To say that the above sacrifices are of an expiatory character offered to Allah on behalf of the deceased, hardly goes to the root of the problem. In numerous instances there is no essential difference between sacrifices to walis,237 or saints, and those to the dead.238 Sacrifices to walis, it will be remembered, are really made to deified mortals. The fact that many Muslims will insist on recognizing the saints as their real deities in spite of the monotheistic claims of Islam is another proof of syncretism in religion.

To what extent the sons of concubines might share in the paternal estate must be considered an open question, the only passage bearing on the subject being barren of all detail.239 The case of Jephthah offers little of value in this connection. In driving out their illegitimate half-brother, the sons of Gilead make the following declaration: "Thou shalt have no inheritance in our father's house for thou art the son of another woman. ''240 Jephthah is not the son of a concubine but of an unlawful and temporary union.

Fortunately the Babylonian law code is more explicit. The sons of a man's maid-servant might be raised to the status of sonship by verbal acknowledgment. 'If a man's wife bear him children and

287 Wali denotes 'nearest of kin,' 'protector,' 'patron;' cp. Aramaic mar, 'lord,' or 'saint.'

238

Curtiss, op. cit., 75 f., 94 f., 102 f., 170 f. Lods, op. cit., 164. 239 Gen. 21: 10.

240 Judg. 11: 1 f.

his maid bear him children, and the father during his lifetime say to the children which the maid bore him, "my sons," and reckon them with the sons of his (legal) wife, after the father dies the children of the wife and the children of the maid shall share

equally, '241 But it is reserved for the wife's sons to apportion the shares and to make their own selections.242 If not acknowledged by the father in the above manner, the maid's children do not share in the estate. On the father's death, however, the maid and her children shall obtain their freedom,243 In another document only the eldest son of a concubine is recognized by the father: 'Shahira together with (his wife) Belisunu has taken Azatu (a maid) and she had five children. Of the five children which Azatu bore Shahira, Shahira acknowledged Yamanu, his eldest son. In future Azatu and her brothers shall not make claim against Shahira. By Shamash, Aa, Marduk and Hammurabi they swore. "244

The igrar245 of Muhammadan jurisprudence is analogous to an acknowledgment of parentage on the part of a Babylonian father.246 The person thus acknowledged may inherit together with all the other heirs of the acknowledgor, no distinction being made between the son of a legitimate wife and the son of a concubine.

240

Roberts, op. cit., II, 6, p. 55; Syed Ameer Ali, op. cit., II, 215 f.

CHAPTER III

AGNATION

If a man die without male issue, his daughter shall inherit the property.1 The law of succession as formulated by the priestly legislator distinctly provides that the inheriting daughters must marry within their own tribe.2 It will not be too venturesome, perhaps, to find in this a compromise with a much older view according to which only the nearest agnate was entitled to the succession.3 In accordance with the earlier custom the brother of the deceased has the first claim to the estate. Failing a brother, the paternal uncle and the nearest relative on the father's side are next in order. But the right of inheritance also involves the duty of levirate marriage, especially in cases where the elder brother dies without leaving a son to perpetuate his name. The surviving brother is required to marry the childless widow 'and raise up seed to his brother.' By the operation of a legal fiction the firstborn son of this union succeeds to the name and estate of the deceased.

The earliest reference to levirate marriage is found in the story of Judah and Tamar. Judah, we are told, has three sons, viz. 'Er, Onan, and Shelah."

3 Stade, G.V.I., I, 391; Baentsch, op. cit., 696.

Num. 27: 10 f.

Gen. 38.

6
⚫ vv. 1-5.

His firstborn becomes the husband of Tamar but dies without issue. The duty of raising up seed to the deceased devolves upon Onan who is by no means favorably disposed toward a custom, which, if carried out, would deprive him not only of his own offspring but also of the inheritance of his brother." But since he dare not openly defy the sanctity of the obligation resting upon him, he must resort to secret means in order to defeat the purpose of the levirate. After a time Onan dies and only Shelah remains. And now Judah, prompted by superstition and fear, intervenes and Tamar is sent home to her family on the pretext that Shelah had not as yet reached manhood. To judge from the sequel, however, Tamar is not to be deceived in this way. As a woman of initiative she cannot submit any longer to the wrongs heaped upon her by the family of her husband. Some means of redress must be found. She owes it to herself for she is a childless widow. again, her motive is a religious one. Her future conduct will be largely determined by considerations of piety toward 'Er deceased without male issue. All that is needed is a suitable opportunity and Tamar will have reached her goal. In the end Judah confesses himself in the wrong. 'She is in the right as against me,' he declares; 'why did I not give her to Shelah my son!"10

Then

The duty of levirate marriage devolving upon Shelah is performed by his father. Some scholars

would hold that the obligation laid upon brothers by the institution of the levirate might also be extended to the father-in-law of the childless widow.11 Gunkel, on the other hand, insists that there is every indication in the narrative to the contrary.12 Judah's relations to Tamar are of an exceptional nature and therefore hardly typical of the age under consideration.13

In the well-known passage of Deuteronomy11 the duties of the levirate are restricted to brothers dwelling together on the same paternal estate. This limitation is to serve a twofold purpose,-the perpetuation of a man's name and the preservation of family property.15 No provision is made in the law to insure its effectual application in every instance. It tacitly assumes that public opinion is no less a weapon in dealing with offenders than the imposition of a heavy fine. Should a man be guilty of evading the law, "the elders of his city shall call him and speak unto him. But if he step forth and say, I do not wish to take her, then shall his brother's wife draw nigh unto him in the presence of the elders and loose his sandal from off his foot and spit in his face; and she shall answer and say, So shall it be done unto the man that doth not build up his brother's house. And his name shall be called in Israel, the house of the unsandalled one.""16 The removal of a man's sandal by the contemned sister

11

Benz., H.A., 288; Bewer, in A.J.S.L., XIX, 143.

12 Gen. 38: 16, 26.

13 Gunkel, op. cit., 374.

14 25: 5-10.

15 Deut. 25: 6, 9.

16 25: 8-10.