What happened to biblical law when it was transferred into the new world of late antiquity? How was it understood, and what were the reasons for this particular interpretation? Answering these questions can provide a paradigm to help explain the development of late antique Christian legal traditions and discourse in their Greco-Roman and Jewish contexts.
Accompanying the rise of Christianity in the first centuries of the Common Era, Christian legal discourse and traditions began to evolve. These embryonic legal traditions combined Roman law, Greek legal traditions, biblical law, and rabbinic halakha, interweaving them with their own ethical stances. Scholars tend to study the development of Christian legal traditions, especially matrimonial law, from one of two perspectives: either in relation to Roman law, mainly focusing on Christian sources from the second century onward,Footnote 1 or in connection to biblical and early halakhic traditions, largely concentrating on the Old and New Testaments and Qumranic sources.Footnote 2 In this article, I seek to portray a less dichotomous and more nuanced picture of the Christian approach to biblical and Jewish legal traditions, on the one hand, and Roman and Greek legal traditions, on the other. I address the different ways in which Christians adapted a biblical legal institution by using legal concepts drawn from the Greco-Roman world, yet not directly taking part in the Greco-Roman legal discourse, and compare this phenomenon to the rabbis’ understanding and alteration of this same biblical legal institution in the Tannaitic and Amoraic literature.
The case study I use in this article is levirate marriage—the obligatory marriage of a man to the widow of his deceased and childless brother. Levirate marriage is depicted in the Hebrew Bible and discussed in rabbinic halakha. Starting from the fourth century, Roman emperors and Bishops banned such marriage, together with sororate marriage (a man's marriage to the sister of his deceased wife), in a series of decrees and rulings. This ban has been explained in scholarship in three main ways: as a result of Christian influences and a response to Jewish levirate marriage;Footnote 3 as an independent prohibition unrelated to Jewish levirate marriage;Footnote 4 or as a response to other groups within the Roman Empire, rather than Jews alone.Footnote 5 Scholars addressing this issue have focused on Roman and early Christian legal literature but have not analyzed the inner-Christian understanding of biblical levirate marriage. In this article, by contrast, I seek to provide an analysis of the inner-Christian discourse on levirate marriage, dealing with not only the legal discourse and prohibitions but also the exegetical and theological discussions alluding to levirate marriage. From this expanded perspective, I endeavor to examine how levirate marriage is understood, molded, and structured in early Christian literature. This examination sheds light on the relationship between the inner-Christian discourse and the Roman and Christian legal discourse, and between the inner-Christian discourse and the rabbinic discourse. More widely, I offer a case study demonstrating how this biblical legal tradition was transplanted from its biblical origins to its new late antique setting.
Most of the sources I employed for this article are not of a legal nature: they are not part of the so-called church orders, the councils, or early canonical literature. Nor do they claim to possess any normative authority, and in most cases do not address the question of levirate marriage directly, and do not make reference to its legal dimension. Rather, they refer to it as part of a theological, exegetical, or historical discourse, offering a picture different to that found in the Christian legal sources. As such, these sources provide a fresh perspective on how Christians understood levirate marriage, rather than on how they sought to rule, in early canonical literature regarding such marriage.Footnote 6
Five main biblical contexts serve as the basis for the discussions of levirate marriage in late antique Christian literature: Jesus's genealogy and his relationship to Joseph the carpenter; the Sadducees’ claims regarding resurrection of the dead; Herod's marriage and the execution of John the Baptist; the marriage of Ruth and Boaz; and the Deuteronomic levirate law. In these cases, the Christian writers follow the biblical description of levirate marriage yet adapt it to accord with Roman and Greek legal concepts with no indication of either acquaintance with, or polemic regarding, contemporaneous rabbinic halakha. Conversely, the Palestinian and Babylonian rabbis altered the biblical description of levirate marriage, minimizing its practice by implementing various halakhic and hermeneutical constructions.
I begin with a short survey of the late antique rabbinic adaptation of biblical levirate marriage and the Roman and Christian rulings regarding this practice. Against this backdrop, I analyze the approach to levirate marriage in the Christian commentaries on these five biblical settings, in comparison to rabbinic halakha, focusing on two themes: the acceptance or rejection of levirate marriage as a whole and the differences between the biblical levirate marriage and the Christian understanding of it in the late antique texts. This analysis highlights two phenomena. First, it reveals the difference between the Christian legal discourse and Roman rulings and the exegetical and theological discourse when addressing such a legal institution as levirate marriage. This difference highlights how Christian writers addressed and remodeled their biblical heritage in a Greco-Roman world. While the exegetical and theological discourse does not relate to the Roman prohibition on levirate marriage, this discourse utilizes other Roman and Greek legal concepts, namely adoption and the epiklerate (the system whereby an heiress with no siblings was required to marry a kinsman), to reshape its biblical heritage. Second, my analysis highlights the different ways in which the rabbis and the Christians addressed their biblical heritage, in terms of both practice and conceptualization. While the rabbis positioned levirate marriage as part of matrimonial law and sought to minimize its application, the Christians regarded it as part of the child–parent relationship under inheritance law and did not reject it as they rejected other biblical laws. I therefore recontextualize the legal discourse on levirate marriage, positioning it as an example of a complex legal transplant that both accepts Greek and Roman legal concepts and differs from Roman rulings and rabbinic halakha, rather than as a case of polemic and prohibition of a biblical legal institution.
The Legal Background
By the fourth century, both Palestinian rabbis and Roman emperors in the eastern Roman Empire had rejected the practice of levirate marriage. While the Palestinian rabbis used various hermeneutical processes and halakhic structures to minimize the obligation to this halakha—without rejecting it altogether—Roman emperors and bishops alike deemed levirate marriage incestuous and outlawed it completely.
There are three references to biblical levirate marriage in the Hebrew Bible: Genesis 38, which narrates the story of Judah and Tamar; Ruth 4, which tells the story of Ruth and Boaz; and Deuteronomy 25:5–10, which addresses such marriage directly.Footnote 7 The laws portrayed in these texts are not identical. Of the different descriptions, the rabbis employed Deuteronomy 25:5–10 as a basis for discussing, and altering, levirate marriage:
When brothers dwell together, and one of them dies and leaves no son, the wife of the deceased shall not be married to a stranger, outside the family. Her levir shall unite with her: he shall take her as his wife, and perform the levir’s duty. The first son that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel. But if the man does not want to marry his brother's widow, his brother's widow shall go to the gate, to the elders, and declare: “My levir refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.” The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to marry her,” his brother's widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: “Thus shall be done to the man who will not build up his brother's house!” And he shall go in Israel by the name of “the family of the unsandaled one.”Footnote 8
According to Deuteronomy, then, when a man died childless, his brother (the יָבָם,Footnote 9 the levir) was required to marry the widow. The first child born to the living brother and his former sister-in-law (now his wife) was not considered the son of the living brother. Rather, the biological father was considered the sperm donor for his deceased brother, as though the woman were still married to the latter in a ghost marriage. The child, therefore, bore the name of his deceased biological uncle (his mother's first husband) and succeeded him as his biological son. If the surviving brother refused to marry the widow (his sister-in-law), he was publicly shamed in a ceremony that included the humiliating ceremony of ḥaliza (removal of the shoe) and being spat upon.
