A note on the
humanitarian character of Deut 21.10-14
[draft: Jan
27.2013]
All of the commentaries I have access
to note that the legal provisions in Deut 21.10-14 are
'exceptional', 'remarkable', 'compassionate', or even
'humanistic'(!):
"The law
focuses on the rights of the woman by stating
that the man who marries a female prisoner of war and
subsequently becomes dissatisfied with her, for whatever
reasons, is not permitted to reduce her to slavery. Such
a woman had legal rights in ancient Israel, and
moral obligations ensue from the fact that the man initiated a
sexual relationship with her. Perhaps
the most significant conclusion to draw from this text is
the respect for the personhood of a captured woman.
A primary concern in the laws of Deut 21–25 is for protecting
the poor and vulnerable in society from exploitation on the
part of the powerful." [Christensen, D. L. (2002). Vol. 6B:
Deuteronomy 21:10–34:12. Word Biblical Commentary (475).
Dallas: Word, Incorporated.]
"As in its neighbouring
countries, in biblical Israel slaves were also obtained as a
result of warfare. Foreign women who became captives of war
were regarded as slaves.
Sometimes, however, their status ameliorated into that of
a free wife. Deut 21:10-14 regulates the case
of a man who wished to marry a foreign captive woman."
[WS:WUI, 453]
"Throughout the ancient
Mediterranean world, captive women of vanquished peoples were
assumed to be the due sexual prerogative of the victors. This
law exceptionally
seeks to provide for the human rights of
the woman who falls into this predicament...the
verb 'inah
is also sometimes used for rape, and its employment here
astringently suggests that the
sexual exploitation of a captive woman, even in a
legally sanctioned arrangement of concubinage, is
equivalent to rape" [The Five Books of
Moses: A Translation with Commentary, Robert Alter,
Norton:2004, at Deut 21.10,14]
"Female war captives
routinely became concubines of their captors.
This law regulates that convention and accords
such women dignity and protection against enslavement...
Manumission to protect female concubines from being sold as
slaves is also prescribed at Exod 21.7-8" [Jewish Study Bible,
JPS]
"The instructions given
for the treatment of female captives in Deuteronomy 21:10-14
take it for granted that a conquering army have the right to
dispose of the conquered population in any way that it wishes.
It is hard for those coming from a different cultural context
to see this as anything other than appalling, but this
approach would have been unquestioned within the ancient Near
East, and we have to see these instructions within that
setting. What
is remarkable
is that although the woman may have had no
choice in the matter--the soldier who fancied
her has every right to make her this wife--nevertheless
her
identity as a human being is at least to some extent
recognized. She is not to be thrown into the new situation
but must be allowed time to mourn for her parents and her past
life...Within these oppressive situations the laws are geared
to provide at least a level of protection for the women
involved...Women who were bought as wives or captured in war
and take as wives could not be
sold as slaves or even neglected (Ex 21.11;
Deut 21.14). [The IVP Women's Bible Commentary, Kroeger/Evans,
pp100,102.]
"The position of a
female captive of war was remarkable.
According to Deuteronomy 20:14, she could be spared and taken
as a servant, while Deuteronomy 21:10-14 allowed her captor to
take her to wife. While the relationship of the Hebrew
bondwoman was described by a peculiar term, the marriage to
the captive woman meant that the man 'would be her husband and
she his wife." No
mention was made of any act of manumission; the
termination of the marriage was possible only by way of
divorce and not by sale." [OT:HLBT,
p127]
"The space given for
weeping is not primarily a period of mourning (though it is
perhaps to be assumed that the woman’s father has died in the
herem; 20:13, 15). Rather, it
is given in compassionate consideration of the large
adjustment she must make, and the accompanying
trauma. It is an acknowledgment, too, that her former life is
ended and a new life is to begin (cf. Ps. 45:10). The hints of compassion
breaking through the brutality of the age reflect an
awareness of divine compassion,
however limited by the thought climate of the times." [Cairns,
I. (1992). Word and presence: A commentary on the book of
Deuteronomy. International Theological Commentary (189). Grand
Rapids, MI; Edinburgh: W.B. Eerdmans; Handsel Press.]
