Israelite Law: Personal Status and Family Law
ISRAELITE LAW: PERSONAL STATUS AND FAMILY LAW
Biblical laws concerning personal status may relate to individuals as members of larger segments of society (slaves, poor, aliens, women), or they may govern relations between persons in a household, as in laws governing the treatment of slaves, and those stipulating the relations between members of the family. These categories are followed in the discussion below.
One of the essential characteristics of Israelite law is that there are no legally defined social classes among free Israelites. This contrasts with the laws of Hammurabi, which assume two classes of free men, the awilum ("man," the higher class) and the mushkenum (a poorer class, perhaps only partially free, partially in royal service), with notable differences in the treatment of each, as, for example, in the prescription of penalties for assault by a member of one group against a member of the other. In Israelite society the economic differences between rich and poor never resulted in differences in their treatment before the law. Nevertheless, there are clear distinctions between free Israelites and slaves, between men and women, between adults and minors, and, to a lesser extent, between Israelites and foreigners, and between king and subjects.
Israelite law distinguishes between foreign and Israelite slaves and, to a lesser extent, between male and female slaves. Foreign slaves could be bought or, theoretically, acquired as prisoners of war. Once acquired, they were expected to be slaves permanently (Lv. 25:46). Israelites, however, could not be slaves permanently. The law allowed a free man to sell his children into slavery or to sell himself in order to escape poverty or debt (Lv. 25:39); he is required to sell himself if he cannot otherwise pay the penalty for having committed a robbery (Ex. 22:2). An Israelite would also be a slave if he or she were born to slaves (Ex. 21:4). But the male Israelite "slave" (almost certainly the meaning of ʿeved ʿivri ) was to be set free in the Sabbatical (seventh) year unless he chose to make his status permanent, which decision was formalized in a ceremony in which his ear was pierced. According to Exodus 21:7–8, female slaves were not freed according to the laws that freed male slaves; this may be because a woman was sold as an amah, a term which may imply concubinage, for she was to be set free if her master's sons denied her matrimonial rights (Ex. 21:11). In Deuteronomy 15:12–17 female slaves were treated like male slaves, possibly an indication that by this time it was written (no later than the seventh century bce) Hebrew women were not sold into concubinage. Foreign women could be taken as concubines in war; they could subsequently be divorced but not sold (Dt. 21:10–14). Deuteronomy 15:12–17 requires that freed slaves be given substantial provisions. According to Leviticus 25:40, debt-slaves were to be released in the Jubilee (fiftieth) year. Yet there is some indication in Jeremiah 34:8–16 that people in ancient Israel were not punctilious about obeying the laws regarding manumission.
Although a fully recognized institution, slavery was considered an undesirable state of existence. There was a death penalty for kidnapping free Israelites to use or sell as slaves (Ex. 22:15, Dt. 24:7). Israelites discovered to be slaves of non-Israelites were to be redeemed (Lv. 25:47–54), and fugitive slaves (Israelite or foreign) were not to be given up to their masters (Dt. 23:16–17). Israel was to ameliorate the condition by treating slaves well and treating Israelite slaves as if they were hired laborers (Lv. 25:40, 25:53). The law adjured these efforts on the slaves' behalf in the remembrance that the Israelites had been slaves in Egypt (Dt. 15:15) and that they continued to be the slaves of God, who had redeemed them (Lv. 25:55). Slaves were to be considered members of the household: They were to be circumcised (Gn. 17:23) and could thereupon eat the Passover sacrifice (Ex. 12:44); priest's slaves could eat of the holy offerings (Lv. 22:11). Slaves shared in sacrificial meals (Dt. 12:11–12, 12:18) and in feasts (Dt. 16:11, 16:14) and observed the Sabbath (Ex. 20:10, 23:12; Dt. 5:14–15). Slaves could be beaten; but if they died of a beating, their death would be avenged (Ex. 21:20), and if they were permanently injured, they were to be set free (Ex. 21:26–27). Slaves could acquire their own property and might ultimately be able to redeem themselves (Lv. 25:29).
Although there were no formal classes in Israelite society, there were distinctions between wealthy and poor. The "book of the covenant" stipulates that one should not impose usury on loans to the poor (Ex. 22:25), that cloaks taken as pledges be returned by sundown (Ex. 22:26–27; cf. Dt. 24:12–3), and that poverty not result in mistreatment before the law (Ex. 23:6). Deuteronomy further stipulates that a hired worker be paid immediately (Dt. 24:14–15) and prescribes the giving of charity to the poor even when the Sabbatical is near (Dt. 15:7–11), at which time the produce was to be left for the poor (Ex. 23:11). The seventh year was to some extent a time for the redistribution of wealth, in that debts were to be canceled (Dt. 15:1). The difference between rich and poor may have increased after the development of the monarchy, and the unequal distribution of wealth is an important theme of the prophets, who condemned the accumulation of capital by the rich.