However, although the rabbis utilized Deuteronomy as the basis for their discussions, the description of levirate marriage used in rabbinic literature differs from that found in the Bible. The biblical levirate marriage can be seen both as part of inheritance law as it is aimed at generating an heir through a ghost marriage, and as part of matrimonial law as it coerces marriage between a widow and her levir. Significantly, the rabbis emphasized the latter interpretation and reshaped the biblical ghost marriage as a regular marriage between the surviving brother and his former sister-in-law. Indeed, the new marriage was triggered by the death of the first husband and the automatic marital obligation this created, yet, once married, the status of the couple and their children was equal to that of any other matrimony; the child born in this marriage was regarded as the child of the levir, his biological father, and did not succeed his deceased uncle.Footnote 10 Furthermore, rabbinic halakha attempted in various ways to restrict the cases necessitating levirate marriage. For example, the first Mishnah in tractate Yebamot (the tractate discussing levirate marriage) lists various scenarios in which women are exempt from levirate marriage, such as wives from certain polygamous families.Footnote 11 Furthermore, these women also exempt their co-wives from this obligation. Sifre Deuteronomy, the Tannaitic midrash discussing Deuteronomy 25:5–10, details additional conditions limiting levirate marriage—including certain relations between the brothers (for example, exemption of a brother who was not yet born when the death occurred)—and expands on the list of offspring exempt from it.Footnote 12 Moreover, even if a man was not exempt from levirate marriage, unlike biblical law—which encouraged levirate marriage, imposing the ceremonial ḥaliza to discourage such refusals—rabbinic halakha, especially Palestinian rabbinic halakha, favored ḥaliza over levirate marriage and indeed encouraged it.Footnote 13
As Palestinian rabbis were endeavoring to minimize levirate marriage, the Roman emperors banned it altogether. On April 30, 355 CE, Constantius, Constans, and Julianus ordered that, while ancient law had allowed marriage with a brother- or sister-in-law following the divorce or death of the brother or the sister, such marriage was no longer permitted, and any children born of it were considered illegitimate.Footnote 14 Just as in the case of other illegitimate children born of illegitimate marriages, they would not be considered their parents’ legal heirs.Footnote 15 This prohibition was reiterated in November 393 (or earlier),Footnote 16 and again on December 16, 415.Footnote 17 In the fifth century, Emperor Zeno repeated it twice, on September 1, 475,Footnote 18 and again at a later date.Footnote 19 These emperors linked the prohibition to similar bans on the marriage of close kin, such as marriage between a man and his wife's sister or a niece, correctly noting that it was a new law: ancient law did not prohibit marriage between a man and his brother's wife, nor his wife's sister (after death or divorce). Such prohibitions do not appear in Gaius's list, dating from the second century,Footnote 20 of incestuous marriages or in the decree issued by Diocletian on May 1, 295, listing forbidden marriages.Footnote 21
And it was not only emperors who started banning levirate and sororate marriages. In the fourth century, some Christian writers issued similar rulings. In 315 CE, the Council of Neo-Caesarea decided against levirate marriage, punishing it with excommunication.Footnote 22 Basil, in his second canonical letter of 375 CE, forbade both levirate and sororate marriages.Footnote 23 Both were likewise forbidden, independently, by Christians in the western and eastern Roman Empire. At the beginning of the fourth century, the council of Elvira ruled against sororate marriages for widowers,Footnote 24 and Basil repeated this prohibition in his third canonical letter of 375 CE;Footnote 25 both punished this behavior with excommunication. According to the Apostolic Constitutions, however, sororate marriage only prevented appointment as a cleric.Footnote 26 Yet in Basil's letter to Diodorous in 375 CE, where he refers to a case in which such marriage was allowed, he demonstrates that sororate marriage still occurred in Christian communities. Indeed, Basil explains the reasons behind its prohibition, claiming that this was the common practice.Footnote 27
In fact, not all Christian sources relating to levirate and sororate marriage prohibited it altogether. The Collatio legum mosaicarum et romanarum, a fourth-century compilation of Roman legal sources that were positioned on a par with Biblical law and possibly compiled by a Christian,Footnote 28 dedicates a section to incestuous marriage. The compiler cites Diocletian's decree alone, ignoring the later Roman prohibitions on levirate marriage, probably because this contradicts the biblical commandment.Footnote 29 Eastern sources also undermine the strict Christian prohibition on levirate marriage. The Syro-Roman Lawbook, a composition of Roman law written in Greek before the end of the fifth century and translated into Syriac during the sixth century, not only reflects Roman law but also reveals some eastern influences.Footnote 30 Similarly to the Roman legal literature, the Syro-Roman Lawbook prohibits levirate marriage, tying this to the prohibition on sororate marriage and other close-kin marriages.Footnote 31 Yet, unlike the Roman legal sources, the Syro-Roman Lawbook explains the prohibition, such as in cases where a levirate marriage is the result of an affair between a man and his brother's wife, which led them to murder the brother and marry one another (or the equivalent scenario between a man and his wife's sister). Furthermore, the Syro-Roman Lawbook concedes that, in certain cases, levirate marriage may be allowed.Footnote 32 The composer of the Syro-Roman Lawbook explains that if the death and new marriage are not the result of an affair and murder, then levirate or sororate marriage is permitted, subject to the Caesar's approval.Footnote 33 Likewise, in the Life of Rabbula, Rabbula, of the fifth century,Footnote 34 is claimed to forbid sororate marriage and marriage with a niece, yet omits the question of levirate marriage. Similarly, in his Commandments and Admonitions, when listing the prohibitions on close-kin matrimony, he explicitly forbade sororate marriages and marriages between men and their nieces or aunts, just as the Roman emperors had done, yet omits levirate marriage from this list.Footnote 35 The omission of levirate marriage from these lists of forbidden marriages may indicate that this practice may have not been prohibited.
To conclude, the rabbis, Roman emperors and some of the bishops sought to minimize the practice of levirate marriage. While the rabbis officially accepted its existence and were obligated to it, yet sought to restrict its implementation, the Roman emperors and some bishops banned it altogether. Greek and Latin Christian legal discourse correlated with the Roman rulings on levirate and sororate marriage, yet differed regarding its legal implications. The emperors defined such marriages as illegitimate (children born of them were illegitimate and therefore unable to inherit their parents’ property), whereas the Christian writers, lacking the authority and power of the emperors,Footnote 36 punished such marriages using various degrees of excommunication. Furthermore, in the Collatio and the Syriac sources, this prohibition was limited and possibly even nonexistent. In any case, the rabbis, the Roman emperors and the bishops discussed levirate marriage as part of matrimonial law: the rabbis addressed the marital obligation and portrayed it in terms that were as similar as possible to regular marriages; and the Roman emperors and bishops addressed its prohibition and portrayed it as incestuous marriage. As I show in the following, this is not the picture arising from the exegetical and theological Christian literature which mentions levirate marriage.
