Relations within the family, more than any other institution in biblical law, were based upon the ancient tribal system. Children were considered to belong to their father's family, as shown, for instance, in the various lists of pedigree cited in the Bible (Numbers 1:18).1 Sometimes, however, descent from the same mother was emphasized, as in polygamous houses there tended to be a special loyalty between children of the same mother. Kinship through the mother, therefore, ranked perhaps as a more serious bar to marriage than the corresponding relationship through the father. Genesis 20:12, Numbers 26:59, and 2 Samuel 13:13, for example, refer to a period when marriage between relatives through the father was still possible, but no case of marriage between maternal relatives is mentioned.2
According to the patriarchal system, the wife entered the family of her husband's father, which remained together so long as the eldest common ancestor was alive. Such an extended family was the house of Jacob described in Genesis. The law of the levirate marriage mentions "the brothers dwelling together," apparently even after their father's death (Deuteronomy 25:5).
On her marriage the bride was handed over by her family to the bridegroom or his family. She became his, like any other property (Exodus 20:17), and he was called ba'al, i.e., her master (Genesis 20:3). However, while patriarchal power over his children and their dependents was accorded to the head of the family (Genesis 38:24; 42:37), at least until the centralization of justice (Deuteronomy 21:18–21), there existed no corresponding right over a wife.3
The stories of Abraham and Isaac surrendering their wives (Genesis 12:11–20; 26:6–11) should not be cited as proof of the patriarchal powers of the husband. Neither can the same idea be deduced from the story of the Gibeah mob who abused the concubine surrendered to them by her husband (Judges 19:25). These are exceptional cases and do not constitute proof of legal rights.
Hebrew marriage, while ordinarily of the patriarchal and patrilocal type, could sometimes take the form of a matrilocal arrangement. The patriarch Jacob is said to have married into his father-in-law's family and when he finally departed, he did so secretly (Genesis 29:16–32:1). The case is usually compared with the beena or ṣadiqa types of marriage, described by anthropologists.4 In these forms of family structure, the wife's residence is accepted by the husband as the matrimonial domicile, the whole family comes under the guidance of the wife's father or brothers and the offspring belong to her clan. Sometimes, as perhaps in the Middle Assyrian Laws,5 marriage seemed to be linked with the father-in-law's adoption of the groom who then took the place of a son and successor. In these cases, the deviation from the patriarchal system is easily understood.
A similar interpretation has been given to the marriage of Jacob, it being assumed that Laban had no male issue at the time of the marriage and only regretted the adoption of Jacob after the birth of his sons.6
However, this case seems to be more complicated and does not fit into the patterns described. Jacob's marriage is definitely not matriarchal, nor were his offspring considered part of their mother's family. The bride was acquired by seven years' work in the service of her father, and she complained later of having been sold (Genesis 31:14–15).7 The payment of a bride-price was not consistent with the entry of the groom into his father-in-law's family. Nor would the bride have been given away (Genesis 29:23), but rather would have admitted her husband to come to her.
Laban considered that all Jacob's family belonged to him (Genesis 31:43), and thus emphasized the matriarchal character of the union. Laban's statement is, however, to be taken with caution. It could have been unwarranted in law and might be understood in its emotional rather than legal context.
A similar relationship was that between Gideon and his Sichemite concubine (Judges 8:30–31; 9:1–3). She seems to have resided with her family, and their son felt himself to be close to his maternal uncles. This would point in the direction of matriarchal marriage. On the other hand, this son succeeded his father as leader, indicating that the patrilinear system was applied in this case. The woman, in fact, remained with her family and her husband merely visited her from time to time. She was a concubine and Gideon had probably not paid any bride-price to her father.