"Israel’s Treatment of
Slaves. Israel’s identity as slaves freed to serve God has a
direct bearing on their treatment of slaves, both permanent
chattel slaves and fellow Hebrews in bondservice. The
treatment of chattel slaves indicates that these slaves
are considered human beings. Male slaves are to
be circumcised so that they, along with the female slaves, may
participate in the Passover meals (Gen 17:13; Ex 12:44), and
in the other ceremonial expressions of worship (Deut 12:18;
16:10; Lev 22:11). Slaves must be given rest on the sabbath
(Ex 20:10; Deut 5:14). In contrast to the laws of other
ancient Near Eastern nations, slaves who flee their owners and
come to Israel are not to be returned to their masters, nor
are they to be oppressed, but they are to be allowed to live
wherever they please (Deut 23:15–16). If an Israelite man
desires to take a non-Israelite captive woman as his wife, he
has to allow her a month of preparation and mourning for her
parents before he marries her. Subsequently, if he becomes
dissatisfied with her, he may not sell her as a slave but must
allow her to go free (Deut 21:10–14)." [Alexander, T. D.,
& Baker, D. W. (2003). Dictionary of the Old Testament:
Pentateuch (781). Downers Grove, IL: InterVarsity Press.]
"Marriages were normally
arranged between families, outside the prohibited degrees of
kinship in the bêt-ʾāb (Leviticus 18 and 20), but
usually within the kinship of the mišpāḥâ. The latter
was obligatory in the case of marrying daughters who, in the
absence of sibling brothers, had inherited the land of their
father (Numbers 36). Exceptions would have been marriage as
the result of prior rape (Exod 22:16f., amended in Deut
22:28f.), and the
taking of a wife from captives of war (which was
hedged with humanitarian restrictions on
mere rapacity, Deut 21:10–14). " [Wright, C. J.
H. (1992). Family. In D. N. Freedman (Ed.), . Vol. 2: The
Anchor Yale Bible Dictionary (D. N. Freedman, Ed.) (766). New
York: Doubleday. ]
One writer (non-conservative) called
it 'an instruction in humanism',
as noted by someone interacting with that view:
"It has long been argued
that the book of Deuteronomy presents a “humanitarian vision”
for community life in Israel. Indeed, Moshe Weinfeld argues
that “the primary aim of the Deuteronomic author is the
instruction of the people in humanism, and in furtherance of
this goal he adapts the various literary traditions which were
at his disposal.” Weinfeld
divides the humanist laws of Deuteronomy into three major
categories. They are:
(1) Laws
emphasizing the value of human life and human dignity.
Examples of these laws include the treatment of runaway slaves
(Deut 23:16) and women war captives (Deut 21:10–14);
restrictions on excessive corporal punishment, lest the victim
be “degraded” (Deut 25:1–3); proper disposition of a corpse
after an execution (Deut 21:22–23); and the regulation of the
construction of roof parapets in order to minimize danger to
human life (Deut 22:8).
(2) Laws
dealing with interpersonal social relations.
These include calls for assisting aliens, orphans, widows, and
the poor, as well as enjoining a positive attitude toward
these marginal groups (Deuteronomy 15; etc.), regulation of
property rights (Deut 23:25), and warnings regarding the
treatment of a hated wife and her son (Deut 21:15–16).
(3) Laws
dealing with the humane treatment of animals.
Examples include prohibition of taking both mother and her
young from the nest (Deut 22:6–7), and the requirement to
refrain from muzzling an ox while it is treading out grain.
"Each category of laws
may be seen as having a practical, human-centered basis rather
than explicitly religious or theological ones, in Weinfeld’s
view."
["Social Justice And The Vision Of
Deuteronomy", Peter T. Vogt; Journal
of the Evangelical Theological Society Volume
51. 2008 (1) (33). Lynchburg, VA: Evangelical Theological
Society.
The only resource I have which seems
to indicate some continuity with ANE practice says this about
the passage:
"Rights
of Captive Women. 21:10–14. treatment of
captive women. Part of warfare is the disposition of
prisoners. Some female captives could expect to serve as
slaves (2 Kings 5:2–3), but many would also be taken as wives
by the soldiers. The Deuteronomic law deals with the
transformation process as these women were adopted into
Israelite society. This included the shaving of the head, a
change of clothing and a period of mourning marking the death
of the woman’s old life and the beginning of a new one
(compare Joseph’s transformation in Gen 41:41–45). The Mari
texts also provide clothing and a job to captive women.
The rights extended to the former captive after she has
married are similar
to those of Israelite women and are designed to
demonstrate
that there is no reduction of her status if a divorce occurs.
Similar
concerns are reflected in the Middle Assyrian laws,
which require former captives who are now married to dress
like all Assyrian women of that class." [Matthews, V. H.,
Chavalas, M. W., & Walton, J. H. (2000). The IVP Bible
background commentary: Old Testament (electronic ed.) (Dt
21:9–14). Downers Grove, IL: InterVarsity Press.]
I have searched everywhere I can
find, but I cannot find any reference to close
parallel materials in the Mari materials (so far), nor in the
MAL--so I cannot see how close these are. They are not
mentioned in any of the commentaries I can find (so far),
other than noted below on the purification
process.
