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Women's Rights by Signature Books; Salt Lake City
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The story of Rachel's household provides a useful place to begin exploring the legal issues of the Bible which relate to the status of women. Many of the legal issues common to the other narratives are focused in this story. Rachel According to Josephus, Rachel's “beauty . . . was so flourishing, as few of the women of that age could vie with.”1 If so, perhaps her beauty was a snare, for her father used it to his advantage and her suitor seemed blinded by it. Rachel and her elder sister Leah seem to have been the oldest children of Laban, for Rachel first appears in the narrative attending the flocks of her father. If there had been sons of age, they probably would have attended the flocks. She must have been at least eleven years old, for rarely would flocks be entrusted to a younger person. We are introduced to her at the well of Haran—the same well where Rebekah met the servant of Abraham and shortly thereafter became betrothed to Isaac. Here then is a clue to the ensuing story, for whenever a maiden meets a young man at a well in the biblical narratives, marriage is a result.2 As Rachel led her flocks to water that evening, she was greeted by a commotion at the well. Several of her peers ran to her excitedly, telling her a stranger at the well had come to seek her father. Rachel came to him and asked, “Who are you, sir; whence have you come; and why do you seek my father?”3 Jacob responded, “If you are truly the daughter of Laban, we are related. For Terah had three sons—Abraham, Haran, and Nahor. Nahor had a son Bethuel, who is your [grand]father. Bethuel also had a daughter, Rebekah, who is my mother and my father is Isaac, son of Abraham. I am Jacob, and we are cross-cousins.”4 At the mention of her aunt's name, Rachel began to weep, for Rebecca was often mentioned by her brother. She was so happy and excited she willingly allowed Jacob to embrace and kiss her. “Come, come,” she cried. “My father will be so excited to see you. He speaks so often of your mother and has longed to hear of her. Come quickly.” “I am most anxious to meet your father, but first let's water your flocks. Then we can visit uninterrupted.” “But it is not time. It is a community well, and we do not water the flocks until all are here and together roll away the stone.” “Tonight, I will roll away the stone and water your flocks.” Rachel suppressed a protest and marvelled at the strength of Jacob as he rolled away the great stone covering the well. When he had finished watering the flock, Rachel, hurrying ahead, led him home. “Father, father,” she cried as they approached. “Jacob has come. Jacob, the son of Rebekah. Come, quickly.” Laban came from the house and greeted Jacob warmly with a phrase reflecting recognition of kinship: “Surely thou art my bone and my flesh.”5 Rachel was interested in her cousin and was aware of his interest in her. Her father also became aware of this interest. The ancient world found kinship a sound economic and social basis for marriage, and Laban recognized Jacob as a worthy spouse by that measure. Perhaps he also felt that Jacob would be a useful shepherd for his flocks. After a month Rachel's father invited Jacob to sit with him in something more than a friendly chat. It was a formal invitation to negotiate a contract for Jacob's services which, I believe, Laban intended to use as a pretext for a betrothal agreement for Rachel. The principals in a marriage contract were the bride and the groom. The contract—the provisions apply generally to all marriage contracts from the old Babylonian period down to and including Jewish law—was typically written by the bride's father or legal guardian such as the firstborn son who had inherited this responsibility from a deceased father. Either the groom or the groom's agent, usually his father or another relative, would open negotiations with the bride's father or guardian. Once they reached an agreement, they drafted a document and/or called witnesses to whom they revealed the details of the contract. Few marriage contracts would have been as informal as the brief mention given in Genesis. Agreements included various clauses: the amount of the woman's dowry, that it would be returned to her along with any other penalty in the event of a divorce, the responsibility of support, the prohibition of the husband from taking other wives, and the taking of a sister or slave as a second wife. Written marriage contracts were required under some codes as early as the first half of the second millennium B.C. Section 128 of the Code of Hammurabi, for example, invalidated any marital relationship without a written document. Oral contracts were recognized under Hittite law and in Israel for centuries after Hammurabi, although such contracts were only as good as the memory of the witnesses. Nevertheless, informal marriage was recognized in Israel as long as it met two legal conditions: intent and consummation. If a man and woman intended to act toward each other as husband and wife and raise a family and consummated these intentions, they were deemed to be legally married. It was no surprise to Rachel when her father negotiated a contract in which Jacob would contribute seven years labor as a shepherd in payment of a bride-price for Rachel. The origins of the bride-price are unknown. It was negotiated between the suitor and the prospective bride's father or legal guardian. Some scholars believe that the bride-price in a sense purchased the wife and that she thereby became chattel or possession of her husband.6 However, no ancient legal code contains statutes suggesting that wives were regarded as chattels.7 Generally, the bride's father included the bride-price in her dowry. Another thesis is that the bride-price compensated a woman for the loss of her virginity. This notion may have some validity, since non-virgins commanded lower bride-prices. The average bride-price under Jewish law from the times of Moses to the days of the Talmud was fifty shekels or 200 zuzim,8 enough money to keep a woman clothed for a year with four dresses, a standard still used in Arab cultures. The two hundred zuzim may equal the biblical fifty shekels of silver, the amount given as the price of virginity (Deut. 22:29). The four dresses symbolized the husband's ongoing responsibility to provide his wife with clothes.9 The average bride-price of a non-virgin was fifty zuzim. However, because the bride-price