Levirate Marriage

The law in Deuteronomy is brief and covers both outcomes. If brothers live together and one dies without a son, the widow is not to marry outside the family; the surviving brother takes her, and the first son she bears carries the dead man name so that it is not blotted out. If he will not, she brings him before the elders at the gate, and when he says in their hearing that he does not wish to take her, she removes his sandal, spits before him, and declares what is done to the man who will not build his brother house. The refusal is permitted and it is public and it is meant to be uncomfortable.

The clearest narrative in the same key is Genesis 38, where Judah gives Tamar to his second son Onan after the death of the first, and Onan avoids fathering a child who would not count as his own. The chapter treats the avoidance as the offence, which is what the passage is actually about. Ruth turns on a related but distinct institution, the redemption of a kinsman land and household, and the sandal appears there too in a transaction rather than a rebuke.

The law was still assumed to be in force in the first century, since the question the Sadducees put to Jesus, about a woman married in turn to seven brothers, works only if his hearers take the obligation for granted.

An entire tractate of the Mishnah, Yevamot, is devoted to the law, and its length is a measure of how complicated the institution becomes once other rules apply to it. The tractate works through cases in which the surviving brother is already married to a relative of the widow, in which there are several brothers, in which a brother is a minor, and in which the marriage would be forbidden on other grounds, and it is one of the hardest tractates in the Talmud.

The tradition then moved from preferring the marriage to preferring the release. The argument turned on motive: the law contemplates a man acting to raise up a name for his brother, and the rabbis increasingly doubted that a man in a later generation would be acting for that reason rather than for his own. Abba Shaul is cited early for the position that a levirate marriage entered for any other motive is close to a forbidden union. Medieval authorities divided, with Ashkenazi practice moving decisively towards chalitzah, in part because the ban on plural marriage made the case impossible where the brother was already married, and Sephardi practice retaining the marriage as the preferred option longer.

The Israeli rabbinate settled the matter for the modern state in the middle of the twentieth century by requiring the release, so a widow in that position obtains chalitzah and is then free to remarry. Obligations on a brother or kinsman to marry a widow are attested in many other societies, and those are independent institutions rather than descendants of this law.