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Copyright
©
1991
Sheffield
Academic Press
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by
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Publication Data
Westbrook, Raymond
Property
and the
family
in
Biblical law.—(Journal
for
the
study
of the Old
Testament. Supplement
series.
ISSN
0309-0787;
113)
I.
Title
II.
Series
241.2
ISBN
1-85075-271-0
CONTENTS
Preface
Abbreviations
INTRODUCTION
Chapter
1
PURCHASE
OF THE
CAVE
OF
MACHPELAH
Chapter
2
JUBILEE LAWS
Chapter
3
REDEMPTION
OF
LAND
Chapter
4
THE LAW OF THE
BIBLICAL LEVIRATE
Chapter
5
THE
PRICE FACTOR
IN THE
REDEMPTION
OF
LAND
Chapter
6
UNDIVIDED INHERITANCE
Chapter
7
THE
DOWRY
Bibliography
Index
of
References
Index
of
Authors
7
9
11
24
36
58
69
90
118
142
165
171
176
This page intentionally left blank
PREFACE
My
research
in
biblical
law
began within
the
confines
of a law
faculty
and
it is not
surprising therefore that
my
early papers
on the
subject
were published
in law
journals.
Unfortunately,
the
result
has
been
to put
these studies beyond
the
knowledge
or
reach
of
biblical scholars.
A
number
of
students
had
therefore
suggested that
I
reprint those articles
in a
format
accessible
to
biblical scholarship,
and
when
I put
this suggestion
to Dr
Philip
Davies, Director
of the
Sheffield
Academic Press,
he
very generously
agreed
to
their publication
by the
Press
as a
single volume
of
collected
essays.
The
present volume contains
five
previously published essays,
all
connected with
the
theme
of
family
property
in
biblical law.
I
have
not
attempted
to
revise them
in any
way; instead,
I
have added
two
previously unpublished essays
on the
same theme
and an
Introduction
that seeks
to
delineate
the
general framework
of the
family
and
inheritance
law
within which
the
special rules discussed
in the
individual
chapters operated.
I
have also updated
the
bibliography
to
include relevant studies published since
the
original appearance
of my
own
articles.
Chapters
1-3 first
appeared
in
Volume
6 of the
Israel
Law
Review
for
1971 (pp.
29-38,
209-25,
and
367-75, respectively); Chapter
4
appeared
in
Volume
24 of the
Revue Internationale
des
droits
de
I'antiquite
(3rd series)
for
1977 (pp.
65-87);
and
Chapter
5 in
Volume
32
of the
same journal
for
1985 (pp. 97-127). Chapter
6 was
presented
as a
lecture
to the
Department
of
Civil
Law of the
University
of
Edinburgh
in May
1990,
and
Chapter
7 was
presented
as
a
paper
to the
Society
of
Biblical Literature International Meeting
in
Sheffield,
England,
in
August 1988.
The
book
is,
then,
a
collection
of
essays rather than
a
homogeneous
study.
I can
only hope that
any
inconvenience
felt
by the
reader
as a
result
will
be
outweighed
by the
convenience
of
being able
to find the
book
in the
library.
Raymond Westbrook
The
Johns Hopkins University
October
1990
8
Property
and the
Family
in
Biblical
Law
ABBREVIATIONS
AASOR
AB
AnBib
ANET
AOAT
ArOr
BA
BASOR
Bib
BibOr
BO
CBQ
CE
CH
CL
CRAIBL
DBSup
HL
HTR
HUCA
ICC
JAOS
JARCE
JBL
JCS
JEA
JESHO
JJP
JNES
JQR
JSOT
JSS
MAL
NBL
Or
OIL
Annual
of the
American
Schools
of
Oriental
Research
Anchor
Bible
Analecta
biblica
J.B.
