The Priestly Repudiation of Yibbum

Levirate Marriage in Deuteronomy

If a man dies childless, Deut 25:5 directs the surviving brother to marry the childless widow:

^{דברים כה:ה} כִּֽי יֵשְׁב֨וּ אַחִ֜ים יַחְדָּ֗ו וּמֵ֨ת אַחַ֤ד מֵהֶם֙ וּבֵ֣ן אֵֽין ל֔וֹ לֹֽא תִהְיֶ֧ה אֵֽשֶׁת הַמֵּ֛ת הַח֖וּצָה לְאִ֣ישׁ זָ֑ר יְבָמָהּ֙ יָבֹ֣א עָלֶ֔יהָ וּלְקָחָ֥הּ ל֛וֹ לְאִשָּׁ֖ה וְיִבְּמָֽהּ:

^{Deut 25:5} When brothers dwell together and one of them dies and leaves no son [or child], the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother (Heb: yevamah) shall unite with her: he shall take her as his wife and perform the levir’s duty (Heb: ve-yibmah).

The child of this union will continue the deceased brother’s line, and maintain his ancestral property as a discrete unit, so that his name not be wiped out of Israel (25:6). If the man refuses to marry his brother’s childless widow, she performs a ritual of public humiliation upon him called halitza (Deut 25:7-10), in which the woman removes the man’s shoe and spits, and the community then refers to his home as “the house of the removed shoe.”

The Absence of a Yibbum Option in the Priestly Incest Laws

Despite the great store Deuteronomy places on this practice,^[1] the Priestly Torah seems not to endorse yibbum. It legislates the following blanket prohibition:

^{ויקרא יח:טז} עֶרְוַ֥ת אֵֽשֶׁת־אָחִ֖יךָ לֹ֣א תְגַלֵּ֑ה עֶרְוַ֥ת אָחִ֖יךָ הִֽוא:

^{Lev 18:16} Do not uncover the nakedness of your brother’s wife; it is the nakedness of your brother.

Here the text forbids a brother from marrying his brother’s wife, ostensibly even after the brother has died. No exception is noted for the brother’s childless widow.

This problem so bothered the Sages, that they list it within a collection of contradictions in the Torah whose reconciliation is a feat so intangible “that the mouth is unable to utter and the ear unable to hear, מה שאי איפשר לפה לומר ולא לאוזן לשמוע”:

[ויקרא יח טז] ערות אשת אחיך לא תגלה. [דברים כה ה] יבמה יבא עליה – שניהן נאמרו בדיבור אחד.(ירושלמי נדרים ג ב)

“The nakedness of your brother’s wife you shall not uncover” (Lev 18:16) and “Her brother-in-law shall go in unto her” (Deut 25:3) – were spoken simultaneously. (Y.Nedarim 3:2.) ^[2]

The prohibition is repeated in Lev 20, but with the added reference to a punishment.

^{ויקרא כ:כא} וְאִ֗ישׁ אֲשֶׁ֥ר יִקַּ֛ח אֶת־אֵ֥שֶׁת אָחִ֖יו נִדָּ֣ה הִ֑וא עֶרְוַ֥ת אָחִ֛יו גִּלָּ֖ה עֲרִירִ֥ים יִהְיֽוּ:

^{Lev 20:21} If a man takes his brother’s wife it is impurity; he has uncovered the nakedness of his brother they shall be childless (aririm).

Lev 20:20 decrees the punishment for marriage between a man and his uncle’s wife as aririm yamutu – i.e., they might have offspring but any such offspring will predecease their sinful parents. In contradistinction, v. 21 suggests that marriage between a man and his brother’s wife will be denied progeny altogether.

This imposition of childlessness as a punishment for marriage between a man and his brother’s wife reads like a polemic against Deut’s yibbum law, whose purpose is explicitly stated to be the raising of surrogate children for brothers who had died without issue. Lev 20:21 rules out any hope of producing offspring by announcing that marriage to a brother’s wife will be sterile.^[3]

The Childless Widow Returns to Her Father’s House

Lev 22:13 also suggests rejection of yibbum:

^{ויקרא כב:יג} וּבַת כֹּהֵן֩ כִּ֨י תִהְיֶ֜ה אַלְמָנָ֣ה וּגְרוּשָׁ֗ה וְזֶרַע֘ אֵ֣ין לָהּ֒ וְשָׁבָ֞ה אֶל בֵּ֤ית אָבִ֙יהָ֙ כִּנְעוּרֶ֔יהָ מִלֶּ֥חֶם אָבִ֖יהָ תֹּאכֵ֑ל.

^{Lev 22:13} If a priest’s daughter is widowed or divorced and has no children and she returns to her father’s house as in her youth, of her father’s food shall she eat.

The verse assumes that a childless widow returns to her father’s house, ignoring the possibility for yibbum, in which case she would go to her brother-in-law’s house as his levirate wife.

Inheritance Law

Finally, P’s inheritance law, which names legatees in order of precedence, intimates a rejection of yibbum:

^{במדבר כז:ח} …אִ֣ישׁ כִּֽי יָמ֗וּת וּבֵן֙ אֵ֣ין ל֔וֹ וְהַֽעֲבַרְתֶּ֥ם אֶת נַחֲלָת֖וֹ לְבִתּֽוֹ: ^כז:ט וְאִם אֵ֥ין ל֖וֹ בַּ֑ת וּנְתַתֶּ֥ם אֶת נַחֲלָת֖וֹ לְאֶחָֽיו:

^{Num 27:8} …If a man dies leaving no son you shall transfer his property to his daughter. ^27:9 If he has no daughter you shall give his property to his brothers.

Though not explicit, Deut 25 suggests that the deceased man’s property passes to the surviving brother who performs the levirate duty.^[4] This is implied by the biblical story of Ruth (Ruth 4:5-10), in which redemption of the deceased man’s property and levirate marriage to his wife go hand in hand.

But in Numbers 27, it is the brothers, in the plural (אֶחָיו), who inherit the property. So if you stop to ask what happens to a widow when her dead husband’s brothers bag the family estate, turn to Lev 22:13 discussed above. There you will discover that childless widows become dependent on their parents’ bounty.

Why the Rejection of Yibbum

The cumulative evidence suggests that P/H did not consider yibbum an option, and likely repudiated it. Perhaps the Priestly authors did not feel that incest should have any exceptions—yibbum, which involved a woman marrying her brother-in-law, is at its core incest with an “indulgence.”^[5] I would wager, however, that another factor behind this repudiation is the Priestly School’s rejection of polygyny, since the mitzvah of yibbum poses a direct threat for monogamy.

Significantly, the Deuteronomonic law of yibbum makes no exception for a surviving brother who is already married, in which case he would marry the widow in addition to his current wife (or wives). Deuteronomy—indeed any law code prior to P—seems to have accepted the practice of polygyny as lawful. It was probably quite revolutionary when P banned it – and concomitantly had to do away with yibbum.^[6]