The Family in the Ancient Near East Author(s): I. Mendelsohn Reviewed work(s): Source: The Biblical Archaeologist, Vol. 11, No. 2 (May, 1948), pp. 24-40 Published by: The American Schools of Oriental Research Stable URL: http://www.jstor.org/stable/3209201 . Accessed: 16/08/2012 19:10 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . The American Schools of Oriental Research is collaborating with JSTOR to digitize, preserve and extend access to The Biblical Archaeologist. http://www.jstor.org 24 THE BIBLICALA RCHAEOLOGIST (Vol. XI, THE FAMILY IN THE ANCIENT NEAR EAST* I. Mendelsohn Columbia University "Give me sons, or else I die." (Gen.30:1) I. MONOGAMYA ND POLYGAMY The Near Eastern family of historical times is patriarchal in char- acter and organization.' Like the king who rules over his realm so does the pater familias dominate his household. He is, as the West Semites called him, the baal ("owner") of his wives and children. In its infancy the state fought an unceasing battle to restrict the absolute authority of the father who, within his own domain, had the physical power and the legal right to treat his wives and children as he pleased and even to dispose of them as he saw fit. The outcome of this struggle depended, as is the case in every combat, on the respective strength of the parties involved: in a strong state (as was the case in Babylonia during the periods of the Third Dynasty of Ur and the Hammurabi dynasty), the father's power was kept within limits; in a weak state (as was the case in Assyria, Syria and Palestine during the second millennium B.C.), the father's power was almost unlimited. According to the Hammurabi code the Babylonian family was basically monogamous in character. Parag. 167 takes monogamy for granted when it prescribes that if a man remarries after his wife's death, the children of both wives shall share equally in the inheritance of their father. Only in exceptional cases may a man marry a second wife or take a concubine while his first wife is still alive. These are: (1) if his wife is incurably ill (parag.148); (2) if she is of a repre- hensible character, neglecting her duties and belittling him in public (parag.141); (3) if she is sterile (parags.146-7); and (4) if she is a priestess and is forbidden by religious law to bear children (parags. 144-5). In all of these cases the inability of the wife to provide her husband with children is deemed sufficient ground for taking a second wife or a concubine. On the other hand, a man could have as many slave concubines as he wished. The code explicitly recognizes this fact when it decrees that a slave concubine and her children shall be set free after the death of the master (parags.170-71). The Assyrian family was basically polygamous in character. A man had one chief or "veiled" wife but he could take as many free- born concubines as he wished, regardless of whether he had children by his chief wife or not. The Middle Assyrian laws prescribe that if a man has died and his "veiled" wife has no son, the sons of his concubines shall inherit him (AL parag.41). The Harran census lists many men with two wives.2 In the Hurrian colony in Nuzi a man could legally marry two wives. In one marriage contract a bridegroom 1948, 2) THE BIBLICAL ARCHAEOLOGIST 25 promises that as long as his bride lives he will not take another wife or a concubine.! Turning to Syria and Palestine we find that both the Canaanite and the Israelite families were polygamous. The Ugaritic god Baal has three "perfect brides."' The Deuteronomic law takes it as a matter of fact that the normal well-to-do family consisted of two wives (21:15). Since polygamy was the rule (with the exception of the poor), a man could have as many wives and concubines as he could financially support (cf.II Chron. 11:18-21;13:21). II. MARRIAGEA ND DIVORCE The normal form of marriage in the Ancient Near East was of the patriarchal type in which the woman left her own family to enter the house of her husband. There are, however, cases where the Middle Assyrian laws speak of a married woman who dwells in her father's house and her husband pays her "visits." On the basis of these references some scholars maintain that there were two distinct types of marriage in Assyria, viz., one of a patriarchal character and the other of the erebu type in which the woman remained in her father's house. Driver and Miles argue convincingly that the mere fact of a married woman sometimes dwelling in her father's house does not necessarily indicate a different type of marriage (AL pp.134-42). Be it as it may, it is quite clear from the laws that the marital status of a woman dwelling in her father's house was the same as that of one residing in her husband's house, namely, the husband had to support her; when he wished to abandon her he had to give her a bill of divorce; and if she remained a widow, her father-in-law had the same control over her as if she were living in his house (AL parags. 