The marriage of Samson shows similar traits, partly due to the fact that his wife was a foreigner (Judges 14–15). Though his choice did not meet with his parents' approval, he asked them to take her. He himself, however, made the offer to the woman and arranged the wedding festivities. The description of the nuptials as "taking of the bride" seems to indicate the patriarchal system,8 though no bride-price was mentioned. Samson's next visit was accompanied by a rather small present (Judges 14:9; compare Genesis 38:17). The dissolution of such a union must also have been quite an informal affair, thus justifying the father of the bride's assumption that Samson had decided to leave her forever (Judges 15:2). This marriage has, therefore, been compared with the Arab djoz musarrib, in which the husband does not cohabit with his wife but visits her in her father's house.9
Two cases are mentioned, in which the son-in-law was perhaps adopted in lieu of a male heir. Marriage of this type was of a matrilocal form (1 Chronicles 2:34–35; Ezra 2:61).10
Beside the ordinary marriage there existed various forms of concubinage. In other societies a man took a concubine in order to circumvent the law of monogamy; among the Hebrews who recognized polygyny there must have been some other reason for the development of this special type of union. The Hebrew word pilegesh may have described, originally, the special status of a foreign wife who did not enjoy the full rights of a daughter of Israel. Only at a later date was it probably used also in the sense of a native woman.11
The pilegesh was known as her husband's "wife" both if she was a free woman or a servant, although she had not, perhaps, been acquired in either case by payment of a bride-price.12 Unfaithfulness on the part of a pilegesh, as well as on the part of a slave-wife in general, was not so serious an offense as ordinary adultery (Leviticus 19:20; Judges 19:2).13 Divorce by the husband took perhaps a form similar to that used in the case of a legal wife. The pilegesh could, however, also leave her husband without his consent (Judges 19).14 This right may have been the result of the fact that the husband had not paid a bride-price for her.
The Hebrew bondwoman, on the other hand, was acquired by the payment of her price to her father and the marital relationship was created by "appointment" (ya'ad) rather than by betrothal ('aras). While the woman was entitled to all the rights of a legal wife, there was no need for a formal divorce. Before consummation of the marriage, the owner could manumit her by receiving a redemption payment. After consummation, however, he was obliged either to let her go without payment or to fulfil his marital duties (Exodus 21:7–11). These rights were not given to a foreign bondwoman (Leviticus 25:44).15
The position of a female captive of war was remarkable. According to Deuteronomy 20:14, she could be spared and taken as a servant, while Deuteronomy 21:10–11 allowed her captor to take her to wife. While the relationship of the Hebrew bondwoman was described by a peculiar term, the marriage to the captive woman meant that the man "would be her husband and she his wife."16 No mention was made of any act of manumission; the termination of the marriage was possible only by way of divorce and not by sale.17
In Israel, as in most polygynous societies, the vast majority of people lived in monogamy, a small faction only making use of the privilege.18 The main reason for desiring more than one wife must have been childlessness, the second wife being taken to provide the husband with a successor. Moreover, among royalty and the rich in general a plurality of women and children became a sign of status and wealth.
A technique in the polygynous society of Nuzi and Assyria, by which further marriages were prohibited, seems to have been also known among the Hebrews. In Genesis 31:50 Laban places an obligation upon his son-in-law Jacob not to be cruel to his daughters by taking further wives. Though not providing for monogamy, this practice in fact limited the husband's liberty and thus protected the right of the wife. A contractual obligation of this character was probably imposed when the bride was of a higher status than the bridegroom, or where women enjoyed equality of status.19
Deuteronomy 17:17 for the first time limited by law the royal practice of several political marriages, "lest his heart turn away." Polygyny was, as yet, undesirable only for the king and not for the ordinary men of Israel. Only the king had the means to maintain several wives and their children, and there was no need for an injunction against bigamy by people of limited means. Monogamy became perhaps the rule for the high priest (Leviticus 21:13; Babylonian Talmud Yoma 13a), who thus followed the example of the Egyptian priests.20
After the exile, a new concept of marriage is mentioned, which must have had a bearing upon the status of woman. When describing the symbolic marriage between God and Israel, Ezekiel 16:8 adds: "Yea, I plighted my troth to you and entered into a covenant with you, says the Lord God, and you became mine." The marriage ceremony described in the course of this metaphor included an oath and a covenant between the spouses.
A similar expression was used in Malachi 2:13–16, when the current practice of lighthearted divorce was criticized:
You cover the Lord's altar with tears, with weeping and groaning because He no longer regards the offering or accepts it with favor at your hand. You ask: Why does He not? Because the Lord was witness to the covenant between you and the wife of your youth, to whom you have been faithless, though she is your companion and your wife by covenant. . . . So take heed to yourselves, and let none be faithless to the wife of his youth. For He hates divorce, says the Lord the God of Israel.
