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Could a Woman Say “No” in Biblical Israel? On the Genealogy of Legal Status in Biblical Law and Literature

  • Robert S. Kawashima (a1)


In Genesis 26, one of the so-called wife–sister stories, Abimelech King of Gerar catches Isaac “playing” with the woman he had introduced as his sister, namely, Rebekah his wife. He immediately confronts the trickster, rebuking him for presenting his wife as a single and therefore sexually available woman: “What is this you have done to us? One of the people could easily have lain with your wife, and you would have brought guilt upon us” (Genesis 26:10). Abimelech's remarks ought to give one pause. He apparently suggests that sexual contact with this Hebrew woman is as easy as brushing elbows with a stranger in a crowded street, which is to say, he fails to consider or even acknowledge the possibility that Rebekah might have just said “No!” Furthermore, the narrowly avoided “guilt” he refers to consists not of this woman's rape by some local sexual predator—in which case her secret identity as Isaac's wife would be irrelevant—but of an otherwise innocent man's unwitting violation, consensual or nonconsensual, it matters not, of her treacherously concealed marital obligations. In other words, the underlying legal reasoning here conceives of Rebekah not as an autonomous subject whose rights (i.e., the right to refuse a sexual advance) must be protected, but as an object within the domain of her husband, whose prior claims—namely, to sexual exclusivity—must be respected. Abimelech's at-first puzzling remarks, then, provide us with a glimpse into a wholly foreign legal episteme or discursive formation.


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1. See, e.g., Frymer-Kensky, Tikva's discussion of Genesis 34 in Reading the Women of the Bible (New York: Schocken Books, 2002), 179–83; and In the Wake of the Goddesses (New York: Free Press, 1992), 194. She fails, however, to suspend modern ideas concerning individual rights and other issues.

2. See Pressler, Carolyn's discussion of “rape” in Deuteronomic law versus in “contemporary American legislation,” in The View of Women Found in the Deuteronomic Family Laws (Berlin: de Gruyter, 1993), 37 n. 46; see also “Sexual Violence and Deuteronomic Law,” in A Feminist Companion to Exodus to Deuteronomy, ed. Brenner, Athalya (Sheffield: Sheffield Academic Press, 1994), 102–12.

3. A man's power over his wife and children arguably constituted a type of limited ownership. Indeed, Exodus 20:17 provides what is, in effect, a list of the patriarch's belongings—house, wife, slave, ox, etc.—though an Israelite male cannot be said to have “owned” his wife in the way that he owned an article of clothing, a beast of burden, etc.: see Perdue, Leo G., “The Israelite and Early Jewish Family: Summary and Conclusions,” in Perdue, Leo G., Blenkinsopp, Joseph, Collins, John J., and Meyers, Carol, Families in Ancient Israel (Louisville: Westminster John Knox, 1997), 180–81.

4. Frymer-Kensky, Cf., “Virginity in the Bible,” in Gender and Law in the Hebrew Bible and the Ancient Near East, ed. Matthews, Victor H., Levinson, Bernard, and Frymer-Kensky, Tikva (Sheffield: Sheffield Academic Press, 1998), 87; Wake, 192, 274 n. 34. If I am correct, this verb should never be translated as “rape,” as it often is. Inasmuch as biblical legal thought recognized the basic personhood of all people, neither women nor girls could ever be reduced to pure objects. But neither did it recognize them as full subjects, and so they could never constitute victims of a legally prosecutable crime. Judges 19 provides an interesting test case. For inasmuch as the father-host seems to give his consent to the men of Gibeah to “violate” (ve‘annu) his daughter and the Levite's concubine (Judges 19:24), they (and not he, whose consent was given) would seem to be the potential victims of the imagined crime. One must admit, however, that he makes this proposal under extreme duress, so that his speech seems less an act of consent than a forced concession for the sake of his male guest. The fact that he presumes to speak for the Levite further underscores his desperation and thus the infelicitous nature of his speech-act. Had his proposal been carried out, it seems plausible that he still could have claimed to be the victim of a crime inflicted upon his daughter. One might compare this scenario to Genesis 34. Jacob and his sons are, in effect, coerced into agreeing to Dinah's marriage to Shechem—a type of ex post facto arrangement perhaps, but fully legitimate and not without precedent (cf. Deuteronomy 22:28–29). Simeon and Levi, however, still counting themselves victims (Genesis 34:31) of Shechem's “violation” (vay‘anneha) of their sister (Genesis 34:2), do not feel bound by their forced consent, and so they take the liberty of avenging themselves upon their newly acquired brother-in-law and his townsfolk.