30,38). Marriage in the Ancient Near East was a civil affair and no relig- ious sanction was necessary. In Babylonia marriage was based on a written contract. Parag. 128 of the Hammurabi code states this clearly: "If a man take a wife and do not draw up a contract (rikistum) with her, that woman is not a wife." Such a marriage contract usually con- tained four or five clauses: (1) the names of the parties concerned and the declaration of marriage; (2) the amount of the tirhatu; (3) * The following abbreviations have been used in this article: AL G. R. Driver and J. C. Miles, The Assyrian Laws. BASOR Bulletin of the American Schools of Oriental Research. MSL B. Landsberger, Materialien zum sumerischen Lexikon. UZAP M. Schorr, Urkunden des altbabylonischen Zivil- und Prozessrechts. ZA Zeitschrift fuer Assyriologie. 1. References to matriarchal and fratriarchal family organizations are found both in the cuneiform sources and in the Old Testament, cf. P. Koschaker, "Fratriarchat, Hausgemein- schaft und Mutterrecht in Keilschriftrechten," ZA,Nf.7(1935),pp.1-89; V. Aptowitzer, "Spuren des Matriarchats im juedischen Schriftum," Hebrew Union College, Annual,4,(1927),pp. 207-40,5 C. H. Gordon, "Fratriarchy in the Old Testament," Journal of Bib. Literature, (5149(2189)3,5p)p,p.2p6.1 -9272;3 -31. 2. Cf. C. H. W. Johns, An Assyrian Doomsday Book, p. 64. 3. Harvard Semitic Series IX 24. 4. See now J. Obermann, Ugaritic Mythology, p. 30. 26 THE BIBLICAL ARCHAEOLOGIST (Vol. XI, clause concerning the settlement in case of divorce; (4) oath of the parties; and (5) the names of the witnesses and the date. The Middle Assyrian laws prescribed that if a man lived with a widow for two years she is his wife even though a marriage contract (riksu) had not been drawn up (AL parag.34). On another occasion the law prescribes that if a woman whose husband has been sent on a mission of the king marries another man before the expiration of the five-year waiting period and her husband returns, he may take her and her children back "because she had not observed the contract" (AL parag.36). These references prove that a contract was necessary to legalize marriage in Assyria. This was also the case in Nuzi where the term for marriage contract was tuppi riksi." There is no evidence that a written contract was deemed necessary to legalize marriage in Palestine though it is hardly likely that it was unknown. The divorce formula in Hosea 2:2 ("She is not my wife, I am not her husband") may have been a part of a written bill of divorce (cf.Dt.24:1), and if that was so one may assume that a written marriage contract was in use. Before the actual marriage took place it was the custom for the bridegroom to present to the bride's father a sum of money or its equivalent in goods. This sum of money is called in Babylonia, Assyria and Nuzi tirhatu, in Ugarit tirhatu and mohar," and in the Old Testa- ment mohar. What is the meaning of the tirhatu-mohar? Scholars differ as to its definition. One school interprets the tirhatu-mohar as "bride- price" and hence concludes that the Ancient Near Eastern marriage was at least originally "purchase-marriage." The other school explains it, to use Professor Millar Burrows' words, as a "compensation-gift"' and hence concludes that marriage never was "purchase-marriage." It is nowhere stated that tirhatu (Sumerian: nig-mi-us-sa') was an essential element of the marriage transaction in Babylonia and Assyria and that without its payment the marriage could not be consummated. Paragraphs 138-39 of the Hammurabi code which deal with the case of divorce prescribe that if a man divorces his wife who has not given birth to children, he shall give her the equivalent of the tirhatu, but if no tirhatu was given at the time of the marriage, he shall give her one maneh of silver "for a divorce." On the other hand, however, we find that the giving of a tirhatu is taken as a matter of fact in the Ham- murabi code (cf.parags.164,166), and mentioned with few exceptions, in the marriage contracts of Babylonia and Assyria. The crassest form of "marriage by purchase" is found in Nuzi. Here a man declared that he had received from his future son-in-law goods amounting to thirty shekels of silver as the tirhatu for his daughter and then goes on to 5. Cf. Chiera and Speiser, Journal of the Amer. Or. Soc., 47(1927),p.43,no.6. 6. The terms tirhatu and mohar are used as synonyms in the Hymn to Nikkal, cf. Gordon. BASOR 65,pp.30-33. 7. See his monograph, The Basis of Israelite Marriage. 8. MSL pp.38:10;50:45;97:28. 