The concept underlying this speech is one of marriage as a covenant entered into before God and watched by him. If a husband could be said to have been faithless to his wife by putting her aside and marrying another, this is not far from the ideal of monogamy. The prophet, in fact, accuses his listeners of two wrongs: breach of the faith (in our opinion—marriage to another woman) and divorce. The Septuagint Malachi 2:13–16, on the other hand, identifies the faithlessness with divorce, so that the argument, according to that translation, is not concerned with bigamy at all.
True, the full meaning of these ideas was not immediately understood nor did they have the force of legal norms. In Jeremiah 3:6–10 and Ezekiel 23, for instance, God's relation toward Judah and Israel is described in terms of a bigamous family, with Judah and Israel depicted as sisters both married to the Lord. This would not have been appropriate in a monogamous society.21
During the tribal period, marriage was contracted within the kinship group. Originally the rule, perhaps, applied even to close relatives, requiring marriage with a man's paternal sister. Later, the same tendency took the form of a preference for one's niece or cousin (Genesis 11:29; 20:12; 24; 28).
The practice was probably linked with two legal institutions of great importance that formed the basis of Hebrew tribal society. One was the obligation imposed on every member of the group to maintain its integrity. Accordingly he was bound to "redeem" certain basic elements, if lost, so as to preserve the full strength of the kinship group. The objects of this redemption were: the blood of his slain brother, the body of a poor brother who had become enslaved, property sold outside the family, and the widow of a deceased brother who should be prevented from remarriage outside the family. A similar idea, perhaps, made a man marry his close relative so as to prevent her from leaving the family.22
Secondly, endogamy may have been the result of the original community of goods and the rules of succession based thereon. In law, woman was treated like other property belonging to her father or husband. The head of the family, therefore, when succeeding to the estate of his predecessor, had a claim to his concubines and, perhaps, to his wives.23 A similar right devolved upon the successor with regard to the ancestor's daughters, even if they were his own sisters.24 Endogamy was thus a right no less than a duty.
Even during the patriarchal era, however, marriages took place outside the kinship group (Genesis 26:34; 38:2; 41:45; Exodus 2:21; 18:2; Numbers 12:1). Matrimonial relations between freemen and slaves were also mentioned, particularly where the wife had not borne children (Genesis 16; 30:3–13).25 As mentioned already,26 a foreigner was asked to be circumcised before marrying a daughter of Israel. True, this demand is mentioned in the course of the deceit committed by the sons of Jacob (Genesis 34:14), but the statement must have been in accordance with actual custom, or it would not have been believed. The expression "bridegroom of blood" (Exodus 4:25–26),27 seems to be a reference to this rite of initiation.
As in the legal system for the Babylonians and Hittites,28 Hebrew tribal law included certain rules against incest. There were, for instance, to be no sexual relations between ascendants and descendants, nor between maternal brothers and sisters.29
In the course of the holy war against the peoples of Canaan, various rules against intermarriage with the native population were promulgated (Exodus 34:11–16; Deuteronomy 7:1–5).30 After the conquest, however, these rules were often disregarded, as mentioned in many stories of the Bible (Ruth 1:4; 2 Samuel 3:3; 11:3; 1 Kings 7:13–14; 11:1; 16:31). The result was a gradual process of assimilation.
Meanwhile, the tribal system had been replaced by the idea of a nation, which differed in both race and religion from the surrounding population. Endogamic tendencies must, therefore, have become weaker, while the rules of exogamy could be more elaborate (Leviticus 18; 20; Deuteronomy 27:20–23).
The final step was taken by Ezra and Nehemiah, who applied the ancient rules of racial endogamy under new circumstances (Ezra 9; Nehemiah 10:31; 13:23–28). During the exile and in the absence of a national framework, the ancient family structure was strengthened. This caused a new awareness of the need for endogamy. In order to make the rules more effective, offenders were compelled to divorce their foreign wives and abandon their children, although the latter, according to the patriarchal-agnatic principle, were formerly considered Jewish.