was technically paid to the bride's father, it would actually compensate him for having protected her virginity, not her directly. The stigma of a lesser bride-price may very well have been an incentive for the men of a household to protect their daughters or sisters against mistreatment. But I cannot see any other direct correlation between bride-price and virginity. In reality, the bride-price seems to have originated as compensation to a father's household for a daughter's lost services or a husband's symbolic purchase of those services.10 The bride-price also provided legal consideration for the marriage contract, and it gave the groom an opportunity to display his ability to support his new bride. In Jacob's case the actual bride-price may have included more than just his labor for hire. Laban seems to have neglected providing his daughters with dowries. The only hint of a dowry is Laban's gift of Zilpah and Bilhah to his daughters. When Jacob talked with Rachel and Leah about moving to his homeland in Canaan, they expressed hostile feelings toward their father, “Are we not counted of him strangers? for he hath sold us, and hath quite devoured also our money” (see Gen. 31:15). What money do they mean, since no money apparently changed hands? Either Jacob paid cash in addition to his services or the sisters computed the average bride-price as (for the sake of argument) thirty shekels of silver while Jacob had paid (again for the sake of argument) at least seventy. The slaves, Zilpah and Bilhah, were probably valued from a low of fifteen shekels of silver to a high of thirty shekels each. Thus Jacob's wives may have felt that their father had cheated them of part of their expected marital security. A bride-price did not necessarily take the form of a lump-sum payment. It was not uncommon to pay the bride-price over time. Rachel must have been pleased for the bride-price was huge by contemporary standards.11 Upon payment and acceptance of the bride-price, the couple was officially bethrothed. For seven years Rachel and Jacob prepared for the event. Tents were woven of goathair, dresses and robes were made, utensils collected. When the seven years were ended, Jacob went to the house of Rachel's father to remind him of the contract. Laban called for the wedding feast, and messages were sent throughout the country for family and friends to gather. The celebration lasted all the first day and long into the night. Rachel left the ceremony to go to the wedding tent. On the way, she was probably kidnapped and secreted away where she could not interfere with her father's plans. By agreement with Laban Leah went into the wedding tent and entered the nuptial bed. When Jacob entered the tent a little later in the dark and probably a little inebriated from the day-long celebration, he consummated his contract with a silent partner. Another grieved elsewhere. In the light of early morning, Jacob was startled to find Leah in the bed. No doubt Jacob challenged her, “What are you doing here?” No doubt Leah directed any blame toward her father, “My father made me do it.” Whereupon Jacob leaped from the tent and ran to Laban. “What is this thou hast done unto me? did not I serve with thee for Rachel? wherefore then hast thou beguiled me?” (Gen. 29:25). Laban's response was deceptive. “It must not be so done in our country, to give the younger before the firstborn,” he said and then offered him Rachel on the same terms but without a waiting period if he would keep Leah (Gen. 29:26-27). Laban's response must have infuriated Jacob even more. First of all, Laban's claim that such a marriage went against the custom of the land was false—there was no such custom or Jacob and Rachel would have known of it. Jacob had never had any intent to enter into a marriage with Leah. Jacob could have had the marriage annulled, but there were no tribunals to which Jacob could resort. Jacob was in Laban's domain without independent means and unable to return to his own land for fear of his brother. His recourse was limited. A patriarchal potentate had created a case-specific law: Jacob could have Rachel along with Leah or not at all. Jacob opted to have Rachel on Laban's terms and honored his marriage to Leah. He agreed to Laban's stipulation under duress and thus, at the end of Leah's marital week, Jacob married Rachel.12 Laban presented each of his daughters with a handmaid for a dowry—Bilhah to Rachel and Zilpah to Leah. The most important legal consideration in a marital contract was the dowry, the property the bride brought to the husband upon marriage or wedding gifts to the couple from her parents. The dowry, which usually far exceeded the bride-price, was a wife's opportunity to inherit from her father. It created stability in her new relationship and gave the new couple a significant economic start.13 Fathers could gift land to their daughters and daughters could own land, but generally sons inherited real property and related chattels. As a matter of honor, a father tried to provide for the well-being of his daughters. Tradition dictated that the dowry amount to about one-tenth of her father's estate. The wife held legal title to her dowry property, even though the husband generally controlled and managed it.14 If the marriage was dissolved, most legal systems required that the dowry be returned whole. Some laws added additional penalties.15 During the marriage, such property could be sold only with the wife's consent.16 If, during the husband's stewardship, the property was diminished or wasted, he would have to make it whole. This strong economic deterrent to divorce lent stability to the marriage relationship. As a result the dowry was usually substantial—not enough to give a couple financial independence but enough to provide the couple with help at the beginning of the marriage, to guarantee the wife a minimum standard of living, and to discourage divorce.17 Because the handmaids were dowry for Laban's daughters, the handmaids were the property of Jacob's wives, under his management. Laban's deceit and renegotiated proposition forced Jacob into a polygynous marriage. Although Rachel must have been upset by this situation, Jacob did not demur. Apparently there was nothing objectionable to the system. But Jacob quite clearly did not like the terms he had been forced to make. The ease with which Jacob accepted polygynous marriage would suggest that it was common in his day. But this was not so. It was an option but not an expectation. While two-wife marriages can be found in old