Deuteronomy 25:5
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.
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Deuteronomy 25:5-10. LEVIRATE MARRIAGES.

(5) If brethren dwell together.—This law is made the subject of a whole treatise in the Talmud, called Yebâmôth. The object of the law was held to be attained if the family of the dead man was perpetuated, and did not become extinct. And therefore the marriage specified was not necessarily between the brother and the brother’s wife, but might be between other representatives of the two persons in question. (See Ruth 4)

The law is older than Moses. We first hear of it in the household of Judah the son of Jacob (Genesis 38:8). The violation of the law then was punished with death, not with disgrace only.

But that which makes the law most memorable, is the teaching elicited from the lips of our Saviour by the question which the Sadducees raised upon it (see marginal reference). It is worth while to observe that the law itself demands that in some sense there should be a resurrection. Boaz puts it thus (Ruth 4:5), “to raise up the name of the dead upon his inheritance.” Why should the name of the dead be kept up, if the dead has passed out of existence? We may well believe that this law was partly intended (like baptism for the dead, or like giving children the names of their departed progenitors) for the express purpose of keeping alive the hope of resurrection in the minds of the chosen people.

(11,12) When men strive together. . . .—Another precept of humanity. In Exodus 21:22, “If men strive and hurt a woman with child,” punishment or compensation must follow. The law in this place is the counterpart of that. Men must be protected as well as women.

Putteth forth her hand and taketh him.—“Him,” i.e., him that smiteth her husband. The precept is to enforce modesty as well as to protect humanity.

Deuteronomy 25:5-6. If brethren dwell together — In the same town, or, at least, country. For if the next brother had removed his habitation into remote parts, or were carried thither into captivity, then the wife of the dead had her liberty to marry the next kinsman that lived in the same place with her. One — Any of them, for the words are general, and the reason of the law was to keep up the distinction of tribes and families, that so the Messiah might be discovered by the family from which he was appointed to proceed; and also of inheritances, which were divided among all the brethren, the firstborn having only a double portion. A stranger — To one of another family. That his name be not put out — That a family be not lost. So this was a provision that the number of their families might not be diminished.

25:5-12 The custom here regulated seems to have been in the Jewish law in order to keep inheritances distinct; now it is unlawful.The law of levirate marriage. The law on this subject is not unique to the Jews, but is found (see Genesis 38:8) in all essential respects the same among various Oriental nations, ancient and modern. The rules in these verses, like those upon divorce, do but incorporate existing immemorial usages, and introduce various wise and politic limitations and mitigations of them. The root of the obligation here imposed upon the brother of the deceased husband lies in the primitive idea of childlessness being a great calamity (compare Genesis 16:4; and note), and extinction of name and family one of the greatest that could happen (compare Deuteronomy 9:14; Psalm 109:12-15). To avert this the ordinary rules as to intermarriage are in the case in question (compare Leviticus 18:16) set aside. The obligation was onerous (compare Ruth 4:6), and might be repugnant; and it is accordingly considerably reduced and restricted by Moses. The duty is recognized as one of affection for the memory of the deceased; it is not one which could be enforced at law. That it continued down to the Christian era is apparent from the question on this point put to Jesus by the Sadducees (see the marginal references).

Deuteronomy 25:5

No child - literally, "no son." The existence of a daughter would clearly suffice. The daughter would inherit the name and property of the father; compare Numbers 27:1-11.

5-10. the wife of the dead shall not marry without unto a stranger: her husband's brother … shall take her to him to wife—This usage existed before the age of Moses (Ge 38:8). But the Mosaic law rendered the custom obligatory (Mt 22:25) on younger brothers, or the nearest kinsman, to marry the widow (Ru 4:4), by associating the natural desire of perpetuating a brother's name with the preservation of property in the Hebrew families and tribes. If the younger brother declined to comply with the law, the widow brought her claim before the authorities of the place at a public assembly (the gate of the city); and he having declared his refusal, she was ordered to loose the thong of his shoe—a sign of degradation—following up that act by spitting on the ground—the strongest expression of ignominy and contempt among Eastern people. The shoe was kept by the magistrate as an evidence of the transaction, and the parties separated. Brethren; strictly so called, as is evident from Deu 25:7 Genesis 38:8 Ruth 1:13 Matthew 22:24,25. Dwell together; either,

1. Strictly, in the same house or family; which is not probable, because the married brother may be presumed to have left his father’s house, and set up a family of his own. Or,

2. More largely, in the same town or city, or, at least, country. This is added for a relief of their consciences, that if the next brother had removed his habitation into remote parts, or were carried thither into captivity, which God foresaw would be their case, then the wife of the dead had her liberty to marry to the next kinsman that lived in the same place with her. One of them; either,

1. The first and eldest of them, as it was practised, Genesis 38:6, &c., and expounded, Matthew 22:25; one being oft put for the first, as Genesis 1:5 2:11 Haggai 1:1 Mark 16:2. And the chief care was about the first-born, who were invested with singular privileges, and were types of Christ. Or,

2. Any of them, for the words are general, and so the practice may seem to have been, Rth 3; and the reason of the law may seem to be in a great measure the same, which was to keep up the distinction, as of tribes and families, that so the Messias might be discovered by the family from which he was appointed to proceed, so also of inheritances, which were divided among all the brethren, the first-born having only a double portion.