Immigrants to Israel and the original inhabitants of the land were considered gerim (sg. ger, "resident alien"). This designation also extended to the Levites, who had no tribal territory of their own, and, in the early days, to an Israelite outside the territory of his own tribe. Gerim are often grouped with the poor, widows, and orphans, who were to be allowed to collect fallen fruit and olives and glean at harvest time (Lv. 19:10, 23:22; Dt. 24:19–21) and to share in the tithe of the third year (Dt. 14:29) and the produce of the Jubilee (Lv. 25:6). The Israelites were to treat them well, remembering that they too had been gerim, in Egypt (e.g., Ex. 22:20); the laws that apply to them, thus, are generally found within law addressed to the free Israelites. Gerim had equal status with Israelites in civil and criminal law; in religious law the one recorded difference is the statement in Deuteronomy 14:21 that a ger may eat a dead carcass; Leviticus 17:15, however, forbids this. Gerim observed the Sabbath (Ex. 20:10, Dt. 5:14) and the Day of Atonement (Lv. 16:29); they offered sacrifices (Lv. 17:8, e.g.) and participated in religious festivals (Dt. 16:11, 16:14); and they observed the laws of purity (Lv. 17:8–13) and, if circumcised, could partake of the Passover sacrifice (Ex. 12:48–49).
A person was considered a fully adult member of Israel, counted as such in the census, at age 20 (Ex. 30:14); this was also the age above which the Israelites who had come out of Egypt were condemned to die in the desert without reaching the promised land (Nm. 14:29). At least in theory, children below that age were under the jurisdiction of their father, who could contract marriages for them and even sell them into slavery to pay his debts and to whom they owed allegiance. A rebellious son could be accused by his parents and thereupon stoned (Dt. 21:18–21). There are no specific regulations relating to minors. They were, however, treated as individual persons before the law in matters of punishment, for, unlike the ancient Near Eastern codes, biblical law did not allow the punishment of children for the crimes of their parents. For example, the death of a victim who was a minor son did not entail the execution of the minor son of the offender in biblical law as it did in Babylonian law (Ex. 21:31; cf. laws of Hammurabi 229f.).
The king in Israel occupied a special intimate relationship with God: As God's appointed and anointed, his person was inviolable (2 Sm. 1:14), and cursing the king was tantamount to cursing God and was punishable by death (2 Sm. 19:21–22; 1 Kgs. 21:10, 21:13). The Israelite king was not regarded as divine, and his close relationship with God, expressed as sonship (2 Sm. 7:14), was understood to arise from adoption (cf. Ps. 2:7) rather than divine paternity. The king was not a lawgiver but his role in the legal system was twofold: to uphold the laws in his capacity as judge and to obey fully the laws of God, who is Israel's only legitimate lawgiver. A king who disobeyed God's laws might lose all of his kingdom, as did Saul (1 Sm. 13:13) and Jeroboam (1 Kgs. 14:7–11), or part of his domain, as did David. The divine promise of a dynasty to the House of David made the rulers of the southern kingdom of Judah less concerned with the possibility of losing the throne. However, the deeds or misdeeds of a king could influence the fortunes of the land, for God could bring pestilence, military defeat (as under David, 2 Sm. 24:13), or drought as a consequence or royal apostasy (as under Ahab, 1 Kgs. 17:1).
Two passages deal with royal prerogative. In one, in his effort to discourage the people from establishing a monarchy, Samuel warns them that a king will take their sons as soldiers and their daughters as domestics, that he will tithe their property, and that he will appropriate their fields to give to his servants (1 Sm. 8:11–18). The other passage, Deuteronomy 17:14–20, sets limits to the grandiosity of the monarch, declaring that the king should not acquire many horses or wives or much wealth and that he should copy a book of the Law, keep it with him, and read it so that he learns to keep the law and not act arrogantly toward his people. Despite Samuel's warning that a king would appropriate fields, the kings did not simply commandeer property. David bought a threshing floor (2 Sm. 24:24); Omri bought the hill of Samaria (1 Kgs. 16:24); and even Ahab did not feel free to simply commandeer the vineyard of Naboth (1 Kgs. 21). Kings did, however, confiscate the land of those who had committed treason: David took Mephibosheth's land to give to Ziva after Ziva reported that Mephibosheth was planning to take the throne (2 Sm. 16:1–4) and Ahab set out to take Naboth's vineyard after Naboth was falsely convicted and executed for having cursed the king (1 Kgs. 21:13–16). Nor did the kings of Israel exercise unrestrained power over their subjects' lives: Jezebel made sure that Ahab was convicted and executed by the courts, and David maneuvered Uriah so that he would be killed in battle (2 Sm. 11)—neither king killed the inconvenient subjects outright.