9. C. H. Gordon, Museon 48(1935),p.127.no.XI. 1948, 2) THE BIBLICAL ARCHAEOLOGIST 27 say: "I have received, I am paid."' The Ugaritic Hymn to Nikkal which deals with the romance of the moon-god Yarah and the goddess Nikkal describes how during the wedding ceremony the precious metal given by Yarah as mohar to Nikkal's father is weighed on the family scale. In the Old Testament the term mohar is mentioned three times. Gen.34:12 relates that Shechem was willing to give as much mohar and gifts for Dinah as would be asked of him; I Sam.18:25 says that Fig. 2. Law Code of Hammurabi, king of Babylonia about 1700 B. C., until recently (see p.41) the oldest code of laws known. At the top the king is shown receiving tne laws from the divine judge, Shamash. (Replica in the Oriental Institute, University of Chicago) David desired to give a mohar for Michal but Saul rejected it in favor of one hundred foreskins of Philistines; Ex.22:15-16 deals with an assault on a virgin where the law demands that the assailant must pay the "mohar of the virgins." In addition to these, the story of Jacob's fourteen years of service for Rachel and Leah (Gen.29; see also Ex.2:21; 3:1) shows that among the Canaanites and the Hebrews the mohar, or its equivalent in labor, was regarded as a "price" for the girl. Of course, among the wealthy and powerful, heroic deeds could be substi- tuted for the mohar (cf.Josh.15:16;I Sam.18:25). In view of the con- 28 THE BIBLICAL ARCHAEOLOGIST (Vol. XI, flicting evidence as to the meaning of the tirhatu-mohar it may be sug- gested that originally it was a compensation given to the bride's father for the loss of his daughter. In course of time, varying in accordance with the cultural level of a given society, it developed into a general custom with very slight relation to its original meaning. Whatever significance the tirhatu-mohar had, it was not the only "payment" made in a marriage transaction. There were a number of other settlements of which the woman was the chief beneficiary. In Babylonia it was customary for the bridegroom to send a gift (biblum) to the bride's father. If the bridegroom changed his mind and later refused to marry the girl, he forfeited his gift, while if the father re- fused him his daughter, he had to pay double of its amount (Ham- murabi code, parags. 159-61). Wealthy parents presented their daugh- ters with a dowry (sheriqtum). It consisted of money or goods and often included also one or more female slaves. The female slaves served the married woman as her personal maids but they could also be used for another purpose. In case the woman proved barren she would give one of her maids to her husband as a child-bearing concubine and thus prevent him from taking another wife. The husband could make use of the dowry by investing it in business, but he had no legal title to it (parags. 176,183-84). It was the woman's private property given to her by her parents as a kind of insurance to fall back upon if widowed or divorced. After her death, her children inherited it. Often a husband would present gifts (nudunnumn) to his wife (parag. 150, 171-72). Such gifts could not be reclaimed and they were, like the dowry, inherited by the woman's children. As was the case in Babylonia, an Assyrian bridegroom sent gifts (called biblu and zubullu) to his bride's father. These gifts consisted of gold, silver, lead, and edible things. If the marriage was not con- summated, the bridegroom would take the gifts back, with the exception of the edible goods (AL parags.30-31). An Assyrian bride received from her father a dowry (shirqu). This was her property and after her death it was inherited by her sons (AL parag. 29). A wealthy father-in- law presented to his daughter-in-law a wedding-gift called huruppate. It consisted of precious stones and edibles (AL parags.42-43). A hus- band often gave his wife gifts called dumaqi and nudunnu. The first consisted of jewelry and personal ornaments which her husband could take back after her death. If, however, he died before her and there were no sons, the widow inherited them (ALparags.25-26). The nudunnu was inherited by the sons after the mother's death (AL parags.27,32,46). Marriage gifts in various forms were also bestowed upon Canaanite and Hebrew brides. The Ugaritic Hymn to Nikkal mentions the thlh 10. Cf. Gordon, BASOR 65(1937),pp.29-33. 11. Cf. Gordon, ZA 43(1936),p.58. 1948, 2) THE BIBLICAL ARCHAEOLOGIST 29 and mlg.'" The first is the Old Testament shillhim (I Kings 9:16; cf. Micah 1:14), and the other is found in the Nuzi documents as mulugu." Both represent gifts by a father to his daughter, that is, a dowry. Sarah, Leah, Rachel, and Rebeccah had their own female slaves who were given to them as part of their dowry. Caleb gave his daughter a parcel of land as a wedding-gift (Josh.15:19). The dowry was the private property of the woman which she could take along with her when she remarried as is evident from the story of Abigail (I Sam.25:42). The bridegroom on his part also presented gifts to the bride. This was done by Eliezer in the name of Isaac when he gave to Rebeccah silver, gold, Fig. 3. Restoration