Babylonian contracts, the practice does not appear to be common. Many women in the Bible, including Sarah, Rachel, and Bathsheba, lived in polygyny in contrast to women in neighboring communities. There is evidence that the practice may have been widespread among Israel at times.18 For instance we are told that in the wilderness Israel had 603,550 soldiers over the age of twenty. Of this number 22,273 were firstborn males making twenty-seven male children per family.19 Only polygynous marriages could produce such large numbers. Any wife who had a contract manifesting intent, a bride-price and dowry, and consummation was designated a chief wife.20 At the time of the patriarchs, laws generally recognized five categories of childbearing women legally attached to a man: chief wife, concubine, captive wife, slave wife, and slave female. Social classes for men also ranged from patriarch to slave. The patriarch was the legal head of the family and the chief wife or matriarch the legal head of the household responsible for all subwives, concubines, female slaves, and any or all children (Gen. 30:16). The patriarch and chief wife lived together, and a plural wife had to pursue her legal right to have children through the chief wife (v. 15). The chief wife, queen wife, primary wife, or matriarch had a legal right to be supported by any and all children, especially the firstborn, at the same level as during the patriarch's lifetime. In a polygynous marriage more than one woman might be a chief wife, but only one woman, the first chronological wife, would be the chief wife. Both Rachel and Leah were chief wives. Laban and Jacob negotiated a contract for each; for each, consideration was paid (bride-price) and received (dowry). Both unions were consummated. Chronologically Leah was the first wife. But Jacob's intent was that Rachel should be his first (and only) wife. He became Leah's husband only through fraud. Technically Jacob did not affirm his marriage to Leah until after his contract for Rachel was reaffirmed. So Rachel's contract remained the first contract and Leah's second. Thus Rachel was recognized as the chief wife (Gen. 30:15); Leah was a chief wife. In quick succession Leah bore four sons: Reuben, Simeon, Levi, and Judah. Meanwhile Rachel was beside herself with grief. She could not become pregnant and desperately wanted a child. Women had a legal right to demand that their husbands do everything in their power to father children. Rachel seemed to have this in mind when she demanded of Jacob, “Give me children, or else I die” (Gen. 30:1). Rebuked by Jacob for suggesting it was his fault, she said, “Behold my maid Bilhah, go in unto her; and she shall bear upon my knees, that I may also have children by her” (v. 3). “Upon my knees” is a phrase through which Rachel invoked a legal fiction: any child borne by Bilhah in marriage to Jacob could be claimed as her own. Bilhah bore a son whom Rachel named Dan (“he has judged or vindicated”) and then another whom Rachel named Naphtali (“my wrestling—the wrestlings of God have I wrestled with my sister”; see vv. 6-8). Rachel's presentation of her handmaid, Bilhah, to Jacob in marriage is covered by precedent. A barren chief wife may present her personal slave to her husband for impregnation. The resulting child or children are legally the chief wife's, although she may choose to delay the decision. Sarah and Rachel did. In the case of Leah's slave Zilpah, however, we have a marriage that did not conform to any ancient legal provision that we know about. Generally the laws of Hammurabi and other systems promoted monogamy except in the case of a barren or sickly wife.21 Perhaps the precedent for Leah's action originated in nomadic custom or patriarchal tradition and was not included in a written code. Or perhaps Leah was thought to be incapable of having more children. The Code of Hammurabi does speak of cases where both the chief wife and a slave-wife or concubine bore children,22 but we do not know the facts of those cases. Perhaps the chief wife became pregnant after presenting her handmaid to her husband as in the case of Rachel. Nahor, Abram's brother and a patriarch, had eight children by his wife Milcah and four children by his concubine Reumah (Gen. 22:20-24), but again we do not know who bore children first. As the episode with the mandrakes shows, Rachel as chief wife could regulate the connubial rights of Leah and through her the slave-wife Zilpah. However, Leah as a chief wife had connubial rights which neither Rachel nor Jacob could deny. Apparently it was after the births of all of Leah's sons that Rachel gave birth to Joseph (see Gen. 30:24) and then died giving birth to her second son, Benjamin (see 35:18). In death Rachel gave her sister Leah the gift she would not give her in life. After Rachel's death Leah no longer had competition for the position of the chief wife. Leah Leah seems at best to have been unhappy. She appears to have been Laban's firstborn child, but she stood constantly in the shadow of her younger sister's beauty and charm. It was not until after Rachel's death that Leah rose to primacy in marriage. But she did achieve a primacy in her own right through her sons. Leah first comes to prominence at the wedding feast for her sister Rachel and Jacob. Somehow Laban must have convinced her it was not only proper but her right as the elder sister to supplant Rachel in the marriage bed. Laban may have rigged this situation, not only to get Jacob's continued services but also to dispose of his obligations to Leah. All legal codes dealing with the subject give an unmarried daughter claim on her father for maintenance throughout her life. A childless woman, whether widowed or divorced, always had the right to return to her paternal estate for support even after her father's death. The father's heirs inherited the responsibility to provide for her if necessary. During marriage a husband was responsible for his wife's maintenance, dowry notwithstanding. A son was responsible for the support of his widowed mother—the firstborn son in Hebrew law and all sons equally under most other legal systems.23 Leah's narrative is one of few involving female-initiated fornication. She knowingly impersonated her sister—or at least allowed Jacob to assume that she was her sister—and consummated the marriage that had been solemnized between Rachel and Jacob. Mosaic law does not cover the case of a single woman seducing a man except in the special case of a priest's daughter for “playing the whore.” In this case she would