Two preliminary remarks must be made before the legal position of women can be considered. Hebrew society, like others, cannot be defined by legal concepts only, since religious, moral, and other social norms played an important role. The law, for instance, treated women harshly, whereas custom operated in her favor. The legal rule, in such cases, preserves the more ancient attitude, which was no longer applied in practice. Juridical sources, unless corroborated by other evidence, must therefore be used with caution for an historical investigation. But a careful study of these sources may give us a clue to the historical reality in earlier times.1
Similarly a distinction should be made between the legal position of a married woman and that of a feme sole. Disqualifications attaching to the former belong more to the law of persons than to the law of the family. Some of these restrictions should be referred to, however, since they illustrate the status of woman and not merely the relationship arising from marriage.
While socially the wife was considered her husband's partner ("God said unto them," Genesis 1:27–28), assistant ("helper," Genesis 2:18), and mistress of the household (Proverbs 31:10–28), in law she was accorded a lower status. The terms of betrothal were equal to those of purchase: the husband became the owner (ba'al) of his wife and she was reckoned amongst his goods (Genesis 20:3; Exodus 20:17; 21:3).2 In accordance with the rules of redemption applying to property, a childless widow was subject to the right of the levirate.3 The law did not, however, allow a husband to sell his wife, but he could sell his daughter and give her away in marriage (Exodus 21:7; Deuteronomy 21:14).
In spite of being capable of committing most of the offenses (the standard phrase: "When a man or a woman do so and so . . . ," e.g., Numbers 5:6), women did not enjoy equality of rights. Under the tribal system they were unable to inherit but were themselves part of the family estate. After the settlement of Canaan, when the concept of private property replaced that of the joint family estate, daughters were permitted to succeed to their father's property in the absence of male heirs (Numbers 27:1–11). They were not entitled, however, to divide the property with their brothers.4 On the other hand, the mother was probably recognized as guardian of her minor children (Genesis 24:55; 2 Kings 4:1).5
Women appeared in court as plaintiffs and probably also as defendants (1 Kings 3:16; 2 Kings 6:26; 8:5), but did not act as witnesses.6 No limitation seems to have applied in contracts and in torts. Abigail, for instance, figures as an experienced mistress of the house, making a present to David without reference to her husband (1 Samuel 25:14, 18–19, 27, 35). The good wife described in Proverbs 31:16, likewise, "considers a field and buys it, with the fruits of her hands she plants a vineyard."7 Such a businesswoman could certainly be sued in contract in her own right, though none of the sources mentions such a case.8 On the other hand, the compensation due for causing a miscarriage to a married women was payable to her husband (Exodus 21:22),9 while the seduction or rape of a minor gave rise to a claim by her father (Exodus 22:16–17; Deuteronomy 22:28–29).10
A form of tutelage was imposed upon both the minor and the married woman with regard to their vows. While a widow or divorcee was bound by any vow just as a man, the vows of a minor or married woman were subject to supervision by the father or the husband, who were allowed to render them null and void "in that day" (Numbers 30:3–16).11
In general, it seems, a woman was not deemed capable of public office and could not be queen, priestess, or judge. Jezebel and Athaliah were exceptions and their exercise of royal power may have been modeled on Tyrian examples. On the other hand, women were considered worthy of charismatic leadership, especially of prophecy. In this capacity they were also active as judges, deciding by divine inspiration, e.g., Deborah (Judges 4:4).
Though there exist few legal provisions relating to the capacity of minors, they were probably excluded from many of the privileges enjoyed by the adult population. The census, being based upon the numbering of the army, included only "every male head by head from twenty years and upward" (Exodus 30:14; 38:26; Numbers 1:2–3; 26:2; 1 Chronicles 27:23; 2 Chronicles 25:5). The age limit for the Levites was even higher; according to Numbers 8:24 it was twenty-five; according to Numbers 4:3, thirty.
Another classification was connected with the money valuation of persons regarding their vows (Leviticus 27:1–13). The maximum payment was demanded from persons between twenty and sixty who had vowed their value, while smaller sums were fixed for persons under or over these age groups.
Responsibility for disloyalty to God was imposed on those over twenty (Numbers 14:29), while persons under that age were free from the divine punishment.12 Even a maiden (na'arah) was criminally responsible for acts of adultery (Deuteronomy 22:20, 23), but we do not know which age was meant by this term. A rebellious son could be put to death (Deuteronomy 21:18–21), even though he was probably below the age of puberty.