The laws present a picture of women as socially inferior to men. In terms of family life, a woman was expected to be subordinate first to her father and then, when married, to her husband. This subordination also found expression in economic matters. Women did not normally hold property, though they could inherit if there were no male heirs. This right of inheritance is presented in the Bible as a special divine decree to answer the needs of the daughters of Zelophehad (Nm. 27:1–11), which was soon modified to require daughters who inherited their father's property to marry within the "family of the tribe of their father" in order to keep the ancestral holdings in the paternal estate (Nm. 36:1–9). A comparison with near Eastern law shows that the laws of Lipit-Ishtar, written in Sumerian about 1900 bce, contain a proviso whereby if a man had no sons, his unmarried daughters could inherit his property.
The inferior economic position of women is also indicated by the fact that when a person took a vow to dedicate members of his family (to temple service?) or to donate their monetary worth, an adult male was valued at fifty shekels and a woman at thirty (Lv. 27:3–4). It is also clear that women did not have equal right of disposition of the family property, for the male head of the household could annul the vows of women under his authority if he did so the day that he heard them (Nm. 30:5–8). Nevertheless, there is no hint that women could be considered thieves if they took or sold family property (as is the case in the Middle Assyrian laws, according to which the wife who took something and gave it to another is labeled a thief, and the receiver, a fence); on the contrary, the "woman of valor" of Proverbs 31 is particularly praised for her commercial ability and independent enterprise.
Some of the laws of sexual purity were applicable to both men and women. After sexual intercourse, both partners had to bathe in water and were considered impure until the evening (Lv. 15:16–18). In case of genital discharges (as in gonorrhea), both men and women were isolated until seven days after the discharge stopped and were then to bring an offering of two birds (Lv. 15:1–15, 15:25–29). In addition, women were instructed to remain isolated during menstruation (Lv. 15:19–24) and childbirth (Lv. 12:1–8). The impurity of menstruation was contagious: A man would become impure by having sexual relations with a menstruating woman (for which he could also expect divine punishment). Furthermore, he would become impure by touching her, sitting on a seat on which she sat, or eating food that she had cooked. This resulted in total isolation, although it is not known whether women were isolated in their own homes or spent the week in women's hostels (to which there is no textual reference). The "impurity" of the menstruating woman was not believed to bring danger to others (as is the case in many other cultures). Nevertheless, it became a metaphor for contamination (Jer. 13.20, Lam. 1.9, Ez. 36.17) and clearly was used to the denigration of women.
Despite the image portrayed by the legal documents, the biblical narratives indicate that women did not have a particularly weak position with respect to their husbands. The Shunammite woman entertained Elijah without prior consent from her husband (2 Kgs. 4:8–17), and Abigail commandeered large amounts of her husband's supplies to bring them to David (1 Sm. 25). The legal documents may, therefore, be affirming ideals rather than prescribing reality.
Women were generally expected to fit into a domestic niche, as wife and/or mother. However, there were also nondomestic roles. The queen had a powerful position, and might, as Jezebel and Athaliah did, exercise the power of the throne (1 Kgs. 18–19; 2 Kgs. 9:30–37, 11:1–16); the position of queen-mother also seems to have had some importance, as may be inferred from the fact that Asa removed his mother Maacah from that position (1 Kgs. 15:13). "Wise women," who are mentioned in the time of David (2 Sm. 14, 20:16–22), may have been some sort of village elders. Deborah was a political and judicial leader (Jgs. 4–5); Deborah, Miriam (Nm. 12:2), Huldah (2 Kgs. 22:14–20), and Noadiah (Neh. 6:14) are recorded as prophetesses.
This picture of family law is incomplete: The law corpora were not intended to be comprehensive, and frequently they omit matters that were well known in that culture or were not of concern to the writers. The picture can be filled in to some extent with details from the few narrative accounts of family life contained in the historical books. Important information also comes from the law collections of the ancient Near East, because it is clear that there was a common jurisprudential tradition in the area.
