Property and the Family in Biblical Law. (JSOT Supplement 113)Written by Raymond Westbrook Reviewed By Richard S. Hess
Several of these essays have been published over the past 20 years in a number of legal journals, not easily accessible to many potential readers. The introduction and the chapters on undivided inheritance and dowry have not been published previously. Westbrook’s approach, which is to understand biblical legislation in the light of comparative Ancient Near Eastern legal and contractual documents and to interpret the implications of the material in light of Greco-Roman, medieval and modern jurisprudence, has much to commend it. It leads him to contextualize the legal issues within the narratives as well as the biblical ‘law codes’. This resolves a number of interpretative issues and generates ethical implications which are often as cogent as any previously suggested.
Westbrook argues that in ancient Israel the principal source of income was agricultural land. A father who held family land could sell it, but it would revert to the family upon his death and sometimes earlier in the context of general proclamations of debt release. The family remained together until the land was divided. This did not always occur at the death of the father. Such undivided inheritance is the legal fiction that all the heirs are equal owners. It could be dissolved by mutual consent. It could be artificially created by others then brothers. Levirate marriage could provide for continuation of the undivided property by providing the necessary heir. At Terah’s death, the undivided estate remained in Nahor’s hands while the other heirs, Abram and Lot, left home. In the case of Jacob’s sons, the double inheritance did not automatically go to the firstborn but to whomever was chosen by the father. Westbrook suggests that the division of land in Joshua 13–19 be seen in the context of the division of inherited property within the family.
Setting aside generalizations about Near Eastern haggling and barter customs, Westbrook argues that the reason for Abraham’s refusal to receive the land for free or for a low price was based on a legal principle whereby the full value of the land must be paid or permanent ownership is not passed on. He also finds the sale in Genesis 23 to be less like Neo-Babylonian ‘dialogue documents’ in which a ‘needy seller’ most often initiates the deal. On the other hand, there is a similarity with second-millennium-bc legal contract documents from throughout the Ancient Near East. These each record both a sale between private persons and one in which the king simultaneously bestows the same property as a royal gift upon the buyer. Such a ‘double transfer’ can be found in Genesis 23, where Ephron is the private person and the sons of Heth represent government. In all cases, official recognition of the transfer of property may have served to reinforce the legality of the new owner’s position.
Westbrook reviews theories about the origins of the Jubilee, especially its relationship to the Ancient Near Eastern misharum. The major difference is the unpredictability of the misharum. Westbrook argues that the Jubilee is therefore a late development in which the Levitical scribe ‘institutionalized’ the practice during the exile. However, the evidence suggests that legal acts of misharum are almost exclusive to the first half of the second millennium. Therefore, whatever institutionalization may have occurred under Nehemiah, the practice must have had a much greater antiquity in Palestine and Israel.
On land redemption, Westbrook argues that the family of the original owner possessed the right of redemption, not just the owner. Ruth 4 ties together levirate marriage and redemption rights. The kinsman was willing to redeem if the land would pass on to his own posterity. It would with Naomi, who was beyond childbearing age. But the kinsman refused to redeem when he learned that the land could pass on to any children which Ruth might have.
Westbrook observes that, while sons were given inheritance, daughters received dowries. These were normally bestowed by the daughter’s father at her marriage or later. They included movable property, but rarely land. The dowry became part of the husband’s house, but the wife retained an ownership which normally reverted to her upon termination of the marriage. This would provide security for widows who did not receive an inheritance. Of special interest is Westbrook’s discussion of legal and prophetic statements regarding the protection of widows who could be cheated out of their dowries by unscrupulous heirs to the husband’s estate.
This study is an important contribution to the understanding of biblical law and the ethical implications of the possession and exchange of property.
Richard S. Hess
Denver Seminary, Denver