There was no provision with regard to an infant's capacity to contract. The marriage of minor daughters was arranged by their fathers, consummation taking place when the age of puberty was reached (Deuteronomy 22:16).
According to rabbinical tradition, childhood ceased at the age of thirteen for boys and twelve in the case of girls. The following six months were still considered a period of youth (ne'urim), i.e., a time when the daughter remained in her father's house even though she had reached the stage of puberty.13
The legal systems of Babylonia and Assyria applied to all persons within the state and made no distinction between citizen and foreigner. Hittite law, on the other hand, paid regard to a person's citizenship when dealing with cases of murder, robbery, or abduction.14 The law of Israel represented a double transition: from the personal system of the tribal age to the territorial concept governing all persons within the state, and later, in the postexilic community, from the territorial system of the state to a personal system of religious allegiance.15
The status of the foreigner must have become a problem during the patriarchal age. A person's rights and duties were at that time dependent upon the blood relationship and upon his belonging to a family, clan, or tribe. Everybody was everybody's "brother" and entitled to his protection and redemption in case of need. In addition to the real or imaginary relations, there lived, however, within tribal society a number of foreigners, free as well as unfree. Their exceptional status is understandable when one considers that even Hebrews of a different clan were classed, in the exclusive structure of tribal society, as foreigners (Judges 19:16). The foreigner was a sojourner (ger) with the clan or with some individual householder who gave him protection, and he was the counterpart of the "brother" (Deuteronomy 24:14).
The "mixed multitude" mentioned in the Exodus (Exodus 12:38), as well as "the rabble that was among them" (Numbers 11:4) were examples of such foreign elements living among the tribes of Israel. In order to be fully admitted, the men had to undergo circumcision (Genesis 34:14; Exodus 12:48),16 while no demand was made of the women (Deuteronomy 21:10–14; Ruth 1).
After the settlement, the tribes of Israel accepted various groups of native inhabitants as protected foreigners. Some of them, like the Gibeonites (Joshua 9), surrendered to the conquerors by formal treaty.17 Others simply stayed in their cities, which were occupied by Israel (1 Kings 9:20; 1 Chronicles 22:1; 2 Chronicles 2:16).18 The majority of these foreigners had not been circumcised nor had they entered into the divine covenant. Nevertheless they became assimilated to their surroundings. Some of them were made slaves of the state or the sanctuary. Others were poor people living on their daily wages, while a few reached important positions in the administration or became rich by commerce.
The law, unlike religious worship, probably applied to foreigners of both categories, i.e., to those merely resident in Israel as well as to those formally admitted into the community. Leviticus 25:47 shows some of them employing Israelite servants, while Deuteronomy 28:43–44 speaks of a foreigner lending money to a citizen. Even the poor client was capable of instituting legal proceedings against his patron (Deuteronomy 1:16). According to the constitution foreseen by Ezekiel 47:22, foreign clients would enjoy equal rights with regard to the allotment of tribal lands.19 Ezekiel seems, however, to be thinking already of those people who had been admitted as proselytes and had become full members of the community.
Various provisions of the criminal law expressly include foreigners amongst the offenders. The foreigner, just like the ordinary citizen, was responsible for manslaughter and for killing someone else's cattle (Leviticus 24:21–22). He was also liable to the usual punishment, if found guilty of idolatry or blasphemy (Leviticus 20:2; 24:16) or if he committed one of the heinous sexual offenses (Leviticus 18:26).20
Biblical law concerning unfree persons, apart from its humanity, was similar to that of other Near Eastern peoples. Slave labor was used in domestic service and thus made for a close relationship between master and servant in everyday life. In spite of the legal status, the slave's position was in practice closer to that of a filius-familias than to that of a mere chattel.21
Some of the slaves were captives of war and were considered to have been acquired by the person who had spared their lives (Numbers 31:26; Deuteronomy 20:10–14; 21:10). Foreign slaves could also be acquired by purchase (Exodus 12:44; Leviticus 22:11; 25:44–45). Hebrew children were enslaved by sale if their fathers saw no other way of meeting their obligations (2 Kings 4:1; Nehemiah 5:5; Proverbs 22:7; Isaiah 50:1; Amos 2:6; 8:6). Poor people might be driven to sell themselves into serfdom (Leviticus 25:39) in order to pay their debts, or to change from temporary to permanent slavery in order to retain their security (Exodus 21:2–6; Deuteronomy 15:16–17).22