be “burnt with fire” (Lev. 21:9). It was not legally possible for a single woman to commit “adultery.” Thus the encounter between unmarried Leah and married Jacob would not be deemed adulterous.24 The narrative of Jacob and Leah does not hint at a penalty for fornication. Middle Assyrian, Hittite, Mosaic, and Jewish law are the only legal systems that address this issue and then only from the lawmaker's (male) viewpoint. The Hittite code merely says that if a man cohabits with a free woman, slave-girl, or harlot, there is no punishment.25 Middle Assyrian law draws an important distinction between rape and seduction—a distinction which is lost in Mosaic and Jewish law. If a man rapes a virgin, his wife is punished.26 However, if he seduces the virgin (she consents to relations), his wife cannot be touched and the man is fined one-third of the “value of a virgin.”27 Mosaic law is less clear. According to Exodus 22:16: “And if a man entice {seduce} a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins.” In Deuteronomy 22:28-29: “If a man find a damsel that is a virgin, which is not betrothed, and lay hold on (seize) her, and lie with her, and they be found; Then the man that lay with her shall give unto the damsel's father fifty shekels of silver, and she shall be his wife; because he hath humbled her, he may not put her away all his days.” In the first case the maiden consents to the seduction or fornication, and in the second case she is raped. In both instances the penalties are the same. The male has to pay the dowry of virgins (fifty shekels) and marry the woman. Jewish law follows these two cases and holds that both rape and seduction represent theft of virginity for which the penalties are a fine and marriage.28 If the sexual offenses of seduction and rape merge in the case of the male, then perhaps the same is true of the female. Just as there is no such crime as female rape of a man, then perhaps there is no such crime as female seduction of a male. Leah's action may have been morally reprehensible, but she committed no crime or tort. At worst then Leah was simply no longer a virgin. Her father could no longer negotiate with a prospective husband for the “dowry of virgins” (Ex. 22:17). Leah's bride-price would be lowered, and it would be even more difficult for Laban to attract a marriage partner for her. Technically Jacob might be held responsible for rape due to its ambiguous definition and be required to marry Leah. Perhaps for this reason Laban was ruthless in withholding Rachel from Jacob until he agreed to pay the full bride-price of seven years' labor for Leah as well. This story provides an instructive insight into the ancient Israelite view of human nature: the law covered varieties of illicit sexual encounters but did not apparently envision the possibility that a virgin might deliberately seduce a man. This would jeopardize her bride-price and her reputation. (Yet there are other examples of this in the Old Testament which will be considered in subsequent chapters.) Not surprisingly Leah's usurpation of Rachel's marriage bed led to substantial problems in the marriage that followed. Leah's frustration at not being considered the chief wife is reflected in the names she chose for her sons. Reuben (“Look, a son”) was her firstborn, followed by Simeon (“hearing—the Lord heard I was hated”), Levi (“joined or pledged—perhaps my husband will join with me”), and Judah (“praise the Lord”). Then Leah had no more children for a time (Gen. 29:35). After Rachel's slave, Bilhah, bore her mistress two sons, Leah's slave Zilpah also bore two sons. Leah named the first Gad (“fortune or troop”), and the second Asher (“happy, blessed”) (see Gen. 30:9-13). At some point, Leah's oldest son, Reuben, returned from the fields with an armful of mandrakes—an oriental fruit believed to aid in conception—and Rachel, ever anxious for a son of her own, asked for some.29 Leah sneered, “Is it a small matter that thou hast taken my husband? and wouldest thou take away my son's mandrakes also?” (Gen. 30:14). Apparently Jacob had been sleeping excusively with Rachel. But the women struck a bargain. Rachel would receive the coveted fruit and Leah would “hire” the services of Jacob in exchange for the mandrakes.30 That evening Leah intercepted Jacob on his way home from the fields. “Thou must come in unto me; for surely I have hired thee with my son's mandrakes,” she said. “And he lay with her that night” (Gen. 30:16-18). Leah conceived a son whom she called Issachar (“reward or hire”). Subsequently she bore a sixth son, Zebulun (“honor me or exalt me—now will my husband dwell with me”), and later a daughter named Dinah. Although Leah ultimately became Jacob's primary wife at the death of her sister, Leah still took pride that Reuben was then acknowledged as Jacob's firstborn. His position added considerable stature to his mother until he lost his rights by sleeping with Rachel's slave Bilhah. Leah recovered her stature at least in part through Judah, her fourth son. In order to understand how and to what extent, it is necessary to understand the nature of the rights of the firstborn. A certain mystique surrounded firstborn sons in the Old Testament. Clearly the firstborn son had an important position. But the picture is confusing: just who was legally considered firstborn, and what was the nature of his status and prerogatives? It was a question of critical importance to mothers such as Leah, for it not only affected their social status but their economic well-being as well. Legally the rights of the firstborn included both the birthright and the blessing. In general terms the birthright encompassed certain inheritance rights to physical property. The patriarchal or patrilineal blessing conferred leadership of the family. The firstborn birthright provided the heir with a double portion of his father's estate, at least from about the seventeenth century B.C. onward.31 Where the rule of the double portion was followed, a father with five sons would divide his estate into six shares. The firstborn would receive two shares or a full one-third of the estate, while the other brothers would receive only one share or one-sixth of the estate. (Nuzi custom, dating from about 1300 B.C., allowed the firstborn first choice of at least one of his shares.) The double portion created a support base for the women of the family, who would then look to the birthright son for food, clothing, and shelter. These women included the son's mother, any childless wives of his father, his unmarried