Have no child, Heb. no son. But son is oft put for any child, male or female, both in Scripture and other authors; and therefore the Hebrew no son is rendered no child here, as it is in effect, Matthew 22:24 Mark 12:19 Luke 20:28. And indeed this caution was not necessary when there was a daughter, whose child might be adopted into the name and family of its grandfather.

Unto a stranger, i.e. to one of another family, as that word is oft used.

Her husband’s brother shall go in unto her, except he was married himself, as may appear by other scriptures, and by the reason of the thing, and, as some add, from the phrase of dwelling together, to wit, in their father’s family.

If brethren dwell together,.... Not only in the same country, province, town, or city, but in the same house; such who had been from their youth brought up together in their father's house, and now one of them being married, as the case put supposes, they that were unmarried might live with him, and especially if the father was dead; and so may except such as were abroad, and in foreign countries, or at such a distance that this law coals not well be observed by them; though the Targum of Jonathan, and so Jarchi, interpret it of their being united in an inheritance, all by virtue of relation having a claim to their father's inheritance; so that it mattered not where they dwelt, it is the relation that is regarded, and their right of inheritance; and the above Targum describes them as brethren on the father's side, and so Jarchi says excepts his brother on the mother's side; for brethren by the mother's side, in case of inheritance, and the marrying of a brother's wife, were not reckoned brethren, as Maimonides (h) observes; who adds, that there is no brotherhood but on the father's side. Some think that when there were no brethren in a strict and proper sense, the near kinsmen, sometimes called brethren, were to do the office here enjoined, and which they conclude from the case of Boaz and Ruth; but Aben Ezra contradicts this, and says that instance is no proof of it, it respecting another affair, not marriage, but redemption; and says that brethren, absolutely and strictly speaking are here meant; which is agreeably to their tradition (i):

and one of them die, and have no child: son, or daughter, son's son, or daughter's son, or daughter's daughter, as Jarchi notes; if there were either of these, children or grandchildren, of either sex, there was no obligation to marry a brother's wife; so, in the case put to Christ, there was no issue, the person was childless, Matthew 22:24,

the wife of the dead shall not marry without unto a stranger; by whom is meant not a Gentile, or a proselyte of the gate, or of righteousness, but any Israelite whatever, that was not of her husband's family; she might not marry out of the family; that is, she was refused by all, the design of the law being to secure inheritances, and continue them in families to which they belonged:

her husband's brother shall go in unto her, and take her to him to wife; that is, supposing him to be unmarried, and this is indeed supposed in the first clause of the text, by dwelling with his brother; for had he been married, he would have dwelt with his wife and family apart; besides, if this law obliged a married man to marry his brother's wife, polygamy would be required and established by a law of God, which was never otherwise than permitted. This is to be understood of the eldest brother, as Jarchi, who is in an unmarried state; so it is said in the Misnah (k),"the command is upon the eldest to marry his brother's wife; if he will not, they go to all the brethren; if they will not, they return to the eldest; and say to him, upon thee is the commandment, either allow the shoe to be plucked off, or marry;''and such a course we find was taken among the Jews in our Lord's time, Matthew 22:25,

and perform the duty of an husband's brother to her; cohabit together as man and wife, in order to raise up seed to his brother, and perform all the offices and duties of an husband to a wife; but the marriage solemnity was not to take place when it was agreed to, until three months or ninety days had passed from the death of the brother, that it might be known whether she was with child or no by her husband, and in such a case this law had no force; so runs the Jewish canon (l)"a brother's wife may not pluck off the shoe, nor be married, until three months;''that is, after her husband's death.

(h) Hilchot Yebum Vechalitzah, c, 1, sect, 7. (i) Misn. Yebamot, c. 4. sect. 5. (k) Yebamot, c. 4. sect. 5. (l) Ib. sect. 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 {d} 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.

(d) Because the Hebrew word does not signify the natural brother, and the word that signifies a brother, is taken also for a kinsman: it seems that it does not mean that the natural brother should marry his brothers wife, but some other kindred that was in the degree that might marry.

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.