The Bible distinguishes between the "purchased" and the "houseborn" slave—called also "the son of the house" (Genesis 15:3; 17:12; Leviticus 22:11). This distinction is also mentioned in Babylonian documents, though without apparent legal significance. The master could choose a wife for his servant, and the children born from such union became his slaves, even though their father had meanwhile been freed (Exodus 21:4). This was, therefore, another important source of slaves, whenever the supply from the other sources diminished. On the other hand, the children of a marriage between a freeman and an unfree woman, according to the patriarchal system, were probably free.23
While the law did not distinguish between domestic slaves and those belonging to the king or temple, the latter formed a special category both in Israel and in the neighboring states. A certain proportion of the captives were reserved for the king and for God, and formed a permanent supply of manpower for state and temple purposes (Numbers 31:30–47; Joshua 9:23–27; 2 Samuel 8:11). The state slaves were employed in the mines of the 'Aravah and were known as "Slaves of Solomon" (1 Kings 9:20–21, 27). The temple slaves, called nethinim (dedicated), developed in the course of time into a cultic guild of religious functionaries and returned from the Babylonian exile together with other strata of Hebrew society (1 Chronicles 9:2; Nehemiah 7:57; 10:29; 11:3; Ezra 2:55; 7:7; Ezekiel 44:7–9).24
Treated as a member of the family, the slave was to be circumcised and the laws of the Sabbath and the festivals applied to him. In the absence of legal heirs, his master sometimes appointed him as his successor (Genesis 15:3). Where the master had only daughters, he could perpetuate his name by giving one of them to the slave and adopting him as a son (1 Chronicles 2:34; Babylonian Talmud Pesaḥim 113a).
Although the owner could beat his slave and punish him for alleged misconduct, he was not allowed to kill him. Causing the death of a slave by beating was punishable by death just like an ordinary case of manslaughter. Only where the death occurred after an interval of two days or longer was the master to be acquitted (Exodus 21:20–21).25
The owner who caused his slave to lose a limb was bound to set him free (Exodus 21:26). On the other hand, where a slave had been gored to death by another man's ox, the master was to be paid thirty sheqel of silver, the average price of a slave (Exodus 21:32). No further responsibility attached to the owner of the ox. Similarly a third person was not liable to compensate the slave for bodily injury caused to him.26
The status of the Hebrew slave was better than that of the foreigner. Besides the limitation of service, which will be dealt with later, the law provided for a friendly relationship between master and servant. Taking into consideration the temporary character of the service, the Hebrew slave had to be treated like a hired worker and was sometimes the owner of property of his own (Leviticus 25:39–46, 49).27
Female slaves were employed to provide sexual satisfaction and to breed children. In accordance with Babylonian law,28 the master could cohabit with his wife's female slave in order that children might be born to him and be deemed his wife's. If a female slave was appointed mate to another slave, their children became houseborn slaves and belonged to their mother's master (Exodus 21:4). Her betrothal to a freeman was the third possibility and created a matrimonial relationship of a special kind.29 The woman was at the same time wife to her husband and servant to her master. In practice, however, the duty of service to the master was probably not enforced.
A Hebrew daughter sold by her father as a servant was acquired on the implied condition that she could be retained as a concubine by her master or by a member of his family (Exodus 21:7–11).30
Biblical law recognized various ways in which a slave could acquire his freedom. An Israelite who had sold himself to a foreigner in order to meet his obligations might be redeemed by his next of kin or could, possibly, become rich enough to redeem himself (Leviticus 25:47–54).31 The former, being part of the tribal custom of redemption, was the earlier practice. The redeemer would offer the owner the price of the slave or a suitable substitute. During the tribal age the rule must have applied to any person sold outside his tribe. However, redemption in later periods was limited to slaves sold to non-Hebrew masters. The obligation of redemption was then extended to all the compatriots of any Israelite who fell into the hands of a gentile (Nehemiah 5:8).32
Self-redemption must have developed at a later date, since it became possible only when the slave owned some special property. An intermediate stage was perhaps reached when an extraneus took a fictitious part in the transaction.33 Finally, a unilateral grant of freedom (Leviticus 19:20) became possible. Relying on the example of the Aramaic papyrus of 427, we may assume some manumissions to have taken the form of a dedication to God and to have been witnessed by a deed.34
By law, a slave was entitled to freedom if he had lost a limb by his master's act. A female slave was likewise freed, if her owner failed to make her his wife or the wife of a member of his family, although he had purchased her for this purpose (Exodus 21:7–11).