5. For the latter texts, I use Roth, Martha T., Law Collections from Mesopotamia and Asia Minor, 2d ed. (Atlanta: Scholars Press, 1997). See Westbrook, Raymond's arguments for a broad comparative perspective in “Adultery in Ancient Near Eastern Law,” Revue Biblique 97 (1990): 542–80; see also Lafont, Sophie, Femmes, droit et justice dans l'antiquité orientale (Göttingen: Vandenhoeck and Ruprecht, 1999), 1520.

6. Pressler, Deuteronomic Family Laws, 7. She invokes Bernard Frank Batto's methodological strictures in Studies on Women at Mari (Baltimore: Johns Hopkins University Press, 1974), 4.

7. Thus, David Daube distinguishes between biblical law as such and “the Hebrew state” (Studies in Biblical Law [Cambridge: Cambridge University Press, 1947], 12). Biblical law is partly “utopian”: see, e.g., Haran, Menahem, Temples and Temple-Service in Ancient Israel (Oxford: Clarendon, 1978), 122–31; Uffenheimer, Binyamin, “Utopia and Reality in Biblical Thought,” Immanuel 9 (1979): 515. Relatedly, it sometimes functions “in terrorem,” viz., as a mere rhetorical deterrent: see, e.g., Driver, G. R. and Miles, J. C., The Babylonian Laws (Oxford: Clarendon, 1960), 1:400; Finkelstein, J. J., “Sex Offenses in Sumerian Laws,” Journal of the American Oriental Society 86 (1966): 357.

8. In other words, Lacan was a realist: see Milner, Jean-Claude, “Lacan and the Ideal of Science,” in Lacan and the Human Sciences, ed. Leupin, Alexandre (Lincoln: University of Nebraska Press, 1991), 2742. For a succinct exposition of Lacan's three registers (real, imaginary, and symbolic), see Milner, , Les noms indistincts (Paris: Editions du Seuil, 1983), 717.

9. Conversely, if Carol Meyers has leveled some interesting criticisms against the common belief that ancient Israel was “patriarchal,” she seems to have in mind the “real” Israel external to the text: “Contesting the Notion of Patriarchy: Anthropology and the Theorizing of Gender in Ancient Israel,” in A Question of Sex?, ed. Rooke, Deborah W. (Sheffield, UK: Sheffield Phoenix Press, 2007), 84105. It seems undeniable, however, that the biblical representations of Israel take for granted a patriarchal framework—even if, as Meyers argues, the definition of “patriarchy” must be attenuated and adjusted in various ways.

10. One might point to Shemesh, Yael's recent study in this regard, though she obscures the conceptual distance between modern and ancient cultures: “Rape Is Rape Is Rape: The Story of Dinah and Shechem (Genesis 34),” Zeitschrift für die Alttestamentliche Wissenschaft 119 (2007): 221.

11. Lipka, Hilary, Sexual Transgression in the Hebrew Bible (Sheffield, UK: Sheffield Phoenix, 2006); see also Shemesh, “Rape.”

12. Pardes, Ilana, Countertraditions in the Bible (Cambridge, MA: Harvard University Press, 1992).

13. I specifically invoke Foucault's approach to “genealogy”: see, e.g., Foucault, , “Nietzsche, Genealogy, History,” in Aesthetics, Method, and Epistemology, ed. Faubion, James D. (New York: The New Press, 1998), 369–91. Harold C. Washington similarly conceives of his analysis of gender in biblical law as a “Foucauldian genealogy,” but he views this “procedure” primarily as a means of “expos[ing]” the “exercise of power in normative discourse”: “‘Lest He Die in the Battle and Another Man Take Her’: Violence and the Construction of Gender in the Laws of Deuteronomy 20–22,” in Gender and Law, 191. Veyne, Paul clears away various misreadings of Foucault in Foucault: sa pensée, sa personne (Paris: Albin Michel, 2008).