Verses 5-10. - Levirate marriages. If a man who was married died without issue, his surviving brother was required to marry the widow, so as to raise up a successor to the deceased, who should be his heir. The brother who refused this duty must be publicly disgraced. The design of this institution - which was not originated by Moses, but came down from early times (Genesis 38:8), and is to be found amongst ether nations than the Jews, and that even in the present day - was to preserve a family from becoming extinct and to secure the property of a family from passing into the hands of a stranger. The notion that the usage "had its natural roots in the desire inherent in man who is born for immortality, and connected with the hitherto undeveloped belief in an eternal life, to secure a continued personal existence for himself and immortality for his name through the perpetuation of his family, and in the life of the son who took his place" (Keil), seems wholly fanciful. Verse 5. - Dwell together; i.e. not necessarily in the same house, but in the same community or place (cf. Genesis 13:6; Genesis 36:7). And have no child; literally, have no son; but this is rightly interpreted as meaning child (so the LXX.; Vulgate; Josephus, 'Antiq.,' 4:8, 23; Matthew 22:25; Madmen., 'In Jibbum.,' 2:6-9); for, if the deceased left a daughter, the perpetuation of the family and the retention of the property might be secured through her (cf. Numbers 27:4, etc.). Deuteronomy 25:5On Levirate Marriages. - Deuteronomy 25:5, Deuteronomy 25:6. If brothers lived together, and one of them died childless, the wife of the deceased was not to be married outside (i.e., away from the family) to a strange man (one not belonging to her kindred); her brother-in-law was to come to her and take her for his wife, and perform the duty of a brother-in-law to her. יבּם, denom. from יבם, a brother-in-law, husband's brother, lit., to act the brother-in-law, i.e., perform the duty of a brother-in-law, which consisted in his marrying his deceased brother's widow, and begetting a son of children with her, the first-born of whom was "to stand upon the name of his deceased brother," i.e., be placed in the family of the deceased, and be recognised as the heir of his property, that his name (the name of the man who had died childless) might not be wiped out or vanish out of Israel. The provision, "without having a son" (ben), has been correctly interpreted by the lxx, Vulg., Josephus (Ant. iv. 8, 23), and the Rabbins, as signifying childless (having no seed, Matthew 22:25); for if the deceased had simply a daughter, according to Numbers 27:4., the perpetuation of his house and name was to be ensured through her. The obligation of a brother-in-law's marriage only existed in cases where the brothers had lived together, i.e., in one and the same place, not necessarily in one house or with a common domestic establishment and home (vid., Genesis 13:6; Genesis 36:7). - This custom of a brother-in-law's (Levirate) marriage, which is met with in different nations, and as an old traditional custom among the Israelites (see at Genesis 38:8.), had its natural roots in the desire inherent in man, who is formed for immortality, and connected with the hitherto undeveloped belief in an eternal life, to secure a continued personal existence for himself and immorality for his name, through the perpetuation of his family and in the life of the son who took his place. This desire was not suppressed in Israel by divine revelation, but rather increased, inasmuch as the promises given to the patriarchs were bound up with the preservation and propagation of their seed and name. The promise given to Abraham for his seed would of necessity not only raise the begetting of children in the religious views of the Israelites into the work desired by God and well-pleasing to Him, but would also give this significance to the traditional custom of preserving the name and family by the substitution of a marriage of duty, that they would thereby secure to themselves and their family a share in the blessing of promise. Moses therefore recognised this custom as perfectly justifiable; but he sought to restrain it within such limits, that it should not present any impediment to the sanctification of marriage aimed at by the law. He took away the compulsory character, which it hitherto possessed, by prescribing in Deuteronomy 25:7., that if the surviving brother refused to marry his widowed sister-in-law, she was to bring the matter into the gate before the elders of the town (vid., Deuteronomy 21:19), i.e., before the magistrates; and if the brother-in-law still persisted in his refusal, she was to take his shoe from off his foot and spit in his face, with these words: "So let it be done to the man who does not build up his brother's house."

The taking off of the shoe was an ancient custom in Israel, adopted, according to Ruth 4:7, in cases of redemption and exchange, for the purpose of confirming commercial transactions. The usage arose from the fact, that when any one took possession of landed property he did so by treading upon the soil, and asserting his right of possession by standing upon it in his shoes. In this way the taking off of the shoe and handing it to another became a symbol of the renunciation of a man's position and property, - a symbol which was also common among the Indians and the ancient Germans (see my Archologie, ii. p. 66). But the custom was an ignominious one in such a case as this, when the shoe was publicly taken off the foot of the brother-in-law by the widow whom he refused to marry. He was thus deprived of the position which he ought to have occupied in relation to her and to his deceased brother, or to his paternal house; and the disgrace involved in this was still further heightened by the fact that his sister-in-law spat in his face. This is the meaning of the words (cf. Numbers 12:14), and not merely spit on the ground before his eyes, as Saalschtz and others as well as the Talmudists (tr. Jebam. xii. 6) render it, for the purpose of diminishing the disgrace. "Build up his brother's house," i.e., lay the foundation of a family or posterity for him (cf. Genesis 16:2). - In addition to this, the unwilling brother-in-law was to receive a name of ridicule in Israel: "House of the shoe taken off" (הנּעל חלוּץ, taken off as to his shoe; cf. Ewald, 288, b.), i.e., of the barefooted man, equivalent to "the miserable fellow;" for it was only in miserable circumstances that the Hebrews went barefoot (vid., Isaiah 20:2-3;

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