of a small ivory plaque found at AMegiddo and dating about 1200 C., showing a Canaanite maiden and her mode of dress. (Oriental Institute, University of Chicago) and apparel (Gen. 24:53). The mattan which Shechem offered to Jacob's sons was probably meant as a gift for Dinah (Gen.34:12). Another type of marriage practiced in some parts of the Ancient Near East was the Levirate marriage. This institution has its roots in primitive society where a woman is acquired for wifehood by the head of the family for one of its members. She is, of course, given as a wife to one man, but when that man dies the widow still remains the property of the group and is given as a wife to another member 30 THE BIBLICAL ARCHAEOLOGIST (Vol. XI, of the family. Remnants of this type of marriage are found in Nuzi, Assyria, and in Palestine. In Nuzi it was the custom to buy a girl ana kallatuti "for brideship," with the stipulation that the buyer would marry her off either to one of his sons, to one of his slaves, or take her himself. Such a girl remained in the house of her purchaser and, if her husband died, she was given to another member of the household until she was no longer able to bear children. According to parag. 33 of the Middle Assyrian laws if a man died without leaving children, his father may give the widow in marriage to one of his other sons or he may marry her himself. This and other laws dealing with the levirate marriage in the Assyrian code are not very clear and Driver- Miles may be right when they argue that there is no evidence of its existence in Assyria (AL pp.240-50). Koschaker, on the other hand, maintains that the levirate was known and practiced in Assyria but that it was applicable to the betrothed widow only.'2 That is to say, the law provides that when a father pays the "bride-price" for a girl and the bridegroom dies in the interim between betrothel and marriage, the father-in-law has the right to give the girl to another son of his or he may marry her himself, for by having paid the "bride-price" for her she becomes ipso facto his property. While there is uncertainty as to the existence of the levirate marriage among the Assyrians, there is no doubt that this institution was in force in Canaan during the second millennium B.C. and that it was applied in a limited form in Palestine during the first millennium B.C. The earliest and socially the most crude form of the levirate (yibbum) is recorded in Gen. 38. Judah "took" Tamar as a wife for his firstborn Er. After Er's untimely death Judah asked his second son Onan to marry his brother's widow. When he too died shortly after, Judah asked his twice widowed daughter-in-law to wait until his third son would become of age and marry her. This was the proper thing to do. But it is evident from this very story that Canaanite society was at that time in revolt against a system which treated marriage as if it were a mere business deal. Onan was reluctant to marry Tamar; he had to be forced into it by the sheer weight of the law. Judah him- self tried to evade the issue by forgetting to have his third son marry Tamar. To justify compliance with the law of an institution that was both economically and socially out of tune with the times, a new interpretation for this type of marriage was provided, namely, "To raise up seed for the (deceased) brother." Onan, as the story plainly tells us, refused to accept this new interpretation although its evasion was punishable by death. Centuries later Deuteronomy still clung 12. Quellenkritische Untersuchungen zu den "altassyrischen Gesetzen." Mitteilungen der Vorderasiatisch-Aegyptischen Gesellschaft, XXVI, 3,p.48 ff. 13. MSLp.103:8-3; see also ibid., 99:49-6. 14. UAZP 3, 4, 5, etc. 15. MSL p.103:1-7. 1948, 2) THE BIBLICAL ARCHAEOLOGIST 31 to the levirate custom although limiting greatly its applicability and scope. According to chapter 25:5-10, the levirate marriage is applicable only when the deceased left no children and when "brothers dwell together." Furthermore, the law nullifies itself by providing no penalty for its non-observance. It merely prescribes public censure for the levir who refuses to marry his brother's widow by subjecting him to a degrading ceremony called "the loosening of the shoe." Leviticus and Numbers do not mention the levirate at all; in fact, they legislate against it (Lev. 18:16;20:21;22:13;Num.27:8-11). Ancient Near Eastern marriages were notoriously dissoluble. Ac- cording to a Sumerian law, a man could divorce his wife at any time by pronouncing the formula "you are not my wife," and by paying her the sum of one-half maneh of silver.'" The Hammurabi code accepted this law but with one exception, namely, that a sick wife cannot be divorced against her will (parags.148-49), otherwise a hus- band may do as he pleases. In the case of a first wife (hirtum) who has not given birth to children, the husband must pay her a sum of money equivalent to the tirhatu and must also return her dowry which she has brought from her father's house (parag.138). If there was no tirhatu, a member of the aristocracy has to pay one maneh of silver and a commoner one-third of a maneh of silver "for a divorce" (uzubbumn) (parags.139-40). In the case of a concubine who has given birth to children, the dowry must be returned to her and in addition she receives a share of her husband's property in order to bring up the children; after the latter have grown up, she is entitled to a portion of her husband's estate equal to that of a son's share (parag. 