14. Mauss, Marcel, “A Category of the Human Mind: The Notion of Person, the Notion of ‘Self’,” in Sociology and Psychology (London: Routledge & Kegan Paul, 1979), 61.

15. On the relation of le quelconque to the liberal subject, see Milner, Jean-Claude, Le Juif de savoir (Paris: Grasset, 2006), 6465, 74; and Une conversation sur l'universel,” in Cahiers d’études Lévinassiennes 6 (2007): 7791. One might arguably posit an historical relationship between the liberal subject and the Lacanian “subject of science”: see Milner, Jean-Claude, L'Oeuvre claire: Lacan, la science, la philosophie (Paris: Seuil, 1995), 3376; English translation: “The Doctrine of Science,” in Žižek, Slavoj, ed., Jacques Lacan: Critical Evaluations in Cultural Theory (London: Routledge, 2003), 1:264–94.

16. Badiou, Alain, Ethics: An Essay on the Understanding of Evil (New York: Verso, 2001), 417.

17. Material culture appears to reflect the concept of the patriarchal household: see Stager, Lawrence, “The Archaeology of the Family in Ancient Israel,” Bulletin of the American Schools of Oriental Research 260 (1985): 135; and Schloen, J. David, The House of the Father as Fact and Symbol (Winona Lake, IN: Eisenbrauns, 2001). That material culture does so prior to or beneath literary culture attests to the common legal ground of the various sources addressed in this study.

18. See Carol Meyers, “The Family in Early Israel,” in Families in Ancient Israel, 21–22. The subordination of the individual to the family is related to the idea of “communal responsibility”: see, e.g., Daube, Biblical Law, 154–89. For detailed analyses of the Israelite family in different historical periods, see Perdue et al., Families in Ancient Israel. See also de Vaux, Roland, Ancient Israel: Its Life and Institutions (New York: McGraw-Hill, 1965), 1: 1961; Pedersen, Johannes, Israel: Its Life and Culture (Atlanta: Scholars Press, 1991), 1:4681.

19. By the same logic, when God “sends” (vayshalḥehu) Adam and Eve away from Eden (Genesis 3.23), they cease being dependents of the divine household, which is also related to the significance of “knowing good and evil” (more on which see below).

20. A woman could be rendered unfit for marriage. Tamar, after being violated by her half-brother Amnon (an episode which we will return to later), is described as living in a “state of desolation” (shomemah) in the “house of Absalom” her brother (2 Samuel 13:20). Similarly, David, after quelling Absalom's coup, places his concubines, who have been sexually possessed by his rebel son, under a type of house arrest (beit mishmeret), where they live out their days in “perpetual widowhood [’almenut ḥayyut]” (2 Samuel 20:3). Note, in both cases they remain attached to a specific house. Men, it should be added, were not susceptible to the same sort of compromise.

21. See Horst, Friedrich, “Zwei Begriffe für Eigentum (Besitz): [naḥalah] und [’aḥuzzah],” in Verbannung und Heimkehr: Beiträge zur Geschichte und Theologie Israels im 6. und 5. Jahrhundert v. Chr.: Wilhelm Rudolph zum 70. Geburtstage dargebracht, ed. Kuschke, Arnulf (Tübingen: Mohr [Siebeck], 1961), 135–56.

22. One might argue that Naboth, e.g., had the “right” or at least de facto ability to sell off the “inheritance of [his] fathers” (naḥalat ’avotay), but his vehement rejection of King Ahab's proposition suggests that such an act would constitute a betrayal of his family line and of Yahweh himself (1 Kings 21:3).

23. For a detailed discussion of the structure of kinship in ancient Israel, see Gottwald, Norman, Tribes of Yahweh (Maryknoll, NY: Orbis, 1979), 257–92.

24. Foucault, Michel, The History of Sexuality: An Introduction (New York: Pantheon Books, 1978).

25. On the shift in modern thought from duties to rights, see Strauss, Leo, The Rebirth of Classical Political Rationalism (Chicago: University of Chicago Press, 1989), 244.