Jesus's Genealogy
The opening verses of the New Testament, Matthew 1:1–17, describe Jesus's genealogy and his Davidic lineage, through Joseph. Significantly, if Joseph is of Davidic lineage, so is his son Jesus, thus fulfilling the prophecy that the Messiah would come from the house of David.Footnote 37 Like Matthew, Luke 3:23–38 also includes a genealogy of Joseph, although the two genealogies are not identical, raising theological questions regarding their validity.Footnote 38 While, according to Matthew, Joseph is the son of Jacob, son of Mathan, Luke notes that Joseph is the son of Heli, (son of Mattat, son of Levi),Footnote 39 son of Melchi.Footnote 40
Julius Africanus, in his letter to Aristides in the third century, addresses this contradiction, explaining it as a result of levirate marriage. Melchi and Mathan married the same woman, making their sons, Jacob and Heli, maternal brothers. When Heli died childless, his maternal brother, Jacob, married Heli's wife. Heli was therefore Joseph's father by law, rather than by nature:
For whereas in Israel the names of their families were reckoned either according to nature or according to law (ἢ φύσει ἢ νόμῳ), according to nature (φύσει), indeed, by the succession of legitimate offspring (γνησίου), and according to law (νόμῳ) whenever another raised up children to the name of a brother dying childless …
Thus, though of two different families, we will find Jacob and Heli maternal brothers. And of these, the one Jacob, having taken the wife of his brother Heli, who died childless, begat by her the third, Joseph, his son by nature and by reason (κατὰ φύσιν … κατὰ λόγον). Hence, it is written, “And Jacob begat Joseph,” but according to law (κατὰ νόμον) he was the son of Heli, for Jacob his brother raised up seed to him.Footnote 41
The levirate marriage described here follows the aforementioned biblical description of sperm donation or ghost marriage: when a man died childless, the child born to the levir and his former sister-in-law succeeded his deceased uncle—his mother's first husband—as though he were his legitimate son. Julius Africanus, however, adds to this description and distinguishes between “a son by nature” and “a son by law”—the former being the son of the biological father (the levir) and legitimate heir, and the latter being the son of the deceased uncle. This explanation suits Roman legal thinking in two respects. First, as noted earlier, Roman law developed the idea that only legitimate children (γνήσιος, legitimus) born of legitimate marriages (conubium) could inherit. Second, Roman law cultivated the notion of non-biological family relations, especially adoption. Indeed, Roman jurists acknowledged and developed cases of a father by law rather than by nature.Footnote 42 In fact, this also correlates with the claim that the insertion of the genealogies into the Gospels was, from the outset, based on the concept of adoption. According to the Gospels, Joseph is not Jesus's father, because Jesus is the son of God. Joseph was married to Mary, Jesus's mother, and raised Jesus, but did not beget him. Thus, Jesus's Davidic lineage is only significant if we assume that the relationship between Jesus and Joseph was strong enough to bequeath legal status and family ties.Footnote 43
Eastern and western Christian authors accepted and repeated Julius Africanus's explanation of Joseph's genealogy, his description of levirate marriage and his distinction between natural and legal paternity. At the beginning of the fourth century, Eusebius (ca. 263 CE–ca. 339 CE) cites Africanus's epistle in his Ecclesiastical History,Footnote 44 repeating this claim in his Questions.Footnote 45 Severus of Antioch (d. 538 CE), whose writings were preserved in Syriac, yet written in Greek and deeply influenced by Roman law,Footnote 46 accepts the distinction between natural and legal paternity in a homily dedicated to the contradiction between Matthew and Luke.Footnote 47 This claim was particularly popular in Latin Christian literature and can be found in Jerome's Commentary on Matthew of 398 CE,Footnote 48 Ambrose of Milan's Exposition on Luke,Footnote 49 Hilary of Poitiers’ Commentary on Matthew,Footnote 50 and Ambrosiaster's Questions on the Old and New Testament.Footnote 51 In the fifth century, when reiterating this claim, Augustine explicitly used the term adoption to explain the relationship between the deceased brother and his newborn biological nephew.Footnote 52
A comparison of Africanus's description of levirate marriage with rabbinic halakha shows that, while his description correlates with biblical law, it is modeled on Roman legal concepts and contrasts sharply with two main principles of rabbinic halakha.Footnote 53 First, rabbinic halakha does not acknowledge any form of adoption. In fact, it does not acknowledge any means of legally creating artificial paternity, regarding only biological paternity as valid. Any distinction between “son by law” and “son by nature,” or of a child as illegitimate and unrecognized,Footnote 54 is therefore meaningless in rabbinic halakha. This is especially evident in the rabbinic adaptation of biblical levirate marriage, according to which, as I have shown, the newborn son is considered the son of the levir, his biological father (as any child would be), rather than the son of his deceased uncle. Even the option of merely naming the child after his deceased uncle is rejected in favor of the interpretation that the levir himself succeeds his brother.Footnote 55 Second, one of the ways that the rabbis limited biblical levirate marriage was by exempting certain brothers from this obligation under specific conditions. One of these conditions, in both Tannaitic and Amoraic sources, defines the levir as a paternal brother rather than a maternal brother. While a paternal brother is obligated to marry his sister-in-law, a maternal brother is exempt (and therefore also prohibited) from doing so.Footnote 56 Consequently, Heli and Jacob, who are maternal brothers, could not have performed levirate marriage, and could not have been Joseph's two fathers, according to rabbinic halakha.
Africanus's description of levirate marriage therefore correlates with a possible interpretation of the biblical law, according to which levirate marriage is a form of ghost marriage aimed at securing succession and inheritance, and is modeled according to Roman legal concepts of adoption and inheritance. Furthermore, it contradicts the rabbinic description of levirate marriage as part of matrimonial law, as well as the specific limitations the rabbis imposed on this kind of marriage, but does not reject levirate marriage as a practice, nor does it imply any negative consequences of such a marriage. Rather, it is described as the type of marital union that leads to the birth of Joseph, Jesus's so-called father.
Resurrection
The Synoptic Gospels not only raise the question of levirate marriage indirectly, regarding Joseph's genealogies, but also directly, as a basis for a theological question. According to these Gospels, the Sadducees use the commandment of levirate marriage to pose a question regarding the resurrection of the dead. They asked Jesus the following:
The same day some Sadducees came to him, saying there is no resurrection; and they asked him a question, saying, “Teacher, Moses said, ‘If a man dies childless, his brother shall marry the widow (ἐπιγαμβρεύσειFootnote 57), and raise up (ἀναστήσει) children for his brother.’ Now there were seven brothers among us; the first married, and died childless, leaving the widow to his brother. The second did the same, so also the third, down to the seventh. Last of all, the woman herself died. In the resurrection, then, whose wife of the seven will she be? For all of them had married her.” Jesus answered them, “You are wrong, because you know neither the scriptures nor the power of God. For in the resurrection they neither marry nor are given in marriage, but are like angels in heaven. And as for the resurrection of the dead, have you not read what was said to you by God, ‘I am the God of Abraham, the God of Isaac, and the God of Jacob’? He is God not of the dead, but of the living.” And when the crowd heard it, they were astounded at his teaching.Footnote 58
In this episode, Jesus does not oppose the idea of levirate marriage; rather, he opposes the idea of any kind of marriage following the resurrection. According to his claims, there will be no marriage after the resurrection. One cannot deduce, therefore, from the biblical commandment of levirate marriage—which obligates a widow to remarry—that the Hebrew Bible assumes the widow will never see her late husband again, and thus denies the resurrection. Rather, there will be no marriage whatsoever following the resurrection. Consequently, allowing a widow to remarry, and hence have more than one husband when resurrected, is irrelevant: she will not be married to any of her late (or resurrected) husbands.