sisters, and any sisters returning home because they were divorced or widowed without children. The birthright son had to help his sisters find husbands and provide them with a dowry. If a family member lost land through debt or foreclosure on a mortgage, the birthright son had the first right to redeem it and restore the family member to his lands.32 This right of redemption extended also to any family member who may have been sold into slavery for debt. During his father's lifetime, the birthright son also was responsible (under the direction of his father) for the flocks and anything else put under his charge. The firstborn blessing conveyed headship of the family or patrilineal descent. According to the custom of the time, a man's name became immortal through his sons.33 Chief of the sons in a family was the firstborn, and the family genealogy descended from him. From the time of Aaron to the destruction of the Second Temple in 70 A.D., for example, a firstborn blessing among the tribe of Levi included the right to officiate in the temple (Ex. 28:43). While his father lived, the firstborn was responsible for the welfare of his siblings, preparing him for the time when he would be the family leader. If one of his brothers should die leaving a childless widow, he had the first duty of levirate marriage—or to father children with his sister-in-law, whether his father was alive or not. One of his more obscure duties was to avenge the blood of a murdered family member.34 The firstborn birthright (land) and the firstborn blessing (leadership) were usually bestowed on the same firstborn son—but not always. The House of Israel claimed descent from such notables as Abraham, Noah, Methuselah, and Enoch back to Adam, but it actually began with Jacob or Israel. Three of his sons—Reuben, Judah, and Joseph—contended for firstborn rights. The disposition of those rights among the sons of Israel puzzles most modern readers, and the solution to the puzzle is surprising. Israel had four wives and twelve sons as follows:
In legally designating his firstborn, the patriarch was governed by three conventions: the firstborn was (1) the chronological firstborn of the father, (2) the chronological firstborn of the chief wife, or (3) the father's favorite son. In some cultures a chief wife could apparently contract with her husband before marriage that her son would be firstborn regardless of chronology.35 The chronological firstborn of Israel was unquestionably Leah's son Reuben, positively identified as such shortly after Rachel's death. The chronicler of Genesis arranged the twelve sons of Jacob in a list with Leah and her six sons first, Rachel and her two sons second, Bilhah and her two sons third, and Zilpah and her two sons fourth. Here Reuben was called “Jacob's firstborn” (Gen. 35:23-26). Rachel's firstborn son was Joseph. He was not only the first son of the chief wife, but he was also the favorite son of Jacob. By the time Joseph was seventeen, Israel had clearly favored him above the rest and made him a special princely coat (Gen 37:3). Joseph reported dreams in which he was a leader among his brethren and even his parents bowed down to him. His brothers hated him for his dreams, and his father also rebuked him. But Jacob nevertheless “observed the saying” (v. 11), meaning he noted it and remembered its possible significance. His brothers' envy and hatred grew. Thus Reuben was Israel's chronological firstborn; Joseph was the firstborn of Rachel (Dan, son of Rachel's slave Bilhah, could have been designated Rachel's firstborn if she had so chosen); and Joseph was Israel's favorite son. When Reuben disgraced his position as firstborn, Joseph was the most likely candidate to replace him. When Reuben slept with Bilhah, his father said: “Unstable as water, thou shalt not excel; because thou wentest up to thy father's bed; then defiledst thou it: he went up to my couch” (Gen. 49:4). But Reuben was also disqualified by his general lack of family leadership. He failed to protect his younger brother Joseph at Dothan. Even worse he then attempted to absolve himself of responsibility with lies and subterfuge, presenting Joseph's torn and bloodied coat to Israel as evidence that Joseph was killed by a wild beast through an act of God (37:31). Jacob thus felt he had cause for depriving Reuben of his birthright. Strikingly he divided Reuben's birthright between two sons. The firstborn birthright was given to Joseph through his sons Ephraim and Manasseh. The firstborn blessing was given to Judah. Joseph received the birthright because he was the firstborn son of the chief wife Rachel, the favorite son of Jacob, and the worthiest of all the sons. His double portion came to his two sons, each of whom received a land inheritance in Israel. When Joseph realized that Jacob was dying, he took his sons, Manasseh and Ephraim, to see their grandfather. Israel told Joseph of his visit with God at Luz (Bethel) on his way to Padanaram. God promised Jacob that he would become a multitude of people and that Canaan would be his everlasting possession (Gen. 48:4; 28:19). Jacob then affirmed Ephraim and Manasseh as his sons: “And now thy two sons . . . are mine; as Reuben and Simeon, they shall be mine” (48:5). Later during the blessing Jacob reiterated this new relationship: “God, before whom my fathers Abraham and Isaac did walk, the God which fed me all my life long unto this day, the Angel which redeemed me from all evil, bless the lads; and let my name be named on them, and the name of my father Abraham and Isaac; and let them grow into a multitude in the midst of the earth” (vv. 15-16, italics added). Joseph presented both Manasseh and Ephraim at Israel's bedside for a blessing. He arranged the boys so that Israel could easily place his right hand on Manasseh's head as befitted the firstborn and his left hand on Ephraim's head. However, Israel crossed his hands, placing his right hand on Ephraim's head and his left hand on Manasseh's and proceeded to bless them. Joseph objected, reminding Israel that Manesseh was the firstborn. But Jacob refused the readjustment, “I know it, my son, I know it: he [Manesseh] shall also become a people and he also shall be great: but truly his younger brother shall be greater than he, and his seed shall become a multitude of nations” (Gen. 48:19). Jacob further confirmed, “I have given to thee one portion above thy brethren” (v. 22). Thus Joseph was given the double portion, and his firstborn birthright was given to Ephraim, his second son and now Jacob's adopted son. This