Similar to the provisions of Codex Hammurabi 117, biblical law limited the service of a Hebrew slave to six years, assuming that the debt had been worked off during this period (Exodus 21:2; Deuteronomy 15:12; Nehemiah 5; Jeremiah 34:8–22). The rule did not apply to the female slave sold specially for marriage (Exodus 21:7–11), and the passages in Deuteronomy and Jeremiah, giving the same right to a woman, probably refer to the ordinary female servant. According to Leviticus 25:39, 46, an Israelite slave was to be released in the Jubilee, while his foreign counterpart did not enjoy this privilege. Both the rules of the seventh year and of the Jubilee were possibly based on independent traditions and in any case were they seldom enforced.35
The restitution of fugitive slaves was provided for by contract rather than by law. The agreement arrived at for this purpose was perhaps similar to the extradition treaties known from Nuzi (1 Samuel 30:15; 1 Kings 2:39; Jeremiah 26:20–23).36 On the other hand, Deuteronomy 23:16 grants protection to the fugitive and prohibits his extradition.37
1. Roland de Vaux, Ancient Israel: Its Life and Institutions, trans. John McHugh (London: Darton, 1961), 67–69.
2. On the status of the widow, compare p. 34 and p. 153.
3. See pp. 154–55, below.
4. Compare Godfrey R. Driver and John C. Miles, The Babylonian Laws (Oxford: Clarendon, 1952–55), 1:335–41; Ze'ev W. Falk,"The Inheritance of the Daughter and the Widow in the Bible and in the Talmud," Tarbiz 28 (1952): 9–15; see also pp. 173–74.
5. Compare Codex Hammurabi 29; Ephraim Neufeld, The Hittite Laws (London: Luzac, 1951), 171; see pp. 153–54.
6. In Elephantine, too, women acted as parties in court, though no female witnesses to documents are mentioned, see Reuven Yaron, Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon, 1961), 42.
7. Compare Codex Hammurabi 38–39.
8. Neither does there exist any provision regarding her liability in tort. For liability in contract compare Codex Hammurabi 151–52.
9. Compare Middle Assyrian Laws A20, 50–52.
10. Compare Middle Assyrian Laws A55–56.
11. There are no provisions regarding corporal punishment inflicted by the husband upon his wife, as, for instance, laid down in Middle Assyrian Laws A59 (except perhaps for cases of adultery, see p. 58).
12. Compare Manual of Discipline in D. Barthélemy, J. T. Milik, Qumran Cave I (Oxford: Clarendon, 1955), 108–18; George W. Buchanan, "The Old Testament Meaning of the Knowledge of Good and Evil," Journal of Biblical Literature 75 (1956): 114–20; Robert Gordis, "The Knowledge of Good and Evil in the Old Testament and the Qumran Scrolls," Journal of Biblical Literature 76 (1957): 123–38; Joseph M. Baumgarten, "On the Testimony of Women in 1QSa," Journal of Biblical Literature 76 (1957):266–69; Arnold Paucker, "Yiddish Versions of Early German Prose Novels," Jewish Quarterly Review 10 (1959): 151–67; Sidney B. Hoenig, "On the Age of Mature Responsibility in 1QSa," Jewish Quarterly Review 48 (1957–58): 371–75.
13. Mishnah Nidah 5:6; Tosefta Nidah 4:1–2; Bernard J. Bamberger, "Qetanah, Na'arah, Bogereth," Hebrew Union College Annual 32 (1961): 281–94.
14. Mariano San Nicolo, Beiträge zur Rechtsgeschichte der keilschriftlichen Rechtsquellen (Oslo: Aschehoug, 1931), 106–10; Neufeld, Hittite Laws, 134.
15. Compare Alfred Bertholet, Die Stellung der Israeliten und der Juden zu den Fremden (Freiberg: Mohr, 1896); Johannes Pedersen, Israel: Its Life and Culture (London: Oxford University Press, 1926–40), 1–2:39ff.; Isaac Seligmann, "Foreigner" (in Hebrew), in Encyclopaedia Miqra'it (Jerusalem: Bialik, 1950), 2:546–49; de Vaux, Ancient Israel, 116–18; Thomas M. Horner, "Changing Concepts of the 'Stranger' in the Old Testament," Anglican Theology Review 42 (1960): 49–53.