Connecting the belief in bodily resurrection with levirate marriage not only concerns the question of marriage after the resurrection. It also draws on the fact that levirate marriage offers some form of physical continuity to a man who dies without offspring. However, belief in the resurrection promises such a future continuity even without offspring: the deceased himself, rather than his offspring, will remain in the world. Furthermore, the Septuagint of Deuteronomy 25:7 describes the purpose of levirate marriage using the root ἀνίστημι—translating להקים (to make rise)—which is the exact same root that is used for resurrection, and which the Sadducees employed when citing the biblical levirate law.Footnote 59 Likewise, Christian writers later used this same root to discuss resurrection.
Like Jesus in the New Testament, Christian writers commenting on this episode do not mention rejection of levirate marriage in any way, but rather address the belief in the resurrection.Footnote 60 Their discussions follow the biblical description of levirate marriage,Footnote 61 in some cases tying this Jewish practice to changes regarding belief in the resurrection: from its absence in biblical times to its current existence.Footnote 62 Julius Africanus explains levirate marriage as being due to the lack of belief in resurrection: because this was not part of the Israelite belief system, the only way to maintain the name of the deceased was via levirate marriage.Footnote 63 Eusebius follows this claim, arguing that the Hebrews lack belief in the resurrection,Footnote 64 while, according to Ephrem (ca. 306–373 CE), although the Jews believe in the resurrection, they mistakenly maintain that there will be marriage following the resurrection.Footnote 65 Farther west, in the fourth century, Ambrose of Milan claims that not only the Sadducees, but also all Jews, have no belief in the resurrection.Footnote 66
Having distinguished between pharisees, who believed in the bodily resurrection, and sadducees, who denied it, Jerome claims that a story concerning the levirate marriage of seven brothers may have actually occurred in their nation.Footnote 67 Conversely, John Chrysostom (347–407 CE) deems the tale fictitious. Indeed, according to his writings, at this stage the Jews no longer performed levirate marriage, possibly reflecting the rabbinic attempt to minimize the practice, preferring ḥaliza.Footnote 68 To conclude this point, when discussing levirate marriage directly, the early Christian writers who commented on the dispute between Jesus and the sadducees described such marriage following its biblical description, and focused on its role in ensuring continuity. They did not oppose the practice itself, but rather addressed its significance to the theological discussion on the resurrection of the dead.
Herod and John the Baptist
The third pericope of the Gospels, which serves as a basis for discussion of levirate marriage, is the story of Herod and John the Baptist:
For Herod had arrested John, bound him, and put him in prison on account of Herodias, his brother Philip's wife, because John had been telling him, “It is not lawful for you to have her.” Though Herod wanted to put him to death, he feared the crowd, because they regarded him as a prophet.Footnote 69
The evangelist does not detail why the marriage between Herod and Philip's wife is forbidden, but Christian writers apparently complete this gap based on information from Josephus's Antiquities of the Jews. Josephus's writings include two contradictory mentions of Herodias's marriages to Philip and Herod: it is unclear whether Herod married Herodias, Philip's wife, while the latter was alive or after his death, but in any case, she bore Philip a daughter.Footnote 70 Because of this daughter, and possibly because Philip was still alive, this union could not be considered biblical levirate marriage. According to biblical law, such marriage was actually deemed incestuous (Leviticus 18:16).
For one or both of these reasons, from the third century onward, Tertullian,Footnote 71 Origen,Footnote 72 Eusebius,Footnote 73 Jerome,Footnote 74 John Chrysostom,Footnote 75 Ambrose,Footnote 76 and Pope SiricusFootnote 77 do not consider this an instance of levirate marriage. Furthermore, their explanation follows biblical law: levirate marriage is practiced only upon the death of a childless brother. Philip was definitely not childless and was possibly even still alive when Herod married his wife. Using these explanations, the Christian writers imply that, had this been a case of legitimate levirate marriage, John the Baptist would not have reproached Herod. We can therefore deduce from these comments the underlying assumption of the Christian commentators of this passage: they accept the biblical form of levirate marriage and its conditions—marriage only with the childless widow of a brother. These conditions provide the reasons to reproach Herod, but proper levirate marriage (according to its biblical form) is acceptable.
Ruth
The Book of Ruth describes how Ruth, the widow of Naomi's son Mahlon, marries Boaz, a kinsman of Mahlon. Yet, in this account, the legal process differs to that outlined in Deuteronomy 25:
And Boaz (Βοος)Footnote 78 went up to the gate and sat down there, and right there, passing by, was the next-of-kin of whom Boaz had spoken. And Boaz said to him, “Come over, sit down here, Hidden One” and he went over and sat down. And Boaz took ten men of the elders of the city, and said, “Sit down here,” and they sat down. And Boaz said to the next-of-kin, “Concerning the portion of the field that belongs to our brother Abimelech, which has been given to Naomi (Νωεμιν), who returned from the countryside of Moab, I said, ‘I will uncover your ear, saying: buy it in the presence of those sitting here and in the presence of the elders of my people. If you are acting as next-of-kin, act as next-of-kin, but if you are not acting as next-of-kin, tell me, and I shall know; for there is no one except you to act as next-of-kin and I come after you.’” So he said, “I am the one, I will act as next-of-kin.” And Boaz said, “the day you acquire the field from the hand of Naomi and from Ruth (Ρουθ) the Moabite, the wife of the deceased, it is necessary for you to acquire her also in order to raise up the name of the deceased on his inheritance.” And the next-of-kin said, “I will not be able to perform the kinsman's function for myself without ruining my inheritance. Take for yourself my right of inheritance, for I will not be able to act as next-of-kin.” And the statute in former times in Israel concerning the right of inheritance and concerning exchange: to confirm every agreement, a man would take off his sandal and give it to his neighbor who was acquiring the right of inheritance. This was an attestation in Israel. And the next-of-kin said to Boaz, “Acquire for yourself my right of inheritance,” and he took off his sandal and gave it to him. And Boaz said to the elders and all the people, “today you are witnesses that I have acquired everything of Abimelech's and all that belongs to Chelaion, and Maalon from the hands of Naomi. I have also acquired Ruth, the Moaabite, the wife of Maalon, for myself as a wife, to raise up the name of the deceased on his inheritance, and the name of the deceased shall not be extirpated from his brothers and from the clan of his people. Today you are witnesses.” And all the people who were at the gate said, “We are witnesses.” And the elders said, “may the Lord make your wife who is coming into your house like Rachel and like Leia, who built up, both of them, the house of Israel, and produced might in Ephratha and there shall be a name in Baithleem. And, through the offspring that the Lord will give you from this maidservant may your house be like the house of Phares whom Thamar bore to Iouda.”Footnote 79