26. For example: the firstborn son has a “just claim” (mishpat) to a double portion of the inheritance, regardless of the father's personal wishes (Deuteronomy 21:17); Tamar's deception of Judah put her in the “right” (ẓadekah), inasmuch as he had failed to give her his youngest son Shelah in marriage (Genesis 38:26); and God expects Abraham to “charge [yeẓawweh] his sons and his house [beito] after him to observe the way of Yahweh by doing righteousness [ẓedakah] and justice [mishpat]” (Genesis 18:19). In each case, these concepts derive their meaning not from an absolute right intrinsic to the individual, but from a relational duty, i.e., an obligation owed by one party to another.

27. For further details, see Kawashima, Robert S., “The Jubilee Year and the Return of Cosmic Purity,” Catholic Biblical Quarterly 65 (2003): 370–89.

28. See Cross, Frank Moore, From Epic to Canon (Baltimore: Johns Hopkins University Press, 1998), 321.

29. Cf. Frymer-Kensky's discussion in “Virginity,” 82–83.

30. Frymer-Kensky refers to this as a “danger belief,” the idea that certain unverifiable infractions will nonetheless be subject to divine sanction: see “Pollution, Purification, and Purgation in Biblical Israel,” in The Word of the Lord Shall Go Forth: Essays in Honor of David Noel Freedman in Celebration of His Sixtieth Birthday, ed. Meyers, Carol L. and O'Connor, M. (Winona Lake, IN: Eisenbrauns, 1983), 404406.

31. See Kawashima, , “Homo Faber in J's Primeval History,” Zeitschrift für die Alttestamentliche Wissenschaft 116 (2004): 483501; Frymer-Kensky, Wake, 108–17.

32. Leviticus 27 seems to apply to the civilian population, probably in relation to the material functioning of the household. Numbers 4 and 8:23–26, apropos of the Levites, seems to define professional adulthood, respectively, as thirty or twenty-five to fifty years old.

33. The prostitute occupies the same structural position as the widow and divorcee, viz., that no-man's land between legitimate (patriarchal) households. For this reason, she alone among women exercises sexual consent—cf. Frymer-Kensky, Wake, 194—just as widows and divorcees must fulfill their vows.

34. Scholars have come to favor “young girl” as the meaning of betulah. At least in the texts examined here, however, virginity (betulim) is assumed to correspond to age and marital status. See Frymer-Kensky, “Virginity.”

35. By the same logic, a priest cannot marry a woman who is tainted by prostitution or divorce (Leviticus 21:7); the additional condition of virginity (nondivorced) holds upon the high priest (Leviticus 21:14). Marriage and, in particular, consummation change the status of a woman.

36. For detailed discussion, see Ben-Barak, Zafrira, Inheritance by Daughters in Israel and the Ancient Near East (Tel Aviv: Archaeological Center, 2006).

37. In fact, the combination of JE and P in 16:32 has Korah and company swallowed up along with Dathan and Abiram; meanwhile, 17:5 (16:40) suggests instead that Korah was consumed by divine fire before the tent of meeting; in either case, the gloss in 26:11 insists that his line was not subject to karet. See Milgrom, Jacob, Numbers (Philadelphia: Jewish Publication Society, 1990), 221–22, 230–33, 414–23; Levine, Baruch, Numbers 21–36: A New Translation with Introduction and Commentary by Baruch Levine, Anchor Yale Bible Commentaries (New York: Doubleday, 2000), 4A:317–18, 344–48; and Knohl, Israel, Sanctuary of Silence (Minneapolis: Fortress, 1995), 7385.

38. See Kawashima, “Jubilee Year.”

39. Shemesh discusses the phenomenon of “abduction marriage” in relation to Genesis 34 in “Rape”; her study is in large part a critical response to Fleishman, Joseph, “Shechem and Dinah, in the Light of Non- Biblical and Biblical Sources,” Zeitschrift für die Alttestamentliche Wissenschaft 116 (2004): 1232.