Both in the Apocrypha and in the Talmud, we again find a strong endogamic tendency (Tobit 1:9; 3:15; 4:12; 6:11; Judith 8:2) within kinship, religion, and race.31
1. Compare Johannes Pedersen, Israel: Its Life and Culture (London: Oxford University Press, 1926–40), 1–2:46–60; Louis M. Epstein, Marriage Laws in the Bible and the Talmud (Cambridge: Harvard University Press, 1942); David R. Mace, Hebrew Marriage (London: Epworth, 1953), 76ff.; Roland de Vaux, Ancient Israel: Its Life and Institutions, trans. John McHugh (London: Darton, 1961), 38ff.
2. Though we should not perhaps rely upon this argumentum e silentio.
3. Mace, Hebrew Marriage, 192. Compare pp. 58, 110.
4. Ephraim Neufeld, Ancient Hebrew Marriage Laws (London: Longmans, 1944), 58–59; Mace, Hebrew Marriage, 76ff.; de Vaux, Ancient Israel, 48ff.; Werner Plautz, "Zur Frage des Mutterrechts im Alten Testament," Zeitschrift für die alttestamentliche Wissenschaft 74 (1962): 9–30.
5. Middle Assyrian Laws A25–27, 30, 32, 33, 36, 38; compare Godfrey R. Driver and John C. Miles, trans., The Assyrian Laws (Oxford: Clarendon, 1936), 34ff.
6. Compare Cyrus H. Gordon, "The Story of Jacob and Laban in the Light of the Nuzi Tablets," Bulletin of the American Schools of Oriental Research 66 (1937): 25–27; Millar Burrows, "The Complaint of Laban's Daughters," Journal of the American Oriental Society 57 (1937): 259–76, and n. 4; but see Moshe Greenberg, "Another Look at Rachel's Theft of the Teraphim," Journal of Biblical Literature 81 (1962): 239–48.
7. Compare p. 143, below.
8. Compare pp. 138–39.
9. Adrianus van Selms, "The Best Man and Bride—From Sumeritz St. John," Journal of Near Eastern Studies 9 (1950): 65–74.
10. On adoption, see pp. 166–67.
11. Julian Morgenstern, "Additional Notes on 'Beena Marriage (matriarchat) in Ancient Israel,'" Zeitschrift für die alttestamentliche Wissenschaft 49 (1931): 22–23; Werner Plautz, "Monogamie und Polygynie im Alten Testament," Zeitschrift für die alttestamentliche Wissenschaft 75 (1963): 9–10.
12. Compare Babylonian Talmud Sanhedrin 21a; Samuel E. Loewenstamm, "Bride-Price" (in Hebrew), in Encyclopaedia Miqra'it (Jerusalem: Bialik, 1950), 4:703.
13. Ephraim Neufeld, Ancient Hebrew Marriage Laws (London: Longmans, 1944), 164–65 and p. 153.
14. Ze'ev W. Falk, "Endogamy in Israel" (in Hebrew), Tarbiz 32 (1963): 22–23; Plautz, "Monogamie und Polygynie," 9–10.
15. Neufeld, Ancient Hebrew Marriage Laws, 68ff.
16. This corresponds to the formula of legal marriage; compare pp. 136, 137–39.
17. Neufeld, Ancient Hebrew Marriage Laws, 77ff.; Falk, "Endogamy in Israel," 22–23.
18. Neufeld, Ancient Hebrew Marriage Laws, 118ff.; Mace, Hebrew Marriage, 121ff.; de Vaux, Ancient Israel, 45–46; Raphael Patai, Family, Love and the Bible (London: Macgibbon and Kee, 1960), 35ff.; Ze'ev W. Falk, Marriage and Divorce (in Hebrew) (Jerusalem: Mifʾal ha-shikhpul, 1961), 4ff.; Plautz, "Monogamie und Polygynie," 3–27. On monogamy in Babylonia, see Codex Lipit Ishtar 27–28; Codex Hammurabi 141, 144–48, 167; on Egyptian sources see Erwin Seidl, Einführung in die ägyptische Rechtsgeschichte (Glückstadt: Augustin, 1939), 55. Polygyny was legal in Assyria (Middle Assyrian Laws A41); for Nuzi and Ugarit compare Isaac Mendelsohn, "The Family in the Ancient Near East," Biblical Archaeologist 11 (1948): 24ff.
