Baldensperger, PEFQ, 1907, 20). In 1 Corinthians 9:9 f. Paul in illustrating from this law the principle that the labourer is worthy of his hire asks, Is it for oxen that God careth? According to D, undoubtedly He does. Paul may be writing playfully; if not it is a remarkable illustration of the effect of the allegorising habit of the later Jewish exegesis.

5. brethren] of the same mother. In the Sg. passages, as we have seen, brother is fellow-Israelite.

dwell together] On the same estate (cp. Genesis 13:6; Genesis 36:7); this limitation is striking.

son] LXX seed, followed by Jos. IV. Antt. viii. 23, and in Matthew 22:24, Mark 12:19. Luke 20:28 has children. So Vulg. and most moderns, A.V. child. But the LXX and the quotations in the gospels are evidently under the influence of the later law of P which allowed inheritance by daughters. See introd. note. Son, R.V., is the proper rendering.

without unto a stranger] Outside the family. Stranger, ‘ish zar, is a man of another family. Cp. Proverbs 5:10, Hosea 5:7, Leviticus 22:12.

husband’s brother … perform the duty of an husband’s brother] Heb. yabam, and the demon. verb therefrom, yibbem, to act as a husband’s brother.

5–10. Of Levirate Marriage

If, of brothers dwelling together, one die childless, his widow shall not marry beyond the family, her husband’s brother shall marry her, and their firstborn be the dead man’s heir and continue his name in Israel (Deuteronomy 25:5 f.). But if the husband’s brother decline this duty, even if after it is pressed on him by the elders, then, in their presence, shall the widow formally dishonour him as a recusant to the family, and the dishonour shall adhere (Deuteronomy 25:7-10).—Peculiar to D’s code, but neither in the direct address nor with D’s phraseology. It has the same opening, the same care in putting the case, the same style of introducing conditions (but if and not D’s only = rak, see on Deuteronomy 10:15) and of accumulating these, as the other marriage laws, Deuteronomy 21:15-17, Deuteronomy 22:13-21, Deuteronomy 24:1-4; and, like them, it brings in the elders. Probably, therefore, as we have suggested in regard to them, it is a law taken by D from a previous code. Cp. Dillmann who also points out that the terms like not to, refuseth and go up to the gate are not current in D. There is nothing to betray whether D has modified the law. Steuern. assigns it, with those other laws, to his Pl. author.

Heb. had not only a special term for a husband’s brother, yabam, but a vb. derived from it, yibbem, to express his duty of marrying his brother’s widow; the adj. Levirate similarly comes from Lat. levir, husband’s brother.

The use of these Heb. terms by this law proves that the practice was already established in Israel.

Levirate marriage in different forms is found among many peoples. Hindoo law sanctions it in case of no male issue by the first marriage, and only till the birth of a son. But in India of course, the re-marriage of even virgin widows has always been strongly opposed (Dubois, Hindu Manners, Customs and Ceremonies, trans. by Beauchamp with notes, 2nd ed. 24, 215, 358). Sometimes it is compulsory, sometimes only permissive, sometimes limited to the younger brother, sometimes enforced only where the widow has children, in order to provide for their education. In some Arab tribes ‘when a married brother dies, at the grave his surviving brother asks her relatives to give him the widow in marriage and says, “Give me compensation through her, etc.,” and his request is granted’ (Musil, Ethn. Ber. 426). No motive nor condition is stated. The custom has been traced to different origins—to the practice of polyandry, to the need of performing rites to the spirit of the deceased (for Levirate marriage and ancestor worship are often found together), and to the principle of ‘Baal-Marriage,’ that the wife was the property of her husband and so passed with the rest of his estate to the nearest of kin. The different forms of the institution among different peoples prove that it had different origins. In Israel there is no trace of an origin in polyandry; and but little evidence of a connection with ancestor worship. On the whole subject see Maine, Early Law and Custom, chs. iii. f.; W. R. Smith, Kinship, etc., 122–135; Westermarck, Human Marriage; Benzinger and Nowack’s works on Hebrew Archaeology; and Driver’s summary notes, Deut. 280–285.

An early instance is given by J, Genesis 38, which (Deuteronomy 25:8) uses the same term for the duty of a husband’s brother, but implies that if brothers fail the duty might be assumed by another agnate and even by the husband’s father; further that not the firstborn only, but all the children of the new marriage, belonged to the dead man. In Ruth 1:11-13; Ruth 1:4, where the Heb. term for Levirate marriage is not used (though the cognate sister-in-law occurs in Deuteronomy 1:15), the right of Na‘omi’s widowed daughters-in-law to any further sons she might have had is implied; and in the want of these, regarded as a divine affliction, the right of marrying Ruth passes to the next of kin, with that of the redemption of the dead husband’s property; and again the son of the widow’s marriage with the kinsman is regarded as his son and not that of her first husband. In D’s law the duty of marrying the childless widow is limited to that brother of her dead husband who had been living with him, on the same estate; and the right of succession to the dead man is limited to the firstborn of the new marriage. In H, Leviticus 18:16, marriage with a brother’s wife is forbidden, and, Leviticus 20:21, is a defilement, cursed with childlessness. By some this has been regarded as the general rule, to which D’s provides in the interest of the family a carefully limited exception (Driver, Deut. 285, Levit. 88). It seems more likely that D’s law is (as we have seen) a modification of the old practice, entirely independent of H’s law. P, by allowing daughters to inherit (Numbers 27:1-12), abolished part of the need for Levirate marriages; but obviously D knows nothing of P’s law; for his own is limited to sons. Among the later Jews the law of D was observed but with the difference introduced by P. Not a sonless, but only a childless, marriage was now its occasion. See on Deuteronomy 25:5.