The Mari texts describe a similar
purification rite (but without any indication of mourning):
"Rachel’s theft of her
father’s household gods may have something to do with the
law’s demands that the woman
sever contact with her past—shave her head,
pare her nails, put off her captive’s garb, and bewail her
parents for a month. For a parallel in the Mari
texts, in which hair and clothing were removed during a
rite symbolizing severance from homeland, see
du Buit, RB
66 (1959) 576–77 (cited by Carmichael, LNB,
141 n. 5).", [WBC, in loc]]
"The acts of “shaving
her head, paring her nails, and putting off her captive’s
garb” are usually interpreted as part of the woman’s mourning
process. “The
shaving of the head and putting off of the clothes is
referred to in the Mari texts where it has the purpose of
getting rid of everything that would remind the captive of
home” (Mayes [1981] 303; cf. du Buit, RB 66
[1959] 576–77). Rabbi Akiba thought they were intended to make
the woman less attractive to her captor (Sifre 212; see Tigay
[1996] 194, 381 n. 29). The “captive’s garb” (שׂמלת
שׁביה)
is simply the clothes the woman was wearing when taken captive."
[WBC, in loc]
The captives of Mari (some) were
given a 'job' in the slave textile mills:
"Of somewhat earlier
date is the Mari material (18th cent BCE) which
informs us on the harem of Zimri-Lim...Zimri-Lim's harem was
occupied not only by his wives, but also by women of lower
status. Some of these women were of local origin, but others
were foreigners, usually
prisoners of war. These female captives, who
generally were of exceptional beauty, escaped
the fate of being put to work in the royal textile
factories and became a royal concubine."
[WS:WUI, 375]
The Middle Assyrian Laws do
have regulations on veiling
of the different classes of women (e.g MAL A
40), but I cannot find anything related to mourning periods,
complete freedom upon divorce, purification rituals, etc.
The most
authoritative work on ANE law at this point is
the 2-volume work edited by Raymond Westbrook, which discusses
the law codes and cases under a common outline (e.g. Citizenship
is under bullet 4.1, Inheritance
is under 6.2). [HI:HANEL]
Here is the bullet which treats our
passage in Israel:
"5.1.1.6.
Two laws discuss the treatment of unfree women acquired as
wives in divergent ways... Exod 21:7-10...Deuteronomy provides
for capturing a wife in warfare (Deut. 21:10-14). Brought
home, she was to perform transition rituals--shaving her head,
cutting her fingernails...As with the 'amah
of Exodus, the captive
bride could not be treated as an ordinary slave and sold.
Changing his mind was considered abuse, and if he did not want
her, she would be free." [HI:HANEL,pp1008,1009]
When we try to find the item 5.1.1.6
in the other chapters about other nations/empires, we come up
empty handed--there are no such sections there.
When we look at the index entry for
this section ("Prisoners of War, as captive brides") only
Israel is mentioned--there is nothing about Mari or Middle
Assyrian Law.
When we broaden the search within the
work, we can perhaps understand this 'exceptional' character
of the law a bit better (at least for Mesopotamia, the
relevant area):
"War
is only mentioned as a source of slavery for public
institutions" (p199; Note that this would mean
that captive women were given a 'job' in
government/temple-funded operations and 'clothed' with
official garb/uniforms--as opposed to the clothing of a
foreign culture. This is attested widely in the non-legal
royal literature, with the Mari palace having over 400 such
'domestics'. )
"Since a female slave
was property, her owner could exploit her sexuality and her
fertility like any other beneficial aspect of property. She
could thus be made her owner's concubine. Where concubinage
resulted in motherhood, the slave might
be accorded
some qualified protection from the consequences
of her status as property. She and her offspring might even
gain their freedom on the death of the master/father [LH 171].
The intention appears to have been to accord the slave
concubine some
of the rights of a married woman, not
including,
the sources emphasize, the right of inheritance for her
children." (p44, in the chapter "The Character of Ancient Near
Eastern Law"; note that this is merely SOME rights, whereas
the Hebrew passage is FULL rights.]
But the most telling/helpful passage
is the one (in the same chapter on the 'overall character' of
ANE law):
"9.3.4. Nothing certain
can be said about the rules of war. A declaration of war
sometimes preceded hostilities, but there appears to have been
no general observation. Prisoners
of war were at the mercy of their captors, to
treat at their discretion. They were either killed,
enslaved (often being blinded), or ransomed.
Civilians were regarded as legitimate booty. Humane
treatment seems to have depended on
political expediency and internal inhibitions
rather
than on recognized legal rules."
(p86).
This makes it clear that the very fact
of a regulation
for humane treatment in Deut was 'exceptional', since such
legal structures do not even appear in other cultures (ie,
'humane' treatment was not a legal requirement, but rather a
matter of 'individual choice'...).
So, the text still stands far above
the other cultures of the day, and reveals that God set
boundaries for His people's conduct.
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