40. See Pressler, Family Laws, 9–15; Washington, “Lest he die in the battle,” 202–207.

41. See Frymer-Kensky, Wake, 193; Women, 123–26. It is crucial to the story's logic that Lot's daughters were virgins. Similarly in Judges 19, the Levite's companion is not a full-fledged wife but a mere concubine (pilegesh), while his host's daughter is, again, a virgin. As will become clear in the discussion of Deuteronomy 22, virgin daughters are still under the authority of their fathers; the Levite's concubine was apparently sexually available in a way a wife would not be. True, Lot's daughters may have been engaged (Genesis 19:14), but the narrative need not conform to Deuteronomic law in all details. It is also possible that Lot had more than two daughters. One can plausibly read the adjective “found” in 19:15 as a restrictive clause—“your two daughters who are found here [hannimẓa'ot]”—in which case, his sons-in-law (Genesis 19:14) were wed to other daughters not found in his house and thus no longer under his authority to take away with him.

42. Hospitality, one should add, was a cardinal virtue in this and other ancient cultures, and it is the central theme of Genesis 18–19: see Alter, Robert, “Sodom as Nexus: The Web of Design in Biblical Narrative,” in The Book and the Text, ed. Schwartz, Regina (Cambridge: Blackwell, 1990), 146–60.

43. Note that the comment that Lot was spared because “God remembered Abraham” (Genesis 19:29) may credit the uncle with the nephew's survival, but this is a later Priestly, possibly editorial (R), gloss, reacting precisely to J's unacceptably positive portrayal of Lot.

44. See Frymer-Kensky, Wake, 125.

45. Rofé, Alexander analyzes the compositional history of the “Family and Sex Laws in Deuteronomy and the Book of the Covenant,” in Deuteronomy: Issues and Interpretations (Edinburgh: T&T Clark, 2002), 169–92. His findings (if one accepts them) do not affect my arguments, however, inasmuch as I address here certain widely shared concepts such as legal status. See also Edenburg, Cynthia's arguments for the coherence of Deuteronomy 22:13–29 in “Ideology and Social Context of the Deuteronomic Women's Sex Laws (Deuteronomy 22:13–29),” Journal of Biblical Literature 128 (2009): 4360, esp. 43–48. For a comprehensive comparative analysis of “sex crimes” in the ancient Near East, see Lafont, Femmes, Droit et Justice, 29–288.

46. Berlin, Adele, “Sex and the Single Girl in Deuteronomy 22,” in Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay, ed. Fox, Nili Sacher, Glatt-Gilad, David A., and Williams, Michael J. (Winona Lake, IN: Eisenbrauns, 2009), 103; see also Tigay, Jeffrey H., Deuteronomy (Philadelphia: Jewish Publication Society, 1996), 204. It is more accurate to say, following Edenburg, that Deuteronomy 22:13–29 comprises four paragraphs arranged in “descending order” of the female's “marital status” (“Women's Sex Laws,” 44–45): married woman after consummation (13–21; 22); betrothed virgin (23–27); unbetrothed virgin (28–29)—which is compatible with the chiastic structure and underlying logic of the passage as I describe it.

47. The law does not differentiate between consummated and unconsummated marriage (engagement); thus, the young engaged virgin is already referred to as “wife” (Deuteronomy 22:24).

48. Pressler, View of Women, 37 n. 46; see also Washington, “‘Lest he die in the battle’,” 208–12.

49. Frymer-Kensky, Wake, 192.

50. The topos of the field might also imply premeditation: see, e.g., Genesis 4:8. Similar distinctions are also to be found in other legal collections: see Otto, Eckart, “Town and Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law,” Journal for the Study of the Old Testament 57 (1993): 322; Finkelstein, “Sex Offenses,” 362–64.

