The evolving law of levirate marriages
Although the Bible mandates levirate marriages, and although the rabbis believed Scripture was revealed by God who knows everything and makes no mistakes, the rabbis changed the Torah law; in effect nullifying what the Torah states and creating an entirely new law.
The practice of levirate marriage has and still is performed in variously different ways in many cultures. It is mentioned in three different ways in the Hebrew Bible. The word “levirate” is derived from the Latin and means “brother.” The Hebrew name for the practice is yibbum, a technical term referring to this practice “husband’s brother.” The practice is paternalistic; it is designed to protect the dead man’s interest.
While Deuteronomy 25:5 and 6 outlines the procedure, the rabbis rejected the plain meaning of the law and gave it new meaning. Deuteronomy states:
“If brothers live together and one of them dies without a son, the wife of the deceased shall not be married abroad to one who is not kin; her husband’s brother (yibbama) shall go unto her and take her to him and perform the duty of a husband’s brother unto her (v’yibbimta). And the first-born that she bears shall succeed in the name of the dead brother so that his name shall not be blotted out of Israel.”
Samuel David Luzzatto explained the plain meaning of Deuteronomy 5. While the rabbis interpreted “live together” as being alive, meaning the law does not apply to a brother born after the elder brother died, Luzzatto suggest that “live together” means that the Torah law only applies when the brothers have a good relationship to each other and marrying the widow will cause no harm. He gives two examples where the law would not apply. If there are two bothers and one brother marries a woman with property and goes to live with her in that property, and the poorer brother dies. If two brothers separate because of an argument between them or between their wives, and one brother dies. In both instances, it would be bad for the living brother to marry the widow. In the first instance because it is not nice to bring another woman into the house of a woman who had enriched him; and in the second instance the yibbum is inappropriate because of the past fights and discord, for the levirate marriage would most likely bring strife into the home. So, explains Luzzatto, the verse is saying that yibbum occurs only when the brothers live near each other and the living brother’s wife knows the deceased’s widow and the marriage would not disrupt the harmony of the home. This was possible during the early Israelite period.
However, Luzzatto continues, when Jews dispersed, the rabbis realized that the yibbum practicewould cease if the rule continued that it only applied when bothers lived in close proximity, so the rabbis interpreted “live together” to mean be “in existence,” so that the law would apply even to brother living far from each other.
The Torah recognized that if the dead brother had property, many living bothers would want to inherit that property. Brothers were the nearest relatives since women in those days did not inherit property. The levirate marriage law created a problem for these brothers; it stopped them from inheriting the dead brother’s property because if he married the widow, the law stated that the first-born son of the levirate marriage would inherit the property. So most living brothers didn’t want to marry the widow. Therefore the Torah shamed him with the practice in Deuteronomy 25:7-10, which included taking off his shoe, spitting in his face, and “his name shall be called in Israel ‘the house of him that had his shoe loosed.’” The idea was that people would not want to be shamed and would give up property to avoid it.
However, over time rabbis saw that this shaming did not have the desired effect; living brothers were willing to be shamed so that they could acquire property. So, Luzzatto explains, the rabbis changed the biblical law and allowed the living brother to inherit his dead brother’s land even when they married the widow. The rabbis interpreted “first-born” to mean the oldest living brother – the one who, as the closest relative, had the first duty to perform yibbum. They also interpreted “the first-born that she bears shall succeed in the name of the dead brother” metaphorically; the living brother does not assume the name of his dead brother, but takes his property.
Luzzatto adds that when the Torah states that the living brother who refused to perform yibbum is called ‘the house of him that had his shoe loosed,’ this was practiced literally. He was no longer called by name and his children would not be called his children but “the house of him that had his shoe loosed.” This, he wrote, is exactly what happened to the man who refused Ruth in Ruth 4, he is not named but is called “so and so.”
Ehrlich wrote that the rabbinical interpretation of “live together” – alive when the brother dies – is the plain meaning of the passage. However, he would agree with Luzzatto that scripture is stating that the first-born child inherits the property of his mother’s first husband, and the rabbis changed this law. He also states that although the biblical law does not explicitly require the living brother to redeem the dead bother’s field it is implied in “perform the duty of a husband’s brother to her.” This phrase, he writes, could not mean “marry her” since this was stated in the prior phrases: “go unto her and take her to him as a wife.”
Nachmanides believed in the mystic doctrine of transmigration of souls and interprets Deuteronomy 5 that the dead brother’s soul becomes incarnate in the first-born son of the living brother, the yibbum.This explains why Naomi’s neighbors said in Ruth 4:17, “There is a son born to Naomi,” instead of “to Ruth and Boaz,” meaning that she was thereby given back the son Mahlon whom she had lost.
This transmigration works with any relative, according to Nachmanides, but works best with a brother. Therefore Deuteronomy mentions a bother, but, according to him, even a father-in-law or another relative can produce the desired result as we see in Genesis 38 and Ruth 4. He would agree with Ehrlich that the Deuteronomy law included the redemption of the deceased’s property because he called it a benefit that he received for aiding the transmigration of his dead brother.
In summary, there are three apparently different versions in the Bible of the Levirate marriage: who must perform it and whether redemption of property is involved. The version in Genesis 38, where a father-in-law can perform the rite, preceded the Torah and is most likely an ancient pagan practice that was modified in the Torah in Deuteronomy 25 where it is restricted to a brother. The plain reading of the practice in Ruth differs with that of the plain reading of Deuteronomy since it includes the need to redeem the dead brother’s field. However, some sages, such as Nachmanides and Ehrlich read requirements into the Deuteronomy version that make it the same as what is in Genesis and Ruth.
A simple reading of Deuteronomy is totally different than the way the rabbis interpreted it. Luzzatto explains that the rabbis changed the biblical mandate because they saw that conditions of the time required the change.
 In England, for example, in order to obtain status Catherine of Aragon married Crown Prince of Wales Arthur’s younger brother who became Henry VIII.
 In Genesis 38 where a father-in-law has sex with the widow; in Deuteronomy 25:5 and 6 where a brother has the obligation to marry the widow; and in Ruth 4 where a more distant relative marries the widow as part of a procedure to redeem the deceased’s family’s fields. Deuteronomy 7-10 discusses the procedure to be followed when the brother refuses to perform yibbum. I will not discuss this part of the ritual.
 In Perush al Chamisha Chumshei Torah, Devir, 1971. Luzzatto (1800-1865) was an Italian Jewish scholar, known as Shadal, who was a member of Wissenschaft des Judentums, a group of scholars who combined Torah study with secular knowledge.
 Babylonian Talmud, Yevamot 24a, and Sifrei 155. Targum Pseudo-Jonathan and Gersonides read into the verse that it applies only to brothers from the same father, not the same mother, because families are called after their father and a brother of the same mother had different fathers.
 As explained by Rashi.
 C. B. Chavel, Ramban Commentary on the Torah, Genesis, Shilo Publishing, 1971, pages 469 and 470.