The Bible reveals two social systems. The first, the older system, is the extended family of the patriarchal period. The male head of the family had great power over his children, both male and female, in that he could contract marriages for them. Girls would leave their father's house in order to enter the dominion of the head of the family into which they were marrying. In the event of the husband's death, the woman stayed in her new family, either as the mother of children or, if there had been no children, by being given in marriage to her deceased husband's brother through the institution of the levirate. In such a system women were completely dependent on the kindness and attentiveness of the males in their lives and could affect events only by influencing them, as through persuasion or trickery. If a man were abusive, a woman had no recourse, and the principle of male disposition of women lent itself to such abuses as Lot's offer of his daughters to the men of Sodom (Gn. 19:8), the Levite's offer of his concubine to the men of Gibeah (Jgs. 19:24), and Jephthah's sacrifice of his daughter (Jgs. 11).
The other major social pattern is the monogamous family depicted in Genesis 3:6. This was the dominant pattern during the history of the biblical state (apart from the royal family, which continued the patriarchal pattern). At marriage, the girl moved from her father's house to that of her husband, and was thereafter under her husband's (rather than her father's or father-in-law's) domination. Polygyny was possible, but certainly not the norm. The ancient Near Eastern law collections also envision polygyny, or rather bigyny (having two wives), but severely limit the circumstances under which a man could take a second wife.
The stages by which a marriage was contracted are not detailed in the biblical laws, but information is available, from both biblical narrative and the Near Eastern legal compilations, and the close agreement between these sources indicates that they reflect a biblical and Near Eastern reality. A preliminary agreement was reached between the fathers (or between the groom and the bride's parents), and then the groom or, frequently, the groom's father, paid a sum, the "bride-price," to the girl's father. There was also a dowry, though this does not seem to have been essential, and there was another custom, not universally observed, in which the father of the bride returned the bride-price to the couple at the completion of the marriage (unlike Lagan, who did not; Gn. 31:15). The bride-price was not a purchase, for the girl was not considered property, but it did guarantee the groom certain rights over the girl. At this point, once the bride-price was paid, the girl was "betrothed," which was an inchoate form of marriage. The marriage could still be canceled by either party (with appropriate financial penalties). Nevertheless, the bridegroom at that point owned the girl's sexual and reproductive capacity, and any sexual relations with a betrothed girl was considered adultery. The betrothed girl would stay in her father's house until the groom came to call for her (which could be a duration of years if she had been betrothed very young). At that point he would bring her to his house, and the marriage was complete.
The details of divorce are also not clearly defined in the Bible. The laws in Exodus do not mention divorce; Deuteronomy does not describe the procedure but does mention the requirement of a bill of divorce (Dt. 24:1) and the stipulation of the two occasions on which the husband cannot divorce his wife: when he has acquired his wife after rape (Dt. 22:28–29) or when he has falsely accused his wife of not having been a virgin as a bride (Dt. 22:13–21). These laws prevented men, to some extent, from divorcing unloved brides who would have been at a great disadvantage in the Israelite socioeconomic system. Because the details are not provided, it is not known whether divorce was always at the prerogative of the husband; the laws of Hammurabi indicate that a woman could apply to the court for divorce (with the risk that her case would be investigated; and if she were found to have been a bad wife, she would be executed). There is evidence that early Jews on Elephantine (in Egypt) and in Palestine believed that the Bible allowed female-initiated divorce. In the postbiblical period it has been taken for granted that only husbands could initiate divorce proceedings.
A woman's sexual capacities were under the control of the head of the household. Girls were expected to be virgins at marriage. If a bridegroom accused his bride of not being virginal, their bedsheets were to be examined: if there was no blood on the sheets, she would be stoned; if she was proved innocent, her husband could never divorce her (Dt. 22:13–21). If a nonbetrothed girl was seduced, the seducer had to pay the full virgin's bride-price to her father, who decided whether to give her in marriage (Ex. 22:16–17). Deuteronomy provides that the seducer must pay the bride-price, take the girl as his wife, and never divorce her (Dt. 22:28–29); it is possible that the Deuteronomic rule concerned rape, but it may also have applied to any illicit sex with a virgin. The penalty for adultery was death for the married woman and her lover (Lv. 20:10); the extramarital relations of a married man were not considered adultery. If a man suspected his wife of adultery, he had the right to accuse her, and she would then undergo a solemn oath procedure (drinking the "bitter waters"). If, innocent, she suffered no ill effects, she could return to her husband. If she were guilty, she would ultimately be punished by God, who could cause her belly to swell and her thigh to fall; that is, some disaster to her fertility could occur, possibly a prolapsed uterus (Nm. 5:11–31). Even if she did not suffer these dire consequences and, moreover, demonstrated her fertility by later bearing a child, her husband could not be penalized for making a false accusation.
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