137). Nothing is said in the code concerning a divorce of a first wife who has given birth to children. But it may be taken for granted that she could be divorced. This is evident from the marriage contracts. The divorce clause specifies the sum of money the husband would have to pay (irrespective of whether there were children or not) in case he should wish to divorce his wife. The amount paid "for a divorce" in the Hammurabi period varied from ten shekels to sixty shekels of silver." The above cited cases deal with women who were divorced by husbands for no fault of their own. But in a case where the woman was guilty of frivolity, she could be divorced without any compensation and even severely punished. Thus if a woman belittles her husband and neglects her duties in the house, the husband may either send her away empty handed or reduce her to the status of a slave in his house and marry another woman (parag.141). While a man could divorce his wife at his pleasure, a woman was threatened with dire results if she wished to exercise the same privilege. According to a Sumerian law if a woman "hate" her husband and say to him "You are not my husband," she shall be "thrown into the river."" The Hammurabi code allows a newly married woman before the act 32 THE BIBLICAL ARCHAEOLOGIST (Vol. XI, of cohabitation to divorce her husband if she "hates" him. She may say to him "You shall not have me," take her dowry and return to her father's house. If, however, it can be proven that she had relations with another man and refuses to live with her lawful husband because she dislikes him, she is treated like an adulteress and "thrown into the water" (parags.142-3)."1 In actual life, however, things were not as cruel as the laws would make us believe. Marriage in Babylonia rested on a written agreement and both parties were expected to live up to the stipulations as set forth in the contract. A clause in the marriage contract defines the penalties for each party in case of divorce. In some contracts the man has to pay a fine while the woman is subject to the death penalty;" in others, the woman's status is the same as that of a man, namely, she can divorce her husband at any time by merely paying a fine." Sumerian and Babylonian laws put an obstacle in the path of divorce by prescribing a fine to be paid by the husband while the Assyr- ian law absolves him of any responsibility. Here a man is not required to give his wife anything for a divorce. Parag. 37 of the Middle Assyrian laws merely states that if a man desires to give his wife something he may, but if he does not "she shall go forth empty." Parag. 38, dealing with a case where the woman is dwelling in her father's house, pre- scribes that the man has the right to take his dumaqi (ornaments) back, which he had given his wife, but cannot reclaim his tirhatu. Nothing is said in these laws about the dowry. It is, however, to be assumed that the husband has the right to take what was his and the woman has the right to retain what was hers. Unlike the Baby- lonian woman it would seem that an Assyrian woman could under no circumstances divorce her husband. As was the case in Assyria, a Hebrew could divorce his wife at will and was not obliged to make any provisions for her future maintenance. As is evident from Hosea 2:2 it was enough for the husband to pronounce the simple formula "She is not my wife, I am not her husband," and the marriage was thereby dissolved. Later, the Deuteronomic legislation put some restrictions in the way of unjustified divorce. The husband had to give his wife a "bill of divorce" (24: 1;cf. Isa.50:1; Jer. 3:8). A man could not divorce his newly married wife on the pretext that she was not a virgin; he had to prove it and if his accusation was false, he had to pay a fine and could never divorce her (22:19). A man could not remarry his divorced wife after she had married another man (24:1-4). These mild obstacles and Malachi's sharp denunciation of the frequency of divorce (2:14 ff) bring into sharp relief the precarious status and the complete helplessness of the married woman in ancient Israel. 16. For the interpretation of paragraphs 142-43 ef. Koschaker, ZA 35(1924),p.199 ff. 17. Cf. UAZP 2, 3, 4, 5, 6, 32, 33. 18. Ibid., 1.