The legal background to the marriage of Ruth and Boaz differs to the Deuteronomic description of levirate marriage with respect to the degree of kinship, the significance of land inheritance, and the legal procedure. In Deuteronomy, only the brother of the deceased (the levir) is obligated to marry the widow. However, according to Ruth, the obligation passes on successively to the next-closest kinsman, should circumstances demand; and, furthermore, any kinsman may volunteer to take on the role. In this case, the closest kinsman refuses, allowing Boaz to step in and marry Ruth. Whereas Deuteronomy emphasizes passing on the name of the deceased, in Ruth not only is the name important but also the land inheritance bequeathed by the deceased to the widow. Furthermore, in Deuteronomy, the widow removes the shoe and spits on the levir who refuses to marry her, whereas according to the account in Ruth, this kinsman takes off his own shoe, passing it to the next of kin who agrees to the marriage, as a symbol of passing on the widow and the inheritance.Footnote 80
As I have shown, rabbinic discussion of levirate marriage is based on the Deuteronomic description rather than that in Ruth. Moreover, although the levir inherits his brother's property, the rabbinic discussion focuses on the marital bond created by the death, rather than the inheritance. Likewise, the rabbinic description of the procedure draws on Deuteronomy rather than Ruth. In fact, Tannaitic and Amoraic citations of Ruth 4 tend to treat the marriage of Ruth and Boaz as a regular marriage; indeed, Ruth 4 serves as a basis for discussing the marriage benedictionFootnote 81 and contract law,Footnote 82 but not levirate marriage. In opposition to the rabbis, Christians discuss this episode in more significant ways, as part of their dialogue regarding levirate marriage. For example, Severus of Antioch writes in his homilies,
[i]n the Law of Moses it was decreed that the wife of one who died childless will not be married to a foreigner, but the brother of the deceased, and the one who is born [to the new marriage] will be called the son of the deceased. It is good that we will hear the same divine words that are both laid in Deuteronomy and are said here: “If two brothers shall live together, and one of them dies and has no child, the wife of the deceased shall not marry outside, with one who is not a kinsman, the brother of the [deceased] man will come to her and take her to be his wife and live with her, and the son that she may bear will arise from the name of the deceased and his name will not be wiped out of Israel.” If, however, the one who died childless does not have a brother, a different man from those related to him in [his] family will marry her, in order to raise seed to the deceased, as you have now heard. This son is considered [son] by law, and this kind of marriage is called relatives [marriage]. And if the family member who is related does not want to marry the wife of the deceased, as is proper, the next-of-kin in the family, by all means, will accept the marriage. The Law itself has a cure, to raise seed for the one who did not have sons and died.
These things are written clearly in Ruth, and this book is also one of the divine scriptures. A certain Boaz wanted to marry Ruth, who was the wife of a certain Mahalon, his relative who died childless. He [Boaz] said to the kinsman who is closer than him to the deceased “If you are the next-of-kin, be the next-of-kin, if you are not the next-of-kin, tell me and I shall know. There is no one but you who approached, and I am after you (Ruth 4:4).” And, when he did not want and said to him: “come and take my next-of-kin to your home, because I cannot approach [and marry her] (Ruth 4:6),” Boaz said again: “Therefore Ruth the Moabite, the wife of Mahalon, I am taking her to be my wife, to raise the name of the one who died from his brothers and his tribe (Ruth 4:10).”Footnote 83
Like his predecessors, Severus accepts the classification of the son born to the widow and levir as a son by law. In the following sections, he adopts some of the additional motifs we encountered earlier, including the explanation of levirate marriage as a substitute for belief in the resurrection and the elucidation of Joseph's genealogies using levirate marriage.Footnote 84 To these explanations, however, he adds a description of the marriage of Ruth and Boaz, claiming that this, too, is a case of levirate marriage. Harmonizing the differences between this instance and the Deuteronomic levirate marriage, he argues that, if there is no living brother, the next-of-kin is required to step in. Boaz was not the closest relative, but once an even closer relative declined, he asked to marry Ruth and “raise the name” of the deceased.
Severus is not the only Christian writer to explain levirate marriage by drawing on Ruth 4. Such readings can be found in the fourth-century writings of Ambrose,Footnote 85 which outline the legal procedure according to the description in Ruth,Footnote 86 and John Chrysostom, who brings examples of levirate marriage using the stories of Ruth and Tamar.Footnote 87 Likewise, Theodor of Cyrus (393 CE–460 CE)Footnote 88 dedicates a lengthy discussion to the levirate marriage in Ruth, only hinting at the Deuteronomic practice.Footnote 89 The reason for preferring the description according to Ruth is twofold. First, Ruth was an ancestress of David, thus also Jesus, and consequently this is of significance to Jesus's Davidic lineage. Nevertheless, late antique Christian literature does not dedicate extensive discussions to the book of Ruth in this context (or in other contexts), and therefore this cannot be the sole reason.Footnote 90 Second, and more importantly, levirate marriage as described in Ruth is not only different from the Deuteronomic description, but these differences actually make it significantly closer to the description of the epiklerate, a Greek legal institution. According to early Greek legal traditions, if a man died leaving only a daughter, this orphan heiress (επίκληρος) would be married to her father's next of kin—usually his brother—bringing with her the property she inherited and ensuring it remained in the hands of her father's clan.
While this practice is known from the classical world, especially Athens,Footnote 91 it is also found in late antique Greek sources, albeit sparsely. It was probably not obligatory, and there is evidence of orphaned girls whose uncle was their guardian rather than their husband.Footnote 92 Nevertheless, the term the ancient Greeks used to describe the heiress, επίκληρος, is used in late antiquity in this context. Following the classical texts, late antique lexica mention it, emphasizing the inheritance rather than the marriage obligation.Footnote 93 More importantly, it appears in Christian sources describing a lone heiress (without mentioning an obligation to marry a kinsman),Footnote 94 and is also known from fourth-century Syria. Indeed, Libanius (314 CE–393 CE) complains, “I had no luck at all. No friend made me his heir … I had no claim to an heiress (ἐπικλήρου),” referring to marriage that is accompanied by an inheritance.Footnote 95 Nevertheless, the epiklerate, to which Philo may have alluded,Footnote 96 was probably unknown to the Palestinian rabbis, as is evident from the Sifra. This Tannaitic midrash annuls the similar biblical law, according to which a daughter may inherit her father's property but must marry a tribe member to keep the inherited land within the tribe.Footnote 97
Just as Julius Africanus and his successors portray biblical levirate marriage using Roman legal concepts, so too does Severus depict levirate marriage using the biblical description closest to that familiar in the Greek east—the epiklerate. Unlike the Deuteronomic description, and similarly to that found in Ruth, the epiklerate does not refer only to the first kinsman—either the Israelite brother or the Greek uncle—but merely accords them priority within a hierarchy of kinsmen. Furthermore, the epiklerate, just like the description in Ruth and in contrast to the description in Deuteronomy, focuses on the inheritance accompanying the marriage, rather than the marriage itself. Thus, Severus of Antioch and other Christian writers apparently portray biblical levirate marriage differently to their Jewish neighbors, utilizing the Greco-Roman legal traditions.