Pritchard
(ed.),
Ancient
Near Eastern Texts
Alter
Orient
und
Altes
Testament
Archiv
orientdlni
Biblical Archaeologist
Bulletin
of
the
American Schools
of
Oriental Research
Biblica
Biblica
et
orientalia
Bibliotheca
orientalis
Catholic
Biblical Quarterly
Codex
Eshnunna
Codex
Hammurabi
Codex
Lipit-Ishtar
Comptes
rendus
de
I'Academic
des
inscriptions
et
belles-lettres
Dictionnaire
de la
Bible,
Supplement
Hittite
Laws
Havard
Theological Review
Hebrew Union College Annual
International
Critical
Commentary
Journal
of
the
American Oriental Society
Journal
of the
American
Research
Centre
in
Egypt
Journal
of
Biblical Literature
Journal
of
Cuneiform
Studies
Journal
of
Egyptian
Archaeology
Journal
of
the
Economic
and
Social History
of
the
Orient
Journal
of
Juristic
Papyrology
Journal
of
Near Eastern Studies
Jewish Quarterly Review
Journal
for the
Study
of
the Old
Testament
Journal
of
Semitic Studies
Middle
Assyrian
Laws
Neo-Babylonian
Laws
Orientalia
(Rome)
Old
Testament
Library
Property
and the
Family
in
Biblical Law:
Oudtestamentische
Stiidien
Revue
d'assyriologie
et
d'archeologie
orientate
Revue
biblique
Revue
hittite
et
asiotique
Revue
historique
de
droit
Revue
historique
de
droit
fran^ais
et
Stranger
Revue
internationionale
des
droits
de
I'antiquite
Studia
et
Documenta
ad
lura
Orientis
Antiqui
Pertinentia
Vorderasiatische
Bibliothek
Ugarit-Forschungen
Vorderasiatische
Bibliothek
Vie
spirituelle
Zeitschrift
fur
Assyriologie
Zeitschriftfur
die
alttestamentliche
Wissenschqft
Publications
and
editions
of
cuneiform texts
are
cited
by the
abbreviations
of the
Chicago
Assyrian Dictionary (CAD).
10
OTS
RA
RB
RHA
RHD
RHDFE
RIDA
SDIOAP
UP
VAB
VSpir
ZA
ZAW
INTRODUCTION
In
ancient Israel,
the
principal source
of
income
was not
contract,
as
in
modern society,
but
property,
and the
most important property
for
these purposes
was
agricultural land.
At the
same time,
the
principal
economic
unit
was the
family, which provided
the
framework
for
exploitation
of the
land
and for
distribution
of the
income
from
it.
Small wonder then, that
the
biblical
law of
property
was
concerned
less
with
the
efficient
use and
transfer
of a
commercial asset than with
protecting
the
rights
of the
family
to the
source
of
their economic
survival,
not
only against outsiders
but
even
against
individual
members
of the
family
itself.
The
following chapters discuss
the
special rules developed
by
bibli-
cal law to
maintain
the
link between property
and
family
and to
bend
ownership
of
property
to the
goal
of
ensuring
the
family's continua-
tion.
The
purpose
of
this
introduction
is to
explain
the
context
in
which
those special rules operated:
the
nature
of
biblical law,
of the
family
as a
legal unit,
and of
ownership,
and the
normal pattern
of
inheritance
of
family
property.
1.
Biblical
Law
The
sources
of law in the
Bible consist only
of
isolated fragments,
but
fortunately
for our
understanding
of
them,
the law
that they represent
stood
in no
such isolation. Biblical
law was
part
of a
much wider legal
tradition that extended
across
the
whole
of the
ancient Near East.
Although
its
roots
may be
more
ancient,
1
the
availability
of
written
legal sources
from
the
mid-third millennium onwards enables
us to
1. See N.
Yoffee,
'Aspects
of
Mesopotamian Land
Sales',
American
Anthropologist 90 (1988), pp. 119-30, esp. pp. 127-28, where the pattern of
prehistoric urban settlement
in the
Jordan valley
is
linked
to
legal practices
in 2nd
millenium
Babylonia.
12
Property
and the
Family
in
Biblical
Law
trace
its
diffusion
along with that
of
cuneiform writing, through
the
academic traditions
of the law
codes, through royal edicts
and
through
the
many documents
of
practice. That biblical
law was
heir
to the
cuneiform
traditions
can be
seen
from
their reflection
not
only
in the
biblical
law
codes
but in all
genres
of
biblical literature,
from
wisdom
to
narrative. Like
all
other parties
to the
tradition,
the
biblical
system
was
independent, accepting rules selectively
and
developing
special
ones
of its
own,
but it
shared
so
much
of the
common
conceptions
and
practices that even
its
most parochial norms
are
thrown into relief
when
placed against
the
background
of the
surrounding systems.
It is a
context constructed
from
evidence
no
less fragmentary than
the
bibli-
cal,
and as we
shall
see in the
course
of the
following chapters,
the
biblical
sources make
no
mean contribution themselves
to the
under-
standing
of
Sumerian
or
Ugaritic
law.