ordination of a second-born adopted son as firstborn in the presence of other biological sons follows no known convention, which is probably why it was deemed significant enough to recount in detail in the Bible. We may deduce from this story that a patriarch could nominate anyone he liked as his firstborn. Rachel's other legal sons through Bilhah—Dan and Naphtali—and Leah's sons through Zilpah—Gad and Asher—are the only secondary sons recorded in the book of Genesis who were raised to the status of primary sons or full heirs. The legal convention for this enfranchisement is not known, but control of the procedure must have been tied to ownership. Wives controlled their slaves and the children of their slaves, and men did the same.36 In the case of Dan and Naphtali, after Rachel's death, Jacob enfranchised them at his discretion. Leah would have had no reason to refuse, raising the number of “her” sons to eight. It does not seem to have been necessary for Leah or Rachel to adopt these four sons by contract. Although we do not know what legal formality was required, it may have been as simple as pronouncing each one “my son” before witnesses and enfranchising them with all the rights and obligations of heirs. Dan, Naphtali, Gad, and Asher received land inheritances equal to those of Jacob's other sons, but his blessings to them were among the shortest he gave to any of his sons (Gen. 49:17-21). When Jacob blessed Judah, his fourth son by Leah, he gave him the firstborn patriarchal or patrilineal blessing. He blessed Judah that he would be a leader and a lawgiver: “The sceptre shall not depart from Judah, nor a lawgiver from between his feet, until Shiloh come” (Gen. 49:10). The author of 1 Chronicles confirms: “Now the sons of Reuben the firstborn of Israel, (for he was the firstborn; but, forasmuch as he defiled his father's bed, his birthright was given unto the sons of Joseph the son of Israel: and the genealogy is not to be reckoned after the birthright. For Judah prevailed above his brethren, and of him came the chief ruler; but the birthright was Joseph's). . . .” (5:1-2 emphasis added). Though the birthright or double-portion inheritance was given to the sons of Joseph, the genealogy was not to be reckoned after them but after Judah, who would have the rights of leadership over Israel until the coming of Messiah. Thus in a very real sense, Leah became a co-chief wife with Rachel through their sons who shared the firstborn rights. Bilhah Bilhah was a victim. We first read of her at Rachel's wedding where we learn she was a chattel—Rachel's dowry, a gift from Laban. Thus she was Rachel's handmaid—her personal servant or slave. Years later she was sent to Jacob's bed (as a legal slave-wife) to bear children for Rachel. After Rachel's death she is no longer called an “amah” (handmaid) but a “pilegesh” (concubine), meaning she was no longer a slave-wife but a free woman (Gen. 35:22). In her new-found freedom, she was seduced by Reuben who lost his firstborn rights by his conduct. Borrowed from foreign sources, concubinage was practiced only by Hebrews wealthy enough to own slaves.37 As slavery died out by the time of the Babylonian captivity, so did concubinage. Not that all concubines were slaves. Any woman who was married without exchange of property or contract, or without certain clauses in her marriage contract, was a concubine.38 Most concubines in Israel of whom we have record were non-Hebrews who became concubines (pilegeshim) by being freed from slavery upon the death of their mistress or husband. If the slave was not freed, she was known as a handmaid (amah) or a slave-wife. Slave-wives when freed were concubines and their children were also freed.39 If the chief wife had no children except those born to the concubine, then those children would be heirs to the estate. If the chief wife had children, then the concubine's sons would not inherit unless the father recognized them during his lifetime.40 The status of a concubine's daughter is not known. No statute deals with it, but she would presumably be dowered as a daughter and suitably married. Depending on what she brought into the marriage as part of the contract and/or consideration, a concubine could be high-caste or low-caste.41 We know nothing of Bilhah's background. The origin of her name is unknown,42 though William Smith suggests it means “timid, bashful.”43 Since her name has foreign origins, she was probably a permanent slave, likely captured in a war or raid. Another reasonable assumption is that she was younger than her mistress. The story's sketchiness conceals its pathos. As a slave Rachel permitted Bilhah sexual access to Jacob until she had borne two sons, Dan and Naphtali,44 then this apparently fertile woman had no more children, no doubt because Rachel denied her further sexual relations. (Similarly, Zilpah bore two children within a short time of her marriage to Jacob.) Several centuries later a Mosaic statute would require a husband to continue his marital duty to his concubine (Ex. 21:10). However, no earlier statute affirms such a custom, and no ancient statute preserves any marital rights for slave-wives. When Jacob blessed his sons he chastened Reuben for defiling his (Jacob's) marital bed. According to the pseudepigraphical Testament of the Twelve Patriarchs, Reuben claimed to have witnessed Bilhah bathing naked and became consumed by desire. He followed her as she retired to her bed. She was drunk, and he took her without her assent.45 Whether she was conscious, consenting, or unaware, Reuben had committed a crime as well as a moral violation. If Bilhah had still been a slave, it would not have been a capital offense because a slave was property not legally a person. Since Bilhah had borne Jacob two sons, and was a concubine, the offense was adultery. Even consensual relations with a concubine was a capital crime. It is not difficult to imagine Bilhah as a woman who may have longed for an independent relationship with Jacob as a wife and may have wished for more children. It is possible that she was a willing partner to Reuben, although the fact that she does not seem to have been punished lends credence to the pseudepigraphical tale, making her an unequivocal victim. According to ancient Near Eastern law, whatever punishment Jacob decreed for his wife Bilhah would also extend to Reuben. Penalties for adultery involving free married women included death, slavery, mutilation (cutting off the nose and/or ears), shaving the head and pubic area, the humiliation of being led naked through town (signifying disinheritance), or any combination of the above.46 A man who committed adultery risked castration under some codes.47 Of course, forgiveness of the guilty parties was also an option. As far as we know, Jacob chose not to punish his errant concubine, Bilhah, in any way and only punished Reuben, his eldest son, by denying him the firstborn birthright and blessing.