Deuteronomy 25:5–10
The phenomenon to which Severus alluded in his discussion of Ruth, and Julius Africanus alluded in contemplating Jesus's genealogy—namely, the acceptance of biblical levirate marriage and its portrayal following Greek and Roman legal institutions of inheritance—becomes even clearer in direct discussions of the main biblical source regarding levirate marriage: Deuteronomy 25:5–10. This, however, is not the whole picture, and these verses also serve as a basis for some writers to prohibit levirate marriage.
Christian writers cite Deuteronomy 25:5–10 in their discussions on levirate marriage in Christological and allegorical commentaries as well as in those focusing on its legal aspects. In all cases, Christian writers continue to follow the biblical description of levirate marriage. The Christological commentaries include Origen's claim that levirate marriage is analogous to the choice between the old and unfruitful law (Old Testament), on the one hand, and the new law (New Testament), on the other;Footnote 98 Jerome's comparison of loosening the sandal (ḥaliza) with John the Baptist's refusal to loosen the sandal of Jesus, the Bridegroom;Footnote 99 and Ambrose's claim that levirate marriage is analogous to Jesus, who will bring life to the seed of his deceased brother. He proves that Jesus is the Bridegroom because both Moses and Joshua were required to take off their sandals, as was the man who refused to marry his widowed sister-in-law.Footnote 100
Two Latin Christian writers and two Greek Christian writers address the question of biblical levirate law focusing on its practice. The two Latin Christian writers—Tertullian, writing at the beginning of the third century,Footnote 101 and Pope Siricus, toward the end of the fourth—utilize Deuteronomy 25:5–10 not only to discuss the concept and exegesis of levirate marriage but also to reject the practice and, on this basis, other forms of marriage. By contrast, yet like the previously discussed sources, the two Greek Christian writers—Theodoret of Cyrrus and an anonymous fifth-century author, incorrectly identified as Justin Martyr—accept the biblical levirate marriage, albeit with adaptations.
Tertullian of Carthage was well acquainted with Roman law and legal thinking in general.Footnote 102 In his treatise De monogamia, he claims that remarriage is forbidden, including remarriage following both divorce and widowhood. Prohibiting remarriage, however, contradicts the biblical commandment on levirate marriage. To differentiate between the biblical law and his own prohibition of remarriage, Tertullian argues that the biblical law is based on the commandment to “grow and multiply,” the responsibility of children to pay for the fathers’ sins, and the disdain with which childless people were regarded. In his time, however, the commandment to “grow and multiply” and the punishment of sons for their fathers’ sins became void. Likewise, eunuchs were no longer considered disgraceful; they were even honored. As a result, levirate marriage was no longer relevant. Furthermore, based on the annulment of levirate marriage, Tertullian deduced that not only may the childless widow not remarry: no widows may remarry. He claimed that a Christian widow who marries a Christian man, in fact, marries a “brother”—because all Christians are brothers—and hence enters into a forbidden levirate union.Footnote 103
Another Latin writer who addresses levirate marriage as it is described in Deuteronomy, explaining its current irrelevance, is Pope Siricus. In his letter to the bishops of Gaul, he follows the Roman jurists, drawing a parallel between levirate marriage and sororate marriage, and uses the prohibition on the former to explain the prohibition on the latter:
On one who married the sister of his [deceased] wife, it is written in the law of the Old Testament that in order to raise the seed of his deceased brother he must marry his [brother's] wife, but only if he did not leave any children from her. For this reason, namely, John the Baptist spoke against Herod, because he was not allowed to take the wife of [his] brother who left children. Nevertheless, regarding male procreation, the constitution of the law decreed that this will be done by the man. As for women, truly, it is never read, but it is strongly presumed. For the Law says: “cursed is he who sleeps with the sister of his wife.”Footnote 104 Is it not Jacob, who had two wives at the same time, sisters for the sake of mystery, and two concubines; and all those who were born [to the sisters and concubines] were called patriarchs? Now it is not permitted to a Christian to have [such marriage]. Did they [the patriarchs] not have wives and concubines? But now [our] Testament does not tolerate that this will happen, where purity is discussed more, and chastity is praised, as Christ learned and said: “Not all can grasp the Word of God, but those it is given to.”Footnote 105
Pope Siricus draws on two particular motifs to forbid levirate marriage in the Christian community. Similarly to the Roman emperors and Basil of Caesarea, he too ties levirate marriage to sororate marriage. And like the Christian biblical commentators who discussed levirate marriage, he too links the biblical levirate law to the story of John the Baptist, claiming that Herod was reproached because he married his brother's wife, even though his brother had fathered a child. In this way, Pope Siricus deduces that, just as sororate marriage was permitted to Jacob the Patriarch, yet is currently forbidden to Christians (following the later biblical prohibition of sororate marriage), so too Christians are forbidden to practice levirate marriage, even though it was allowed in the Old Testament.
Thus, the Latin Christian writers Tertullian and Pope Siricus prohibited levirate marriage and explained the prohibition within the context of matrimonial law rather than inheritance law. In fact, the explanation given by Pope Siricus, living at the time of the Roman and Christian prohibition on levirate marriage, is similar to these prohibitions, and he utilizes his biblical exegesis to defend the Roman prohibition, which tied sororate marriage to levirate marriage.
This, however, is not the picture arising from Greek Christian writers who cited Deuteronomy 25:5–10 and addressed levirate marriage directly. Rather, these writers followed the two phenomena we have seen in the Christian biblical exegesis, which mentions levirate marriage indirectly. Indeed, like the Latin writers, the Greek writers used biblical motifs and explained the current irrelevance of the biblical levirate law. However, unlike the Latin writers, they were more open to the biblical levirate law and did not reject it altogether. More importantly, like the Christian biblical exegetes discussed earlier, who mentioned levirate marriage indirectly, the Greek Christian writers who addressed levirate marriage directly also constructed their description of this practice within inheritance law, using Greek legal traditions in addition to Roman law, rather than constructing it within matrimonial law, as did the Latin writers.
In the middle of the fifth century, in the genre of questions and answers, two authors addressed the question of levirate marriage. Theodoret of Cyrus, in his Questions on the Octateuch, provides a brief discussion of the Deuteronomic levirate law, explaining the need for humiliation in the case of refusal as being due to a lack of natural brotherly love.Footnote 106 At approximately the same time, the anonymous author of the Quaestiones et responsiones ad orthodoxos, incorrectly attributed to Justin Martyr, answers to a question regarding the legitimacy of levirate marriage:Footnote 107
Question 132:
If, according to the law of Moses, the brother of one who died childless takes the wife of the departed and has children from her, [they are] his according to nature, yet his brother's according to law, so if it happens that the remaining brother already has a wife, does he marry the wife of his deceased brother with her [his current wife]? And how is this not unnatural? And if such a woman happens to be barren, how will the [second] marriage not bring useless [marriage] upon the unnatural [first marriage], and how does the command of the law explain from all sides the difficulty, that the deceased will not receive his memory by child bearing? What help will there be to the deceased, to be called by name through child making of another after the death of the father [who is married to] an alien wife?