1
2. The
Family
The
association between
family
and
property permeates
the
basic
terminology:
in
Gen. 7.1,
God
orders Noah,
'Go
into
the
ark, with
all
your
house '
The
word
'house'
of
course does
not
refer
to
bricks
and
mortar,
but to the
members
of
Noah's family,
who are
enumer-
ated
in v. 7:
'Noah,
with
his
sons,
his
wife,
and his
sons'
wives '
The
term
'house'
therefore describes
a
patriarchal
family,
including
married adults
and
presumably their children,
all
under
the
authority
of
a
single head.
When this unit
is
referred
to
objectively, i.e.,
to
include
the
head,
it
is
called
a
'father's
house'
(byt'b).
Gottwald
2
distinguishes between
the
true
byt 'b of the
current head
of
household,
and a
larger social unit
such
as a
tribe
or
dynasty which
is fictitiously
conceived
as a byt
'b
The
latter
may
carry
the
name
of a
founding
ancestor,
for
example,
the
tribe
of byt
Joseph
or the
dynasty
of byt
David,
or may
merely
1.
For
this
'diffusionist'
view
of
ancient Near East law,
see
esp.
S.
Paul, Studies
in the
Book
of
the
Covenant
in the
Light
of
Cuneiform
and
Biblical
Law
(VTSup,
18;
Leiden: Brill, 1970),
pp.
99-105
and R.
Westbrook,
'The
Nature
and
Origins
of the
Twelve
Tables',
Zeitschrift
aer
Savigny-Stiftung
(Rom. Abt.)
105
(1988),
pp. 82-
97. For
reservations
as to
this view,
see M.
Malul, Review
of
Westbrook, Studies
in
Biblical
and
Cuneiform
Law,
Orientalia
59
(1990),
p. 86.
2. See
N.K. Gottwald,
The
Tribes
of
Yahweh
(New York: Orbis, 1979),
pp.
285-92, esp.
p.
287.
imply
it, as in 1
Sam. 2.28 where
the
reference
to
God's
favour
to the
'house
of the
father'
of Eli
must
be to
Eli's
ancestor, presumably
Moses.
1
In
this
study
we are
concerned
with
the
true
byt 'b, the
living
family.
Thus
in
Gen. 47.12
we are
told:
Joseph
sustained
his
father
and his
brothers
and all his
father's
house
with
bread,
down
to the
little
ones.
In
spite
of his
importance, Joseph
is
still
not the
head
of the
family,
which
is
referred
to as the
house
of his
father, namely
Jacob.
But
'house'
can
have
a
different
connotation.
In
Gen.
31.14,
Laban's
daughters, Rachel
and
Leah, complain:
'Have
we
still
an
inheritance
share
in our
father's
house?'
The
reference here
is
clearly
not to
per-
sons
nor to a
dwelling
but to the
family
assets under
the
father's con-
trol.
The
further
dimension
of
'house'
as
inheritable property
is
emphasized
by the
prophet Micah
in his
protest against
the
seizure
of
family
estates (2.2):
They covet
fields and
seize
them,
Houses,
and
take them away;
They
oppress
a man and his
house,
A
person,
and his
inheritance.
Parallelism
forms
an
important rhetorical device
in
this verse.
The
first
parallel
is two
types
of
real estate,
fields/houses,
which
are the
object
of
parallel verbs: seize/take away. Both verbs have technical,
legal meanings. They
refer
not to
simple acts
of
force
but to
specific
legal
(or
illegal) activities.
The
verb translated
'seize'
(gzl)
denotes
the
acquisition
of
property
by an
abuse
of
authority, either
by an
official
or
by a
creditor
wrongfully
exercising
his right of
distraint.
2
The
verb
translated
'take
away'
(ns')
denotes
confiscation
of
property,
often in the context of a royal grant. The king confiscates (ns') land
and
re-allocates
it
(ndn)
to a
loyal
subject.
3
1.
The
question
of
Eli's
ancestry
is
summarized
by
P.K.
McCarter,
/
Samuel
(AB;
New
York: Doubleday,
1980),
pp.
91-93.
Further confusion
is
caused
by the
Priestly
source's
occasional
use of
byt'b
as a
metaphor
for one of the
larger
units
in
order
to
create
pseudo-kinship
for the
genealogies
in the
schematic account
of
Israel's
period
in the
desert
prior
to
entering
the
promised
land, e.g., Num.
17.16-26;
26.23;
cf.
Judg. 10.1
(ibid.,
pp.
287-90).
2. R.
Westbrook,
Studies
in
Biblical
and
Cuneiform
Law
(Cahiers
de la
Revue
Biblique,
Paris,
26;
1988),
pp.
23-30.
3.
J.C. Greenfield,
'NaSu-naddnu
and its
Congeners',
in
Essays
on the
Ancient
Introduction
13