51. Pressler, “Sexual Violence,” 107–108.

52. The logic of Middle Assyrian Laws (MAL) tablet A, paras. 12–14 closely resembles that of Deuteronomy 22:23–27 (B and B′). If the illicit encounter takes place in the other man's house (cf. “in the town”), the wife is deemed complicitous; they are both put to death (para. 13). If it takes place in the main thoroughfare and it is a forcible encounter (cf. “in the field”), only the man is put to death (para. 12). Paragraph 14 adds a further distinction: If the illicit encounter takes place in either the thoroughfare or an inn and the wife (it is implied) is deemed complicitous, the husband determines the punishment of both parties, which shall be identical. Why does this case not require the death penalty? Paragraph 13 demonstrates that it is not because the supposed “rape” in para. 12 requires a more serious penalty. Rather, the relevant legal distinction has to do with the respective location of the two crimes in paras. 13 and 14. I suspect that the wife's entrance into the man's home (para. 13) was taken to be unequivocal evidence of a premeditated act within an ongoing relationship. The nature of a meeting in a public space (para. 14) is ambiguous; it could be interpreted as a type of “crime of passion,” a mere momentary indiscretion. It fell to the husband to decide. At any rate, in all three cases, the wife is merely a moral agent who might be guilty; she is not a legal entity who might be a victim; that privilege is reserved for the husband. The pair of cases in the Laws of Ur-Namma, paras. 6–7, which deals with the question of initiative, similarly views women as moral agents without legal status. If the “wife” (dam) of a “young man” is “deflowered” by another man, the latter is put to death (para. 6)—it does not address the wife's complicity/punishment. But if the “wife” (dam) of a “young man” initiates the sexual encounter, only she is put to death (para. 7). In either case, it is the husband who possesses legal status, he who is the victim.

53. On the elliptical nature of such laws, see Westbrook, Raymond, Studies in Biblical and Cuneiform Law (Paris: Gabalda, 1988), 6; Finkelstein, “Sex Offenses.”

54. This is Berlin's view in “Sex and the Single Girl in Deuteronomy 22,” 103. If so, one might arguably relate this case to Deuteronomy 24:1–4: If a divorced woman marries a second man whom she then divorces, she cannot return to her first husband, since this would be an “abomination” (to‘evah). That is, it is the sequence of sexual partners (A, B, A) as such that offends God, not the woman's engagement in an extramarital affair.

55. Although the man is said to “seize” (veheḥzik) the virgin before forcibly violating her in B′ (Deuteronomy 22:25–27), the similar action of “taking hold of her” (utefasah) in A′ (Deuteronomy 22:28–29) does not necessarily indicate force: see Berlin, “Sex and the Single Girl,” 104, with further references there. True, the two verbs are largely synonymous: Driver, S. R., A Critical and Exegetical Commentary on Deuteronomy, 3d ed. (Edinburgh: T&T Clark, 1902), 258. And yet, the two closest parallel examples seem to point to a difference in semantic nuance. Thus, Potiphar's wife may act as the sexual aggressor when she “takes hold” (vattitpesehu) of Joseph's clothes, but the story treats her as physically incapable of forcing the encounter, and so she must content herself with a mere proposition: “Lie with me” (Genesis 39:12). In stark contrast, when Amnon “seizes” (vayyaḥazek) Tamar (2 Samuel 13:11), the menace of the verbal root is not far off: “And he overpowered her [vayyeḥezak mimmennah]” (2 Samuel 13:14). However, since neither verb suffices to establish the presence or absence of force, one must ultimately turn to contextual arguments: the most convincing interpretation of Deuteronomy 22:13–29 and the larger legal system from which it emerges point to an opposition between these two verbs within this particular passage.

56. Contra Finkelstein's unconvincing claim: “On strictly physiological grounds, therefore, it would have been unusual for a girl in this age group to seek sexual experience on her own initiative” (“Sex Offenses,” 368).

57. The girl's complicity would seem to change the nature of her crime against her father, but the law remains silent on this matter. One should analyze A′ in relation to Deuteronomy 22:20–21, its legal complement. If the illicit sexual liaison is transformed into a legitimate marriage, her offense is neutralized; if not, she may find herself sentenced to death for her “outrage” against “her father's house”—more on which below.

58. The verb “seduce/entice” (yefatteh) need not entail the girl's complicity. The prophetic report that God wants to “entice” Ahab into a doomed battle (1 Kings 22:20) supposes that Ahab would willingly approach the battlefield, but not that he would willingly submit to defeat. Thus, Amnon's forcible violation of the unwilling Tamar is most likely covered by Exodus 22:15–16, inasmuch as he created a ruse that lured her first into his home, then into his chamber (2 Samuel 13:1–14).

59. For the same reason, one might add, B and B′ makes no distinction between the “forcible” and “statutory” violation of an engaged virgin: The crime is defined with respect to the husband, not the virgin girl.