Answer:
The law does not prevent the Israelites from taking a wife if they want to, not only a kinswoman, but also a captive and a concubine. The law also does not prevent the unnatural, nor does it prevent the remaining brother of the deceased from taking with [his current] wife another wife. All the absurdity is based on the transgression of the law. And if it happens that the wife of the deceased is barren, but it could be unknown to the wife, to the unknown it is impossible to transgress or overlook the law. This law was set so that the death will be taken from the deceased, that is, of the fatherhood and the heir, that is what he handed over by the providence of the law. If because of the memory people have come to the inheritance at the wedding, it is clear that in this way God is encouraged to offer this to people, that the deed will not be useless. In this law there is also something else that is useful, so that because of this marriage the heir will stay in this same tribe and not move to another tribe. And since once the woman was united with her first husband, she became one body [with him], by that the deceased will not become a father to alien children, but [father] of a child who is out of his own body, just as the child out of this union is called by the name of the deceased, so too the wife of the other is called a wife.Footnote 108
Following his predecessors, the author distinguishes between the levir, to whom he refers as the father by nature, and the deceased, whom he calls the father by law, and asks questions regarding the polygamy of the levir and the type of continuity given to the deceased if the child born to him is not his biological son. In response, the writer first claims that biblical law allows polygamy. Second, he addresses the question of the marriage's purpose, assuming marriage is allowed for begetting children, a claim common in late antique Christian communities.Footnote 109 Third, he explains the importance of levirate marriage and describes it as an inheritance strategy, which seeks to “take away the death from the deceased,” a function usually accorded to the resurrection in Christian sources. And fourth, using Genesis—or its citation in Mark, “a man shall leave his father and mother and be joined to his wife, and they shall become one flesh,”Footnote 110 the verse usually cited to explain the prohibition on divorce—the writer claims that because the woman became one flesh with her husband, she and her children, too, are part of his tribe.
The writer uses motifs that his predecessors employed regarding levirate marriage, in addition to those common in the Christian discourse on marriage. However, he includes two additional aspects: the inheritance conferred at the wedding and the importance of remaining in the same tribe. These motifs are not well suited to the problem levirate marriage seeks to solve. First, in contrast to the author's claim, inheritance is usually not given at the wedding, but rather upon death. Second, in levirate marriage there is no problem of children and inheritance moving to a different tribe, because the widow, who is not necessarily of the same tribe, does not inherit her husband's property or have a son who may receive his father's inheritance. These two motifs can be understood only if we assume that the author is not thinking of the biblical levirate marriage but rather of the epiklerate. According to the epiklerate, the newly wedded husband receives the inheritance upon marrying the orphan heiress (επίκληρος), not at the time of death; in fact, he cannot receive the inheritance without the marriage. Furthermore, the main goal of this practice is that the inheritance remain in the same tribe, and the heiress’ children are deemed the direct heirs of her father—their deceased grandfather—through her bloodline, rather than children of their biological father. This goal and description correlate with the source cited above, according to which the children of the wife are heirs of the deceased husband, through their mother's body.Footnote 111
If this reading is correct, in addition to the role that Roman law played in restructuring the concept of levirate marriage during late antiquity, we must note the function of Greek legal traditions, especially the epiklerate. This is alluded to in the preference for Ruth and in the interpretation of Deuteronomy 25:5–10 according to Ruth. It is also evident in the aforementioned description of Deuteronomic levirate marriage according to the principles of the epiklerate, combined with common Christian motifs on marriage and asceticism. The Greek commentators of Deuteronomy 25:5–10, and especially the author of the Quaestiones et responsiones ad orthodoxos, continue, therefore, the trend we have seen in the indirect comments on levirate marriage. They, too, do not oppose levirate marriage altogether, and describe it as part of inheritance law rather than matrimonial law, although they utilize a Greek legal concept rather than a Roman one. Furthermore, they stand in contrast to the Latin writers, namely Tertullian and Pope Siricus, who discussed levirate marriage as part of matrimonial law and rejected it.
Discussion and Conclusions
Inheriting the biblical legal institution of levirate marriage and adapting it to the late antique world was no simple task. Biblical levirate marriage can be understood either by focusing on the aspect of matrimony or focusing on the aspect of inheritance, as did the rabbis and Christians, respectively. On the one hand, the rabbis understood levirate marriage as part of matrimonial law and sought to cast it according to the marriage common in the halakhic system. Their fundamental text for describing levirate marriage was Deuteronomy 25:5–10, to which they were committed, but they altered it significantly and sought to minimize it via the application of various hermeneutical methods and halakhic preferences. On the other hand, Christian writers accepted the description of Deuteronomy 25:5–10 in addition to Ruth 4, yet applied Greek and Roman legal concepts to explain the biblical legal institution—legal concepts that are part of the paradigm of inheritance law and parental relations, rather than matrimonial law. Furthermore, they did not limit levirate marriage in any way, as the rabbis did; in fact, they even expanded the number of scenarios categorized as levirate marriage.
The adaptation of the biblical legal institution in Christian literature serves as an interesting example of a legal transplant. At first glance, we could claim that Christians in the Roman Empire portray levirate marriage according to its biblical description, rather than its contemporaneous rabbinic description, because they preserve the tie between levirate marriage and inheritance law, and neither seek to minimize the cases in which the biblical levirate marriage is applicable, nor change the role of the levir. This claim seems to correlate with Alan Watson's theory of law as an isolated phenomenon, disconnected and uninfluenced by other factors, in which a rule may be transferred directly from one system to another. In this case, many of the Christians adopted the biblical description of levirate marriage, transferring it to the Christian legal discourse, even though it did not correlate with the Christian attempt to minimize marriage altogether.Footnote 112
However, a closer investigation demonstrates that Christian literature reshaped the biblical institution of levirate marriage in significant ways. It described the practice according to the Roman notion of adoption and the Greek concept of the epiklerate, resulting in the portrayal of a renewed legal institution, and significantly strengthened the linkage to inheritance law. The biblical levirate law is therefore not an isolated rule, transferred from the Old Testament into late antique Christianity; rather, it is a legal tradition that was reshaped in a new setting, influenced by the Greco-Roman and Christian habitat. It thus serves as a case study for describing developments in understanding biblical law that result from the new Greco-Roman context.Footnote 113 Furthermore, as Pierre Legrand has argued, because the host Greco-Roman legal culture interpreted the biblical legal tradition using its own legal concepts, “the transplant does not, in fact, happen: a key feature of the rule—its meaning—stays behind.”Footnote 114 Indeed, a key feature of levirate marriage—namely, its significance for matrimonial law and its role in perpetuating the deceased—did remain intact; the biblical law, which supposedly served as the source of the Christian discourse, is actually a Greco-Roman version of it, removed from its origin in certain aspects. What conclusions, then, might we draw from this analysis? I wish to emphasize three points in particular regarding the Christian discourse on biblical levirate marriage and its relationship to its Jewish setting, on the one hand, and to the inner-Christian discourse, on the other.
