Questions on the Heptateuch 3.61–5.34

“You shall not uncover the nakedness of your brother's wife; it is your brother's nakedness.” It is asked whether this is forbidden while the brother is alive or when he is dead, and it is no small question. For if we say that Scripture spoke of the wife of a living brother, this too is certainly contained in the one general precept by which a man is forbidden to approach another man's wife. Why, then, does it distinguish so carefully these persons, whom it calls members of the household, from the rest by prohibitions of their own? For what it forbids concerning the father's wife, that is, the stepmother, is not to be taken of the father while he is alive rather than after his death. For while the father is alive, who does not see that it is very much more forbidden, if the wife of any man whatever is forbidden to be defiled by adultery? It seems, then, to speak of those persons who, having no husbands, could come together in marriage if they were not forbidden by the law, as is said to be the custom of the Persians. But again, if we understand that it is forbidden to marry a brother's wife when the brother is dead, there occurs what Scripture commands to be done to raise up seed, if he had died without sons. And therefore, when this prohibition is compared with that command, so that they may not be contrary to each other, an exception must be understood: that is, that it is not lawful for anyone to marry the wife of a deceased brother if the deceased left descendants; or else that this too was forbidden, that it should not be lawful to marry a brother's wife even if she had departed from the living brother by a bill of repudiation. For at that time, as the Lord says, because of the hardness of the Jews Moses had permitted them to give a bill of repudiation, and through this putting away it could be thought that someone might lawfully join his brother's wife to himself, where he would not fear adultery, since she had departed by repudiation.

“But if anyone takes a wife and lives with her and hates her, and lays pretexts of words against her and brings an evil name upon her and says: I took this woman, and when I approached her I did not find her tokens of virginity; then the father and mother of the girl shall take and bring out the girl's tokens of virginity to the elders at the gate, and the girl's father shall say to the elders: I gave this my daughter to this man as wife, and, hating her, he now lays pretexts of words against her, saying: I did not find your daughter's tokens of virginity; and these are my daughter's tokens of virginity. And they shall spread out the cloak before the elders of that city, and the elders of that city shall take that man and chastise him and fine him a hundred shekels and give them to the girl's father, because he brought out an evil name upon a virgin of Israel; and she shall be his wife; he shall not be able to put her away for all time. But if this word has proved true and the girl's tokens of virginity are not found, they shall bring the girl out to the door of her father's house, and the men of her city shall stone her with stones and she shall die, because she has done folly among the sons of Israel, prostituting her father's house; and you shall take away the evil from among yourselves.” Hence it appears clearly how subject to their husbands, and almost servants, the law wished wives to be: that a husband who gives testimony against his wife, for which she would be stoned if it were shown to be true, is not himself stoned in turn if it is established to be false, but is only chastised and fined, and is commanded to cleave for ever to the one he had wished to be rid of. But in other cases it commands that he who has harmed someone by false testimony, for which, if it were proved, it commanded that person to be killed, be punished with the same penalty with which the other would have been punished if it were true.

“But if someone finds a girl, a virgin who is not betrothed, and, using force on her, sleeps with her, and is found out, the man who slept with her shall give the girl's father fifty didrachms of silver, and she shall be his wife, because he humbled her; he shall not be able to put her away for all time.” It is rightly asked whether this is a penalty, that he cannot put away for all time the woman whom he violated in a disorderly and unlawful way. For if we wish to understand that she cannot, that is, ought not, be put away for all time for this reason, that she has been made a wife, there occurs the fact that Moses permitted a bill of repudiation to be given and the wife put away. But in the case of those who defile unlawfully he did not wish it to be lawful, so that the man might not seem to have done it for sport, and to have feigned taking her as wife rather than truly and willingly taking her. This was commanded also concerning the woman against whom her husband made a false charge about tokens of virginity not found.