6. firstborn son] So Sam, (as in Deuteronomy 21:15) in conformity with Deuteronomy 25:5. LXX, τὸ παιδίον, still adapts the law to that of P.

succeed in the name, etc.] Lit. stand up, take position, place or rank on the name of the dead.

that his name be not blotted, etc.] See Deuteronomy 9:14, Deuteronomy 29:10. Ruth 4:5; Ruth 4:10 : to raise up the name of the dead upon his inheritance. Cp. next v.

7. shall go up to the gate] Ruth 4:1, only here, in D; so also the terms like not and refuseth (see introd. note).

elders] Deuteronomy 21:19, Deuteronomy 22:15. See on Deuteronomy 16:18.

8. This v. really continues the protasis of the cond. sentence which starts in Deuteronomy 25:7; the apodosis begins with Deuteronomy 25:9.

9. come unto] The same vb. in Deuteronomy 20:2, Deuteronomy 21:5, of the formal approach Of priests.

and strip his sandal from off his foot] ‘As one occupied land by treading on it, the shoe became the symbol of taking possession (Psalm 60:8; Psalm 108:9); when a man renounced property to another, he drew off and gave him his shoe. So among the ancient Germans the taking off of the shoe was a symbol for giving up property and heritable rights, and with the delivery of the shoe or the throwing of it away goods were conveyed to another. Similarly among Hindoos and Arabs, Burckhardt, Bed. 91’ (abridged from Knobel). Cp. the Bedawee form of divorce: ‘She was my slipper, I cast her off’ (W. R. Smith, Kinship, etc., 269). That the right was a duty, which should not be renounced, is marked by the woman’s drawing off the sandal, and spitting in the face of the recusant (Numbers 12:14, Job 30:10, Isaiah 50:6). Sandal, Heb. na‘al, Ar. na‘l.

answer] testify or solemnly assert as in Deuteronomy 5:20, etc.

the man that doth not build up, etc.] Such was his sin. But the excuse of the kinsman who refused to take Ruth and her possession was that he was unwilling to mar his own heritage (Ruth 4:6). Build up, Ruth 4:11.

10. his name shall be called in Israel] Ruth 4:14.

the family of him whose sandal was stripped off.

11, 12. Of Reckless Assault

The woman who, even to help her husband, grasps the secrets of another Israelite wrestling with him shall have her hand cut off.—Peculiar to D, and in the Sg. address with brother as in other Sg. passages; but with an opening, and an accumulation of conditions similar to those in other laws probably borrowed by D. The additions may be the superfluous a man and his brother (Deuteronomy 25:11, R.V. one with another) and thine eye shall not pity (Deuteronomy 25:12, cp. Deuteronomy 7:16). Strive, rather are wrestling (as in E, Exodus 21:22; cp. Exodus 2:13, Leviticus 24:10, 2 Samuel 14:6). Secrets, lit. pudenda, only here. The position of the law just here may be due to the catchword his brother, cp. Deuteronomy 25:9.

This very special case is probably meant to be typical of others (cp. Deuteronomy 19:5). The punishment is the only mutilation prescribed by D apart from the jus talionis (Deuteronomy 19:21). It is usually supposed to have had its origin at a time when such an act was the violation of a very sacred taboo. In Ḫammurabi, §§ 202–205, there are (if the translation can be relied on) parallel crimes. Mutilation is also decreed there for other crimes.

13. divers weights] Lit. stone and stone. Most ancient weights discovered in Palestine are of stone; for specimens see PEFQ, 1892, 114; 1894, 215 ff.

Royal standards were fixed for them as early as David’s time (2 Samuel 14:26). With this and the next v. cp. H, Leviticus 19:35 : Thou shalt do no wrong (‘awel) in judgement or with rule, stone, or measure.

13–16. Against Divers Weights and Measures

Israel shall not use these—greater (for purchases) and smaller (for sales)—for he who does so is an abomination to Jehovah (Deuteronomy 25:13 f., Deuteronomy 25:16). Interpolated (for it breaks the connection between Deuteronomy 25:13 f. and Deuteronomy 25:16) is a positive command to have a single normal set of weights and measures; that thy days may be long, etc.—Sg. address throughout. Parallel in H, Leviticus 19:35 f., also a negative command with a positive added; but a different expression of the religious motive. The laws may be quite independent; for the provocations for them were many in Israel.