19. Compare Georg Eisser and Julius Lewy, Die altassyrischen Rechtsurkunden vom Kültepe (Leipzig: Hinrichs, 1930), no. 1; Pfeiffer and Speiser, "One Hundred New Selected Nuzi Texts," Annual of the American Schools of Oriental Research, no. 55; Gordon, Analecta Orientalia 12 (1935): 171; Falk, Marriage and Divorce, 4ff.; Reuven Yaron, Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon, 1961), 60.
20. Diodorus of Sicily 1:80; Herodotus 2:92; Seidl, Einführung, 55; Rafa Taubenschalg, The Law of Greco-Roman Egypt in the Light of Papyri (New York: Herald Square, 1944), 70; P. W. Pestman, Marriage and Matrimonial Property in Ancient Egypt: A Contribution to Establishing the Legal Position of Women (Leiden: Brill, 1961), 3.
21. Compare David R. Mace, Hebrew Marriage (London: Epworth, 1953), 137. On polygamy in post-biblical times, see S. Lowy, "The Motivation of Fasting in Talmudic Literature," Journal of Jewish Studies 9 (1958): 19–38; Falk, Marriage and Divorce, 4ff.
22. Compare Mace, Hebrew Marriage, 144ff.; de Vaux, Ancient Israel, 54–55; Patai, Family, 20–34; Falk, "Endogamy in Israel," 30.
23. William R. Smith, Kinship and Marriage in Early Arabia (Boston: Beacon, 1966), 104–11; Paul Koschaker, Revue Hittite et Asianique 3 (1933): 80; Neufeld, Ancient Hebrew Marriage Laws, 99, 239; Matitiahu Tsevath, "Marriage and Monarchical Legitmacy in Ugarit and Israel," Journal of Semitic Studies 3 (1958): 237–43; Falk, "Endogamy in Israel," 30.
24. Smith, Kinship and Marriage, 96; Paul Koschaker, Zeitschrift für Assyriologie und verwandte Gebiete 8 (1933): 31; Cyrus H. Gordon, Journal of Biblical Literature 54 (1935): 226; Cyrus H. Gordon, Revue Biblique 44 (1935): 38; Ze'ev W. Falk, "Endogamy in Israel" (in Hebrew), Tarbiz 32 (1963): 30.
25. Compare Codex Hammurabi 145–46; Godfrey R. Driver and John C. Miles, The Babylonian Laws (Oxford: Clarendon, 1952–55), 1:304; Isaac Mendelsohn, Slavery in the Ancient Near East (New York: Oxford University Press, 1949), 51; Cyrus H. Gordon, "Biblical Customs and the Nuzu Tablets," Biblical Archaeologist 3 (1940): 1; Falk, "Endogamy in Israel," 30; and pp. 116, 126–27, above.
26. Compare p. 113.
27. Compare de Vaux, Ancient Israel, 78–79; Hans Kosmala, "The Bloody Husband," Vetus Testamentum 12 (1962): 14–28.
28. Codex Hammurabi 154–58; Driver and Miles, Babylonian Laws, 1:318–22; Ephraim Neufeld, The Hittite Laws (London: Luzac, 1951), 189–90, 195.
29. Neufeld, Ancient Hebrew Marriage Laws, 191ff.; Mace, Hebrew Marriage, 150ff. Compare p. 123.
30. Neufeld, Ancient Hebrew Marriage Laws, 216ff.
31. Against Victor Aptowitzer, "Spuren des Matriarchs im jüdischen Schrifttum," Hebrew Union College Annual 5 (1928): 289ff.; Klein, Monatsschrift für die Geschichte und Wissenschaft des Judentums 80 (1936): 196–97, ascribing these tendencies to preexilic times. Compare Adolph Büchler, Studies in Jewish History: The Adolph Büchler Memorial Volume, ed. Israel Brodie and Joseph Rabbinowitz (London: Oxford University Press, 1956), 64–98; Falk, "Endogamy in Israel," 21, 28.