16. Ze'ev W. Falk, "Endogamy in Israel" (in Hebrew), Tarbiz 32 (1963): 28; compare n. 15 and p. 130.
17. Albrecht Alt, Die Ursprünge des israelitischen Rechts (Leipzig: Hirzel, 1934), 183ff. (= Kleine Schriften zur Geschichte des Volkes Israel [Munich: Beck, 1953], 278–332); Yehezkel Kaufmann, The Biblical Account of the Conquest of Palestine (Jerusalem: Magnes, 1953), 67–68; Jacob Liver, "Excessive" (in Hebrew), in Encyclopaedia Miqra'it, 3:953–54; Yehoshua M. Grintz, Zion 21 (1961): 69–84, and p. 88, above.
18. These are similar to the Greek metoikoi; compare Paul Vinogradoff, Outlines of Historical Jurisprudence (London: Oxford University Press, 1920–22), 2:95.
19. On the preexilic position, see Bertholet, Die Stellung der Israeliten und der Juden; Mayer Sulzberger, "The Status of Labour in Ancient Israel," Jewish Quarterly Review 13 (1922–23): 397–459; Melamed, Tarbiz 14 (1943): 11–18; compare Marmorstein, Palestine Exploration Quarterly 85 (1953): 111–17.
20. For intermarriage, see pp. 129–31.
21. Compare Isaac Mendelsohn, Slavery in the Ancient Near East (New York: Oxford University Press, 1949); Isaac Mendelsohn, "On Slavery in Alalakh," Israel Exploration Journal 5 (1955): 65–72; Boaz Cohen, "Civil Bondage in Jewish and Roman Law," Louis Ginzberg Jubilee Volume (New York: American Academy for Jewish Research, 1945), 113–32; de Vaux, Ancient Israel, 125–40; Ephraim Neufeld, "Ius Redemptionis in Ancient Hebrew Law," Revue Internationale des Droits de l'Antiquité 8 (1961): 29ff.
22. For the bondage of debtors, see pp. 93–94.
23. Thus, the sons of Bilhah and Zilpah were free and lawful heirs of Jacob; so was Ishmael until his dismission. Distinction could be made, though, between children borne by a slave for a childless wife and those borne by an ordinary slave. The former had, perhaps, the status of adopted children. Compare Ze'ev W. Falk, "Testate Succession in Jewish Law," Journal of Jewish Studies 12 (1961): 72; Falk, "Endogamy in Israel," 21–22. See also Codex Hammurabi 146–47; Mendelsohn, Slavery, 56.
24. Ephraim A. Speiser, "Unrecognized Dedication," Israel Exploration Journal 13 (1963): 69–73; Baruch A. Levine, "The Netinin," Journal of Biblical Literature 82 (1963): 207–12.
25. See p. 69, above.
26. For parallels in Babylonian law see Mendelsohn, Slavery, 64. See also Boaz Cohen, Proceedings of the American Academy for Jewish Research 20 (1951): 158.
27. Mendelsohn, Slavery, 66–67, 74.
28. Codex Hammurabi 146–47; Mendelsohn, Slavery, 50–51.
29. Ze'ev W. Falk, "The Deeds of Manumission of Elephantine," Journal of Jewish Studies 5 (1954): 114–17; Falk, "Endogamy in Israel," 24. For Nuzian parallels, see Mendelsohn, Slavery, 10–13.
30. Compare N. Avigad, "The Epitaph of a Royal Steward from Siloam Village," Israel Exploration Journal 3 (1953): 137.
31. Compare Reuven Yaron, "Redemption of Persons in the Ancient Near East," Revue Internationale des Droits de l'Antiquité 6 (1959): 155–76; Neufeld, "Ius Redemptionis," 35.
32. Compare Mishnah Sheqalim 2:5.
33. Compare Ze'ev W. Falk, "Manumission by Sale," Journal of Semitic Studies 3 (1958): 127.
34. Falk, "The Deeds of Manumission," 116; Yaron, Introduction, 38.
35. Compare p. 86. On Babylonion parallels, see Mendelsohn, Slavery, 76.
36. Mendelsohn, "On Slavery in Alalakh," 68–69.
37. Perhaps the land of Israel, being a divine domain, was therefore an asylum for fugitive slaves; compare Isaiah 16:3; pp. 7–8. See Codex Lipit Ishtar 12; Codex Eshnunna 49–51; Codex Hammurabi 15–20; Neufeld, Hittite Laws, 20–21; Mendelsohn, Slavery, 63.