Amos 8:5 describes among other commercial sins making the ephah small (for selling) and the shekel great (for weighing the purchasers’ money, etc.) and dealing falsely with false balances; Mi. Deuteronomy 6:10 declares the scant measure loathsome. To the popular piety weights and measures, like the husbandman’s methods (see on Deuteronomy 22:9-11), were of divine institution, they were Jehovah’s and his work (Proverbs 16:11).

14. divers measures] Lit. an ephah and an ephah; the ephah = 8.005 gallons.

15. A perfect and just weight] Lit. A whole stone and of the norm. Both adj. shelemah and noun ṣedeḳ are used here in their original and physical meaning. H, Leviticus 19:36 : balances, stones, ephah and hîn—of the norm.

that thy days, etc.] Deuteronomy 5:16. See on Deuteronomy 4:26. Giveth, is to give.

16. everyone that doeth these things, etc.] Exactly as in Deuteronomy 18:12, Deuteronomy 22:5. On abomination, see Deuteronomy 7:25; here the ethical (not ritual) meaning is clear.

every one that doeth injustice] Heb. ‘awel (perhaps lit. delinquency). Not elsewhere in D (but in the Song, Deuteronomy 32:4), once in Jeremiah 2:5, and in H, Leviticus 19:15; Leviticus 19:35, and Ezek. and later writings. The clause seems to be an addition.

17. Remember, etc.] The construction, even to the change from Sg. to Pl., is the same as in Deuteronomy 24:9, q.v. For other historical statements introd. by remember, see Deuteronomy 5:15, Deuteronomy 7:18, Deuteronomy 9:7, Deuteronomy 15:15, Deuteronomy 16:12.

as ye came forth] LXX, Vulg. thou earnest. But the Pl. is probably original here, and may be regarded as an echo of Deuteronomy 23:4 (5), Deuteronomy 24:9.

17–19. On ‘Amaleḳ

Israel, remembering ‘Amaleḳ’s impious treatment of their derelicts on the way from Egypt, must, when they rest from their enemies in the land, exterminate ‘Amaleḳ.—In the Sg. address (except for an accidental Pl. in Deuteronomy 25:17) and partly in D’s phrasing; but also with phrases from E (Deuteronomy 25:18 f.), and therefore, like so much else in D, based upon E. This is confirmed by another reference to the same behaviour of ‘Amaleḳ in a passage which otherwise shows affinity to E (1 Samuel 15:2). Further, Israel’s attitude to ‘Amaleḳ under Saul and David, was one of implacable hostility. There is therefore no ground for supposing that this law is a late addition to D (Steuern., Berth., the latter of whom takes it for a piece of haggadah); and it falls in with D’s other laws on foreign nations, Deuteronomy 23:3-8.

The reference cannot be to E’s description of the pitched battle in Rephidim, in which Joshua discomfited ‘Amaleḳ (Exodus 17:8-13), nor indeed to any other single contest with that tribe; but is rather to the harassment which Israel suffered throughout the wilderness. Such cruel treatment of the stragglers and derelicts of the host by the wild Arabs of the desert is extremely probable (cp. Doughty, Ar. Des. ii. 153, etc.); and the memory of it would be bitter enough to account for such an early oracle against ‘Amaleḳ as is quoted by E, Exodus 17:14, and for this law, as well as for the lasting hatred of ‘Amaleḳ by Israel (enforced as this was by ‘Amaleḳite raids on Israel after their settlement) and their desire for his extermination. See 1 Samuel 14:48; 1 Samuel 15:2 f, Deuteronomy 27:8 f., Deuteronomy 28:18 (which regards Saul’s fall as due to his not having fully executed God’s wrath on ‘Amaleḳ), Deuteronomy 30:1 f., 2 Samuel 8:12. Such feelings may well have continued after ‘Amaleḳ’s disappearance from the history of Israel; D’s restatement of them is on a level with the command to exterminate the Canaanites and other peoples of the land.

18. how he met thee by the way] better, fell on thee. Cp. 1 Samuel 15:2 : how he set himself against him (Israel) in the way.

and smote the hindmost of thee] Lit. docked the tail of thee; elsewhere only in Joshua 10:19 (E?).

all that had broken down in thy rear] The vb. is not found elsewhere.

feared not God] See E, Genesis 20:11; Genesis 42:18, Exodus 1:17, all of non-Israelites; and cp. Amos’ denunciations of foreign peoples for inhumanity (Amos 1:3 to Amos 2:3). A people so devoid of natural religion as to kill the non-combatants deserved no mercy, as the next v. declares.

19. hath given thee rest] See on Deuteronomy 12:9 f.

in the land which, etc.] Deuteronomy 4:21.

thou shalt blot out the remembrance of Amalek, etc.] E, Exodus 17:14 : I will utterly blot out, etc. God’s will is now Israel’s duty.

thou shalt not forget] Deuteronomy 9:7.