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1. 1. Josephus, “Antiquities of the Jews,” in Josephus: Complete Works, trans. William Whiston (1960; rprt., Grand Rapids, MI: Kregel Publications, 1972), 41. 2. Another example would be Moses meeting the daughters of Jethro at the well—one of whom he married. 3. The following conversation is a paraphrase of their interchange taken from the account in Josephus, “Antiquities of the Jews,” 41. 4. Cross-cousins are the son and daughter of a sister and brother. 5. Gen. 29:14. According to David Daube, this language and the invitation to dwell in Laban's home indicate a close family relationship; see “Jacob's Reception by Laban,” Journal of Semitic Studies 1 (Jan. 1956): 60. R. David Freedman agrees: “The idiomatic meaning in the Bible of `bone and flesh' is `very close relative,' `one of us'—in effect, `our equal.' For example, when Laban refers to Jacob as `my bone and my flesh' in Genesis 29:14, he provides Jacob with free hospitality. But in verse 15, where Jacob is demoted to ah (brother, kinsman), he has to work for his keep” (“Woman, A Power Equal to Man,” Biblical Archaeology Review 9 [Jan.-Feb. 1983], 1:58). 6. See Louis M. Epstein, The Jewish Marriage Contract (New York: Arno Press, 1973), 59. 7. See G. R. Driver and J. C. Miles, eds., The Babylonian Laws, 2 vols. (Oxford: Oxford University Press, 1968,) 1:259-65; 2:51. 8. Epstein, Jewish Marriage Contract, 60. 9. Paul A. Kruger, “The Hem of the Garment in Marriage,” Journal of Northwest Semitic Languages 12 (1984): 79-86. 10. Ze'ev Falk, Jewish Matrimonial Law in the Middle Ages (London: Oxford University Press, 1966), 150; Driver and Miles, The Babylonian Laws, 1:265n1. 11. One of the many interesting questions raised by this narrative is how much did Jacob actually pay? A minimum annual wage for an assistant shepherd was about ten shekels of silver in both Eshnunna and Babylonian law; see Barry L. Eichler, Indenture at Nuzi: The Personal Tidennutu Contract and its Mesopotamian Analogues (London: Yale University Press, 1973), 86; Laws of Eshnunna 11, in Reuven Yaron, The Laws of Eshnunna (Jerusalem: Magnes Press, 1969), 25; Driver and Miles, The Babylonian Laws, 471. As a master shepherd, Jacob would customarily be entitled to 15-20 percent of the increase of the flock for wages as well as food and clothing from the owner. Although the master shepherd absorbed the losses from natural death, disease, predators, and marauders, the possibilities of reward for a master shepherd were much greater than ten shekels of silver per year. The biblical bride-price of fifty shekels of silver (Deut. 22:29) may include a penalty because of the prospective husband's wrong-doing in this case. Three old Babylonian marriage contracts involving high-class temple priestesses recorded bride-prices of one-half maneh, or thirty shekels of silver, in one contract and one-third maneh, or twenty shekels, in two other contracts; see Driver and Miles, The Babylonian Laws, 1:253-59. The prophet Hosea paid a bride-price of fifteen shekels of silver and one and one-half homers of barley—a total of just over seventeen shekels of silver—but this price may have been exceptionally low because his wife is designated as a “harlot” and was at least a divorcee (Hos. 3:1-3). A seventh-century B.C. marriage contract provided for a bride-price of sixteen shekels of silver; see John Van Seters, Abraham in History and Tradition (New Haven, CT: Yale University Press, 1975), 83. Fifth-century B.C. contracts from Elephantine specify five and ten shekels of silver; see Reuven Yaron, Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon Press, 1961), 47. Although bride-prices varied in different times and locales, Jacob's bride-price was nothing to be ashamed of. At the absolute minimum he paid seventy shekels of silver as a bride-price (seven years times ten shekels). This was sufficient to purchase from two to three slaves and exceeded the usual and customary bride-price. 12. It was a custom at the time and for many centuries thereafter (for example, Samson's marriage in Judges 14:17) to observe a seven-day marriage feast so that nomadic family and friends could come together and get reacquainted before leaving again for remote areas. 13. Menachem Elon, The Principles of Jewish Law (Jerusalem: Keter Publishing House Jerusalem Ltd., 1975), 390; Epstein, Jewish Marriage Contract, 90-91. 15. The Code of Hammurabi, for example, required the husband to pay an additional amount similar to the bride-price; see Code of Hammurabi 138, in Driver and Miles, The Babylonian Laws, 2:55. 16. Epstein, Jewish Marriage Contract, 100. 17. Katarzyna Grosz, “Dowry and Brideprice in Nuzi,” in Studies on the Civilization and Culture of Nuzi and the Hurrians in Honor of Ernest R. Bacheman, ed. M. A. Morrison and D. I. Owen (Winona Lake, IN: Eisenbraun, 1981), 161-77. 18. Epstein, Marriage Laws in the Bible and Talmud, 5. 19. Ibid. Gideon, a judge in Israel, had seventy-one sons, “for he had many wives” (Judges 8:30-31). A census of Nuzi households (mid-second millennium B.C.) revealed that about 25 percent had two or more wives. This is a little surprising in light of earlier Babylonian statutory law that clearly prohibited polygyny except when a wife was barren or ill and therefore incapable of either bearing children or having sexual relations; see L. M. Muntingh, “The Social and Legal Status of a Free Ugaritic Female,” Journal of Near Eastern Studies 26 (1967): 102; Code of Hammurabi 144 and 148, in Driver and Miles, The Babylonian Laws. 2:57-59. However, numerous old Babylonian marriage contracts exist in which a man married two women at the same time. In each case the wives were called “sisters” (though it is not clear that they were biological sisters) and one was a primary wife while the second had a lower status—either as a concubine or slave-wife with the responsibility of serving the first. Here is an example of such a contract from about 1800 B.C.:
20. Louis M. Epstein, Marriage Laws in the Bible and Talmud (1942; rprt. New York: Johnson Reprint Corporation, 1968), 37. 21. “When a seignior married a woman and a fever has then seized her, if he has made up his mind to marry another, he may marry (her), without divorcing his wife whom the fever seized; she shall live in the house which he built and he shall continue to support her as long as she lives.” Code of Hammurabi 148, in James B. Pritchard, ed., Ancient Near Eastern Texts (Princeton, NJ: Princeton University Press, 1969), 172; see also Code of Hammurabi 145; Muntingh, “Free Ugaritic Female,” 102. 22. Code of Hammurabi 170-71, in Driver and Miles, The Bablyonian Laws, 2: 65-67. 23. See, for example, Middle Assyrian Law A 46 in Pritchard, Ancient Near Eastern Texts, 184. 24. William Gesenius, A Hebrew and English Lexicon of the Old Testament, eds. F. Brown, S. R. Driver, and C. A. Briggs (Oxford: Clarendon Press, 1976), 275. 25. “If a free man cohabits with (several) slave-girls, sisters and their mother, there shall be no punishment. If blood-relations sleep with (the same) free woman, there shall be no punishment. If father and son sleep with (the same) slave-girl or harlot, there shall be no punishment.” Hittite Law 194, in Pritchard, Ancient Near Eastern Texts, 196. 26. “. . . if a seignior took the virgin by force and ravished her, either in the midst of the city or in the open country or at night in the street or in a granary or at the city festival, the father of the virgin shall take the wife of the virgin's ravisher and give her to be ravished; he shall not return her to her husband (but) take her”; Middle Assyrian Law A 55, in ibid., 185. 27. “If the virgin has given herself to the seignior, the seignior shall (so) swear and they shall not touch his wife; the seducer shall give the (extra) third in silver as the value of a virgin (and) the father shall treat his daughter as he wishes.” Middle Assyrian Law A 56, ibid., 185. 28. Epstein, Jewish Marriage Contract, 60. 29. C. F. Keil and F. Delitzsch, Commentary on the Old Testament, 10 vol. (Grand Rapids, MI: William B. Eerdmans Publishing Company, 1985), 1:289. 30. See David Daube, Studies in Biblical Law (New York: KTAV Publishing House, 1969), 19-24, for an excellent insight into this scenario. 31. I have found no evidence anywhere that a firstborn son ever inherited the entire estate where he had brothers of equal status. Generally sons of equal status inherited equally, and the double portion was an exception. 32. H. H. Rowley, “The Marriage of Ruth,” Harvard Theological Review 40 (1947): 85. 33. Driver and Miles, The Babylonian Laws, 1:330. 34. Rowley, “The Marriage of Ruth,” 85. 35. For example, an Old Babylonian contract stipulates: “If . . . (another wife) to Irihalpa gives birth to a son first and after that Naidu {this is her marriage contract} gives birth to a son, the son of Naidu alone shall be the firstborn”; Thomas L. Thompson, The Historicity of the Patriarchal Narratives (New York: Walter de Gruyter, 1974), 265. 36. For example, the Code of Hammurabi (secs. 170-71 in Driver and Miles, The Babylonian Laws, 2:65) declares that a man may enfranchise sons born to him of his slave-female. The Middle Assyrian laws provide for a man to elevate his secondary wife to the status of primary wife by veiling her in the presence of five or six witnesses (Middle Assyrian Law A 41, in G. R. Driver and J. C. Miles, eds., The Assyrian Laws [Oxford: Clarendon Press, 1935], 409). The Code of Hammurabi, as already discussed, prescribed the punishments a chief wife could inflict on a slave-wife she owned who attempted to elevate herself to the status of the chief wife (Code of Hammurabi 146-47, in Driver and Miles, The Babylonian Laws, 2:57). The story of Sarah's dealings with Hagar and Ishmael illustrates that slave-wives and their children remained under the control of the chief wife. She had the power to claim the children as her legal sons, thus making them legal sons or enfranchised heirs of their father. 37. Epstein, Marriage Laws in the Bible and Talmud, 34, 37, 39. 38. Ibid., 41, 44; Epstein, Jewish Marriage Contract, 9n29. 39. Concubines such as Keturah, who Abraham married after the death of Sarah (Gen. 25:6), were likely free to begin with and were married as concubines so that they would have no claim on the inheritance of Isaac. 40. Driver and Miles, The Babylonian Laws, 1:65. 41. Epstein, Marriage Laws in the Bible and Talmud, 35. 42. Gesenius, A Hebrew and English Lexicon, 117. 43. William Smith, A Dictionary of the Bible (Grand Rapids, MI: Zondervan Publishing House, 1972), 93. 44. When Rachel died Bilhah was freed and her slave-wife status was elevated to concubine. But when her sons became full heirs, her status would have changed from low-caste concubine (one without any assets) to a high-caste concubine (one whose sons would have assets with which to support their mother as the need arose). 45. James H. Charlesworth, ed., The Old Testament Pseudepigrapha, 2 vols. (Garden City, NY: Doubleday, 1980), 1:783. 46. “If the wife of a seignior has been caught while lying with another man, they shall bind them and throw them into the water. If the husband of the woman wishes to spare his wife, then the king in turn may spare his subject.” Code of Hammurabi 129, in Pritchard, Ancient Near Eastern Texts, 171. “Apart from the penalties for [a seignior's wife] which [are prescribed] on the tablet, [when she deserves it], a seignior may pull out (the hair of) his wife, mutilate (or) twist her ears, with no liability attaching to him.” Middle Assyrian Law A 59, in ibid., 185. See also, Hittite Law 198, in ibid., 196; Middle Assyrian Law A 57, in ibid., 185; Kruger, “The Hem of the Garment,” 82; Anthony Phillips, “Another Look at Adultery,” Journal of Studies in the Old Testament 20 (July 1981): 4. 47. “If a seignior has caught a[nother] seignior with his wife, when they have prosecuted him [and] convicted him, they shall put both of them to death, with no liability attaching to him. If, upon catching [him], he has brought him either into the presence of the king or into the presence of the judges, when they have prosecuted him [and] convicted him, if the woman's husband puts his wife to death, he shall also put the seignior to death, but if he cuts off his wife's nose, he shall turn the seignior into a eunuch and they shall mutilate his whole face. However, if he let his wife go free, they shall let the seignior go free.” Middle Assyrian Law A 15, in Pritchard, Ancient Near Eastern Texts, 181. See also Samuel Greengus, “A Textbook Case of Adultery in Ancient Mesopotamia,” Hebrew Union College Annual 40 (1969): 33. |
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