Jewish versus Christian Adaptations of a Biblical Institution
First, while levirate marriage originated in the Old Testament, which both Christians and Jews of late antiquity identified with Judaism, the analysis of late antique sources has revealed barely any influence or direct polemic between Jews and Christians concerning this question.Footnote 115 As in other cases, here too, the Christian identification of levirate marriage as a Jewish tradition, particularly in the discussion of levirate marriage and the resurrection, does not imply that it refers to contemporaneous Jews or an active polemic. Rather, it can be understood as part of the inner-Christian discourse regarding its biblical heritage.Footnote 116
This lack of direct polemic in the exegetical and theological discourse, and the distance between the Christian theoretical portrayal of levirate marriage and the rabbinic practice, highlight the difference between the rabbinic and Christian responses to their mutual legal inheritance. This can be explained by variances in practice and observance. The rabbis treated levirate marriage as an active legal requirement; as such, it raised various difficulties for the parties involved and the halakhic system. Consequently, attempts to minimize it constituted part of the endeavor to contain it within the halakhic system. The Christians, however, did not view levirate marriage as obligatory, although some may have practiced it. Thus, they did not need to minimize the basic biblical description, even though it contradicts various Christian claims regarding marriage and asceticism. Rather, they could utilize biblical levirate marriage as a basis for discussing theological questions, such as Jesus's genealogy and the resurrection.
Moreover, levirate marriage did not evolve in Roman law and Greek legal traditions, because these traditions developed other inheritance strategies. The Roman jurists developed the concept of adoption and the Greeks fostered the epiklerate, two legal institutions intended to solve the exact same problem: how to safeguard the inheritance of those who did not beget a male heir. Adoption, epiklerate, and levirate marriage were therefore originally separate and even competing legal institutions. Only later, when Greek- and Latin-speaking Christians living in a Greco-Roman culture interpreted the concept of levirate marriage they had inherited from the Old Testament, did they apply the contemporaneous legal concepts of adoption and the epiklerate to explain levirate marriage. This adaptation of the biblical legal institution enabled the Christian writers to comprehend levirate marriage and also accept it, not as a Jewish law, nor as part of the halakha that Paul abolished or the biblical tradition that allowed polygamy, but rather as a partially familiar legal institution that could serve as a basis for theological and even legal discussions of Jesus, the resurrection, and biblical matrimonial law.
Legal versus Exegetical and Theological Christian Discourse
The second principal conclusion I would like to emphasize is that the Christian discourse on levirate marriage is not unified. While Christians writing within the legal discourse, such as Basil of Caesarea, Pope Siricus, the bishops of the councils and even Tertullian, discuss levirate marriage as part of matrimonial law, accept the Roman prohibition on this practice and clearly forbid it, this prohibition is not only weakened by the Syriac legal sources, but disappears almost entirely in the exegetical and theological discourse, in both east and west, and the discussion is not part of matrimonial law but inheritance law. This disparity can lead to two conclusions: one could surmise that the use of levirate marriage in the theological and exegetical discourse, its contemporaneous adaptation and especially the lack of objection to it support the claim that a version of levirate marriage was known in the Christian communities of the eastern Roman Empire,Footnote 117 and explain the limited ban in Syriac literature. Had all Christians of the eastern Roman Empire prohibited levirate marriage, especially in its Greek and Roman adaptation, it would not have been used in such a positive way, and the legal sources would not have objected to it so explicitly.
Alternatively, we might argue that the theological discourse not only provides evidence regarding Christian tolerance of levirate marriage, it actually explains it in three different ways. The first explanation is that applying the concept of levirate marriage to discussions of Jesus's genealogies began with the letter of Julius Africanus in the third century, prior to the earliest bans on levirate marriage. Could this discourse have prevented stricter bans and objections to levirate marriage, because Joseph himself was an offspring of this practice? The second explanation is that clothing biblical levirate marriage in Greek and Latin attire enabled the late antique Christians to accept it, as they accepted other Greek legal traditions and Roman law. The third, and most important, explanation is that the difference between the legal discourse and the theological discourse not only centers on the question of prohibition versus acceptance; rather, it is focused on the question of the very legal field in which to understand levirate marriage. While the legal discourse—that of the Romans and bishops and that of the rabbis—positioned levirate marriage as part of matrimonial law and prohibited or encouraged marital unions, the theological discourse positioned it as part of paternal relations and inheritance law, together with other inheritance strategies. It is therefore not surprising that the Roman and Christian prohibition on levirate marriage was discussed in modern scholarship in relation to rabbinic halakha, whether it was understood as a polemic or not.
However, as I have shown, when understood as Christians outside the legal discourse saw it, as an inheritance strategy, the question of polemic, influence, or discourse becomes less relevant. Though speaking about similar institutions, the Jews and Christians are speaking in two different contexts, one of marital relations and another of parental relations, and these two discourses seem not to interact.
Biblical Traditions Remodeled in a Greco-Roman Light
The third conclusion I draw regarding the Christian discourse on biblical levirate marriage is that the focus on the legal field also highlights the complex relation between the Christian theological discourse and the legal sources. While such a difference could indicate that this discourse actually rejects Roman law, this is not the case here. On the contrary: the Christian theological discourse on levirate marriage portrays the biblical tradition in the colors of Roman and Greek legal institutions. It utilizes these Roman institutions in the very same discourse, which is different from that of the Roman legislators and Christian legal writers, thus portraying a picture that sits comfortably within the Roman discourse when focusing on concepts and legal thinking yet is remote from it when focusing on specific rulings and prohibitions.
Conclusion
In this article, I have sought to re-contextualize the Roman and Christian ban on levirate marriage, positioning this legal tradition as it was viewed by the Christians of the first centuries CE. I have demonstrated the transfer of a legal tradition from its biblical origin to a new Greek and Roman setting, which reshaped it and repositioned it within a larger legal context. However, revealing the Christian remodeling of this biblical inheritance also changes our understanding of the Roman and Christian prohibition on levirate marriage, revealing the differences between the legal discourse and the theological discourse and between the legal discourse and interreligious discourse.
The story of the rise of Christian legal traditions in late antiquity, following the New Testament, and their relation to the biblical inheritance, rabbinic surroundings, and Greco-Roman environment is yet to be told. In this case, the story is not one of a polemic with contemporaneous Jews who observed halakha, Jewish-Christian groups, or Christians preserving biblical law.Footnote 118 Rather, it is the story of an inherited legal traditionFootnote 119 that was transferred to a new world. It was restructured according to contemporaneous Greek and Roman legal concepts and used in theological discourse, even though it did not fully correlate with other Christian legal discourse or with the new laws of the empire. As such, it is a significant fragment in chronicling the rise of a unique Christian legal tradition in a world of inherited biblical traditions and contemporaneous Greek and Roman legal concepts and rulings.
ACKNOWLEDGMENTS
This article was first presented as a paper at a joint workshop of the University of Edinburgh and Tel Aviv University. I thank the participants of the workshop for their helpful comments. I also thank professors Suzanne Last Stone, Paul du Plessis, and Yoram Margalioth for their thorough reading and insightful comments. The article was written with the support of the European Commission, Marie Curie Career Integration Grants. All errors remain, of course, my own.
(if you demand, demand), and in the Septuagint as εἰ ἀγχιστεύεις, ἀγχίστευε (if you are acting as next-of-kin, act as next-of-kin). Severus's version is closest to that of the Septuagint: 
(if you are the next-of-kin, be the next-of-kin). This phenomenon continues throughout Severus's citations.
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