60. For a thorough treatment of this case, see Wells, Bruce, “Sex, Lies, and Virginal Rape: The Slandered Bride and False Accusation in Deuteronomy,” Journal of Biblical Literature 124 (2005): 4172.

61. According to MAL A para. 23, if a woman is forcibly violated by a man, she must demonstrate her innocence by making the incident known as soon as she leaves the crime scene. In precisely this way, Tamar, immediately upon being cast out of Amnon's house, undertakes a ritual of public mourning: putting ashes on her head, tearing her robe, etc. (2 Samuel 13:19).

62. See MAL A para. 18: slander is similarly punished with flogging and a fine, in addition to “the king's service” and cutting off the perpetrator's hair (public humiliation).

63. See Finkelstein's scattered remarks in “Sex Offenses.”

64. While Martha Roth explicitly addresses the question of “legal personhood,” she seems to take for granted the modern concept of individual rights: see “Gender and Law: A Case Study from Ancient Mesopotamia,” in Gender and Law in the Hebrew Bible and the Ancient Near East, ed. Matthews et al., 173–84; and Mesopotamian Legal Traditions and the Laws of Hammurabi,” Chicago-Kent Law Review 13 (1995–96): 27.

65. Both Roth (Law Collections) and the Chicago Assyrian Dictionary translate this verb as “rape,” but this merely begs the questions that I have posed and attempted to answer here.

66. Cf. Frymer-Kensky's very different reading in Women, 160–69; and Lipka's in Sexual Transgression, 203–23.

67. See, e.g., Trible, Phyllis, Texts of Terror (Philadelphia: Fortress Press, 1984), 3763.

68. On the latter error, see Kawashima, Robert S., “A Revisionist Reading Revisited: On the Creation of Adam and then Eve,” Vetus Testamentum 56 (2006): 4657.

69. Collins, “Marriage, Divorce, and Family in Second Temple Judaism,” in Families in Ancient Israel, 107–22. A passage such as Laws of Hammurabi paras. 142–43 (early second millennium BCE) might seem already to grant women the right to divorce—see Westbrook, 's discussion of the overall question in Old Babylonian Marriage Law (Horn, Austria: F. Berger, 1988), 79–85—but it would be more accurate to say that it merely gives them occasional permission instead. Thus, it specifies a precise set of “marked” conditions that must be met if a woman is to be allowed to divorce her husband, if she is “circumspect” while he is “wayward and disparages her greatly.” And it vests the power to make this determination in certain “authorities.” In a telling contrast, the husband's access to divorce is best described, linguistically speaking, as the “unmarked” case: He could decide for himself and without cause, albeit not without material consequences (forfeiting the dowry, etc.)—see Westbrook, Old Babylonian Marriage Law, 69–79. Only such freedom as this is worthy of the name “right.” Note, LH paras. 142–43 would actually seem to deal with the annulment of an unconsummated or “inchoate” marriage, not divorce as such—see Westbrook, Old Babylonian Marriage Law, 14–16, 45–46; and “Adultery,” 572–73—but the distinction between permission and right remains.

70. Lacan, , The Seminar of Jacques Lacan, bk. 2, The Ego in Freud's Theory and in the Techniques of Psychoanalysis (New York: Norton, 1991), 262.

I would like to thank Laura Quilter, Stephen Russell and the anonymous reader at the AJS Review, whose astute comments helped me to improve this article. I am also grateful to the organizers and participants of the Annual Conference of the AJS (2006) and of the International Meeting of the SBL (2006), where I read it in abbreviated form. I wrote the first version of this study in the spring of 2006, while a Dorot assistant professor and faculty fellow in New York University's Skirball Department of Hebrew and Judaic Studies, and it was there that I first presented the ideas developed more fully here; on that occasion, Mark Smith in particular provided generous encouragement and feedback. In appreciation of the three years I spent at Washington Square Park, I dedicate this article to that wonderful department and to my friends and colleagues there.

Could a Woman Say “No” in Biblical Israel? On the Genealogy of Legal Status in Biblical Law and Literature

  • Robert S. Kawashima (a1)


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